author: TYSON, Judge.

text:
    Rickey Lee BROWN v. STATE of Alabama.
    7 Div. 889.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Rehearing Denied July 17, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1200.
    A1 Shumaker of Burns, Shumaker & Davis, Centre, for appellant.

      Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen. for appellee.
   TYSON, Judge.

Rickey Lee Brown was charged with the unlawful sale of marijuana. At trial, the appellant was found guilty as charged and the trial court set sentence at 12 years’ imprisonment in the penitentiary.

The appellant’s counsel filed a motion for new trial challenging the weight and sufficiency of the evidence which, after a hearing, was overruled.

The appellant gave notice of appeal to the Court of Criminal Appeals on August 4, 1981. On August 7, 1981, this court dismissed this appellant’s appeal as being untimely filed.

Thereafter, the appellant filed a petition for writ of error coram nobis, contending that his trial counsel was inadequate in that he had been denied the effective assistance of counsel, by failing to perfect a timely appeal to this court. The trial court then conducted a full hearing squarely on the merits of the appellant’s petition for writ of error coram nobis.

The following order was entered by the Circuit Court: (R. 80-82)

“ORDER
“The Defendant, Rickey Lee Brown, was tried in the Circuit Court of DeKalb County, Alabama, on March 17,1981, and found guilty of the offense of selling marijuana.
“On April 20, 1981, the Defendant filed a Motion for New Trial, and on July 28, 1981, the Defendant’s Motion for New Trial was denied.
“On April 22, 1981, the Defendant was sentenced.
“On August 4, 1981, the Defendant filed Notice of Appeal to the Court of Criminal Appeals of Alabama, and on August 7, 1981, the Court of Criminal Appeals of Alabama dismissed the Defendant’s appeal for having been untimely filed.
“It is well established, and uncontrovert-ed, that the Defendant was aware at the time of sentencing that he had a right to an appeal and that he expressed to his Court appointed trial counsel immediately after sentencing his desire to appeal his conviction. The Defendant’s Court appointed counsel failed to file a timely appeal, and the Defendant, through no fault of his own, was denied an appeal as a result thereof. The Supreme Court of Alabama, in the 'case of Ex Parte State of Alabama Petition For Writ of Cer-tiorari To The Court of Criminal Appeals (Re: James Longmire v. State of Alabama), [443 So.2d 1265] 17ABR 356 (October Term, 1982-83) granted an out-of-time appeal to a Defendant in a strikingly similar case. In the Longmire case, the Supreme Court relies heavily on the authority of Daniels v. Alabama, 487 Fed.2d 887 ([5th Cir.] 1973) wherein the Defendant was deemed to be ‘entitled to have his writ granted, subject to the State’s retrying him, or granting him an out-of-time appeal.’
“The traditional relief available on Cor-am Nobis is a new trial. Robinson v. State, 419 So.2d 283 (1982). The Fifth Circuit Court of Appeals, however has held that ... when a lawyer, by definition a member of a learned profession and a member of the bar of the court, does not perform his promise to his client that an appeal will be taken, fairness requires that the deceived defendant be granted an out-of-time appeal. Perez v. Wainwright, 640 F.2d 596 ([5th Cir.] 1981).
“The Court of Criminal Appeals of Alabama construes Longmire and Perez to stand for the proposition that the ‘traditional relief’ available on coram nobis has been expanded to include the granting of an out-of-time appeal, and opines that ‘an out-of-time appeal is significantly less burdensome to the State than would be a new trial.’ Peterson v. State, 428 So.2d 201 (1983).
“In Peterson the Court of Criminal Appeals of Alabama remanded the case to the trial Court for the purpose of its granting either a new trial or an out-of-time appeal. Inasmuch as the Court of Appeals could have granted the out-of-time appeal without remanding the case to the trial Court, it is inescapable that Longmire and its progeny authorize the trial Court to elect the Defendant’s appropriate relief.
“In the instant case, this Court agrees with the conclusion of the Court of Criminal Appeals that an out-of-time appeal is less burdensome for the State than a new trial. It is, therefore,
“ORDERED, ADJUDGED and DECREED that the Defendant’s Petition For Writ of Error Coram Nobis should be, and is hereby, GRANTED, and the Defendant is hereby granted an out-of-time appeal.
“DONE this 7 day of December, 1983.
/s/ David A. Rains David A. Rains, Circuit Judge”

The trial court then directed that a complete copy of appellant’s original trial transcript be included as a part of the appeal to this court.

Freddie Strength, an undercover narcotics agent for the State of Alabama, testified that in June, 1979, he was working on assignment in several north Alabama counties. He testified that he met with an informant named Ray Cisco who accompanied him to a meeting with the appellant, Rickey Lee Brown, at the appellant’s body shop, located in DeKalb County, Alabama, on June 16,1979. Strength was introduced at this point and a conversation ensued with reference to the purchase of some marijuana. Strength testified that he told Brown that he was there to “buy a pound of marijuana”. (R. 17). Brown indicated that he did not have same with him at that time but said that he would meet with them later and suggested that they meet at Cisco’s trailer later that evening. Brown did not appear, but at a point later that evening, the men got together at the house trailer of one Roger Dale Buttram. At that time there was a considerable discussion concerning the purchase of marijuana. The appellant indicated it was necessary for him to make a run to Trenton, Georgia, to obtain some marijuana. (R. 19). Strength related the following: (R. 20-21).

“Q. Tell us what transpired at that time?
“A. I was talking to Mr. Brown about different prices of marijuana, and about different lots, five pound lots, ten pound lots. He said he didn’t know and But-tram walked up. He asked Mr. Buttram about how much, you know, five pounds or ten pounds, and Buttram replied it would be about three eighty a pound.
“MR. WEAR: Judge, we are going to object to what Mr. Buttram might have said.
“COURT: Was the defendant present?
“A. Yes, sir.
“COURT: Overruled.
“Q. Go ahead.
“A. Three eighty' a pound in five pound lots, and three sixty-five a pound in ten pound lots, and Mr. Brown said: ‘Well, that’s not right’ and Buttram said: ‘It is according to what we give for it to start with’ and Buttram left.”

