text:
    James Henry JACKSON, alias v. STATE of Alabama.
    6 Div. 651.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Aug. 30, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 82-1250.

      G. Daniel Evans of Evans & Lyerly, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Ger-rilyn V. Grant, Asst. Atty. Gen., for the State.
   TYSON, Judge.

James Henry Jackson, alias Roland Jackson, was charged with the third degree burglary of Southern Filters, Inc., pursuant to § 13A-7-7, Code of Alabama 1975 as amended.

The jury found the appellant “guilty of third degree burglary” as charged and following a sentencing hearing at which three prior felonies, two burglaries and the third for robbery, were placed in evidence, appellant having been represented by counsel at each of these, the trial court then sentenced the appellant to 15 years’ imprisonment under the Alabama Habitual Felony Offender Act.

Since there is no real dispute as to the essential facts of the case, only a succinct statement is herein set out.

Mr. James Judd testified that he was Chairman of the Board of Southern Filters, Inc., a company engaged in making air filter systems, with offices located at 314 Third Avenue, North, Birmingham, Alabama, on August 23, 1980. The business was incorporated and he gave the corporate identity and described the interior of the building, which was equipped with a silent burglar alarm system and had a loft area in which certain parts were stored. He stated that he had received a call about 8:40 on the evening of August 23, 1980, to go by the plant and he saw two Birmingham police officers there. He stated that he had not given James Henry Jackson or Roland Jackson permission to enter his place of business.

William Tate testified that he was plant manager of Southern Filters, Inc., located at 314 Third Avenue North, Birmingham, on August 23,1980. He described the operations of the business and testified that he had locked the business on the late afternoon of August 23,1980, and had not given the appellant permission to enter. On the following day he entered the plant about 7 a.m., and upon examination found no missing parts or equipment, but described an opening about eight feet off the ground where a panel had been knocked out and an apparent entry made into the building. He stated that he did not know the appellant.

Birmingham Canine Police Officer Ronald C. Hull testified he answered the call to go to 314 Third Avenue, North in Birmingham at approximately 8:30 on the evening of August 23, 1980. He arrived about the time another police car containing Officer McBrayer came there.

Officer Hull stated that the man responsible for handling the silent alarm system was there standing outside and that he unlocked the building and turned off the alarm and remained with Officer McBrayer. Officer Hull and his police dog then went inside and Officer Hull unleashed the dog and told him to search the building. The dog walked throughout the ground floor and did not find anyone and then started up some stairs toward a loft where an area was enclosed in wire. Officer Hull stated that he could see a pair of human legs from the knees down and heard the dog growl and stop by the door of the caged area. Officer Hull then entered and directed the appellant to come out and marched him down the stairs. At the bottom of the stairs, the appellant picked up a 2 X 4 and attempted to swing at the dog and at this point the dog bit him. Officer Hull then restrained the dog and placed him back on the leash. Officer Hull marched the appellant outside and turned him over to Officer McBrayer who then gave appellant a Miranda warning. Appellant was then taken by Cooper Green Hospital and then to police headquarters were he was arrested and charged with burglary.

Officer McBrayer confirmed Officer Hull’s testimony. Both of the officers testified that in their opinion the appellant was not intoxicated, did not stagger and that they did not detect the odor of alcohol on his breath, nor did the appellant appear to be under the influence of any medication or drugs.

The appellant made a motion to exclude the State’s evidence on the basis that there was no evidence establishing “any intent to commit a crime.”

The appellant presented the testimony of his wife, Mondria Jackson, who testified they lived in an apartment approximately ten blocks from his mother’s home and about two and one-half blocks away from the warehouse of Southern Filters, Inc. She testified that on August 22 and 23 she and her husband had been drinking heavily and that the appellant had left because of an argument and that he was “staggering drunk”.

Appellant’s mother, Rebecca Jackson, testified that the appellant had had two injuries, one in 1980 which required surgery on his arm, and a second the next year which required surgery to his knee, and that he had been on prescription medication since then. She testified that in August, 1980, he was taking medication and had come by her home on the afternoon of August 22, and was “pretty high”, though she did not see him take anything to drink.

Rebecca Jackson, appellant’s sister, testified that she had seen appellant on the afternoon of August 23, 1980, and that he had been drinking a lot and “staggering”.

Appellant’s medical records from Cooper Green Hospital were placed in evidence.

There was no exception to the oral charge of the court, nor were there any refused written charges.

I

Appellant’s counsel argues that the trial court erred in permitting the two Birmingham police officers, Hull and McBrayer, to testify as to the appellant’s condition the night of his arrest at Southern Filters, Inc., by giving their opinion as to whether or not the appellant was under the influence of any alcohol or drugs. In Jolly v. State, 395 So.2d 1135 (Ala.Cr.App.1981), Judge Bowen observed:

“Intoxication is a matter of common observation which requires no peculiar scientific knowledge. 31 Am.Jur.2d Expert and Opinion Evidence, Section 101 (1967). The general principles controlling opinion testimony on intoxication are stated in 23 C.J.S. Criminal Law § 866 (1961).
‘It has been broadly declared, or the principle has been broadly applied, that any witness may express his opinion as to intoxication, that opinion testimony as to intoxication is not limited to expert testimony, and may be given by law witnesses, and that intoxication or sobriety need not be proved by expert testimony, since it does not require any particular or special knowledge. The witness must have had a suitable opportunity, even though slight, for observation; the conditions under which the witness observed the person in question, and the opportunity to observe him, go to the weight, and not to the admissibility, of the testimony. It has been required that evidence be admitted showing that any witness who is asked to express an opinion as to accused’s intoxication is properly qualified.’
“See also Gladden v. State, 36 Ala.App. 197, 54 So.2d 607, cert. denied, 256 Ala. 368, 54 So.2d 610 (1951).
“Whether or not the qualification of a witness to state his opinion is sufficiently established is a matter resting largely in the trial court’s discretion. Its ruling thereon ordinarily will not be disturbed on appeal unless there is a clear showing of abuse. Koziwski [Kozlowski] v. State, 248 Ala. 304, 27 So.2d 818 (1946). In determining competency, the trial judge is not bound by any hard and fast rule. Redwine v. State, 36 Ala.App. 560, 61 So.2d 715, cert. denied, 258 Ala. 196, 61 So.2d 724 (1953).”

Under the foregoing authorities, both Officer Hull and Officer McBrayer were competent to testify that the appellant did not appear to be intoxicated or under the influence of drugs at the time of his arrest.

Ha

The appellant challenges the Alabama Habitual Felony Offender law, stating such to be unconstitutional and a violation of equal protection of law, in that its provisions constitute a “Bill of Attainder” because of applying punishment for offenses committed at a prior time, without a hearing.

It must be first noted that the appellant was given notice by the State of its intention to proceed in this cause under the Alabama Habitual Felony Offender Statute and the trial court conducted a full hearing, following trial, before sentence was imposed in this cause. (R. 114-121).

The State presented three prior felony convictions; the first for a burglary at which the appellant was represented by counsel and received a sentence of one year and a day because he was a minor at the time. The second offense occurred on January 29, 1971, the appellant being represented by counsel and pled guilty of burglary and received a sentence of two years. The appellant’s third conviction was for the offense of robbery for which he received a sentence of 10 years on January 3, 1977, having been represented by counsel. After going over these three convictions with the appellant and his counsel, the trial judge explained that the minimum sentence under the Alabama Habitual Offender law was 15 years and that he was going to impose this sentence in the case at bar because of the prior record of this appellant.

This court has upheld the constitutionality of the Alabama Habitual Offender Statute a number of times beginning with Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1980). In Watson this court dealt with the issue of the proportionate severity of the sentence there imposed and affirmed under authority of Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).

