text:
    Willie WEBB v. STATE.
    4 Div. 272.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 24, 1984 Alabama Supreme Court 83-1146.

      Larry R. Grissett, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and Susan McKinney, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

Willie Webb was indicted and convicted for rape in the first degree and sexual abuse in the first degree. Sentence was twenty-five years’ imprisonment. Four issues are raised on appeal from that conviction.

I

The trial judge properly refused to allow defense counsel to establish the victim’s sexual history.

The thirteen-year-old victim testified that in July of 1982, just after she had turned twelve, Webb threw her on the bed, removed her clothes, and had sexual intercourse with her. She stated that was the only time that sexual intercourse was involved but that he “played with her vagina * * * most every Saturday” from July of 1982 until May of 1983 when her mother went into the hospital.

On cross examination she testified that James Mills had also “messed” with her more than four times when her mother was living with him in 1981.

Social worker Paulette Green was employed by the Department of Pensions and Security. She investigated the victim’s complaint. On cross examination, the following occurred:

“Q. Amy did your investigation reveal that Angie had been molested before this?
“THE COURT: I believe that is pretty well in evidence.
“MR. LOGGINS (Prosecutor): We object.
“THE COURT: I sustain the objection to that, it has got nothing to do with this. “Q. Did Angie ever state to you that she had
“MR. LOGGINS: Object, Your Honor. “THE COURT: I am going to sustain the objection.”

Defense counsel introduced a doctor’s report wherein “the doctor stated that he believed that the hymen has been broken but could not tell for sure.”

The admission of evidence relating to the past sexual behavior of the prosecutrix which does not directly involve the participation of the accused is prohibited by Alabama Code § 12-21-203 (1975). Complaints by the prosecutrix of other rapes committed by third persons not a part of the res gestae are immaterial and irrelevant. Smiley v. State, 435 So.2d 202, 206-07 (Ala.Crim.App.1983); Hollis v. State, 380 So.2d 409, 411 (Ala.Crim.App.1980); Jackson v. State, 375 So.2d 1271,1273 (Ala. Crim.App.), cert. denied, Ex parte Jackson, 375 So.2d 1274 (Ala.1979).

II

Webb maintains that the trial judge improperly limited his constitutional right to cross examine the prosecutrix.

The State’s case consisted of the testimony of the prosecutrix and social worker Green. After cross examining the prosecu-trix, defense counsel did not reserve any “right” to recall the witness for further cross examination. After the State rested its case, Webb attempted to “recall” the prosecutrix as his first witness. The trial judge denied the request.

“MR. GRISSETT (Defense Counsel): Judge, we would submit for the record that we have a chance to ask her a few more questions. We submit the evidence was vague as to what time she was talking about.
“THE COURT: She has been on cross-examination, unless anything else comes up that would be different, I would not permit you to recall her for further cross-examination, this minor witness.”

A review of the trial transcript reveals that the victim was not “vague as to what time she was talking about.”

Webb’s objection at trial and his argument on appeal make it clear that he intended to call the prosecutrix for further cross examination and not as his own witness. When Webb attempted to recall the prosecutrix, the prosecutor objected because “she has already been under an hour or more testimony.” Defense counsel’s cross examination of the prosecutrix was interrupted on two occasions to allow the victim a brief recess.

“A trial court has discretion to allow or disallow a witness to be recalled for further cross examination.” Baxter v. State, 360 So.2d 64, 66 (Ala.Crim.App. 1978). “Trial judges have unlimited discretion to cut off questions on cross examination which are repetitious, concern wholly collateral matters, are irrelevant, or are harassing, annoying, or humiliating.” Atwell v. State, 354 So.2d 30, 39 (Ala.Crim. App.1977), cert. denied, Ex parte Atwell, 354 So.2d 39 (Ala.1978). The record does not reflect any abuse of discretion by the trial judge. “A trial court should not allow a state witness to be ‘recalled’ by the defense during its case-in-chief for purposes of further cross-examination and impeachment on matters to which the witness had previously testified.” Walker v. State, 416 So.2d 1083, 1091 (Ala.Crim.App.1982).

Ill

Webb contends that the trial judge improperly allowed the State to recall the prosecutrix for its case in rebuttal and solicit responses which were not in rebuttal of the defendant’s evidence. When the State announced that it was going to call the prosecutrix in rebuttal, defense counsel objected and specifically requested the trial judge “to specifically limit him to Rebuttal because of their refusal for letting us recall her.”

“Q. (Prosecutor Loggins): And you were interviewed in the Sheriff’s Office and Bill Shaw was present, is that correct?
“A. Yes, Sir.
“Q. And in that did you tell him that you were raped three or four different times?
“MR. GRISSETT: We object to that it is already in evidence.
“THE COURT: Overrule.
“MR. GRISSETT: That is not rebuttal. “THE COURT: You may answer the question.”

The State’s question was in fact in rebuttal of the testimony of defense witness Bill Shaw, who stated that the prosecutrix told him that “it happened several times, this sexual abuse had.” Webb testified that he “did not touch her anywhere” and never engaged in sexual intercourse with her. The prosecutrix’s mother testified as a defense witness and stated that in 1982 her daughter had accused Mills of “messing with her.”

The allowance of this rebuttal testimony was within the discretion of the trial judge. “[I]t is elementary that the State may examine a prosecuting witness as to facts tending to rebut the defendant’s testimony, or reasonable tendencies thereof.” Logan v. State, 291 Ala. 497, 501, 282 So.2d 898 (1973). Moreover, “[t]he order of proof and rebuttal testimony rest largely in the sound discretion of the trial court, and this rule applies to testimony which more properly should have been offered as part of the case in chief.” McBryar v. State, 368 So.2d 568, 575 (Ala.Crim.App.), cert. denied, Ex parte McBryar, 368 So.2d 575 (Ala.1979).

IV

Webb’s last argument is that the trial judge should have granted his motion for new trial. We have already answered ground one of that motion in section II of this opinion.

Contrary to Webb’s assertions, the State did prove penetration. The prose-cutrix’s testimony on this issue is so clear that we need not set it out in detail. Penetration “need not be proved in any particular form of words.” Beckley v. State, 353 So.2d 542, 544 (Ala.Crim.App.1977); Smith v. State, 368 So.2d 298, 304 (Ala.Crim.App. 1978), cert. denied, 368 So.2d 305 (Ala. 1979). The fact that the examining physician, a defense witness, testified that he could not determine whether or not the prosecutrix had engaged in sexual intercourse merely presented an issue of conflicting evidence and a question for the jury.

The third ground of the motion for new trial was that the State failed to prove that the defendant was over sixteen years of age. This argument is without merit.

Webb was indicted under Alabama Code § 13A-6-61(a)(l) which provides that “[a] male commits the crime of rape in the first degree if: (1) He engages in sexual intercourse with a female by forcible compulsion.” (Emphasis added.) This subsection contains no age requirement for either the defendant or the victim. In contrast, § 13A-6-61(a)(3) defines another type of rape in the first degree where a male “being 16 years or older, engages in sexual intercourse with a female who is less than 12 years old.” The State proved that the prosecutrix was over twelve years of age, and that the offense occurred before the indictment. The jury was not instructed on “statutory rape”. Whether the defendant was over the age of sixteen had absolutely nothing to do with this case.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: BOWEN, Presiding Judge.

license: Public Domain

text:
    Ronnie Terry NORRIS v. STATE.
    4 Div. 281.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 24, 1984 Alabama Supreme Court 83-1121.

      J. Allen Cook, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and Susan McKinney, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

Ronnie Terry Norris, the appellant, was indicted and convicted for the unlawful possession of marijuana. Sentence was six years’ imprisonment. Two issues are presented on appeal.

I

Norris argues that there was no evidence of criminal intent because he was totally ignorant of the fact that the stalks of green plant material in the back seat of his Volkswagon were marijuana. Since there was no motion to exclude the State’s evidence at the close of the State’s evidence, we may consider all the evidence presented at trial in determining this issue. Hinds v. State, 423 So.2d 1382, 1385 (Ala.Crim.App.1982).

When Norris was stopped by a Cov-ington County Deputy Sheriff there were thirteen full length stalks of marijuana in the back seat of his automobile. These stalks could be observed through the windows. When stopped, Norris met the deputy at the rear of his car, “turned around and pointed to the rear windshield of his car and said that is not my dope, I just found it.” When he was arrested a “large lump” or “handful” of marijuana was found in his pocket. This evidence was presented by the State and it was sufficient, in and of itself, to present prima facie evidence of intent. Norris’ statement “that is not my dope” supports a rational inference that he knew the stalks were marijuana. Roberts v. State, 349 So.2d 89 (Ala.Crim.App.), cert. denied, Ex parte Roberts, 349 So.2d 94 (Ala.1977). Cf. Campbell v. State, 439 So.2d 723 (Ala.1983). Also, the fact that marijuana was found in Norris’ pocket places it of necessity within his domination or physical control and “raises a presumption that he placed the substance there and that he knew what it was.” Chatom v. State, 360 So.2d 1068, 1073 (Ala.Crim.App.), cert. denied, Ex parte Chatom, 360 So.2d 1074 (Ala.1978).