Strength testified that he next saw Brown at 11 a.m. on Sunday morning, June 17, 1979. This was at Brown’s Body Shop in DeKalb County. He stated that the conversation took place shortly after 9:30 that morning when Ray Cisco first contacted him. (R. 22-23).

“Q. Okay, and you saw him the next day, you said?
“A. Yes, sir, about 9:30 Ray Cisco contacted me and said that Brown had been in contact with him and if I wanted the marijuana I would have to meet back down at his shop, body shop.
“Q. At whose body shop?
“A. At Brown’s body shop.
“Q. And, did you meet Mr. Brown at his body shop?
“A. About 11:00 A.M. on that Sunday morning.
“Q. And, who all was present, sir?
“A. It was Rickey, myself, Ray Cisco, Roger Dale Buttram and some other white male was there who was working on a red truck, putting a motor in it.
“Q. And, what was the nature of the conversation on that morning.
“A. Rickey told us it would be a few minutes, you know, told Roger — Roger was under it passing down the motor to him, and told him to hurry up and for us to wait, which we did until they finished.
“Q. And, once that job had been completed, what transpired regarding marijuana?
“A. I followed Rickey. He said: ‘Come on’ and I followed Rickey to his car which was parked in his daddy’s driveway.
“Q. How did you know it was his father’s driveway?
“A. Brown referred to it as his daddy’s place.
“Q. The accused referred to his daddy’s place?
“A. Right.”

After leaving the body shop, the men drove to the house trailer of Buttram. There, Buttram actually handed some bags of marijuana to the appellant who in turn handed them to the agent, Strength. Strength testified he simulated smoking marijuana with Buttram, Brown and Cisco. Strength then described the purchase in question as follows: (R. 25-26).

“Q. While Mr. Wear is looking at the package there, let me ask you if you know, or were you at that time, familiar with the DeKalb County lines, so that you know you were in DeKalb County when this purchase itself took place?
“A. Yes, sir, I was in DeKalb County.
“Q. I’ll ask you if you will, please, sir, look at what has been marked as State’s Exhibit # 1, and tell us if you can identify that?
“A. This is a white paper sack, on which I wrote relevant case information on.
“Q. Tell us what you wrote on it?
“A. I put. down a case number, 122820, representing narcotics, 28 DeKalb County, the 20th case made, Rickey Brown and Roger Buttram, DeKalb County, Alabama.
“Q. When did you write that on there?
“A. That was on Sunday.
“Q. That Sunday afternoon?
“A. Yes.
“Q. Where did you get the white paper bag, sir?
“A. Well, after everybody — after simulating smoking marijuana with them, Buttram and Cisco left to show Cisco a house, or a shed of some type, it was out of my presence, talked about roofing, so — Cisco is a roofer, and I paid Rickey Brown $400.00 for the marijuana.
“Q. Do you remember the denomination of the bills, sir?
“A. It was twenty dollar bills, 20 of them.
“Q. Twenty, twenty dollar bills?
“A. Yes, sir.
“Q. And, where did you get the white bag?
“A. Well, Buttram and Cisco come back in and I asked them if they had a bag that I could put this in, and Buttram gave me the white paper bag.
“Q. All right, would you please remove the contents of the bag.
“A. This?
“Q. Yes, sir.
“A. This, I first sealed — not sealed, but I placed inside it a blue-lined white paper with the date and time, and my name on it, which was 6-17-79, 12:20 p.m., F.L. Strength. I placed it inside the bag, zipped it back and sealed it again and labeled and dated with: ‘FLS, 6-17-79,’ which I in turn put in here.
“Q. And, what did you do with the marijuana?
“A. Took it and placed it back in the white paper sack and wrote up the information on the white paper sack and give it to Agent Mike Kirk.
“Q. Where was he when you gave it to him?
“A. He was in the room with me.
“Q. Where?
“A. It was a Holiday Inn, Room 229, at Scottsboro, Alabama.”

Agent Kirk testified that he then took the marijuana which he had taken from Strength and delivered it to Ms. Martha Odom at the crime lab. Ms. Odom’s analysis of the material as marijuana was stipulated into evidence as being 422 grams of marijuana and the date of the report is July 9, 1979.

I

Two issues are presented on appeal of this conviction.

As to the first issue with reference to the right of the appellant to receive a full review by way of belated or out-of-time appeal, we are of the opinion that the trial court properly applied the law to the factors which arose in this instance. It determined there was a misunderstanding as to the time in which the appellant’s counsel was to perfect his appeal. This was through no fault of the appellant himself and he was, in fact, an indigent who at all times expressed his desire to appeal his conviction. The Supreme Court of Alabama has expressly approved the procedure here followed by the trial court in an opinion known as Longmire v. State, 443 So.2d 1265 (1982). This action is not without prior precedent in Alabama. This court noted in Ellison v. State, 55 Ala.App. 50, 312 So.2d 632 (1975), the following:

“The Supreme Court of Alabama, in Allison v. State, 281 Ala. 193, 200 So.2d 653 (1967) was confronted with this same problem, and proceeded to accord appellate review of the original trial proceedings as therein outlined. The court also accorded review of the original trial proceedings through a ‘coram nobis appeal’ in Aldridge v. State, 278 Ala. 470, 179 So.2d 51 (1965). Likewise, this court has similarly accorded appellate review in Bates v. State, 52 Ala.App. 257, 291 So.2d 315 [351] (1974).”

See also Baldwin v. State, 342 So.2d 940 (1977) and Peterson v. State, 428 So.2d 201 (Ala.Crim.App.1983).

Based on the foregoing authorities we are of the opinion that the trial court here properly determined that the appellant was entitled to a full out-of-time appeal and review in this court.

II

The second issue is the sufficiency of the State’s evidence when tested by appellant’s motion to exclude made at trial at the conclusion of the State’s case and also by his timely file motion for new trial which challenged both the weight and sufficiency of the State’s evidence.