Similarly, this court has determined that the invoking of prior offenses to enhance punishment is not unconstitutional and in violation of due process provided that each of the prior offenses affirmatively establishes that the appellant was represented by counsel, as in the case at bar. Thatch v. State, 397 So.2d 246 (Ala.Cr.App.1981), cert. denied 397 So.2d 253 (Ala.1981). In these cases and in several subsequent opinions this court has determined that the sentencing procedure here followed under the Alabama Habitual Offender Act did not constitute cruel and unusual punishment by retroactively imposing additional punishment for offenses previously committed. Seritt v. State, 401 So.2d 248 (Ala.Cr.App.1981), cert. denied, 401 So.2d 251 (Ala.1981); Smith v. State, 401 So.2d 251 (Ala.Cr.App.1981), cert. denied, 401 So.2d 257 (Ala.1981); Bates v. State, 405 So.2d 1334 (Ala.Cr.App.1981), cert. denied, 405 So.2d 1339 (Ala.1981).

lib

Since the briefs were filed in this cause, the Supreme Court of the United States has rendered its decision in Solem, Warden v. Helm, (1983), - U.S. -, 103 S.Ct. 3001, 77 L.Ed.2d 637.

As required by Solem, we have considered the proportionality of the punishment herein imposed, both in light of the appellant’s prior record and the length of sentence for the offense for which the appellant has been duly convicted. We find that the minimum sentence herein imposed of 15 years to be in keeping with the applicable Alabama statute and procedure therein set forth and in no way to offend the pronouncements of the United States Supreme Court in Solem, supra.

Ill

The State of Alabama properly presented a prima facie case as required by law. The jury found the appellant guilty as charged and we find no error in this record.

For the reasons herein stated, this judgment is due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: SAM W. TAYLOR, Judge.

license: Public Domain

text:
    Melvin POWERS, Don Norwood, Candace Woodley, Debra Bailes v. CITY OF HUNTSVILLE.
    8 Div. 734.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 83-40.

      Joseph L. Battle, Huntsville, and Charles R. Ray and Bruce Boyens, and George E. Barrett, Nashville, Tenn., for appellants.
    Roy Wesley Miller, Asst. City Atty., Huntsville, for appellee.
    Lawrence D. Levien, Richard N. Appel, Paul M. Eskildsen of Akin, Gump, Strauss, Hauer & Field, Washington, D.C., for ami-cus curiae Albertsons, Inc.
    J.R. Brooks, Jr., of Ford, Caldwell, Ford & Payne, Huntsville, for amicus curiae Al-bertsons, Inc.
    R. Bruce Gordon, Orlando, Fla., for ami-cus curiae Albertsons Southco.
   SAM W. TAYLOR, Judge.

Defendants, Melvin Powers, Don Nor-wood, Candace Woodley and Debra Bailes, were charged with criminal trespass in the third degree pursuant to § 13A-7-4, Code of Alabama 1975, for their involvement in three separate incidents which occurred in the Albertsons store in Huntsville, Alabama on November 24, 1981. Powers was charged with three separate violations, Nor-wood was charged with two separate violations and Woodley and Bailes were each charged with one violation. These seven separate actions were consolidated for trial which resulted in convictions in all seven cases. Powers was fined $25, $50 and $100, respectively, for his three criminal trespass convictions resulting from his three successive instances of trespass. Norwood was fined $25 and $50, respectively, for his two criminal trespass convictions. Woodley and Bailes were each fined $25 for their single convictions for criminal trespass.

The facts of the case are essentially undisputed. The trespasses arose out of union organizational efforts being conducted by the four defendants. Powers and Norwood were employees of the retail clerks union. Ms. Woodley and Ms. Bailes had been discharged the day before by Albertsons and on this occasion both were wearing jackets reading on the back, Retail Clerks’ Union Local 1557. It is manifestly apparent that all parties knew these people were present in the delicatessen section of the Albertsons store in connection with efforts to organize the employees. The store director requested all four of them to leave the premises and they refused. He called the police and the police requested them to leave. Mr. Powers attempted to present the officer with a card identifying himself with the union. There was also a National Labor Relations Board form on the table where the appellants were seated. Upon appellants’ refusal to leave, the police officer placed Powers under arrest and escorted all of them from the premises. Later that afternoon, they returned; a similar incident occurred with similar results except that this time all four of them were arrested. Later that evening, Mr. Powers and Mr. Norwood returned to the store and this time were arrested pursuant to a signed warrant.

Powers, Norwood, Woodley and Bailes were tried and convicted in Huntsville Municipal Court. At the trial de novo in the Madison County Circuit Court, a transcript of proceedings in the municipal court was received in evidence by agreement. The only testimony offered in circuit court was to establish venue. The defendants presented no evidence.

The central issue raised on this appeal is whether or not the federal government by the passage of the National Labor Relations Act preempted the law in this field, as contended by appellants, so that the state court was without jurisdiction to consider the trespass charges. In determining this issue, we are bound by and must follow the rules of law laid down by the United States Supreme Court and other federal courts in defining this thorny area of jurisdiction between the National Labor Relations Act on the one hand and the state laws on the other.

The Supreme Court in a series of cases has settled the question presented in this case adversely to appellant. The court had to determine and balance the right of employees to organize and of unions to solicit employees to organize on the one hand, and private property rights on the other. Both these rights are absolutely guaranteed by law. A review of the cases is appropriate. In Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978) the United States Supreme Court spelled out the law regarding the federal preemption insofar as picketing is concerning. The majority of the court ruled:

“Because the assertion of state jurisdiction in a case of this kind does not create a significant risk of prohibition of protected conduct, we are unwilling to presume that Congress intended the arguably protected character of the Union’s conduct to deprive the California Courts of jurisdiction to entertain Sears’s trespass action.”

This case is categorized as an organizational solicitation case. The United States Supreme Court held in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956) that there were circumstances in which non-employee union organizers have a limited right to access to an employer’s premises for the purposes of engaging in organization solicitation. In Bab-cock, the employer refused to permit non-employee union organizers to distribute union literature in the company-owned parking lots. The court made a distinction between employees and non-employees engaged in organizational activities. As to employees, the court recognized the principle that no restriction may be placed on the employees’s right to discuss self-organization among themselves unless the employer can demonstrate the necessity to maintain productions.

As to non-employees, however, a stricter standard was established. The court refused generally to permit organizational solicitation on company property. They provided one exception only: “If the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property.” (p. 113, 76 S.Ct. p. 685).

In Central Hardware Co. v. National Labor Relations Board, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972), a hardware retailer caused an organizer to be arrested. The court reaffirmed the ruling in Babcock, quoting:

“Organization rights are granted to workers by the same authority, the National Government, that preserves property rights. Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other. The employer may not affirmatively interfere with organization; the union may not always insist the employer aid organization. But when the inaccessibility of employees makes ineffective the reasonable attempt by non-employees to communicate with them by usual channels, the right to exclude from property has been required to yield to the extent needed to permit communication of information on the right to organize. 351 U.S., at page 112, 76 S.Ct. at 684.”

In the more recent Sears case, the Supreme Court observed:

“Experience with trespassory organizational solicitation by non-employees is instructive in this regard. While Babcock indicates that an employer may not always bar non-employee union organizers from his property, his right to do so remains the general rule. To gain access, the union has the burden of showing that no other reasonable means of communicating its organizational message to the employees exists or that the employers access rules discriminate against union solicitation. That the burden imposed on the union is a heavy one is evidenced by the fact that the balance struck by the board and the courts under the Babcock accommodation principle has rarely been in favor of the trespassory organizational activity.”

In this case, there is no evidence that the employees could only be reached while on the employer’s premises. Consequently the state law is not preempted by the National Labor Relations Act in this instance.