In his defense, Norris testified that he was doing “road work” and cutting bushes for the county when he discovered “these tall plants.” He broke the top out of one, took it back to the “shop”, and “asked some people at the shop about it and all, and they said yes —.” Norris then drove back to the area where he discovered the plants, pulled up thirteen plants, and placed them in his car “(t)o cheek it out and see what it was. Ask some people what it was.”

-Under these facts and circumstances, the issue of Norris’ knowledge that the plants were actually marijuana was a jury question.

II

Norris argues that “any kind of felony sentence would be excessive here since there was no way to tell whether this particular custodian was going to smoke up these 13 stalks or just what.” “In Alabama, in a prosecution for illegal possession of marijuana, there is a presumption that the possession is for other than personal use. The showing of possession for personal use is a defensive matter and the burden of proving this matter is upon the defendant.” Barnett v. State, 373 So.2d 1226, 1227 (Ala.Crim.App.), cert. denied, 373 So.2d 1230 (Ala.1979).

Here, the marijuana found in Norris’ pocket weighed 2.7 grams. Just the leaves that were stripped from the thirteen stalks weighed 2.67 pounds. Norris could have been prosecuted for trafficking in marijuana and, on conviction, been sentenced to “a mandatory minimum term of imprisonment of three calendar years and to pay a fine of $25,000.00.” Alabama Code § 20-2-80(l)(a) (1975).

Additionally, Norris was sentenced as an habitual offender with one prior conviction and was subject to a term of imprisonment of not more than twenty years nor less than two years. Alabama Code § 13A-5-6(a)(2); § 13A-5-9(a)(l) (1975). See Peoples v. State, 415 So.2d 1230 (Ala.Crim. App.1982). The sentence in this case does not violate the principles of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Jerry Wayne BOGGAN v. STATE.
    6 Div. 32.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 24, 1984 Alabama Supreme Court 83-1136.

      George W. Andrews III, Birmingham, and Dan C. King, III, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Jerry Wayne Boggan was indicted for feloniously taking $1,232.05, the personal property of Penny Williams, from her person and against her will, by violence or threat of violence, and in the course of committing such robbery, intentionally killing Penny Williams by smothering her with his hand or by beating on her head with a blunt instrument, in violation of § 13A-5-31(a)(2), Code of Alabama 1975. The jury found the appellant “guilty of the capital offense as charged in the indictment” and the appellant was sentenced to life imprisonment without parole.

Woodrow Foster testified that in 1978 he lived in a trailer which was located in Penny Williams’ yard on Carver Avenue. He stated that the appellant lived down the street. He said that on September 12, 1978, he got off work at 3:30 p.m. and went home. He said that when he arrived home he saw “Aunt Penny” sitting on her front porch and the appellant was down the street sitting on his mother’s front porch. He said that he fixed supper and went to visit a friend. He said that as he was leaving his trailer he saw the appellant at “Aunt Penny’s.”

Mr. Foster further testified that when he returned he stopped at Ms. Williams’ home to check on her. He said he knocked on her door but no one answered. He stated that he entered the home, saw a light on in the kitchen and looked around in the kitchen. He stated that when he did not see “Aunt Penny” in the kitchen he left and went to Annie Fox’s home. He said that Ms. Fox was “Aunt Penny’s” niece. He said that he told Ms. Fox he did not see anyone at “Aunt Penny’s” house and asked her to go hack with him. He said they went in “Aunt Penny’s” home, looked around, went to her bedroom and turned on the light. He said “Aunt Penny” was on the floor between the bed and the wall and that she seemed to be dead.

Mr. Foster testified that “Aunt Penny’s” home had a front and back door, but the back door was nailed closed and could not be used. He further stated that “Aunt Penny” always carried a pistol and then identified the gun in evidence as her pistol. He said that she kept money in a metal box in her closet. He stated that when they found “Aunt Penny” the closet where she kept her money was open, and the contents of the closet were scattered on the floor of the room.

Jay Glass testified that he was a coroner employed by the Jefferson County Coroner-Medical Examiner’s Office. He stated that he assisted in the autopsy of Penny Williams. He stated that there were multiple lacerations of the scalp and face — at least eight, and there were multiple bruises and abrasions. He stated there were skull fractures beneath two of the lacerations. He testified that the lacerations could have been caused by being struck with a pistol and that the cause of death was asphyxia combined with blunt force injuries.

John Henry Bester testified that he was driving home from work at approximately 9:15 p.m. on September 12, 1978, when he was flagged down by a man walking along the side of the road. He identified the appellant as the man who flagged him down. He stated that he was approximately one and one-half mile from Carver Avenue. He said that the appellant offered him twenty dollars to give him a ride to Bessemer, Alabama. He said that he refused to give the appellant a ride and that the appellant then offered him twenty dollars more, which he again refused. He said that the appellant dropped a money bag full of change on the ground beside the car and some of the change spilled out of the bag. He stated that the appellant then told him he needed to get away because he had just robbed someone. Mr. Bester identified a money bag' as the one that the appellant had dropped and stated that he helped the appellant pick up the change.

Mr. Bester testified that the appellant saw a police car driving towards them and that the appellant took a gun from the front of his pants and threw it under the car. He stated that the police drove up and asked the appellant where he got all of the money and that the appellant stated he won the money playing “skins.” He testified that the appellant was intoxicated. He stated that the police started to drive away, then stopped their car and told them to put their hands on the car. He stated that the police picked the gun up, then searched them. He stated that the police found more money on the appellant and took both men to jail. He stated that while in the jail the appellant told him that he (appellant) would tell the police that Bester had nothing to do with his act.

Lester Sherrod testified that in 1978 he was the dispatcher for the Brownville Police Department. He stated that on the night of September 12, 1978, Officer Horton and Officer Proveaux brought two men into the jail. He stated that they gave him a pistol to keep and identified the pistol in evidence as the one he was given by the officers. He stated that he placed the pistol in his desk drawer, kept it about an hour, then turned it over to Officer Todd of the Birmingham Police Department. He further stated that, from the time he received the pistol until he turned it over to Officer Todd, no one had access to the pistol.

John Sturgeon testified that he was Penny Williams’ nephew. He stated that he went into “Aunt Penny’s” house along with Mr. Foster and Ms. Fox and that they found “Aunt Penny” dead in her bedroom. He said that he knew “Aunt Penny” kept money in her home and that she kept the money in a metal box. He further testified that about one week after “Aunt Penny’s” death he found the metal box in a field beside the Health Center. He stated that he called the police and when they arrived he took them to the box. He stated that the police picked up .the box and took it with them. He stated that normally the box had a lock on it, but when he found the box the lock was missing.

Mr. Sturgeon testified that he saw the appellant at “Aunt Penny’s” home on September 12, 1978. He also said that the appellant knew where “Aunt Penny” kept her money. He further stated that “Aunt Penny” owned a pistol and identified the pistol in evidence as her pistol.

Annie Fox testified that she was Penny Williams’ niece and lived down the street from “Aunt Penny.” She stated that “Aunt Penny’s” house had a front and back door but the back door had been nailed closed for years.

Ms. Fox testified that “Aunt Penny” kept money in a metal box, and this box was inside her closet. She stated that “Aunt Penny” stored her coin money in a money bag, which was inside the metal box. She identified the money bag, which was found in the appellant’s possession at the time of his arrest, as the one in which “Aunt Penny” kept her change. When questioned as to how she could be sure this money bag was “Aunt Penny’s,” Ms. Fox stated that she counted the money for “Aunt Penny” and wrote the amount on the outside of the bag. She further stated that “Aunt Penny” had $389.80 in change and $1,500 in paper money, and this money was stored inside a metal box with a lock on it.

Ms. Fox testified that “Aunt Penny” always carried a pistol and identified the pistol in evidence as “Aunt Penny’s.” She stated that on September 12, 1978, the appellant was living with “Aunt Penny” and that she had seen him at “Aunt Penny’s” house that day. She stated that during the night of September 12, 1978, Mr. Foster came to her house and they went to check on “Aunt Penny.” She stated that they found “Aunt Penny” dead in her bedroom. Ms. Fox further testified that the closet was open and “Aunt Penny’s” money box was missing, and that the drawers from “Aunt Penny’s” chifforobe had been pulled out and emptied. She also said that the appellant knew “Aunt Penny” kept money in her house.

Hugh Thomas Yester testified that in 1978 he was an evidence technician employed by the Birmingham Police Department. He stated that he took a number of photographs of Penny Williams’ home. These photographs included one of the back door of the house and Mr. Yester testified that there were cobwebs around the bottom of that door.

Clay Horton testified that in 1978 he was employed as a police officer in the Brown-ville Police Department. He stated that he was the officer who arrested the appellant on September 12, 1978. He stated that on that night he and his partner were on patrol when at approximately 10:00 p.m. they spotted a car parked on the side of the road. He stated that one man was sitting in the car and the appellant was standing beside the car on the drivers’ side of the vehicle. He stated that when he first noticed the men, the appellant was kneeling beside the car. He said that he pulled up beside the stopped car and asked if there was a problem. He said the appellant told him he was picking up some change he had dropped on the street. Officer Horton stated that the appellant said he won the money playing “skins.” He stated that he noticed a bank bag, which contained a large amount of change, in the appellant's hand. He identified the money bag in evidence as the one the appellant was holding that night.