We have carefully considered this case and all aspects of the transcript of the evidence in an effort to be certain that due process of law is here fully accorded this appellant. We are of the opinion that the undercover officer, Strength, properly identified the appellant in his three conversations at three different locations with the appellant and properly identified him as being the Rickey Lee Brown to whom he paid the funds and obtained the marijuana in question. This was a payment of $400.00 for 422 grams of marijuana.

The State here sufficiently established a proper chain of custody and the identity of the prohibited substance as marijuana. Slaughter v. State, 411 So.2d 819 (Ala.Crim.App.1982) and authorities cited. We are also of the opinion that the State of Alabama properly established a prima facie case of the sale of the marijuana in question by the appellant, Brown, to the undercover officer, Strength. Sterling v. State, 421 So.2d 1375 (Ala.Crim.App.1982) and authorities therein cited. Slaughter v. State, supra; Radney v. State, 342 So.2d 942 (Ala.Crim.App.1977), cert. denied, 342 So.2d 947 (Ala.1977).

We have carefully reviewed this entire transcript, including the complete original trial proceedings and evidence. We find this record to be free of error.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Presiding Judge.

license: Public Domain

text:
    Joel Brent CALHOUN v. STATE.
    8 Div. 905.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Rehearing Denied July 31, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1288.

      Harvey B. Morris of Cleary, Lee, Morris, Evans & Rowe, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and T.A. Harding Fendley, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Joel Brent Calhoun, the appellant, was indicted and convicted for trafficking in cannabis in violation of Alabama Code § 20-2-80 (1975). Sentence was eight years’ imprisonment and a $25,000 fine. Four issues are raised on appeal.

I

Calhoun argues that the search warrant was invalid because the supporting affidavit contained false information. We disagree.

A search warrant may be invalidated if the affidavit contains a material and false statement made knowingly and intentionally or in reckless disregard for the truth. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); Annot., 24 A.L.R. 4th 1266 (1983). The defendant bears the burden of establishing the perjury or reckless disregard for the truth by a preponderance of the evidence. Franks, 438 U.S. at 156, 98 S.Ct. at 2676.

Here, there was a direct conflict in the evidence of whether or not Calhoun was at his residence on the evening of August 5, 1981. The resolution of this factual issue required the trial judge to weigh the credibility of the witnesses. His determination is entitled to great weight on appeal. State v. Klar, 400 So.2d 610, 613 (La.1981). “When there is conflicting testimony as to a factual matter such as this, the question of the credibility of the witnesses is within the sound discretion of the trier of fact. His factual determinations are entitled to great weight and will not be disturbed unless clearly contrary to the evidence.” Klar, 400 So.2d at 613.

II

Calhoun argues that the State failed to prove that he knew he was in actual or constructive possession of more than 2.2 pounds of marijuana.

Knowledge by the accused of the presence of the controlled substance is an essential element and prerequisite to conviction for the offense of trafficking. Alabama Code § 20-2-80 (1975). See also Walker v. State, 356 So.2d 672 (Ala.1977). Section 20-2-80(1) states, in pertinent part, that “(a)ny person ... who is knowingly in actual or constructive possession of, in excess of one kilo or 2.2 pounds of cannabis is guilty of a felony, which felony shall be known as ‘trafficking in cannabis.’ ” Hence, under our trafficking statute, the State must prove that the accused knew he was in possession of more than one kilo of marijuana. That knowledge will almost always be proven by circumstantial evidence. “[Gjuilty knowledge may be established by circumstantial evidence.” Temple v. State, 366 So.2d 740, 741 (Ala.Cr.App.1978). See also German v. State, 429 So.2d 1138 (Ala.Cr.App.1982). Knowledge of the presence and the quantity of the controlled substance may properly be inferred from the possession of the substance by the accused. “So, an inference of the requisite knowledge of narcotics is created by the finding of them on premises under the control of the accused, even though other persons might have access to the premises, or are actually present thereon.” 28 C.J.S. Drugs & Narcotics Supp. § 194 (1974) (footnotes omitted).

Here, it is undisputed that Calhoun and John Landers were living in the residence on Shoals Creek Road in August of 1981. Mike Ponter had been staying with them in April and May. Law enforcement agents had had this house under surveillance for several months and had observed “vehicles coming and going to and from the residence consistently at periodic times.”

Calhoun was arrested as he was returning home from work on the morning of August 7, 1981. He was escorted to his residence and the search warrant was executed. Calhoun “turned off the burglar alarm system and then opened the door with a key.” No one was in the residence when the officers arrived. It was undisputed that this was Calhoun’s home and that he lived there.

In the garage area of the house was found “a green color plastic garbage type bag located sitting on the floor of the garage partially underneath a kid’s type swimming pool, one of those little plastic swimming pools.” The plastic bag contained eleven smaller bags of marijuana. In the garage near the door into the kitchen was an old antique ice box containing “a green plastic bag with three bags of cannabis material in clear plastic bags.”

Several pistols and other weapons were found in Calhoun’s bedroom. Four boxes of “rolling papers” were also found there.

In another bedroom were found three clear plastic bags of marijuana, each containing approximately two ounces of marijuana. Also found were a “bottle of cutting agent”, two sets of “triple beam gram weighing scales”, and a smaller set of scales. In this bedroom was found “various paper work relating to the name Mike Ponter.” Sometime during the search, Calhoun told the officers that Ponter had lived there but had moved to Florida.

In the kitchen were found nine full boxes and two “partial boxes” of zip-lock bags of the size “commonly used to hold a pound or more of marijuana.” Two “coke screens” were found in the house, one of which was discovered in Calhoun’s bathroom.

At least eleven firearms were found in the house. Between eleven and thirteen pounds of marijuana were found throughout the house and garage. None of the marijuana in the house or garage was m plain view and no marijuana was found in Calhoun’s bedroom.