II

The appellants contend that their convictions should be reversed because § 13A-7-4, Code of Alabama 1975 (criminal trespass in the third degree), is unconstitutional in that it is either vague and overbroad or allows selective prosecution in violation of the “equal protection” clause of the 14th amendment (U.S. Const. amend. XIV).

Section 13A-7-4 states that “[a] person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises.” (emphasis added). The appellants argue that this language “is so overly broad and vague that persons of common intelligence must guess at its meaning and differ to its application.” In support of their arguments the appellants refer to City of Seattle v. Rice, 93 Wash.2d 728, 612 P.2d 792 (1980). The holding in Rice has been qualified in City of Seattle v. Davis, 32 Wash.App. 379, 647 P.2d 536 (1982), where the court validated the portion of the municipal ordinance corresponding to our § 13A-7-4. Alabama’s new trespass statutes are patterned after provisions of the New York Revised Penal Law. Alabama’s § 13A-7-4 corresponds to New York Revised Penal Law § 140.05.

New York’s § 140.05 was upheld in People v. Bush, 39 N.Y.2d 529, 384 N.Y.S.2d 733, 349 N.E.2d 832 (1976). New York’s § 140.10, which corresponds to Alabama’s § 13A-7-3 (criminal trespass in the second degree) was upheld in Ahmed v. Rockefeller, 308 F.Supp. 935 (S.D.N.Y.1970). Although a different statute was involved in Ahmed, the United States District Court analyzed and validated the same “enters or remains unlawfully” language found in § 13A-7-4. That court reasoned:

“The definition of ‘trespass’ is exact and straightforward, and without any explanation by the plaintiffs of just where the ambiguity lies, we conclude that it is not unconstitutionally vague. See, Adderley v. Florida, 385 U.S. 39, 41-43, 87 S.Ct. 242 [244-245], 17 L.Ed.2d 149 (1966); Edwards v. South Carolina, 372 U.S. 229, 236-237, 83 S.Ct. 680 [683-684], 9 L.Ed.2d 697 (1963). Nor is it so broadly drawn that it invades an area of protected expression. Its application is limited by the word of art ‘unlawfully’ only to those who are in a place where they do not have a right to be. See, Adderley v. Florida, supra, 385 U.S. at 41-43, 47, 87 S.Ct. 242 [244-245].”

We do not find § 13A-7-4 impermissibly vague or overbroad.

As regards the equal protection issue, neither the language of § 13A-7-4 nor in its application give rise to a reasonable claim of selective inforcement.

Therefore, § 13A-7—4 is not unconstitutional as challenged on this appeal.

Ill

Appellant’s contention that the police lacked probable cause to arrest the appellants during the first two incidents is unfounded; the appellants remained on the premises after being requested to leave in the presence of the arresting officers.

The judgment of the trial court is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Donald GECKLES v. STATE.
    8 Div. 824.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 83-36.
    Martin D. Baker, Guntersville, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant was charged by an indictment returned against him by the Grand Jury of Marshall County stating that he did unlawfully sell, furnish or give away 22.8 grams of marijuana, in violation of the Alabama Uniform Controlled Substance Act, in violation of Sec. 20-2-70 of the Code of Alabama. He entered a plea of not guilty, was found guilty as charged, and duly sentenced to be imprisoned in the penitentiary for five years. He appeals to this Court.

The appellant was represented at all proceedings in the trial court, and is represented in this Court by counsel appointed by the trial court. This appeal was submitted to this Court on briefs.

The appellant states in his brief four reasons why his conviction should be reversed. First, that the trial court erred by overruling appellant’s motion to exclude state’s evidence; second, by refusing to give appellant’s requested, written jury charges on the law of entrapment; third, by charging the jury in his oral charge that “there is no evidence of entrapment in this case, and the defense of entrapment is not to be considered by you;” fourth, by denying appellant’s motion for a judgment of acquittal.

State’s witness, James Hester, testified, in substance, as follows: That he was employed by the Marshall County Sheriff’s Office as a narcotic investigator; that he was assigned to investigate drug trafficking in Marshall County, and in the Tri-City area composed of Marshall, DeKalb and Jackson County; that on March 11, 1982 he was engaged in Marshall County as an undercover officer, and went to the home of the appellant at about 6:30 or 6:40 P.M.; that he knew the appellant; that he did not know the appellant before he went to his home; that after his first trip to appellant’s home he saw appellant three times at appellant’s home; that he knew appellant by the nickname of Jaybird; that on March 11, 1982 he asked the appellant about buying some marijuana, and appellant said: “I have some bags of marijuana, pounds of it, anything you want I can get;” that Hester told the appellant that he would like a bag, and the appellant went to the rear of the trailer where appellant lived, and came back and sat down, and the drugs were passed to me, and I paid the appellant $40.00, the price appellant asked; that Hester stayed a few minutes and left; that he put the marijuana in an envelope, sealed it, and marked it, and gave it to Mike Kirk on March 11, 1982.

Martha Odom, state’s witness, testified, in substance, that she was employed by the State of Alabama, Department of Forensic Sciences, Huntsville Division; that she examined state’s exhibit number one, the vegetable matter involved in this case, and it was 22.8 grams, or 0.8 ounces of marijuana.

State’s witness, Michael Kirk, identified, state’s exhibit number one as the evidence he received from undercover officer Hester on the 11th day of March, 1982, and that he turned it over to Martha Odom.

At this time the state rested its case, and the appellant made a motion to exclude state’s evidence, and dismiss the indictment on the grounds of entrapment, and the fact that the evidence introduced so far shows that as a matter of law the offense that is alleged in this case was induced by the activity of the State of Alabama. The court denied appellant’s motion.

The appellant called Mr. Rayburn Bevell, who testified, in substance, that he was a contractor engaged in construction work; that the appellant had worked for him about two years out of the past three years; that the appellant was a dependable worker; that he had never seen the appellant deal with drugs, or use any, or drive a fancy car around, or wearing expensive clothes, or wearing gold, or diamond, jewelry, or flashing around rolls of money; that the appellant is now working for him; that he was surprised to hear that appellant was charged with selling, or giving away drugs.

On cross-examination Mr. Bevell testified, in substance, that he did not know of any other times when appellant had marijuana in his possession; that he did not know that back in May appellant pleaded guilty to possession of marijuana; that he was not with the appellant when the appellant was not working for him, and that he doesn’t know what the appellant does off the job; that he would not put up with the appellant selling marijuana on the job; that he did not know about the appellant pleading guilty to marijuana, and it being in the newspaper, and paying a fine, and being put on probation, and that if he had, it would make a difference.

The appellant did not testify in his own behalf. At this time the appellant rested.

The appellant contends in his brief that the tidal court erred by overruling appellant’s motion to exclude state’s evidence; by refusing to give appellant’s requested, written charge on the law of entrapment; by charging the jury in his oral charge, “there is no evidence of entrapment in this case, and the defense of entrapment is not to be considered by you,” and by denying appellant’s motion for a judgment of acquittal. He, therefore, properly raises the issue of entrapment for this Court to decide. Tyson v. State, Ala.Cr.App. 361 So.2d 1182.

It is appellant’s argument that the question of entrapment should have been submitted to the jury under the evidence in this case, and that there is sufficient evidence of entrapment to make an issue for the jury’s consideration. That under the evidence in the record the offense that is alleged in this case was induced by the State of Alabama as a matter of law.

Entrapment occurs when state officers or persons under their control incite, induce, lure, or instigate a person into committing a criminal offense, which that person would not have otherwise committed, and had no intention of committing. Tyson v. State, supra; Johnson v. State, 291 Ala. 639, 285 So.2d 723.