Officer Horton testified that as he was leaving he noticed a pistol lying under a back tire of the car. He identified the pistol in evidence as the weapon he saw. He stated that the appellant claimed ownership of the pistol and at this point both men were “patted down.” He stated that he found a large lump in the appellant’s front pocket which turned out to be a roll of money. Officer Horton testified that the men were then placed in the patrol car and while transporting them to the Brownville Police Station he received a radio broadcast that there had been a shooting on Carver Avenue.

Officer Horton testified that upon arriving at the police station, he locked the money in his locker and turned the gun over to Lester Sherrod. He stated he later turned the money and the bag full of change over to R.K. Crocker.

Donnie Todd testified that he was employed as an evidence technician by the Birmingham Police Department. He stated that on September 12, 1978, he saw a black male at the Brownville Police Station, and this black male was identified to him as Jerry Wayne Boggan. He stated that he took photographs of the appellant, including photographs of apparent blood stains on the appellant’s arms and clothes.

Officer Todd testified that he collected swabbings from the appellant, which he turned over to Chip Walls at the State Department of Forensic Sciences. He stated that he also turned over the shirt the appellant was wearing on September 12, at the same time he turned over the swab-bings. He further stated that he took the pistol into his possession, collected scrapings of dried blood from it, and turned these scrapings over to the State Department of Forensic Sciences.

R.K. Crocker testified that he was employed as an evidence technician by the Birmingham Police Department. He stated that he took photographs at the scene of Penny Williams’ death. He stated that there appeared to be a gunshot into the bed. He further stated that no iron poker was found at the scene.

Rodger Morrison testified that he was employed by the Alabama Department of Forensic Sciences as a forensic serologist. He testified to the results of blood sample tests he made. He stated that blood on the appellant’s shirt was the same blood type as Penny Williams, as were the scrapings from the gun.

Sergeant James Gay testified that he was employed by the Birmingham Police Department and that he was the chief investigator in Penny Williams’ homicide. He stated that on September 12, 1978, at approximately 10:25 p.m., he went to the home of Penny Williams. He stated that he subsequently went to the Brownville Police Station where he saw the appellant and observed what appeared to be blood stains on the appellant’s arms. He stated that he asked the appellant his name, date of birth, and address and the appellant replied that he was staying with “Aunt Penny.”

Sergeant Gay testified that when the appellant was being transported to the Birmingham City Jail, he motioned for Sergeant Gay and told him there were too many people at the Brownville Jail, but if he would come to the City Jail he would tell him who killed “Aunt Penny.”

Sergeant Gay testified that on September 13, 1978, at 11:08 a.m., he conducted an interview with the appellant at the Birmingham City Jail. He stated that he identified himself and told the appellant that he was a suspect in “Aunt Penny’s” death. He stated that the appellant was not threatened or offered any promises of reward. He stated that the appellant was advised of his Miranda rights and that the appellant stated he understood those rights and would talk to him. He testified that the appellant then gave a statement to him. Sergeant Gay stated that the appellant said he had been staying with “Aunt Penny” for one week and that she was old and sick. The appellant also told him that he had not seen “Aunt Penny” since noon on September 12, 1978, and at that time she was on her front porch. Sergeant Gay further stated that the appellant told him he had gone to “Aunt Penny’s” around 3:00 p.m., but she was not home and the door was locked. He stated that the appellant said he was not at “Aunt Penny’s” after 3:00 p.m. that day. The appellant also told Sergeant Gay that it was common knowledge “Aunt Penny” kept money in her house, but he did not know where she kept her money. The appellant told Sergeant Gay in this statement that he was walking to Hillman when a man stopped and asked him for a cigarette. The appellant stated they were talking when the police arrived. He further told Sergeant Gay that he never asked this man to give him a ride, and he had no money with him at the time. The appellant also denied seeing a pistol the night before and telling the police it was his pistol.

Sergeant Gay testified that he took another statement from the appellant at 4:45 p.m. on September 14, 1978. • He stated that the appellant was not threatened or offered any promise of reward, he was advised of his Miranda rights which he stated he understood, and he agreed to talk to Sergeant Gay. In this statement the appellant told Sergeant Gay that on the night in question he had been drinking beer and whiskey. He went to “Aunt Penny’s” house and knocked twice, but nobody answered. He said he heard the back door open and then close, so he knocked again. He stated he then discovered the door unlocked and went inside. He said that once he was inside he saw money all over the floor, along with a “poke iron.” He said “Aunt Penny’s” gun was on the bed and he thought she must have gone outside so he went to the back door, which was open. He said he was coming back through the house when he saw her on the floor behind the bed. He said he was scared so he just got the money and the gun and ran. The appellant further said he was walking over “Hillman hill” and flagged down a man and offered him twenty dollars to take him to

Bessemer. He said he saw the police coming so he put the gun on the ground and dropped the money.

The state then rested its case.

Jerry Wayne Boggan testified in his own behalf. He stated that on September 12, 1978, he was living with “Aunt Penny.” He stated that he arrived home that night at approximately 9:00 p.m. after drinking beer and smoking “reefer” all day. He said that he drank about nine beers and smoked around ten joints over the course of that day. He said that when he arrived home “Aunt Penny” asked him for a cigarette, which he gave her, and then he lay down on the couch. He said that “Aunt Penny” came out of the kitchen “hollering” that someone had put snakes in her refrigerator. He said she was standing in the doorway to her bedroom and asked him who put the snakes in her refrigerator. He said that he started laughing and “Aunt Penny” reached in her pocket and pulled out her gun. He said he grabbed a piece of iron and “told her to get back.”

The appellant further testified that “Aunt Penny” started toward him with the gun, grabbed him, and they fell on the bed. He stated that as they were struggling the gun went off right by his head. He said he started hitting her with the piece of iron to get her off of him. He said he then put his hand over her mouth to quiet her down and she stopped moving. He stated that he tried to pull her all the way onto the bed so he could see what was wrong with her, but she slipped to the floor. He stated that he felt her heart and it had stopped beating. He said at that time he did not think anyone would believe what had happened, so he went through the house looking for her money, and when he found it he took the money and the gun and left.

The appellant testified that he beat the lock off of the metal box with a gun, took the money out, and then threw the box away. He stated that he saw a car, flagged it down, and asked for a ride to Bessemer. He said he was asking for a ride when he dropped the money beside the car. He said that he was picking up the money when the police drove up and asked him where he got that money. He said that he told the police he won the money playing “skins.” The appellant then testified that the police started to drive away, then stopped and took him and the driver of the car into custody. He stated that he did not tell the police the truth because he was afraid that no one would believe his story.

I

(A)

The appellant contends that the trial court erred in denying his motion to suppress evidence allegedly obtained as a result of an illegal search and seizure. He specifically argues that the Brownville Police officers had no probable cause to search him.

Section 15-5-30, Code of Alabama 1975, authorizes any law enforcement officer to “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 ...”. Such a stop by a police officer is “permissible where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Butler v. State, 380 So.2d 381 (Ala. Crim.App.1980). Furthermore, “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.” Rudolph v. State, 371 So.2d 962 (Ala.Crim.App.), cert. denied, 371 So.2d 965 (Ala.1979); Moore v. State, 415 So.2d 1210 (Ala.Crim.App.1982); Sterling v. State, 421 So.2d 1375 (Ala.Crim.App.1982).

In this case the officers had observed the appellant beside a car parked on the side of the road at ten o’clock at night. He was bending over picking up money and had a money bag under his arm. The appellant stated he won the money in a card game. The officers were leaving when they observed a pistol on the ground beside the rear tire. Upon seeing the pistol on the ground and the appellant with a large sum of money in a money bag, the officers had reasonable cause to investigate further and to that end seize the men and conduct a search for more weapons. Moreover, upon hearing the radio dispatch that there had been a shooting on Carver Avenue, only a few blocks from where the appellant was observed, the officers had greater reason to take the men to the station for further investigation. Therefore, the money found on the appellant, along with the pistol, was not obtained in an illegal search and seizure. The officers had sufficient probable cause. See Preyer v. State, 369 So.2d 901 (Ala.Crim.App. 1979); Butler v. State, supra; Tice v. State, 386 So.2d 1180 (Ala.Crim.App.), cert. denied, 386 So.2d 1187 (Ala.1980); Dolvin v. State, 391 So.2d 666 (Ala.Crim.App. 1979), affirmed, 391 So.2d 677 (Ala.1980); Johnson v. State, 406 So.2d 446 (Ala.Crim. App.1981).

(B)

The appellant argues further that swab-bings of blood-stains on his forearms and his blood-stained clothing were improperly obtained as a result of an illegal search.