After Calhoun had been warned of constitutional rights and made a knowing and intelligent waiver, he removed a tray from the top of a “stereo rack” in the living room and said, “This is my smoking dope. This is all of it. Let’s go.” A wooden box was also removed from the stereo stand. It contained four clear plastic bags of marijuana, two bags of rolling papers, and a smoking pipe. The tray contained “approximately seven grams of loose marijuana debris of stems and stems mainly.” Later, at the jail, Calhoun stated, “Man, I just messed up” and “I really messed up this time.”

Here, the quantity of the marijuana and paraphernalia ' found and its location throughout the house, when coupled with Calhoun’s admission of ownership of some of the marijuana, constitutes sufficient circumstantial evidence to show Calhoun’s knowing possession and control of the marijuana. “Evidence that the defendant was a user of narcotics or was under the influence of narcotics at the time of his arrest has been held in several cases to be a sufficient circumstance by itself, or in combination with others, tending to link the defendant with narcotics found on premises or in an area of which he was in nonexclusive possession so as to sustain his conviction for illegal possession of such narcotics.” Annot., 56 A.L.R.3d 948, § 8(a) (1974). Temple, 366 So.2d at 743. Calhoun is connected to the marijuana through the fact that the marijuana was found throughout his residence and the fact that he admitted possession and use of some of the marijuana. See Campbell v. State, 439 So.2d 723 (Ala.1983). This evidence was sufficient to authorize the submission of the issue of his guilt to the jury.

Ill

In his oral instructions to the jury, the trial judge charged that Calhoun could be convicted if he conspired with others to possess more than a kilo of marijuana. Defense counsel objected on the ground that conspiracy was a separate crime defined by statute with which Calhoun had not been charged. Calhoun recognizes that before the adoption of Alabama’s new criminal code it was permissible to find a defendant guilty of having committed a substantive offense upon proof of a conspiracy to commit that offense. James v. State, 351 So.2d 693 (Ala.Cr.App.1977). However, he contends that under Alabama’s new criminal code conspiracy is a separate criminal offense.

After objection was made the trial judge gave the following additional instructions:

“He [defendant] must have been in possession himself manually or constructively or aided and assisted somebody or been involved in a conspiracy with somebody else to possess, either way, more than two point two pounds of cannabis. “As concerns the conspiracy, there is no charge — there is an offense under the law called conspiracy, but that is not what is charged here. You could not find this defendant guilty of that offense under the law, and I don’t mean to make — to give you information to the effect that you can. I simply said that the offense can be committed by persons who conspire together, and if persons do conspire together, then they are all guilty if one is guilty. But one has to be guilty before the others can be.”
“What I am saying is before there could be guilt of this defendant this defendant had to be in either actual or constructive possession or some other person had to be in actual or constructive possession, and this defendant had to have been aiding or assisting or being involved in some knowledgeable way with that possession, whether it was his own sole possession or the possession of others.”

This issue was properly preserved for review. Where the extended charge does not cure the error of the original charge to which an exception was reserved, but continues the error, the failure to again except is not a waiver of the original exception. Milligan v. State, 45 Ala.App. 112, 115, 226 So.2d 172 (1969); Davis v. State, 40 Ala.App. 118, 120-21, 112 So.2d 353 (1958), cert. denied, 269 Ala. 695, 112 So.2d 355 (1959).

Conspiracy is a distinct and separate substantive offense from the crime intended, and does not require that the criminal offense agreed to be actually completed. “[Cjonspiracy is an inchoate offense and, properly, not a theory of complicity. Alabama law often ambiguously holds one liable for a crime based upon the behavior of another, predicating liability upon the aiding and abetting theory, or by virtue of conspiracy liability for substantive crimes.... Thus, the determination of complicity responsibility often has been couched in terms of conspiracy. Under this Criminal Code, the complicity provisions in § 13A-2-23 are the exclusive method of determining criminal responsibility for the conduct of others.” Commentary to § 13A-4-3.

Prior to the adoption of Alabama’s new criminal code, a conviction of one charged in the indictment with having been the actual perpetrator of a crime is authorized on proof of a conspiracy or that the accused aided or abetted in the commission of the crime. Stokley v. State, 254 Ala. 534, 541, 49 So.2d 284 (1950). Since Alabama now has an inchoate crime of statutory conspiracy, § 13A-4-3, any confusion could be avoided by recognizing the subtle distinctions between “complicity” and “conspiracy” (§ 13A-4-3). However, we find the error, if any, was harmless.

“Joint participants in a crime may be denominated ‘conspirators’ and a joint act or scheme may be called a ‘conspiracy’ since these words do not lose all of their ordinary meaning and content merely because there exists a separate crime of conspiracy.” Smith v. State, 368 So.2d 298, 304 (Ala.Cr.App.1978), cert. quashed, Ex parte Smith, 368 So.2d 305 (Ala.1979).

It is clear that one may be convicted for possession of a controlled substance upon proof that he was aiding and abetting in its commission. Annot., 47 A.L.R.3d 1239 (1973). The possession of illegal drugs is susceptible of joint commission and the guilt of the accused does not depend upon proof of his ownership. Mitchell v. State, 395 So.2d 124, 126 (Ala.Cr.App.1980), cert. denied, Ex parte Mitchell, 395 So.2d 127 (Ala.1981).

IV

Calhoun contends that the reversible error was committed when the State failed to disclose a statement Calhoun made.

In a motion to produce, Calhoun requested the disclosure of any exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and “(c)opies of all statements allegedly made by the Defendant, whether oral, written, taped, recorded or in whatever form, that the prosecution either intends to introduce into evidence or to rely upon at the trial of the case.” The circuit court granted the motion to the extent that it ordered the State “to produce all evidence favorable to the defendant in State’s possession and all written statements signed by the defendant in the possession of the State.”

Defense counsel objected when the State attempted to elicit from Decatur Police Investigator Jep H. Tallent Calhoun’s statement that “This is my smoking dope. This is all of it. Let’s go.” Officer Tallent reduced this statement to writing in his written report. This report was neither seen or signed by Calhoun. “It is within the discretion of the trial court as to whether a prosecuting officer will be compelled to turn over to the defense written notes made by officers during the investigation of a crime.” Allen v. State, 414 So.2d 163, 166 (Ala.Cr.App.1982).