The undisputed evidence in this record is that undercover officer James Hester went to the home of the appellant, and asked the appellant about buying some marijuana, and that the appellant replied by saying: “I have some bags of marijuana, pounds of it, anything you want I can get.” That Hester told appellant he would like one bag, and the appellant went to the rear of the trailer where appellant lived, and came back with one bag of marijuana, and sold it to officer Hester, who paid the appellant $40.00. The appellant offered no evidence of any conversations, or of any other action between officer Hester and the appellant. No evidence is found in the record from which a jury could reasonably draw an inference that the State of Alabama, or any of its officers, or representatives, incited, induced, lured or instigated the appellant to commit the offense. We hold that under the facts in this record the trial court did not commit reversible error when it overruled appellant’s motion to exclude state’s evidence, or refused to give appellant’s requested, written charge on the law of entrapment, or in its oral charge to the jury that the defense of entrapment was not to be considered by them, or in overruling appellant’s motion for a new trial. Where there is no evidence to support the defense of entrapment, it is not error to refuse to charge the jury on the defense of entrapment. Ritter v. State, Ala. 429 So.2d 928; Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367; Clency v. State, Ala.Cr.App. 415 So.2d 714; Hollins v. State, Ala.Cr.App. 415 So.2d 1249; Tyson v. State, supra.

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

The foregoing opinion was prepared by Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Henry L. DAVIS v. STATE.
    3 Div. 635.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 83-59.

      Eric A. Bowen, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Ed Carnes and Richard Owens, Asst. Attys. Gen., for appellee.
   BOWEN, Presiding Judge.

The defendant was indicted and convicted for the capital murder of Freddy Paul Tatum, in violation of Section 13A-5-31(a)(2), Code of Alabama (1975). The trial judge sentenced the defendant to life imprisonment without parole in accordance with the verdict of the jury in the penalty phase of the trial. All proceedings were conducted in accordance with Beck v. State, 396 So.2d 645 (Ala.1980).

I

The defendant’s challenge to the constitutionality of the action of the Alabama Supreme Court in Beck v. State, supra, is foreclosed by the cases of Potts v. State, 426 So.2d 886 (Ala.1983); Clisby v. State, (Ms. 81-633, February 11, 1983) (Ala.1983); Raines v. State, 429 So.2d 1111 (Ala.1981).

II

The confessions of the defendant were made in full compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Since the defendant never requested counsel or invoked his right to remain silent, the problems of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) are not present.

Although the defendant initially refused to sign the Miranda waiver forms, he agreed to talk to the investigating officers. The refusal to sign a written waiver of rights form without more does not preclude a knowing and intelligent waiver of those rights. Houston v. State, 56 Ala.App. 295, 321 So.2d 261 (1975).

The defendant’s mental abnormality was not such as would render any confession inadmissible. C. Gamble, McElroy’s Alabama Evidence, Section 200.14(1) (3rd ed. 1977). The defendant presented testimony to the effect that his intellectual operation was on a third grade level. These results were from tests conducted seven and one-half years before the murder. The more recent report of the lunacy commission, which was conducted just a year and one-half after the crime, showed that the defendant was “functioning within the dull normal range of intellectual abilities.”

III

Although the length of delay from arrest to trial was two years, we find no violation of the defendant’s Sixth Amendment right to a speedy trial. Delays caused by the defendant are counted heavily against him in applying the balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Approximately one-half of the delay between arrest and trial is attributable to the defendant’s initial waiver of a speedy trial and his subsequent request for a mental examination made just eleven days before his case was scheduled for trial. The defendant was tardy in the assertion of his right to a speedy trial. The defendant’s own defense counsel acknowledged that the delay “stems primarily from the fact that the lawyer formerly appointed to represent the defendant got sick and subsequently died.” The defendant’s allegations of prejudice resulting from the delay are without factual merit.

IV

Reversible error was not committed when the trial court overruled the defendant’s objection under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), to the excusal of venireman Or-rin Williams for his views on capital punishment.

“The holding in Witherspoon is not applicable where the jury recommends a sentence less than the death sentence. Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797. By its express terms, Witherspoon is limited to those cases where the death sentence is imposed by a jury from which some have been removed because they opposed capital punishment.”
Eady v. State, 284 Ala. 327, 328, 224 So.2d 876, 877 (1969).

See Bumper v. North Carolina, 391 U.S. 543, 545, 88 S.Ct. 1788, 1790, 20 L.Ed.2d 797 (1968) (“Our decision in Witherspoon does not govern the present case, because here the jury recommended a sentence of life imprisonment”).

V

The five black and white photographs of the victim’s body at the forensic laboratory were properly admitted. C. Gamble, McElroy’s Alabama Evidence, Section 207.01(2) (3rd ed. 1977). The photographs tended to illustrate, elucidate and corroborate the testimony of the state crim-inalist who performed the autopsy on the victim and who testified as to the extent of the victim’s injuries and the cause of death. “The fact that the photograph of the victim’s body is gruesome is not, without more, an appropriate ground upon which to exclude it as evidence.” McElroy, Section 207.01(2) and cases cited at n. 8. Walker v. State, 416 So.2d 1083 (Ala.Cr.App.), cert. denied, 416 So.2d 1083 (Ala.1982).

VI

The defendant argues that the supplemental charge given to the jury by the trial court after they had begun deliberation was erroneous because it failed to repeat instructions on the less included offense of non-capital murder and failed to charge the jury on felony murder.

During the guilt phase of the trial, the trial court’s charge to the jury included instructions on the intent required for a capital felony, on the felony murder doctrine and on the distinction between the intent required for a capital felony and the intent required for the lesser included offense of non-capital murder. Defense counsel announced “satisfied” with the court’s oral charge.

After the jury had deliberated for several hours, it returned with a written question about the intent element. That question and the trial judge’s response are reflected in the record.

“Question number two. What is the latest point that intent can begin? Does it have to begin before or as he is going over the fence or can it begin as late as the moment before the blow occurs?
“I am going to address myself to your second question .... To the point; the law is that the intent and the act must coincide. The intent must exist when the act was committed. That is when intent becomes an element for your consideration. And is the only time. In the written requested charges which you carried with you to the Jury Room it is possible there may be language which created the impression that the intent with which an act was committed had to last a certain length of time or had to begin at some point in time or some place. That, to the degree that I created that impression, I misspoke. I misstated it because the law is that the intent and the act have to exist at the same time and that is the point at which you apply the text (sic) of intent. That being the case, I believe, given that answer to question number two makes it unnecessary to answer question number one (what constitutes premises?).
“Have you other questions which you have? Have I caused more problems by attempting to solve that one?
“A JUROR: That is fine.”

The objection of defense counsel is not the same as that argued on appeal.

“MR. DAVIS (Defense Counsel): Yes, sir. Your Honor, we would renew our objection) to any further instructions to the Jury. We feel that the previous instructions by the Court were adequate and that any further instruction answering any of the questions presented by the Jury to the Court invade the province of the Jury and can only add to prejudice the Jury against the Defendant.”

Because the defendant objected only to the giving of the supplemental charge and not to the trial court’s failure to give further instructions in the supplemental charge, the issue of whether the court should have included an instruction on the felony murder doctrine is not before this Court. An objection to an oral charge must be specific and must clearly delineate the perceived defect. Fuller v. State, 269 Ala. 312, 324, 113 So.2d 153 (1959). See also Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), affirmed, Ex parte Allen, 414 So.2d 993 (Ala.1982). An objection on one ground waives all others. Woodard v. State, 401 So.2d 300, 303 (Ala.Cr.App.1981). A defendant is bound by the grounds of objection he stated at trial and may not expand those grounds on appeal. Parker v. State, 406 So.2d 1036, 1039-40 (Ala.Cr.App.), cert. denied, 406 So.2d 1041 (Ala.1981).