One of the recognized exceptions for the requirement of a search warrant is a search incident to a lawful arrest. McClellan v. State, 415 So.2d 1238 (Ala. Crim.App.1982). Furthermore, this court has held on numerous occasions that, when a suspect has been validly arrested, the seizure of physical evidence from the person is legally obtained. Sellers v. State, 48 Ala.App. 178, 263 So.2d 156 (Ala.Crim.App. 1972); Thomas v. State, 50 Ala.App. 227, 278 So.2d 230 (Ala.Crim.App.1973); Turk v. State, 53 Ala.App. 106, 298 So.2d 37 (Ala. Crim.App.1974); Lackey v. State, 54 Ala. App. 693, 312 So.2d 96 (Ala.Crim.App.1975); Mauldin v. State, 402 So.2d 1106 (Ala. Crim.App.1981). The obtaining of physical evidence in this case was more than justified as being incident to a lawful arrest based upon probable cause that a murder had been committed.

II

The appellant contends that the trial court committed reversible error by allowing into evidence four statements that he made to police officers.

(A)

The appellant argues that admission of his statement to Officer Horton that he owned the gun found under the car was reversible error because he was not advised of his rights as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In order to deem a pre-arrest statement inadmissible we must determine whether the challenged statement was made pursuant to a custodial interrogation or custodial setting. A custodial interrogation has been defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any way.” Miranda v. Arizona, supra; Oregon v. Mathiason 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). However, the procedural safeguards outlined in Miranda do not apply to “traditional investigatory functions (such) as general on-the-scene questioning.” United States v. Montos, 421 F.2d 215 (5th Cir.1970), cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970); Hall v. State, 399 So.2d 348 (Ala. Crim.App.1981). The facts of each case must be examined in order to determine whether the defendant was questioned merely as part of a general investigation or was subjected to a custodial interrogation. See Cork v. State, 433 So.2d 959 (Ala.Crim. App.1983); Hall v. State, supra.

In the present case, Officer Horton merely asked who owned the gun which was found on the ground under the car. The appellant answered that he owned the gun after some hesitation. It was after this that the men were frisked and taken into custody. Such a question by Officer Horton must be viewed as general on-the-scene questioning in light of the circumstances. There was no violation of the appellant’s rights and the trial court properly admitted the appellant’s statement into evidence.

(B)

The appellant argues that a statement he made at the police station was inadmissible because he was highly intoxicated and unable to exercise a knowing and intelligent waiver of his rights.

The facts have shown that on September 13, 1978, the appellant made the following statement, to Sergeant Gay, as he was being escorted out of the Brownville Police Station to be transported to the Birmingham City Jail: “There’s too many people here for me to talk to you, but you come over to the City Jail and I’ll tell you who killed Aunt Penny.” (R. 339-355) The testimony further shows that the appellant was intoxicated and that at the time of making this statement the appellant called Sergeant Gay over to him to make his statement.

This court has held many times that in order for intoxication to render a confession inadmissible it must amount to a “mania” which impairs the will and mind to the extent that the person confessing is unconscious of the meaning of his words. A lesser state of intoxication will not render a confession inadmissible. Willis v. State, 342 So.2d 802 (Ala.Crim.App.1976); Tice v. State, 386 So.2d 1180 (Ala.Crim. App.1980); Palmer v. State, 401 So.2d 266 (Ala.Crim.App.1981). In the present case it was not demonstrated that the appellant was so highly intoxicated as to be at a point of “mania.”

Moreover, a voluntary, spontaneous statement made by a defendant to police officers, not prompted by police questioning, is admissible against the defendant even though he has not been given his Miranda warnings. Terry v. State, 397 So.2d 217 (Ala.Crim.App.), cert. denied, 397 So.2d 223 (Ala.1981); Ervin v. State, 399 So.2d 894 (Ala.Crim.App.), cert. denied, 399 So.2d 899 (Ala.1981); Jelks v. State, 411 So.2d 844 (Ala.Crim.App.1981). The appellant’s statement to Sergeant Gay was spontaneous, voluntary and not prompted by questioning. A careful review of the circumstances surrounding the statement reveals that the trial court did not err in admitting such statement.

(C)

The appellant also argues that the statement he made on September 13, 1978, at approximately 11:00 a.m. should not have been admitted into evidence because of his state of intoxication and that he could not make a knowing and voluntary waiver of those rights.

The appellant’s argument that he was too intoxicated to make a knowing and intelligent waiver of his rights at 11:00 a.m. on September 13, 1978, is wholly without merit. This statement was not given until more than twelve hours had passed from the time the appellant was initially detained. The record shows that the appellant was coherent and fully aware of the situation at this time. See Tice v. State, supra; Hollis v. State, 399 So.2d 935 (Ala. Crim.App.1981); Palmer v. State, supra.

His argument that his statement was not voluntary is likewise without merit. The State must show voluntariness and a Miranda predicate in order for a statement to be deemed admissible. Thomas v. State, 373 So.2d 1149 (Ala.Crim.App.), affirmed, 373 So.2d 1167 (Ala.1979). The prosecution brought forth testimony which properly showed that the appellant was advised of his Miranda rights, that he had not been threatened, coerced or promised any reward for making a statement, and that he freely and voluntarily waived his rights. It is the province of the trial judge to first determine the voluntariness of a statement in a voir dire examination outside the presence of the jury, and unless there is clear abuse this decision will not be overturned. Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965); Shewey v. State, 48 Ala.App. 730, 267 So.2d 520 (Ala.Crim. App.1972); Bills v. State, 49 Ala.App. 726, 275 So.2d 706 (Ala.Crim.App.1973); Hardy v. State, 409 So.2d 996 (Ala.Crim.App. 1982); Shorts v. State, 412 So.2d 830 (Ala. Crim.App.1981); Snider v. State, 422 So.2d 807 (Ala.Crim.App.1982). We are of the opinion that the trial judge’s conclusion that the statement was voluntary was adequately supported by the facts, and that the trial judge properly admitted the statement into evidence.

(D)

The appellant contends that since the statements of September 13,1978, were not admissible, the statement he gave on September 14, 1978, was not admissible as a direct product of the earlier statements. “Though it may be proper to exclude any confession (or statement) made after an involuntary one on the basis that the later confession (or statement) flows from the same improper influence or inducement as the earlier one, once it is shown that the improper influence or inducement has been dispelled, there is no reason not to admit the subsequent confession (or statement)”. Levison v. State, 54 Ala. 520 (1875); Hollis v. State, supra. The statements of September 13, 1978, were properly admitted, as was the statement of September 14, 1978. It was shown to be freely and voluntarily given, after a knowing and intelligent waiver of the appellant’s rights.

Ill

The appellant alleges reversible error was committed when the prosecution commented, during closing arguments, on the possibility of the sentence of life without parole being changed someday in the future.

During the appellant’s attorney’s closing argument he stated: (R. 434-435)

“The punishment, as you have been told, for capital murder is life without parole. And the courts have said that clearly means, that he will be imprisoned — he was 22; he’s 26 now — that he will be in prison when he is 60 years old for the acts of one night of his life.”

On rebuttal, the State made the following comments: (R. 439)

“Life without parole today is life without parole, but we never know whether the law could change in ten years or twenty years.
“MR. ANDREWS: I object to that Judge.
“MR. GOMANY: He went into all that, Judge.
“THE COURT: I’m going to overrule your objection.”

This court has held on many occasions that in order to determine whether the above statement of the prosecutor was improper, “it must be examined in its context and in light of what had transpired, that is, in light of preceding argument of defense counsel, to which the prosecutor’s argument was an answer.” Washington v. State, 259 Ala, 104, 65 So.2d 704 (1953); Gibson v. State, 347 So.2d 576 (Ala.Crim. App.1977); Rutledge v. State, [Ms. 5 Div. 610, August 16, 1983] (Ala.Crim.App.1983). The rule in Alabama is that remarks or comments of the prosecuting attorney, including those which might or would otherwise be improper, are not grounds for reversal when they are invited,- provoked, or occasioned by accused’s counsel and are in reply to or retaliation for his acts and statements. Shewbart v. State, 33 Ala.App. 195, 32 So.2d 241, cert. denied, 249 Ala. 572, 32 So.2d 244 (1947); Camper v. State, 384 So.2d 637 (Ala.Crim.App.1980); Wilder v. State, 401 So.2d 151 (Ala.Crim.App.), cert. denied, 401 So.2d 167 (Ala.1981), cert. denied, 454 U.S. 1057, 102 S.Ct. 606, 70 L.Ed.2d 595 (1981); Miller v. State, 431 So.2d 586 (Ala.Crim.App.1983); Rutledge v. State, supra.

This record reflects that the prosecutor’s argument was merely a reply in kind to the appellant’s counsel’s argument concerning punishment. Therefore, the prosecutor’s argument was not improper.

IV

The appellant argues that the trial court erred to reversal in admitting a rare coin recovered from the appellant’s pants while he was in the Brownville Police Station.