In Brady v. Maryland, the United States Supreme Court recognized the prosecutor’s duty to disclose evidence favorable to an accused. Prosecutors, however, have no duty under Brady to disclose inculpatory evidence. United States v. Cochran, 697 F.2d 600, 605 (5th Cir.1983); United States v. Bailleaux, 685 F.2d 1105, 1113 (9th Cir.1982). Evidence that is both favorable and unfavorable to the defendant must be disclosed under Brady. Sellers v. Estelle, 651 F.2d 1074, 1077 (5th Cir.1981), cert. denied, 455 U.S. 927, 102 S.Ct. 1292, 71 L.Ed.2d 472 (1982).

Calhoun argues that his statements were favorable to him because they indicated that only the marijuana present in the box and tray in the living room was in his possession and raised a reasonable doubt that Calhoun knowingly possessed, actually or constructively, more than 2.2 pounds of marijuana. We view the statement as the most damaging single piece of evidence in the State’s case against Calhoun. The statement is inculpatory evidence which the prosecutor had no duty to disclose.

Furthermore, even if the State were required to produce this statement under Brady, we fail to see how the nondisclosure harmed Calhoun. Calhoun testified in his own defense and used this statement to show that the only marijuana he knew of was in the tray and the box. He testified that after the officers found his wooden box on the stereo stand, he “reached up on the top shelf of the stereo stand and took the tray down and told them that this was my smoking dope, to take it, too.” He admitted ownership of the marijuana in the box and on the tray but denied having any knowledge of, or having seen, any. other marijuana in his house or garage.

On cross examination, Calhoun admitted that he smoked marijuana and that he had smoked it with Landers and Ponter. He admitted that one “coke screen” was found in his bathroom but denied ownership. On further cross examination by the State, Calhoun admitted that immediately before the search of his residence he was stopped and arrested by the police. At that time his 1978 Cadillac El Dorado was searched and under the front passenger’s seat was found a box containing “some marijuana, papers, some Valium, and there is a vial.”

Since Calhoun admitted making the statement, he can hardly claim that he had no knowledge of its existence in preparing his defense.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: PATTERSON, Judge.

text:
    Jack TICE and Donny Ray Sullivan v. STATE.
    3 Div. 874.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.
    Rehearing Denied Aug. 14, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1328 and 83-1337.

      Samuel L. Adams, Dothan, for appellant Sullivan.
    Willis E. Isaac, Montgomery, for appellant Tice.
    Charles A. Graddick, Atty. Gen. and Michael A. Bownes, Asst. Atty. Gen., for ap-pellee.
   PATTERSON, Judge.

Appellants, Jack Tice and Donny Ray Sullivan, were separately indicted for the offense of robbery in the first degree. The indictments were consolidated for trial pursuant to A.R.Crim.P.Temp. 15.4(b). A jury found both defendants guilty as charged. Sullivan was sentenced to fifteen years’ imprisonment while Tice was sentenced to life imprisonment as an habitual offender.

The indictments arose out of the March 7, 1982, robbery of the Montgomery Civic Center in which coins valued at more than three-and-a-half million dollars were stolen. After midnight on March 7, two men gained entry into the civic center on the pretext of delivering a package to several collectors of the coin show. After the package was put down, one of the men grabbed the maintenance engineer and pointed a gun at him while the other robber twisted a gun away from the security guard. The intruders ordered the two civic center employees to lie on the floor and then they taped the men’s eyes and legs. Additionally, the security guard was bound with handcuffs and his mouth was covered with tape. One of the robbers put a knife to the maintenance engineer’s throat and told him that if they made any noise, he would cut their throats. Then one of the intruders said, “Go let the others in.”

Two hours later, the maintenance engineer was able to free himself and he called the police. The area where the coins had been displayed was ransacked; most of the display was gone. At trial, both witnesses identified the intruder with the gun as Donny Sullivan.

On the evening of March 8, the Dothan Police Department received an FBI alert to be on the lookout for a JarPool rental truck and a Hertz rental truck. The JarPool truck had been rented in Dothan earlier that day by Donny Sullivan who had been accompanied by two unidentified persons, a woman and a man. The Hertz truck and a hand truck had been rented in Montgomery on the afternoon of March 6 by Jack Tice who had been accompanied by Sherman Casey.

After receiving this information, several officers proceeded to Sullivan’s residence at Barstone Apartments and set up surveillance at approximately 11 p.m. The officers observed Sullivan’s parked vehicle. They also saw a car bearing a Montgomery County tag enter the parking lot and an individual from the car proceed toward the apartments. This car was later discovered to be registered to Tice. After making these observations, the officers entered the Omelete Shoppe parking lot which is in the vicinity of the apartments and there they observed a JarPool truck and a Hertz truck. After verifying the trucks’ numbers and tags, Officer Kenny entered the restaurant and saw Tice, Casey, and Casey’s wife. Several minutes later, these three persons along with a fourth individual left the restaurant and got into the two trucks. One person got into the Hertz truck and after he drove the truck out of the parking lot onto the highway, an individual from th.e JarPool truck got into the Hertz truck. The police attempted to stop the Hertz truck, but it left the parking lot at a high rate of speed and its driver made several attempts to run the pursuing officers off the highway. The driver did not stop the truck until, after trying to shoot out the truck’s tires, an officer pointed his weapon at the driver. After the truck was stopped, Casey emerged from the passenger’s side and Tice exited from the driver’s side.

In the meantime, an officer observed Sullivan and a woman run from the JarPool truck. Cindy Casey was apprehended in the parking lot and Sullivan was apprehended two hours later.

The morning after these arrests, the Jar-Pool truck was searched pursuant to a warrant. The search revealed boxes containing silver, coins, and other similar items which were identified as the property taken from the civic center. In addition, a Montgomery investigator noted that the tread pattern of the rear tires of the Hertz truck appeared to have the same tread pattern as the wet tire print photographed at the civic center hours after the robbery.