Additionally, we find that the trial court did not err by failing to repeat the instructions on intent and the felony-murder rule given earlier. When a jury requests additional instructions the recommended practice is for the trial court to remain within the area of the specific request in making his response. East v. State, 339 So.2d 1104, 1106-07 (Ala.Cr.App.1976). A trial judge is not required to repeat any other part of his oral charge when answering a specific inquiry from the jury. White v. State, 195 Ala. 681, 686, 71 So. 452 (1916); Thomas v. State, 393 So.2d 504, 508 (Ala.Cr.App.1981). It is assumed that the jury will consider the previously given instructions along with those given in the supplemental charge. Turner v. State, 160 Ala. 40, 47, 49 So. 828 (1909).

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

AFFIRMED.

TYSON, HARRIS, HUBERT TAYLOR, JJ., concur.

SAM W. TAYLOR, J., recuses himself.


text:
    Earl FOWLER, Jr. v. STATE.
    6 Div. 908.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 83-74.

      Tom L. Larkin and Carol J. Millican, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   ROBERT M. HILL, Sr., Retired Circuit Judge.

The appellant, following trial and guilty verdict by jury, was adjudged guilty of trafficking in cannabis in violation of § 20-2-80, Code of Alabama 1975, and was sentenced to a term of six years with $25,-000 fine levied. This Code section proscribes the actual or constructive possession of in excess of 2.2 pounds of cannabis (marijuana) and makes such possession a felony.

Deputy Sheriff Carson, attached to the United Narcotics Detail Operation, and other officers, armed with a duly executed search warrant, entered a house which from prior investigation they had determined to be the residence of defendant. Upon entry, Carson identified himself and identified Fowler, who was present, and was asked to seat himself at the kitchen table. Carson then gave defendant the Miranda warning and also testified that no threats, coercion, or promise of reward were made to defendant. When some bags of plant material found in the house were brought to the table by officers, the defendant, without any questioning, voluntarily said, “That is all the marijuana I have in the house.” The witness Rhodes, an analytical chemist, testified the material was marijuana and in excess of 2.2 pounds, that it was 3.4 pounds. There was no testimony from the defense.

There was testimony from Carson, in answer to a general question by the prosecuting attorney as to “what happened next,” that some white powder contained in a small foil pack exuded out of the pocket of defendant as he was sitting at the table. The court had previously, outside the jury’s hearing, granted a defense motion that there should not be any evidence presented of any substance other than marijuana. The defense moved for a mistrial. An offer by the court to question the jury as to whether or not this testimony would prejudice them was rejected. Obviously, the trial judge decided in the end that the testimony about the white powder, referred to as cocaine, was proper evidence and pertinent on a trafficking in marijuana charge.

Our appellate courts on several occasions have held that evidence of other drugs is permissible where they would show the “complete story.” Mitchum v. State, 384 So.2d 1193 (Ala.Cr.App.1980). The Alabama Supreme Court first addressed this issue in Brantley v. State, 294 Ala. 344, 317 So.2d 345 (1975). Brantley was indicted for possession of marijuana, a felony, and convicted of possession of marijuana for personal use, a misdemeanor. The court stated:

“The fact that Brantley possessed other drugs in the trailer where the marijuana was found and the fact that he had scales and a pipe would show the ‘complete story,’ and would be relevant on the issue of whether Brantley possessed marijuana with an intent other than for his personal use. The admission of the other drugs by the trial court was not erroneous in this case.”

It was unnecessary for the trial judge to entertain defendant’s motion in limine in the first place, as the evidence of cocaine in the house and on the defendant’s person was pertinent to the charge of trafficking in cannabis. No prejudice to the defendant’s legal rights resulted.

The appellant next contends that § 20-2-80, Code of Alabama 1975, is unconstitutional in that it creates a conclusive, irre-butable presumption that possession of more than 2.2 pounds of marijuana constitutes trafficking in marijuana, a felony, that it is without rational basis, is arbitrary in application by foreclosing evidence that the possession was for personal use only, and thus that it is in violation of the due process and equal protection clauses of the Fifth and Fourteenth Amendments of the Federal Constitution.

The Alabama legislature enacted § 20-2-80 in 1980 and by express provision repealed all laws or parts of laws conflicting with that act. Therefore, this section supersedes the application of § 20-2-70 (enacted in 1971) when the offender possesses in excess of 2.2 pounds of marijuana, whether for personal use or sale, and whether for the first time or as a repeat offender. The legislature did not intend to completely repeal § 20-2-70. Rather, its application is now limited to offenders who possess 2.2 pounds of marijuana or less. For these defendants misdemeanor treatment is still available for first offenders proving personal use, and subsequent felony offenders possessing 2.2 pounds or less of marijuana will be punished as provided by the first and last clauses of § 20-2-70. Beasley v. State, 408 So.2d 173 (Ala.Cr.App.1981), cert. denied, 408 So.2d 180 (Ala.1982).

This court further stated in Beasley, supra:

“Section 20-2-80, Code of Alabama 1975, does not make a felony/misdemeanor distinction based upon the use for which marijuana is possessed. Section 20-2-80 is strictly a felony offense. The State must only prove in the case at bar that the appellant was ‘knowingly in actual or constructive possession of in excess of one kilo or 2.2 pounds of cannabis.’ ”

Thus, in enacting § 20-2-80, the legislature defined “trafficking” as possession of more than 2.2 pounds regardless of the possessor’s intent for its use, this being made a felony in an attempt to curb an apparent widespread distribution and sale of the drug in the State. Thus, the statute has a clearly rational basis and is not arbitrary in that the classification used is a valid one.

The State of Illinois also has a marijuana possession statute (Ill.Rev.Stat., Ch. 56½, § 701, ef seq.) based on amount, which is very similar to Alabama’s statute. In a case ruling on the constitutionality of this statute, the Illinois Supreme Court said:

“... In determining whether a statutory classification violates the equal protection clause, we must begin with the presumption that the classification is valid and must impose the burden of showing invalidity on the party challenging the classification. The Equal Protection Clause does not deny the states the power to classify in the exercise of their police power and it recognizes the existence of a broad latitude and discretion in classifying. If any state of facts may reasonably be conceived which would justify the classification, it must be upheld. The right of judicial questioning of a classification under the Equal Protection Clause is thus limited.... Whether the enactment ... is the best means to achieve the desired results ... is a matter for the judgment of the legislature, and the honest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance.” People v. McCabe, 49 Ill.2d 388, 275 N.E.2d 407 (1971).

Therefore, even if this court disagreed with the section in question, it could not find it invalid. As stated in Tyson v. Johns-Manville Sales Corp., 399 So.2d 263 (Ala.1981), the court cannot find a legislative act invalid because the court thinks there are elements which are violative of natural justice, harsh, or in some degree unfair or of doubtful propriety, but all questions of propriety, wisdom, necessity, utility, and expedience are held exclusively for legislative bodies. The only question for the court is one of power, not of expediency.

The due process clause is satisfied if the law bears a reasonable relation to a proper legislative purpose and is neither arbitrary nor discriminatory. Alabama Dairy Commission v. Food Giant, Inc., 357 So.2d 139 (Ala.1978). The legislature may, without violating the equal protection clause, provide a special punishment for a special class of offenders. State v. Spurlock, 393 So.2d 1052 (Ala.Cr.App.1981).

Appellant contends that the labeling of possession of more than 2.2 pounds of marijuana as trafficking is a legal conclusion which rightfully belongs to the trier of fact in a court of law and violates § 43 (separation of powers) of the State constitution. That section forbids the judiciary from exercising legislative powers. Since it was within the competence of the legislature to enact § 20-2-80, it is obvious that appellant’s contention is without merit. Finch v. State, 271 Ala. 499, 124 So.2d 825 (1960); City of Birmingham v. Henry, 224 Ala. 239, 139 So. 283 (1931).