The prosecution contends that this coin was admissible as part of the res gestae of the crime for which the appellant was on trial. Whether evidence should be admitted as part of the res gestae must be determined from the particular facts of the case and character of the crime. Pugh v. State, 30 Ala.App. 572, 10 So.2d 833 (1942); Lang v. State, 40 Ala.App. 705, 122 So.2d 526, reversed, 271 Ala. 1, 122 So.2d 533 (1960); Price v. State, 41 Ala.App. 239, 128 So.2d 109 (1961); Johnson v. State, 335 So.2d 663 (Ala.Crim.App.), cert. denied, 335 So.2d 678 (Ala.1976), cert. denied, 429 U.S. 1026, 97 S.Ct. 649, 50 L.Ed.2d 629 (1976).

The evidence shows that the appellant was found with a money bag full of coins, and these coins were the property of Penny Williams. There was testimony at trial that “Aunt Penny” had many very old, rare coins in her savings. A rare coin was discovered when it fell from the appellant’s pants pocket at the Brownville Police Station. Therefore, the coin was relevant as part of the res gestae and the trial court was not in error. See Roynica v. State, 54 Ala.App. 436, 309 So.2d 475 (Ala.Crim. App.), cert. denied, 293 Ala. 772, 309 So.2d 485 (Ala.1975), cert. denied, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 85 (1975); Burlison v. State, 369 So.2d 844 (Ala.Crim.App.), cert. denied, 369 So.2d 854 (Ala.1979); Lofton v. State, 371 So.2d 988 (Ala.Crim.App. 1979); Allen v. State, 382 So.2d 1147 (Ala. Crim.App.), cert. denied, 382 So.2d 1158 (Ala.1980).

V

The appellant contends that the trial court committed reversible error in allowing testimony about the results of a blood and chemical analysis of a shirt the appellant wore on the night of Penny Williams’ death. He argues that a proper chain of custody had not been shown by the State. Such testimony revealed that blood stains on the appellant’s shirt were of the same type as the victim.

Officer Donnie Todd testified that the shirt was in the same condition when he turned it over to the Alabama Department of Forensic Sciences as it was when he collected it the night the appellant was arrested. He stated that the shirt was sealed in a paper bag and placed in his locker. He further stated that when he took it to the Department of Forensic Sciences, the seal on the bag had not been tampered with or broken. He stated that he turned the evidence over to Chip Walls. He was shown a photograph of the appellant, which was taken on the night of his arrest, and he said that the shirt shown in the photograph was the one he turned over to Chip Walls.

Rodger Morrison testified that he received a shirt labeled “Jerry Wayne Bog-gan” from the director of the laboratory. He testified that the shirt shown in the photograph of the appellant was the same shirt on which he conducted a blood stain analysis. He stated that the receipt for the shirt was signed by Officer Todd, Chip Walls, Dr. Buttram (director of the lab), and himself.

We are convinced that the State showed an unbroken chain of custody. “To warrant the reception of evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain.” Sexton v. State, 346 So.2d 1177 (Ala.Crim.App.), cert. denied, 346 So.2d 1180 (Ala.1977); Franklin v. State, 424 So.2d 1353 (Ala.Crim.App.1982); Sims v. State, 428 So.2d 162 (Ala.Crim.App.1982). In the present case a sufficient chain of custody was shown to warrant reception of the testimony and to establish the reasonable probability that the shirt had not been tampered with or changed. Thomas v. State, 356 So.2d 210 (Ala.Crim.App.1977), writ quashed, 356 So.2d 214 (Ala.1978); Jackson v. State, 375 So.2d 1271 (Ala.Crim. App.), cert. denied, 375 So.2d 1274 (Ala. 1979); Lynn v. State, 380 So.2d 366 (Ala. Crim.App.1980); Mauldin v. State, 402 So.2d 1106, 1110 (Ala.Crim.App. 1981).

VI

The appellant contends that the statute under which he was indicted has been declared unconstitutional by the United States Supreme Court in Beck v. Alabama, 447 U.S. 625,100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). He further contends that the Alabama Supreme Court usurped the role of the legislature in Beck v. State, 396 So.2d 645 (Ala.1980).

This court has held on numerous occasions that the reconstruction of the 1975 Death Penalty Law was constitutional. Potts v. State, 426 So.2d 886 (Ala.Crim. App.), affirmed, 426 So.2d 896 (Ala.1983); Raines v. State, 429 So.2d 1104 (Ala.Crim. App.), affirmed, 429 So.2d 1111 (Ala.1982); Colley v. State, 436 So.2d 11 (Ala.Crim. App.1983); Coulter v. State, 438 So.2d 336 (Ala.Crim.App.1982), affirmed, 438 So.2d 352 (Ala.1983); Giles v. State, [Ms. 6 Div. 86, January 10, 1984] (Ala.Crim.App.1984); Jackson v. State, [Ms. 6 Div. 794, January 10, 1984] (Ala.Crim.App.1984); Beck v. State, [Ms. 7 Div. 909, March 20, 1984] (Ala.Crim.App.1984); Cochran v. State, [Ms. 6 Div. 886, April 24, 1984] (Ala.Crim. App. 1984). The statute under which the appellant was indicted is constitutional and we find no error in the appellant’s prosecution under such statute.

VII

The appellant argues that there was insufficient evidence presented at trial to support the jury’s verdict of guilty.

We have carefully reviewed the evidence in this cause and have concluded that, while the appellant presented testimony which, if believed by the jury, might have justified his conduct, there was sufficient evidence to support the jury’s verdict. The evidence was conclusive that the appellant knew “Aunt Penny” kept a large amount of cash in her home. Her home was found ransacked, and her money and pistol were missing. The appellant was found in possession of “Aunt Penny’s” pistol and money. The appellant testified that he repeatedly struck “Aunt Penny” in the head because she had allegedly attacked him with a gun. He further stated that he placed his hand over her mouth “to quiet her down.” The appellant’s testimony was the third different version of that night’s occurrences that he had related. “Aunt Penny’s” autopsy revealed that she died as a result of asphyxiation coupled with multiple blows to her head with a blunt instrument. It further revealed that there were bruises around her mouth, which were consistent with someone applying force to the area. The appellant’s shirt was stained with blood that was of the same type as “Aunt Penny’s.”

This evidence was properly put to the jury, which had the “responsibility of assessing the credibility of each witness and weighing all the evidence, whether direct or circumstantial, as they viewed it.” Cumbo v. State, 368 So.2d 871 (Ala.Crim. App.), cert. denied, 368 So.2d 877 (Ala. 1979). Moreover, a conflict in the testimony is the sole province for the jury to determine and they may properly consider conflicting statements as indicating consciousness of guilt. Cumbo v. State, supra; Hayes v. State, 395 So.2d 127 (Ala. Crim.App.), cert. denied, 395 So.2d 150 (Ala.1981). We find no error in the jury’s verdict of guilt.

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

AFFIRMED.

All the Judges concur.


author: SAM TAYLOR, Judge.

text:
    Gary Wade MORRISON v. STATE.
    6 Div. 95.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    As Corrected on Denial of Rehearing June 26, 1984.
    Certiorari Denied Aug. 24, 1984 Alabama Supreme Court 83-1117.

      Arthur Parker, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   SAM TAYLOR, Judge.

Appellant Gary Wade Morrison was convicted by a Jefferson County jury of violation of the Alabama Uniform Controlled Substances Act, § 20-2-1, et seq., Code of Alabama 1975, and was sentenced to five years’ imprisonment. In addition, a $25,-000 fine was levied against him.

The state’s evidence tended to show that the law enforcement officers, in obtaining the warrant for the search of Morrison’s house, averred that they had been provided with information that there was marijuana in the appellant’s house; that the information was provided by an informant who had proven to be reliable at least twice in the past. The warrant was carried out and 467 pounds of marijuana was seized from the appellant’s house and his car. Law enforcement officers later took a “pinch” of green plant material from each of the bales of green plant material so that each might be tested to determine whether it was, in fact, marijuana. A total of 18.1 grams was thus obtained and the “pinch” from each bale was placed in a different small bag. The remainder of the marijuana was carried to the United States Steel mill and burned in the furnace under the observation of law enforcement officers. On appeal Morrison sets forth seven grounds, each of which he claims merits reversal of the case.

I

Appellant Morrison contends first that § 20-2-80, Acts of Alabama 1980 No. 80-587, is unconstitutional for the failure of the legislature to provide a maximum limit of punishment upon conviction. Our court addressed this precise issue in Dickerson v. State, 414 So.2d 998 (Ala.Crim.App.1982). Section 20-2-80(1) does not provide for a maximum sentence. The court, per Judge Tyson, noted that all sentences are restrained by Article 1, Sec. 15, of the 1901 Alabama Constitution limiting the infliction of excessive fines and cruel and unusual punishment, and also noting the strictures of the Eighth Amendment of the United States Constitution. The court then held that § 20-2-80(1) is constitutional. We affirm that holding here.