Both defendants presented an alibi for the night of the robbery. Tice testified that he rented the Hertz truck for Casey because Casey had told him that he needed the truck to move, but he could not rent it because his driver’s license had been suspended. He explained his presence in Do-than by testifying that he had driven Casey’s wife there on Sunday night in his car at her request and that he was to take the truck back to Montgomery.

Sullivan testified that he rented the Jar-Pool truck for Casey because he was also told that Casey needed it to move. He denied being at the Omelet Shoppe and fleeing from the police.

On behalf of Tice and Sullivan, Casey testified that neither Tice nor Sullivan knew of the robbery and that he alone switched the stolen coins from the Hertz truck to the JarPool truck.

I

Sullivan contends that, because he was indicted before the effective date of A.R.Crim.P.Temp. 15.4(b), which provides for consolidation of separately indicted defendants for trial, he had the right to elect to be tried separately in accordance with § 15-14-20, Code of Alabama 1975. Section 15-14-20 afforded a separate trial as a matter of right to any defendant jointly indicted with one or more other defendants if he elected in proper time. See Brooks v. City of Birmingham, 401 So.2d 299 (Ala.Crim.App.1981). Sullivan argues that retroactive application of the rule allowing consolidation of defendants is prohibited by the ex post facto clauses of the constitutions of Alabama and the United States.

Initially, we note that the rule applicable to the issue of the separate indictment of two defendants for the same offense and the right of a separate jury trial is expressed in Helums v. State, 23 Ala.App. 401, 126 So. 183 (1930): “Being separately indicted, the defendant is entitled to a separate trial, and a joint trial with another without the consent of the defendant or a waiver of the right by him appearing of record is error and cause for reversal. Martin v. State, 19 Ala.App. 432, 97 So. 768.” However, regardless of what law was applicable at the time the offense was committed and at the time Sullivan and Tice were indicted, we find that the application of A.R.Crim.P.Temp. 15.4(b), was not prohibited as being an ex post facto law.

Support for our conclusion is found in Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925). There, the law in effect at the time of the offense provided jointly indicted defendants with separate trials upon their application. Ohio General Code § 13,677. However, prior to indictment and trial of the jointly indicted defendants, this statute was amended (110 Ohio Laws, p. 301) to provide for a consolidated trial unless the trial court, in its discretion, granted a motion to sever. In reaching the holding that the application of this amendment to pending prosecutions for offenses previously committed was not invalid as ex post facto, the Court reasoned:

“[T]he statute of Ohio here drawn in question affects only the manner in which the trial of those jointly accused shall be conducted. It does not deprive the plaintiffs in error of any defense previously available, nor affect the criminal quality of the act charged. Nor does it change the legal definition of the offense or the punishment to be meted out. The quantum and kind of proof required to establish guilt, and all questions which may be considered by the court and jury in determining guilt or innocence, remain the same. ... [I]t is now well settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited_ [T]he constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation ... and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance ... (citations omitted.) Beazell, 269 U.S. at 170-171 [46 S.Ct. at 68-69].”

In following the considerations enumerated by the Supreme Court, we observe that A.R.Crim.P.Temp. 15.4(b), merely changes the mode of trial. This court has already held, in a comprehensive and well-reasoned opinion by Presiding Judge Bowen, that the consolidation for trial of separate indictments against separate defendants is a inatter of procedure and does not abridge the substantial right of an accused to a jury trial. Holsemback v. State, 443 So.2d 1371, 1374-1377 (Ala.Cr.App.1983). See also Haynes v. State, 424 So.2d 669 (Ala.Cr.App.1982), cert. denied, 425 So.2d 1367 (1983). Hence, we find that A.R.Crim. P.Temp. 15.4(b) does not operate as an ex post facto law in prosecutions for offenses committed before the effective date of this rule.

II

In his final issue, Sullivan argues that the trial court erred in refusing to give his requested written jury instructions on identification; however, at trial, after the court’s charge, Sullivan announced, “Satisfied,” and the jury began its deliberation. Sullivan failed to comply with A.R.Crim.P. Temp. 14, which requires an objection before the jury retires, stating the matter objected to and supporting grounds. This failure precludes our review of this issue.

III

Tice contends that Officer Smith was erroneously allowed to testify to the comparison between the wet tire print photographed inside the civic center and the tire tread on the Hertz truck rented and driven by Tice; he contends that the following testimony is opinion evidence, but that the officer was not qualified as an expert to make this comparison:

“Q Did you have occasion to examine the tires on one of the vehicles?
“MR. ISSAC: I object. This witness has not been qualified as an expert.
“THE COURT: Overrule your objection.
“A Yes, sir, I visually observed all of the tires there.
“Q Did you find a pattern that generally matched on any of those vehicles ... [t]he pattern that you witnessed and that you took the picture of down behind the Civic Center?
“A Yes, sir, that’s correct.
“Q Which one in your judgment would that have been, please?
“A The rear tires on the Hertz truck, the large yellow truck, appeared to have the same tread pattern as the one that I photographed inside the Civic Center.
“Q Of course, you’re not telling us it’s exactly the same tire, just the same type tire in your judgment?
“A Yes, sir.
“MR. ADAMS: Your Honor, we would object and move to exclude as to what he is telling us. That’s interpretation for the jury to make and not his interpretation.
“THE COURT: All right, rephrase your question, please sir.
“Q Would you tell us, please sir, what your conclusion was, based on the visual comparisons you made.
“A Yes, sir. The tire tread that I photographed inside the Civic Center was of a mudgrip design — when I say mudgrip, I mean a large lug pattern; not a highway tread. It was very distinct and shart [sic] in its edges, which indicated a new type tire. It did not have a lot of road miles. It appeared to be a fairly new tire. The lugs have a certain pattern. . Each manufacturer has a different pattern or width of lug. As close as I could determine, the one that I saw on the Hertz truck, the yellow one, was of the same pattern, the same width, and the same general tread design.”

No further objection was entered by Tice.

Although Officer Smith was not qualified as an expert in tire track analysis, his testimony was admissible. No special training or expertise is required of a witness to identify the tread of tires and the tracks they leave. State v. Scott, 221 La. 643, 650, 60 So.2d 71, 74 (1952); Claud v. Commonwealth, 217 Va. 794, 232 S.E.2d 790, 792 (1977).