Appellant contends that § 20-2-80 amends § 20-2-70 and therefore violates § 45 of the Alabama constitution. This assertion is without merit. The Alabama Supreme Court in Boyd v. Edwards, 284 Ala. 459, 225 So.2d 863 (1969), quoted from State Dock Comm’n v. State, 227 Ala. 521, 150 So. 537 (1933), saying:

“It is well established, therefore, by decisions of this court, that if the law in itself is complete and intelligible and original in form, it does not fall within the meaning and spirit of Section 45 of the Constitution, although resort in the execution of its provisions must be had to independent sources, including other statutes, or records of commissions or boards.”

Merely because the legislature saw the need to pass further legislation to control the sale, use, and distribution of marijuana does not mean that such legislation amends every other statute dealing with marijuana. The mere passage of legislation does not of itself abrogate the prerogative of the legislature to thereafter refine, modify, or supersede the same by additional legislation. Madison v. Lambert, 399 So.2d 840 (Ala.1981).

The purpose of § 45 of the State constitution is to prevent “logrolling” of legislation, or fraud on the public and the legislature by provisions being placed in bills which have titles that give no intimation of the actual subject being considered. Bozeman v. Hester, 260 Ala. 566, 72 So.2d 61 (1954); Eagerton v. Exchange Oil and Gas Corp., 404 So.2d 1 (Ala.1981). Section 20-2-80 in no way violates the letter or spirit of § 45 of the constitution.

No error having been found in the record, the judgment and sentence of the lower court are affirmed.

The foregoing opinion was prepared by the Honorable ROBERT M. HILL, Sr., Retired Circuit Judge, temporarily on duty on the court pursuant to § 12-2-30(b)(6), Code of Alabama 1975; his opinion is hereby adopted as that of the court.

AFFIRMED.

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


text:
    Billy W. JOHNSON v. STATE.
    8 Div. 854.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 83-67.
    Jerry Lee Hicks, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

The defendant was indicted and convicted for burglary in the third degree and theft of property in the first degree. He was sentenced as a habitual offender to life imprisonment.

The defendant argues that his confession was involuntary because, although he was informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in connection with the rape charge on which he was initially arrested, he was never informed of his constitutional rights with regard to the burglary charge about which he was interrogated approximately twenty minutes later.

An accused need not be advised of the specific statute he is suspected of violating before confessing. United States v. Williams, 616 F.2d 759, 761 (5th Cir.1980). “Once the mandate of Miranda has been complied with at the threshold of the questioning it is not necessary to repeat the warnings at the beginning of each successive interview.” Gibson v. State, 347 So.2d 576, 582 (Ala.Cr.App.1977). See also Hollander v. State, 418 So.2d 970, 972 (Ala.Cr.App.1982).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Omar SHABAZZ v. STATE.
    4 Div. 186.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 83-31.
    J. Earl Smith of Smith & Smith, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant was indicted by the Houston County Grand Jury for felony possession of marijuana and receiving stolen property in the second degree. He was arrested and released on bond. Trial was set for March 24, 1983, at which time appellant failed to appear. His bond was forfeited and alias writs of arrest were issued. Appellant was re-arrested on May 27, 1983, and has been in custody since that time.

Appellant filed a petition for writ of ha-beas corpus alleging that he was being illegally deprived of bail. After a hearing, the petition was denied. Appellant filed both a notice of appeal and a petition requesting the trial court to set an appeal bond. The court denied the appeal bond. Appellant appealed the denial of appeal bond which, in turn, was affirmed without opinion by this court. The court now addresses the appeal from the denial of the writ of habeas corpus.

Appellant was ordered to be in court at 8 a.m. on May 24, 1983. The evidence indicates that he arrived later that morning but failed to inform any court officials of his presence. For some undisclosed reason, appellant’s wife was taken into custody while he was in another part of the court house. Upon learning that his wife had been taken into custody, appellant “panicked” and fled the building. He was arrested three days later, evidently without having attempted to leave Houston County.

The only issue on appeal is whether appellant is entitled to bail a second time on the same non-capital case once there has been a forfeiture of the initial bond. This is a case of first impression in this State.

The Constitution of the State of Alabama provides “That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall not in any case be required.” Ala. Const, art. I, § 16. Additionally, § 15-13-2, Code of Alabama 1975, states that “In all cases other than those specified in subsection (a) of section 15-13-3, a defendant is, before conviction, entitled to bail as a matter of right.” Subsection (a) of § 15-13-3 deals with capital cases. The courts of this State have consistently construed the statute and constitutional provision as ensuring to an accused an absolute right to bail. Brakefield v. State, 269 Ala. 433, 113 So.2d 669 (1959); Holman v. Williams, 256 Ala. 157, 53 So.2d 751 (1951); Sprinkle v. State, 368 So.2d 554 (Ala.Cr.App.1978), writ quashed, 368 So.2d 565 (Ala.1979).

Although the authorities from other jurisdictions are split, the weight seems to be in favor of those who give the defendant the right to make bail a second time. One of the cases giving this right is Rowan v. Randolph, 268 F. 527 (7th Cir.1920). There, the defendant “jumped” bail and went to Canada for a year before being deported back to this country. The defendant was then refused bail a second time on the same charge. The Seventh Circuit said:

“In our judgment the inescapable answer is found in the commands of Congress. Section 1015 ... directs that bail shall be admitted upon all arrests in criminal cases where the offense is not punished by death.... It seems to us utterly immaterial of what character of evidence the trial court should base a finding that there is a high degree of probability that a defendant in a non capital case will abscond. (Original emphasis.) 268 F. at 528, 529.

Another early case is Ex parte McDaniel, 86 Fla. 145, 97 So. 317 (1923). There, the appellant had twice before failed to appear on the charge then pending against him, and his bonds had been forfeited each time. That court held that the language of their constitution regarding bail was mandatory. It provided that “All persons shall be bailable by sufficient sureties, except for capital offenses.” 97 So. at 317. The court held that a denial of the right to bail is a deprivation of liberty without due process of law. The court did indicate, however, that there may be cases in which the right to bail could be forfeited, but that this was not one of those cases.

The leading case on this point is Wallace v. State, 193 Tenn. 182, 245 S.W.2d 192 (1952). The fact situation there was similar to the two prior cases. The defendant had jumped bail and gone to another state. While in the other state, he was picked up for a charge allegedly committed prior to the time he committed the offense for which he was then out on bail. The court quoted a pertinent part of the state constitution, which said, “all prisoners shall be bailable by sufficient sureties, unless for capital offenses.... ” Tenn. Const, art. I § 15. The court then held the section to be mandatory and, therefore, bail could not be denied, except for capital cases, even when a former bond on the same charge had been forfeited. That court, as did the Florida court, indicated that a defendant could forfeit this right to bail but that the forfeiture must be made to appear by affirmative evidence.

A more recent case is Gallagher v. Butterworth, 484 F.Supp. 1278 (S.D.Fla.1980). There, again, the appellant had failed to appear, this time for drug charges. He had moved to Ohio to avoid prosecution and had remained there for over a year before being returned to Florida. The federal court, applying Florida law, said the provisions of the particular constitution were mandatory, and that the trial court did not have any discretion other than in a capital offense. The court also noted that Rule 3.130 of the Florida Rules of Criminal Procedure stated that persons accused of bailable crimes “shall be entitled as of right to be admitted to bail before conviction.” The federal court went on to say:

“The Federal Constitution does not establish an absolute right to bail prior to conviction. As for those offenses, however, for which the state has guaranteed bail, the state may not thereafter ‘engage in such administration as arbitrarily or discriminatorily to effect denial or deprivation of the right to a particular accused.’ Mastrian v. Hedman, 326 F.2d 708, 711 (8th Cir.1964).” 484 F.Supp. at 1280.