II

Appellant next contends that the court erred in failing to dismiss the indictment because the deputy sheriffs burned all of the marijuana except 18.1 grams. He asserts that there may have been plant material in the bales which was not marijuana but that he is unable to prove that fact in mitigation since the material was incinerated. Again, appellant tracks the language of the Dickerson case, contending that he should have been allowed to exclude those portions of the marijuana plant which were excludable under the definition of marijuana in § 20-2-2(15). The idea is that some of the stalk and other parts of the plant may not fit the definition because they may not contain the requisite chemical compounds. To make a case of trafficking in marijuana, the state had to prove that the appellant was in possession of at least 2.2 pounds of the prohibited substance. In this instance, 467 pounds of substance purporting to be marijuana, and obviously believed by all concerned to be marijuana, were confiscated. While it would be foolish practice to destroy evidence before a trial in the ordinary situation, there exists in our minds no doubt that the 467 pounds of “baled green plant material” contained enough marijuana to amount to 2.2 pounds or more. In light of the analysis of the contents of the sample from each bale, there exists a strong and persuasive inference that the remainder of the material was similar, and not merely stalks and sterilized seeds. We find that any error committed in this instance was error without injury as regards the appellant.

Ill

Appellant contends that the affidavit was insufficient to justify a finding of probable cause by the magistrate issuing the search warrant. We find, in examining this affidavit, that it is substantially identical to those which have been held to support a finding of probable cause in other cases. The search warrant in this case is similar to that approved by us in Thornton v. State, 390 So.2d 1093 (Ala.Crim.App. 1980). We hold that this is a valid search warrant.

Appellant next contends with respect to the warrant that it was obtained by false or fraudulent misrepresentation and/or statements by the affiant. In support of this, appellant gives lengthy consideration to the proposition that a particular person, allegedly one Cynthia McDonald, was the sole source of information and that the police fabricated the story about the confidential informant.

The officer making the affidavit for the search warrant strongly denied that this woman was the confidential informant. The court, in denying the appellant’s motion to suppress, had an opportunity to hear all the testimony and observe the demeanor of all the witnesses. He found the fruits of the search were not due to be suppressed. The trial court’s ruling is to be given credence unless clearly erroneous or palpably wrong, which we find it was not in this instance. Brumback v. State, 371 So.2d 999 (Ala.Crim.App.1979); Smith v. State, 351 So.2d 668 (Ala.Crim.App.), cert denied, 351 So.2d 675 (Ala.1975).

Appellant also contends that because of his claim that the search was an illegal search, a remark made by him during the search was due to be suppressed. The remark was that he should not have done it, or that he knew better, or words to that effect. Since we find the motion to suppress was properly denied, this statement was admissible.

IV

Appellant contends that error was committed in the course of adducing testimony from the lab technician concerning the marijuana. The assistant district attorney asked Mr. Sparks, the state crime lab analyst, “if envelope No. 1 was a sample from a larger container, a representative sample ... where the original bale or garbage bag contained 29 pounds of marijuana, would you expect there to be a kilogram [2.2 pounds] or more of controlled substance being marijuana or cannabis?” The testimony regarding the weight of bales had been given by another person, Deputy Thrasher. While the lab technician had no personal knowledge of the weight of the bags, we think it was practical to ask him to assume their weight was as previously testified in making his answer. The testimony that the bales weighed 29 pounds was already in evidence.

Appellant argues that the hypothetical requires one to believe Thrasher’s testimony. Any hypothetical question based on evidence requires that, for the sake of the question, the witness assume the correctness of the evidence. We find no error in this method of proceeding.

V

Appellant contends that his demurrer to the indictment should have been sustained because the indictment failed to track the language of the statute. The indictment did not state that the trafficking was done “knowingly” and it did not say that possession was “actual or constructive.” An indictment must, of course, inform the defendant of the charge he must defend against; if it fails to do this, then it is defective. When the indictment charges “unlawful” possession, then by inference it means “knowing” possession. Either actual possession or constructive possession is sufficient to constitute the crime. It should not be necessary in the indictment to detail whether the possession expected to be proved is actual or constructive or both. The defendant was not injured by the wording of this indictment and was properly informed of the charges against him. The court did not err in denying the demurrers to the indictment.

Appellant also contends that the court erred to reversal when the judge, in his oral charge, charged the statutory language of § 20-2-80, including that the trafficking was done “knowingly” and that the possession could be actual or constructive. Appellant contends that this is a “judicial amendment” of the indictment. We disagree and find no error in the court’s charge in this respect.

VI

Appellant also contends that the court erred in that the verdict form submitted to the jury should have required the jury to say precisely how much marijuana was possessed by the appellant, by weight. Counsel states that he relies on the rationale of Dickerson, supra. The verdict of guilty as returned by the jury stated that they found defendant “guilty of trafficking in cannabis as charged in the indictment.” By this verdict they did, in fact, find the appellant guilty of possession of more than 2.2 pounds of marijuana. This was a standard verdict form. No error was committed by its use.

VII

Appellant finally contends that the circuit court erred in overruling a defense objection to improper closing argument. The objected-to language is this:

“MR. MAHON: And he is not paying his social security and state taxes and federal taxes and occupational taxes—
“MR. PARKER: If your Honor please, there is no evidence, he is arguing things now without the evidence. We object and ask the court to tell the jury not to consider that.
“THE COURT: Overruled.
“MR. PARKER: And we assign as grounds an attempt to prejudice also, what is certainly not in evidence.
“THE COURT: All right. Overruled.”

There appears to have been no testimony regarding Mr. Morrison’s occupation. Our court has held in numerous cases that remarks by the prosecutor which accuse defendant of the commission of a crime other than that for which he is on trial and which are unsupported by any evidence in the case, require reversal. Bevins v. State, 39 Ala.App. 228, 229, 97 So.2d 572, cert. denied, 266 Ala. 695, 97 So.2d 574 (1957). We are concerned with the effect that would be wrought by affirmance of this case in light of these prosecutorial accusations of other crimes. Upon asking ourselves whether the defendant received a fair trial, we have to say that it is not fair, but rather, foul to accuse a defendant in closing argument with crimes with which he is not charged. To approve this conduct of the district attorney is to discard the entire principle underlying our system of fair trial. Consequently, we are constrained to hold that the court erred to reversal in its failure to sustain the objections of counsel and in its failure to instruct the jury to disregard the statements or to give a curative instruction as requested by counsel.

In light of the foregoing, the judgment is due to be reversed and the case remanded to the circuit court for further proceedings not in conflict with our holding herein.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Eddie Edward MASTIN v. STATE of Alabama.
    8 Div. 888.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 31, 1984 Alabama Supreme Court 83-1138.

      William R. Hovater and Gary W. Alver-son, Tuscumbia, for appellant.
    Charles A. Graddick, Atty. Gen. and T.A. Harding Fendley, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Eddie Edward Mastín was indicted for the murder of his mother, Cleo Mastín, in violation of § 13A-6-2, Code of Alabama, 1975. The jury found the appellant guilty as charged and the trial judge set sentence at 99 years’ imprisonment in the penitentiary-

The facts in this ease are not in dispute and will therefore be briefly stated. On the evening of December 12, 1981, the appellant was at home with his mother, his brother, Steve, and his grandmother, Ida Carter. At some point, the appellant began rubbing his head and complained to his mother about a headache. His mother told him to take some medicine. The appellant then went and got a shotgun and shot and killed his mother.

When the appellant’s brother, Steve, heard the shot he came into the den from the bedroom. The appellant was in the process of loading the gun. When Steve saw what had happened, he told the appellant he was going to kill him. The appellant then shot at his brother, who managed to avoid the shot and get away.

A short time later, the appellant was stopped for a routine traffic violation by Officer Ron Alexander of the Lauderdale Sheriffs Department. When Alexander asked for the appellant’s driver’s license, he noticed a shotgun on the back seat of the appellant’s vehicle. Alexander and the appellant then got in the patrol car so that Alexander could write the appellant a ticket, while running a check for outstanding warrants. At this time, Alexander asked the appellant about the shotgun and he replied he had just shot someone. Alexander then received a dispatch that the appellant was wanted for questioning in connection with a shooting in Colbert County. The appellant was then turned over to the Colbert County authorities.

I

The appellant filed a plea of not guilty by reason of insanity in this case and the majority of the evidence presented at trial pertained to this issue.

The law of insanity is summarized in Cunningham v. State, 426 So.2d 484 (Ala. Crim.App.1982), cert. denied, (Ala., February 11, 1983). In that opinion, authored by Judge Bowen, we find that:

“ ‘A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.’ Alabama Code 1975, Section 13A-3-l(a). The legal principles governing the burden and sufficiency of proof of insanity were collected in Christian v. State, 351 So.2d 623 (Ala.1977).
“ ‘Those principles may be summarized as follows:
“ T. By statute, there is a presumption of sanity extending to all persons over the age of 14.
“ ‘2. The defense of insanity is an affirmative defense. The burden of proving this defense rests upon the defendant and never shifts to the state.
“ ‘3. The burden upon the defendant is to establish the issue of legal insanity by a preponderance of the evidence and to the reasonable satisfaction of the jury. “ ‘4. The question of insanity at the time of the commission of the crime is a matter to be determined by the jury from a consideration of all the evidence.
“ ‘5. In making its determination, the jury may reject all expert testimony though it is without conflict.
“ ‘6. However, opinion testimony, even of experts must be weighed by the jury and may not be arbitrarily ignored.
“ ‘Authority for each of these principles may be found in Christian, supra, at 351 So.2d 624.
‘The one exception to these rules is found in those cases where the proof of insanity is overwhelming and uncontra-dicted.
“ ‘Cases of insanity may be so clear, the proof so strong and undisputed, that the jury should be instructed in like form.’ Boyle v. State, 229 Ala. 212, 222, 154 So. 575, 583 (1934).
“Herbert v. State, 357 So.2d 683, 688-89 (Ala.Cr.App.), cert. denied, 357 So.2d 690 (Ala.1978). Generally, see Anno. 17 A.L. R.3d 146 (1968).” Cunningham, supra, at 486.