“Any person is able to make a comparison of tires and tire imprints on viewing them, and to describe what he saw, or to state whether or not a tire with a certain type of tread would make an imprint similar to one appearing in evidence by means of casts or photographs. This is a statement of fact, not of opinion. In any event, it is a matter readily ascertainable by any person with ordinary powers of observation and is not necessarily a subject requiring expert testimony.”

State v. Schumacher, 184 Neb. 653, 171 N.W.2d 181, 183 (1969). The tire prints and treads are large and the points of similarity are obvious (contrasted with fingerprints or palm prints). For these reasons, we hold that the comparison may be made a subject of nonexpert testimony. See also Holmes v. State, 257 Ark. 871, 520 S.W.2d 715 (1975).

Furthermore, the admission of Officer Smith’s testimony was not violative of the traditional rule in Alabama that a lay witness can testify to facts which he observed but cannot testify to opinions, conclusions, deductions, or inferences which are based upon facts. See C. Gamble, McElroy’s Alabama Evidence, § 127.01(1) (3d ed. 1977). Although the opinion evidence rule is “a fruitful producer of irreconcilable decisions,” Daniell v. State, 37 Ala.App. 559, 73 So.2d 370, cert. denied, 261 Ala. 145, 73 So.2d 375 (1954), we think that the general rule to be gleaned from these authorities is as follows: a witness will not be permitted to state his belief, opinion, or conclusion that certain tracks were made by the accused’s motor vehicle, but he may state facts within his personal observation, such as a comparison of different tracks. 23 C.J.S. Criminal Law § 876(a) (1961).

For example, a witness may state that two sets of tracks correspond in peculiarities, since such observation is a statement of collective facts. Blackmon v. State, 246 Ala. 675, 22 So.2d 29 (1945) (where the witness was permitted to testify that two sets of tire prints appeared to be the same); Pope v. State, 174 Ala. 63, 57 So. 245 (1911) (where witness was allowed to state that a particular mule would make a track similar to the tracks found); Young & Griffin v. State, 68 Ala. 569 (1881) (where the witness stated the fact of correspondence of shoes to tracks); Clark v. State, 54 Ala.App. 217, 307 So.2d 28 (1975) (where the witness stated that boots were consistent with bootprints); Cunningham v. State, 14 Ala.App. 1, 69 So. 982 (1915) (where the witness was permitted to testify that two sets of footprints were about the same in peculiarities and “looked exactly alike”).

“A witness may testify to his opinion if it is a collective fact or a shorthand rendition of fact. This variety is most commonly referred to as the collective fact exception [to the opinion evidence rule] and arises when the facts observed by the witness are so many or so inexpressible that he is allowed to give the jury his opinion. His opinion is conceived of as being a shorthand way of giving the facts and, consequently, does not constitute a violation of the opinion evidence rule.” C. Gamble, McElroy’s Alabama Evidence § 127.01(3) Variety No. 7 (3d ed. 1977).

The spirit of the rule is not violated by the shorthand statement of similarity when it is made by a witness who states the marked peculiarities and is subject to cross-examination by the defendant. Pope v. State, 57 So. at 250. But see Livingston v. State, 105 Ala. 127, 16 So. 801 (1895) (wherein the court ruled that a witness could not state that particular tracks “corresponded” with the defendant’s tracks).

However, a witness should not be allowed to testify that the defendant’s tire would make such a track or that, in his judgment, it was the defendant’s tire track, since these are expressions of mere opinion. Terry v. State, 118 Ala. 79, 23 So. 776 (1898); Hodge v. Alabama, 97 Ala. 37, 12 So. 164 (1893); Riley v. State, 88 Ala. 193, 7 So. 149 (1890); Busby v. State, 77 Ala. 66 (1884). The determination of the identity of the track is a fact for the jury to determine. Pope v. State, supra; Hodge v. State, supra.

In the instant case, Officer Smith’s testimony was limited solely to his direct observation. He stated facts and peculiarities of correspondence and it was for the jury to find whether the tires on the truck rented and driven by Tice when he was apprehended made the print discovered at the scene shortly after the robbery. See Cunningham v. State, supra. The witness himself repeatedly made it clear on cross-examination that he could not specifically say the print had been made by the Hertz truck rented by Tice, but he could only state that they had the same peculiarities. His assertion that the print and tire matched in peculiarities was a statement of collective fact derived from his personal observation. We find no error in the admission of this testimony.

IV

Tice further claims that his conviction rests upon insufficient evidence because the prosecution presented no evidence that he was one of the two robbers seen by witnesses in the civic center or that he was an accomplice. The participation in a crime and the community of purpose of the perpetrators need not be proved by direct or positive testimony, but may be inferred from circumstantial evidence. Hudson v. State, 354 So.2d 328 (Ala.Cr.App.1978). It is a fundamental principle that circumstantial evidence is entitled to the same weight as direct evidence. Andrews v. State, 437 So.2d 661 (Ala.Cr.App.1983). A person’s presence and his conduct before, during, and after the crime, are “potent circumstances from which participation may be inferred.” Sanders v. State, 423 So.2d 348 (Ala.Cr.App.1982). A review of the facts set out above leads us to the conclusion that the trial court properly submitted the case to the jury and the jury’s verdict of guilty is supported by more than ample circumstantial evidence.

V

In Tice’s final issue, he contends, as Sullivan does, that the trial court erred in not giving certain requested written jury charges; however, Tice, like Sullivan, announced “Satisfied” after the court’s oral charge. Since Tice made no objection to the refusal to give the requested charges, error or omission is waived for purposes of appeal. See Parham v. City of Opelika, 412 So.2d 1268 (Ala.Cr.App.1982).

For the reasons herein stated, this cause is due to be affirmed.

AFFIRMED.

BOWEN, TYSON and HARRIS, JJ., concur.

TAYLOR, J., recuses.