The leading case espousing the opposing view is Mello v. Superior Court, 117 R.I. 578, 370 A.2d 1262 (1977). Article I, section 9, of the Rhode Island Constitution provides that “All persons imprisoned ought to be bailed by sufficient surety, unless for offenses punishable by death or by imprisonment for life .... ” That court did not view the constitutional language as mandatory. Citing the ABA Project on Minimum Standards of Criminal Justice, Standards Relating to Pretrial Release, § 5.7 Commentary (approved draft, 1968), the Rhode Island Supreme Court reasoned that where the defendant is shown to have violated a condition related either to risk of nonappearance or criminal activity, the trial court would be authorized to revoke release. The court, again adopting the reasoning of the ABA Project, supra, said that whatever force constitutional arguments against preventive detention have is diminished if the defendant has been released and demonstrated a deliberate intent to violate reasonable restrictions aimed at protecting public safety.

A case relied on by the Rhode Island court was People Ex Rel. Hemingway v. Elrod, 60 Ill.2d 74, 322 N.E.2d 837, 840, 841 (1975). Although not exactly on point, the case held that:

“In our opinion the constitutional right to bail must be qualified by the authority of the courts, as an incident of their power to manage the conduct of proceedings before them, to deny or revoke bail when such action is appropriate .... Thus keeping an accused in custody pending trial to prevent interference with witnesses or jurors or to prevent the fulfillment of threats has been approved. [Citations omitted] Also, if a court is satisfied by the proof that an accused will not appear for trial regardless of the amount or conditions of bail, bail may be properly denied. [Citations omitted]”

There are other cases in which a second bail has been denied, but these usually involve a state statute that gives the trial court discretion in granting or .refusing bail. State v. Churchill, 133 Vt. 338, 341 A.2d 22 (1975), is an example of that type of case.

After reviewing the cases on point, it seems clear that the constitution, statutes, and cases in this State give a defendant an absolute right to bail in non-capital cases. We feel the reasoning of the court in Wallace, supra, is consistent with the intent and spirit of the laws. Although the court found the right to bail on a non-capital case to be absolute, even when there had previously been a forfeiture of bail on the same charge, it also said that an accused could forfeit his constitutional right to bail if it appeared that he had done so through affirmative evidence. This court opines that engaging in felonious criminal activity while out on bail is an example of such affirmative evidence. Mere failure to appear in court would not suffice.

Even though the defendant, upon failing to appear, would again be entitled to bail, the State is not without its remedies. As the court said in Wallace, supra, the trial judge can raise the amount of the second bond, require additional sureties, and add additional conditions as seems necessary.

The order of the lower court is reversed with instructions that the trial judge set bond in an amount he deems appropriate under the circumstances.

REVERSED AND REMANDED WITH INSTRUCTIONS.

All the Judges concur.


author: WILLIAM H. COLE, Circuit Judge.

text:
    J.W. RICKETT v. STATE.
    7 Div. 62.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 83-88.
    Gary E. Davis, Centre, for appellant.
    Charles A. Graddick, Atty. Gen., and Gregory J. Robinson, Asst. Atty. Gen., for appellee.
   WILLIAM H. COLE, Circuit Judge.

On March 17,1982, a grand jury sitting in Cherokee County indicted appellant, J.W. Rickett, for escape in the first degree. The trial court overruled appellant’s pre-trial demurrer or in the alternative plea and abatement on May 14,1982. Appellant was tried before a jury on May 14, 1982, and found guilty of escape in the first degree. The state petitioned the court on June 1, 1982, to sentence the appellant under the Habitual Offender Act, § 13A-5-9, and filed notice of prior convictions by certified copies of minute entries. After a hearing, the trial court sentenced the appellant to life imprisonment. This appeal follows the denial of appellant’s motion for new trial on July 22, 1982.

The appellant was arrested on December 11, 1981, on the charge of theft of property and was placed in the Cherokee County Jail. On the morning of March 13, 1982, the appellant and trustee, Roy Lionel Battles escaped from jail after consuming a large amount of “homebrew.” According to Battles’s testimony, the appellant and Battles released themselves from a locked cell by means of homemade keys and proceeded to the jail’s kitchen where they accosted the jailer, Duard Wooten. Battles testified that both he and the appellant were armed with pocket knives. The appellant, however, denies being armed. Wooten testified that he observed that Battles was armed but never saw the appellant with a knife. Wooten did state, however, that he felt something pressed against his back by appellant. The appellant and Battles took Wooten to a cell, where they stole the keys to his car and locked him in the cell. The two escapees then left the jail and fled in Wooten’s car. The car was abandoned in the woods approximately one mile from the appellant’s father’s home in Cherokee County-

Prom the testimony of Wooten and John Tillery, Chief Deputy Sheriff of Cherokee County, the appellant was in custody on the date of his escape. Further, the appellant admits escaping. The appellant was re-arrested on April 10, 1982, in Walker County and was again incarcerated in the Cherokee County Jail.

I

The appellant contends that the court erred in overruling the demurrer in that the indictment was defective in failing to charge the escape was “from custody” but instead charged escape from a penal facility. Further, he contends that the use of a dangerous weapon, physical force or threat of physical force in an escape from custody was not proven. The indictment reads as follows:

“The grand jury of said county charged that before the finding of this indictment J.W. Riekett, whose name to the grand jury is otherwise unknown than as stated, did escape or attempt to escape from a penal facility, to wit: Cherokee County Jail, and in the course of said escape, or attempt to escape, did employ physical force on Durard Wooten, or threaten physical force, or use a deadly weapon or a dangerous instrument, to wit: a knife, in violation of § 13A-10-31 of the Code of Alabama contrary to law and against the peace and dignity of the State of Alabama.

An indictment should be “a plain, concise statement of the facts in ordinary language sufficiently definite to inform a defendant of common understanding of the offense charged and with that degree of certainty which will enable the court, upon conviction, to pronounce the proper judgment.” A.R.Crim.P.Temp. 15.2.

Under § 13A-10-30, Code of Alabama 1975, a county jail comes within the definition of a penal facility and the term “custody” is defined as “restraint or detention by a public servant pursuant to a lawful arrest, conviction or order of court.” See also § 15-8-25, Code of Alabama 1975. Under the testimony in this case the defendant escaped from a penal facility and was in custody when he did. The code section cited in the indictment gives notice that the charge is escape in the first degree. The defendant is informed of the offense charged and the court is able to pronounce proper judgment. Not only does the citing of § 13A-10-31 charge first degree escape, but the averment of physical force and the use of a deadly weapon, etc., establishes this. Such force appears only in first degree escape. The explanation of complicity in the oral charge enables the jury to consider force by the appellant and/or his co-defendant.

In addition, the trial judge charged on the lesser included offense of escape in the second degree, the difference between the two being that second degree escape does not require force, or deadly weapons or a dangerous instrument. In his oral charge, the trial judge used the term “custody” when explaining first degree escape. In objecting to the Court’s oral charge, appellate’s attorney objected to the lesser included offense of escape in the second degree, stating that the indictment was so drawn that there could only be a conviction for first degree escape or an acquittal. To now argue the reverse is not acceptable. No charge was requested or objection made to the oral charge as to the term “custody.” The indictment satisfies the criteria in the aspects required by Andrews v. State, 344 So.2d 533 (Ala.Cr.App.1977), and Summers v. State, 348 So.2d 1126 (Ala.Cr.App.1977), cert. denied, 434 U.S. 1070, 98 S.Ct. 1253, 55 L.Ed.2d 773, rehearing denied, 435 U.S. 981, 98 S.Ct. 1633, 56 L.Ed.2d 75 (1978).