Defense counsel argues that this case is one of the few in which the exception has been found to apply. He contends that the evidence of the appellant’s insanity was so overwhelming that it overcame the presumption of sanity.

The defense called a number of witnesses who testified as to appellant’s insanity. Numerous members of the community in which the appellant lived, including friends, neighbors, his father and stepmother, testified that they had observed a change in the appellant over the several years prior to the murder at issue. They testified the appellant exhibited unusual behavior like sleeping in ears and in the rafters of buildings. He was withdrawn, seemed depressed and would be “off” in another world for long periods of time.

The one expert witness for the defense was Dr. Joseph Glaister, a psychiatrist and Medical Director of the Riverbend Mental Health Center. Dr. Glaister said he had been in contact with the appellant since 1976 and over the years the appellant had a history of mental illness. His records indicated that the appellant had complained of hallucinations and delusions and his condition was diagnosed as chronic, undifferentiated schizophrenia. Antipsychotic medication had been prescribed for the appellant and the evaluations of the appellant indicated his condition would likely deteriorate over the years. Dr. Glaister stated the appellant had been involuntarily committed to the Department of Mental Health by his mother. ■ He testified that the observations of the appellant by the other defense witnesses are symptoms of schizophrenia.

Some eight months after the murder at issue, an evaluation was again performed on the appellant. He was found to be a paranoid schizophrenic. Dr. Glaister testified that the appellant’s killing of his mother most likely was caused by his mental illness. He did not believe the appellant could fake his mental illness.

Even though evidence of an accused’s insanity is overwhelming, it must also be undisputed for this court to find that the jury’s verdict was contrary to the evidence presented at trial. Cunningham, supra. While the evidence of the appellant’s insanity was strong, it was not undisputed.

The State presented three members of the appellant’s family who testified as to his sanity. His two brothers and sister, who had close contact with this appellant, testified the appellant would act certain ways to get sympathy and attention from the others. His brother, Steve, who saw the appellant immediately before and after the shooting, testified that on one occasion the appellant threatened to kill his sister over some moonpies. The appellant said that if he killed her he could “go to the retreat and stay three weeks, six months and get out on the street ... because he had papers saying he was crazy.” (R. 312). All three of these witnesses testified they believed the appellant was sane.

Since there was conflicting evidence as to the appellant’s insanity, the question was properly submitted to the jury. Cunningham, supra, and authorities cited therein. After a thorough review of the evidence, we find there was evidence which would have supported the jury’s finding that the appellant was, in fact, sane. Therefore, we hold the issue of the appellant’s sanity was a question for the jury, which they properly resolved against the appellant.

II

During the closing argument of the pros-' ecution, the following dialogue took place: “MR. HOVATER: Your Honor, could we approach the bench?

“BY THE COURT: Yes.
“(At this time the attorneys approach bench outside the hearing of the jury at which time the following was said.)
“MR. HOVATER: I’d like to make an objection to the prosecutorial misconduct by Mr. Patton in referring to the Defendant not taking the stand to testify in his behalf.
“BY THE COURT: Which remark are you referring to?
“MR. HOVATER: Both remarks. All right, I’ll say I didn’t object to the first one, but my objection maybe wasn’t timely, but I’m objecting to this last one. Let me make a showing also in his closing argument Mr. Patton has referred to how the Defendant has sat over there and has not said anything. Defense counsel feels that this is a comment on the Defendant not taking the stand. I move for a mistrial at this time.
“MR. PATTON: Let me put a statement in. As I recall my statement it was he sat over there with his head down. I haven’t said anything about him not talking.
“BY THE COURT: O.K., I’m going to overrule—
“MR. HOYATER: Your Honor, I think it will show that he sat over there not talking also.
“BY THE COURT: I want to put in the record that I’ve had the Court of Criminal Appeals one time reverse me because Mr. Patton said the same thing about somebody else that sat over there that couldn’t do anything that was asleep because he was on drugs and they reversed me because I didn’t instruct the jury immediately that they are to disregard that remark and I want ya’ll to tell me something if I remember correctly you asked several witnesses if he looked then like he did over there and if I remember correctly one time Mr. Hovater, you asked and has he said anything during this whole trial.
“MR. HOYATER: Who did I ask that to?
“BY THE COURT: I remember thinking—I remember thinking that he didn’t have to say anything and I wondered why you were asking him. Dr. Glaister. “MR. HOVATER: Well, I am noting my objection at this time. I’ve asked about appearances, about his physical appearance and I’m noting my objection.
“BY THE COURT: O.K., well, I’m going to say this I’m not going to grant the motion for mistrial, but I am going to say this I’m instructing you that you not to say anything about him not saying anything.
“MR. PATTON: I don’t think I said that Judge—
“BY THE COURT: Not in the last remark you didn’t.” (R. 365-367).

As the appellant points out in his brief, it is reversible error for the prosecution to comment on the accused’s failure to take the stand unless the appropriate curative instructions are given to the jury.

“Where the prosecutor’s argument passed beyond the bounds of legal propriety, it is the appellant’s duty to specifically object and to preserve for the record substantially the language deemed improper. Flowers v. State, 269 Ala. 395, 113 So.2d 344 (1959). The record must disclose with reasonable certainty what was said by the prosecutor in order for this court to attempt an informed review of the challenged comments. Only when this is done, can this court know with reasonable certainty what was said in the court below which influenced the trial judge to rule as he did. Otherwise, the great presumption in favor of the correctness of the ruling of the trial judge will prevail. McClary v. State, 291 Ala. 481, 282 So.2d 384 (1973).”

Huffman v. State, 360 So.2d 1038 (Ala. Crim.App.1977), affirmed 360 So.2d 1045 (Ala.1978). See also Earley v. State, 358 So.2d 494 (Ala.Crim.App.), cert. denied, 358 So.2d 501 (Ala.1978); Carden v. State, 382 So.2d 1158 (Ala.Crim.App.), cert. denied, 382 So.2d 1162 (Ala.1980).

As can be seen from the above quoted portion of the record, it is not clear exactly what was said by the prosecutor. Defense counsel seemed to have one impression of what was said while the prosecutor and the trial judge seemed to have another. Since we cannot determine whether or not the prosecutor made any direct reference to the appellant’s failure to testify, we must affirm on this issue, since there is nothing properly preserved for our review. Huffman, supra.

Ill

The appellant asserts reversible error occurred because the trial judge failed to give curative instructions to the jury after the prosecutor used the word “murder” during the examination of one of the State’s witnesses. Defense counsel objected to the prosecutor's use of the term and the trial judge immediately sustained the objection. Defense counsel failed to request curative instructions and none were given. Therefore, there is nothing preserved for our review. Proctor v. State, 391 So.2d 1092 (Ala.Crim.App.1980).

Moreover, any prejudicial effect of the prosecutor’s remark was eradicated by the trial judge’s prompt action in sustaining the objection. Sales v. State, 435 So.2d 242 (Ala.Crim.App.1983).

IV

The following discussion occurred during the closing argument of the prosecutor:

“MR. HOVATER: Your Honor, could I ask Mr. Patton to speak up, I just can’t hear. I can’t tell whether I need to object to something or not.
“BY THE COURT: Can you speak up a little bit please.
“MR. PATTON: Judge, I want to talk to the jury. That’s the ones I’m interested in talking to and if he wants to' get somewhere else, I—
“MR. HOVATER: Well, Your Honor, I respectfully request that and I would hope that the Court would see that to represent my client, an occasion might arise where I need to object to something he might say and I would respectfully ask that.
“BY THE COURT: I have already done it.
“MR. PATTON: I’m sorry?
“BY THE COURT: I said, I’ve already asked you to speak up a little bit please. I can’t hear it either.
“MR. PATTON: Well, I’m not talking to you either, Judge—
“MR. HOVATER: Your Honor, I’m sorry that he doesn’t want me or you to hear what he’s saying, but I—
“BY THE COURT: Ya’ll stop it, just speak up a little bit. I have a hard time hearing, we had hearing problems last week.” (R. 370).

Defense counsel contends the remarks of the prosecutor were prejudicial to the interests of his client. While we do not condone the attitude of the prosecutor toward the trial judge or his opposing counsel in the preceding discussion, we do not find such to be reversible error. The trial judge asked the prosecutor to speak louder as requested by defense counsel. There were no further objections to or references made concerning the prosecutor’s level or tone of speech in the record. Therefore, nothing is before this court to review on this issue.

V

The appellant objects to the admission of the portion of Officer Alexander’s testimony concerning the statement the appellant made that he had just shot someone when asked about the shotgun. The appellant contends this statement was made before the appellant was given his Miranda rights and, therefore, the statement was admitted in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1965).