II

It is argued that certified copies of prior convictions were not offered in evidence “on the record,” and hence appellant cannot be sentenced under the Habitual Offender Act. The trial judge read into the record, as shown by the transcript, a conviction for burglary third degree, 1981; robbery 1975; assault with intent to rob, 1975; and in 1975 a “felony” conviction (theft by taking) in the state of Georgia. Minute entries through exemplified copies appear in the transcript. True, they are not marked as exhibits in this case, but they show attorney representation and all the prerequisites. See, Thatch v. State, 397 So.2d 246 (Ala.Cr.App.1981); Highsmith v. State, 55 Ala.App. 272, 314 So.2d 874 (Ala.Cr.App.1975); and Clency v. State, 415 So.2d 714 (Ala.Cr.App.1982). On cross examination in the trial, defendant also admitted four prior felony convictions. They are proven. See Peoples v. State, 415 So.2d 1230, after re-mandment, 421 So.2d 1383 (Ala.Cr.App.1983); Laffity v. State, 423 So.2d 280 (Ala.Cr.App.1982).

Ill

It is next urged that the enforcement of the Habitual Offender Act, as applied to appellant, was unconstitutional in that co-defendant Battles (who testified) admitted to three prior felonies and on a plea of guilty received a sentence of five years. There was nothing offered in evidence, nor appearing in the transcript, nor on the motion for a new trial, which refers to the co-defendant or his co-escapee receiving a certain sentence; Neither is there any reference to the degree of the charge or to the attorney representation. This court cannot rule on this argument on the bare oral assertion of three prior felonies.

The judgment of the Cherokee County Circuit Court is due to be and is affirmed.

The foregoing opinion was prepared by Hon. WILLIAM H. COLE, Circuit Judge, temporarily on duty on the court pursuant to § 12-2-30(b)(6), Code of Alabama 1975; the court has adopted his opinion as its own.

AFFIRMED.

All the Judges concur.


author: THOMAS E. HUEY, Retired Circuit Judge.

text:
    Willie E. NICHOLSON v. STATE.
    3 Div. 641.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 1, 1983.

      William Thomas Chapman, Evergreen, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   THOMAS E. HUEY, Retired Circuit Judge.

Willie E. Nicholson appeals from the judgment and order of the Circuit Court of Conecuh County revoking his probation.

I

The record shows that on April 1, 1980, the appellant pled guilty to one indictment for cattle theft and for buying, receiving or concealing stolen property, one polled here-ford cow, and to a second indictment for buying, receiving or concealing stolen property, sixteen hogs. He was sentenced to six years in the State penitentiary on each charge, the sentences to run concurrently. Probation was denied at that time. On March 13,1981, the appellant was placed on probation for both convictions, to run for the remainder of his sentences, until April 29, 1986.

On May 5, 1982, appellant was arrested for possession of marijuana in violation of § 20-2-70, Code of Alabama 1975. On June 9, 1982, appellant’s probation officer filed a written “Supervisor’s Report on Delinquent Probation,” alleging the May 5, 1982, possession of marijuana arrest and that the appellant had failed to file monthly reports and pay supervision fees. On August 5, 1982, a revocation hearing was held in the Conecuh County Circuit Court, the appellant being present and being represented by counsel. At the conclusion of the hearing, the trial court entered written findings and an order revoking appellant’s probation for both convictions.

After information was received from an informant, Deputy Sheriff William Gibson stopped a car driven by the appellant. Deputy Gibson testified that he asked the appellant who owned the ear and that the appellant stated that he was the owner. At the hearing before the trial court, the appellant testified that “it was my car.” The appellant was searched by the Deputy Sheriff and no marijuana was found on him. A bag of marijuana was found lying between the legs of a passenger in the front seat, Jimmy Lee Richardson. Richardson was arrested and charged with possession of marijuana. A passenger in the back seat was searched. No marijuana was found on him and he was not arrested.

Deputy Sheriff Gibson testified that he searched the automobile and “the ash tray was open.” He further testified, “... and the ash tray was open and in the ash tray I found two roaches — two smoked marijuana cigarettes.” He then placed the appellant under arrest for possession of marijuana. The appellant testified that he did not know that Jimmy Richardson had marijuana in the car. The appellant further testified as follows:

“Q. ... Those marijuana cigarettes up there in the ash tray of the car, did you know about them?
“A. No, sir. To my knowledge, there wasn’t none in there.
“Q. Do you smoke?
“A. No, sir.”

Further testimony of Deputy Sheriff Gibson was as follows:

“Q. But you charged him [appellant] there as he was the driver of the automobile.
“A. Yes, sir, he was the driver.”

Jimmy Richardson, the passenger in the front seat of appellant’s car, testified that he pled guilty to possession of marijuana. He testified that he took breaks from his work during the day, went to appellant’s car and smoked marijuana and placed the cigarettes in the ash tray. He was unable to say how many breaks he took or how many cigarettes he smoked in appellant’s car. He further testified that any marijuana found in the car was his and that the appellant “didn’t know about it.”

II

The appellant contends that no sufficient ground for revocation of probation existed because the State did not offer in evidence at the hearing the Order of Probation or the conditions of probation. Although the record does not show that the Order of Probation was formally offered in evidence, the order appears on page 36 of the record and again on page 62 of the record. The first condition stated in the Order of Probation is that the probationer “Do not violate any Federal, State or local law.” The trial judge who signed the Order of Probation also conducted the probation revocation hearing. The Order of Probation contains the following statement bearing the signature of the probation officer: “A copy of this order has been delivered to the probationer, who has been instructed regarding same this (date) 3/26/81.” And another statement on the Order of Probation is as follows: “The above instructions and conditions have been read and explained, and I hereby accept these conditions, agreeing to abide by them.” A signature, “Willie E. Nicholson,” appears under the last statement.

In the case of Free v. State, 392 So.2d 857, 859 (Ala.Cr.App.1980), this court held that “... a probation revocation proceeding is not criminal in nature, and therefore no formal trial is required nor is the court required to follow formal rules of evidence.”

Considering the entire record, we find no merit in the appellant’s contention that the fact that the Order of Probation was not formally offered in evidence renders the revocation order defective.

Ill

The appellant further contends that the evidence presented at the probation revocation hearing was not sufficient to reasonably satisfy the trial court that a condition of probation had been breached.

In Armstrong v. State, 294 Ala. 100, 312 So.2d 620, 623 (1975), the Supreme Court of Alabama observed:

“It is not to be understood that proof beyond a reasonable doubt or the preponderance of the evidence are the standards to be applied in determining whether the probation should be revoked. The trial judge must only be reasonably satisfied from the evidence that the probationer has violated conditions of his probation. Fiorella v. State, 40 Ala.App. 587, 121 So.2d 875 (1960).”

In the case of Free, supra, it is pointed out that while a “mere arrest” or the filing of charges themselves would be insufficient grounds for revocation of probation, it is equally clear that neither our statute nor the constitution requires a final conviction of probationer of the offense charged before his probation may be revoked. The court further stated: “But while the standard of proof is not reasonable doubt or the preponderance of the evidence, Armstrong v. State, supra, ‘the State must submit substantive evidence to reasonably satisfy the trier of the facts that a condition of probation has been breached.’ Hill v. State, supra [350 So.2d 716 (Ala.Cr.App.1977)]; Fiorella v. State, supra.” 392 So.2d at 859.

Considering the entire record, including the evidence that marijuana cigarettes were found in the ash tray of the automobile owned and driven by the appellant, we are clear to the conclusion that there was adequate evidence from which the trial court could have reasonably held that the appellant had breached the terms of his probation. The judgment of the trial court revoking probation is affirmed.

The foregoing opinion was prepared by the Honorable THOMAS E. HUEY, Jr., Retired Circuit Judge, temporarily on duty on the court pursuant to § 12-2-30(b)(6), Code of Alabama 1975; his opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.