“Before law enforcement officers can subject a citizen to custodial interrogation, he must first have been given the Miranda warnings. In Miranda ‘custodial interrogation’ was defined as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ This court has yet to formulate a general rule for distinguishing custodial from non-custodial interrogation but instead has preferred to take a case-by-case ap-proach_ In making the distinction between custodial and non-custodial interrogation this court has singled out certain criteria as having special significance; these include probable cause to arrest, subjective intent of the police, subjective belief of the defendant, and focus of the investigation. Although none of these factors is alone determinative, we have recently indicated that the most compelling is whether or not the focus of the investigation has finally centered on the defendant.” (Footnotes omitted).

Brown v. Beto, 468 F.2d 1284 (5th Cir. 1972). See also Hall v. State, 399 So.2d 348 (Ala.Crim.App.1981).

At the time Alexander asked the appellant about the shotgun, he was unaware that this murder had occurred or more importantly, that the appellant was wanted for questioning in connection with the murder. It was not until after the appellant made this statement that Alexander learned the appellant was wanted in connection with the murder. Since Alexander did not know about the murder or the appellant’s connection therewith, it would be inaccurate to say the focus of the investigation of the murder was on this appellant. Alexander did not have probable cause to arrest the appellant and he was not interrogating the appellant with this murder in mind. Alexander was merely inquiring about the shotgun he had seen.

In the instant ease, the questioning of the appellant about the gun is not the type of in-custody investigation addressed by the United States Supreme Court’s opinion in Miranda, supra. Alexander was making a general investigation while detaining the appellant for the purpose of writing a ticket and while he was unaware of the murder in question. This is consistent with good police work.

We hold Alexander’s testimony concerning the appellant’s statement did not violate Miranda, supra, and such statement was, therefore, admissible.

VI

During the cross-examination of one of the defense witnesses, the prosecutor made reference to the appellant’s actions after he left the courtroom. Defense counsel objected to this statement on the grounds that it wsa not supported by the evidence. The trial judge ultimately sustained the objection. Therefore, there is no adverse ruling for us to review. Proctor, supra.

For the reasons stated above, the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: PATTERSON, Judge.

text:
    Terrance SAMUEL, alias v. STATE.
    8 Div. 922.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 24, 1984 Alabama Supreme Court 83-1148.

      Jerry R. Barksdale, Athens, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   PATTERSON, Judge.

Samuel was indicted and convicted of the murder of Jacob Carl Atnip, by shooting him with a pistol, in violation of § 13A-6-2, Code of Alabama 1975. He was consequently sentenced to life imprisonment. Because Samuel does not contest the sufficiency of the evidence, a recitation of the facts surrounding the offense is not necessary.

Samuel argues on appeal that the trial court committed reversible error by allowing a witness to testify that, on the night of Mr. Atnip’s murder, Samuel was seen in possession of $158 or $178. He predicates such error on the general rule that “the fact of a person’s possession of money, without some fairly reasonable indication that the money was acquired from the particular source of the now-charged crime, is not provable for the purpose of showing that the accused acquired it from such particular source.” C. Gamble, McElroy’s Alabama Evidence § 50.01 (3d ed. 1977).

The specific testimony in question is that of Mr. Bogue, the service station attendant who sold gas and cigarettes to Samuel on the evening of the murder. The alleged objectionable testimony is as follows:

“Q Are you sure [Samuel] paid for the gas?
“A Yes.
“Q How do you remember that?
“A I remember—
“MR. BARKSDALE; Your Honor, I object.
“THE COURT: Overruled.
“Q Was there any change left out of what he gave you?
“A Yes, sir.
“Q What did he do with the change?
“A Gave it to me. Told me to keep the change.
“Q Did he tell you anything else?
“A Yes, sir.
“Q What did he say?
“MR. BARKSDALE: Your Honor, I object again at this time.
“THE COURT: Overruled.
“Q What did he say, Mr. Bogue?
“A He said that they had sold a good bit of tires over there that day, and he pulled out to pay for the gas and he had a hundred—
“MR. BARKSDALE: Your Honor, I object at this time.
“THE COURT: Overruled.
“Q Go ahead, Mr. Bogue.
“A He had a hundred dollar bill and two or three twenties, a ten and a five and three ones.
“Q He had a handful of money?
“A Yes.
“MR. BARKSDALE: Your Honor, I object in that characterization that the District Attorney made and ask the Court to instruct the jury not to regard that. “THE COURT: Well, I think the jury can decide from the testimony what the witness has said. Any statement by the attorneys, ladies and gentlemen, as I told you at the very beginning of the trial, is not evidence and not to be considered as evidence.”

We find that these general objections to Mr. Bogue’s testimony did not preserve the issue now raised. A general objection which does not specify grounds preserves nothing for review unless the ground is so obvious that the court’s failure to act constitutes prejudicial error, e.g., Lawrence v. State, 409 So.2d 987 (Ala.Crim.App.1982), or unless the objected to matter is clearly not proper for any purpose, e.g., McGinnis v. State, 382 So.2d 605 (Ala.Crim.App.), cert. denied, 382 So.2d 609 (Ala.1980). Neither exception to the rule that an objection must fairly and specifically point out the particular grounds on which error is alleged to have occurred is present in the instant case.

At the conclusion of the direct examination of Mr. Bogue, Samuel again objected to his testimony concerning Samuel’s possession of $158 or $178, as follows:

“Your Honor, at this time, we want to move for a mistrial on the grounds that we have already — the motion in limine has already been granted about mentioning the money and we think it is highly prejudicial and has no probative value and we move for a mistrial.”

The motion in limine referred to by Samuel’s counsel as ground for the mistrial motion had been granted prior to the State’s presentation of its case. Samuel’s “MOTION IN LIMINE REGARDING THE SUM OF $359.00 TAKEN FROM THE DEFENDANT UPON HIS ARREST” and the attached supporting briefs exclusively addressed Samuel’s possession of $359 at the time of his arrest, except for a single statement at the conclusion of an attached brief: “Defendant also respectfully requests this Court that the Court instruct the State to instruct their witnesses not to mention the sum of money that Terry Samuel had with him or was found on him before and at the time of his arrest.” Although this one sentence of the attached brief refers to Samuel’s possession of money prior to his arrest, it is too vague, indefinite, and general to have called to the trial court’s attention the particular evidence now challenged. A motion in limine should indicate with specificity the objectionable matter to enable the trial court to determine its admissibility under the issues delineated or under those issues which might develop; a broad-based motion which leaves the trial court to speculate about the object of the motion may be insufficient to preserve subsequent error which is not called to the trial court’s attention. Banner Welders, Inc. v. Knighton, 425 So.2d 441, 446 (Ala. 1982). “The motion should be used, if used at all, as a rifle and not as a shotgun, pointing out the objectionable material and showing why the material is inadmissible and prejudicial. Blaylock v. State, 411 So.2d 1299, 1301 (Ala.Crim. App.1982) (quoting State v. Garrett, 183 N.W.2d 652 (Iowa 1971). The trial court was at no time notified of any possibly objectionable evidence pertaining to Samuel’s possession of a sum of money except the possession of $359 at the time of his arrest. Because neither Samuel’s motion in limine nor any argument of counsel in the record apprised the trial court of the challenged evidence, we can not construe the trial court’s ruling on Samuel’s motion to have prohibited the disclosure of Samuel’s possession prior to arrest. Indeed, a review of the trial court’s comments clearly indicates that his ruling pertained solely to the fact of Samuel’s possession of $359 at the time of arrest. This conclusion is further apparent in the court’s response to Samuel’s motion for mistrial, as follows:

“I granted the Motion in limine to show — that the State could not show that he was in possession of money when he was arrested. The mere fact that he was apprehended with money on him did not apply to the situation that we have just covered and I deny the motion for mistrial.”

Hence, the trial court’s granting of Samuel’s motion in limine did not provide adequate grounds for Samuel’s mistrial motion, since the disclosure of the challenged evidence was not prohibited by the court’s ruling. Accordingly, the trial court properly denied Samuel’s motion for mistrial on this ground.

If we liberally construe the mistrial motion to present the additional ground that such testimony was highly prejudicial and without probative value, we still deem Samuel’s motion to have been-properly denied. A high degree of “manifest necessity” for granting a mistrial must be demonstrated before a mistrial should be granted. Woods v. State, 367 So.2d 982 (Ala.1978); Ala. Code § 12-16-233 (1975). “[T]he entry should be only a last resort, as in cases of otherwise ineradicable prejudice.” Thomas v. Ware, 44 Ala.App. 157, 161, 204 So.2d 501 (1967). Counsel asked for no other remedial action, such as a motion to strike or an instruction to the jury. In light of the overwhelming evidence supporting Samuel’s guilt and the specific testimony that, prior to Mr. Atnip’s murder, Samuel had stated he was going to rob and kill Mr. Atnip, we fail to see that the objectionable evidence was so prejudicial as to hold that the trial court clearly abused its discretion.

The judgment of the circuit court is affirmed.

AFFIRMED.

All the Judges concur.