      . See also Boatwright v. State, 351 So.2d 1366 (Ala.1977); Pope v. State, 174 Ala. 63, 57 So. 245 (1911).


author: HARRIS, Judge.

text:
    Ronnie Lee PARKER v. STATE.
    6 Div. 335.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.
    Rehearing Denied Aug. 14, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1351.

      J. Wilson Dinsmore of Dinsmore, Waites & Stovall, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Louis C. Colley, Asst. Atty. Gen., for appel-lee.
   HARRIS, Judge.

Ronnie Lee Parker was convicted of first-degree robbery for his participation in the armed robbery of a convenience store in Bessemer, Alabama. He was sentenced to 20 years’ imprisonment.

The facts and circumstances surrounding the incident in question were not disputed at trial. The State presented a confession in which the appellant admitted his guilt.

The sole issue on this appeal is the admissibility of the confession presented at trial. The appellant contends that this confession, his second confession after his arrest, was inadmissible because it was “tainted” by an earlier, illegal confession. We disagree.

It is undisputed that, after his arrest, the appellant was transported to the Leeds, Alabama, jail, where he was incarcerated for a period of three days. During this period of incarceration he made a confession to Sergeant McDonald of the Birmingham Police Department. The contents of this first confession were not divulged at trial. After three days the appellant was transported to the Birmingham City Jail for a day and then to the Bessemer City Jail, where he made a second confession, the one admitted at trial, to Detective Gwin of the Bessemer Police Department.

During the hearing to determine the admissibility of this second confession, the appellant testified that his first confession was made only after he had been beaten. He also stated that his requests to make telephone calls to his mother and his attorney had been repeatedly denied, and that he was not advised of his Miranda rights before the first confession was made. He admitted, however, that he was permitted to make telephone calls after his transfer to the Birmingham City Jail. Appellant’s testimony concerning the “beatings” at the Leeds Jail, the exact time of his first confession, and the number of days of incarceration in each of the jails, was somewhat confusing and ambiguous. On cross-examination, the appellant stated that he was “beaten” and “bruised,” but that he was not “hurt.” He stated that he was hit in the face and the back of the head so hard that it put knots on his head and bruised his face and made it “swell up.” He later changed his story and stated that, although he was hit in the face, his face was not bruised, that the only bruises were under his hair on the back of his head where they did not show.

The State presented evidence that the appellant was first advised of his Miranda rights immediately after his initial arrest, while he was being transported to the Leeds Jail. The State did not present any evidence concerning the first confession at the Leeds Jail, but there was evidence that the first confession was a product of an investigation on an entirely different matter.

Detective Gwin testified that he began his investigation of the instant robbery on December 24, 1981, the day of the robbery and the day the appellant was arrested. He stated that he first saw the appellant in a line-up at the Leeds Jail on December 26, at which time he took some photographs of the appellant. He testified that he did not see any signs that the appellant had been beaten. He did not notice any bruises on appellant’s face. A photograph taken on the 26th was introduced to demonstrate appellant’s appearance at that time. Detective Gwin further testified that he transported the appellant to the Bessemer City Jail on December 28. He read the appellant the Miranda warnings once on the way, and again just before taking appellant’s second confession. He admitted that Sergeant McDonald had stated that the appellant had confessed to some involvement in the instant robbery, but he explained that he, Detective Gwin, had no knowledge of the details of the prior confession. He stated that prior to appellant’s second confession there were no threats, promises, or inducements, made to the appellant, that the appellant was not coerced in any manner, whatsoever. He further stated that the appellant made no requests at that time for an attorney or to make any telephone calls. The appellant indicated that he understood his rights, but agreed to answer questions. He voluntarily completed a three-and-a-half page statement, read it, and signed it.

There was also evidence that appellant’s attorney did not learn of appellant’s first confession, the one that was allegedly the product of physical abuse, until it was mentioned at trial.

Based on the evidence presented during this “voluntariness” hearing, the trial court ruled that appellant’s second confession was admissible.

This ruling, based on the “totality of the circumstances” evidenced during a thorough “voluntariness” hearing, was a matter within the sound discretion of the trial court. Chunn v. State, 402 So.2d 1139 (Ala.Crim.App.1981); Moore v. State, 415 So.2d 1210 (Ala.Crim.App.1982); Harris v. State, 420 So.2d 812 (Ala.Crim.App.1982). It “will not be disturbed on appeal unless it appears to be contrary to the great weight of the evidence or is manifestly wrong.” Tice v. State, 386 So.2d 1180 (Ala.Crim.App.), cert. denied, 386 So.2d 1187 (Ala.1980); see also, Harris v. State, supra; and Williams v. State, 461 So.2d 834 (Ala.Crim.App.1983).

Under the circumstances it does not appear that the trial court abused its discretion, i.e., that its “voluntariness” determination was contrary to the evidence or manifestly wrong. The admissibility of appellant’s second confession in this case “turns, as it does in so many others, on the question of which witnesses the trial judge believed.” Moore v. State, supra. Although the appellant presented evidence to the contrary, there was sufficient evidence to support a finding that the first confession was not illegally obtained so as to “taint” the second confession, and overwhelming evidence to support a finding that the second confession was voluntarily and intelligently made. As noted in Moore v. State, supra.

“ ‘The trial court does not have to accept the testimony of (the) defendant as to the voluntariness of a confession if there is substantial testimony by others sufficient to constitute a predicate for the admission in evidence of the confession.’ Bradley v. State, 337 So.2d 47, 50 (Ala.Cr.App.1976).”

Furthermore, even if appellant’s first confession had been illegally obtained, any “taint” had arguably been purged before the second confession was made. There was evidence that the two confessions were entirely independent of each other, that the first confession was the product of an investigation on another, independent matter. The first confession was taken by a Birmingham police officer, and the second confession was taken by a Bessemer police officer who testified that he had no knowledge of the contents of the first confession and had not discussed its details with the Birmingham police officer. The first confession was made at the Leeds Jail and the second confession was made several days later at the Bessemer City Jail, after an intermediate period of incarceration at the Birmingham City Jail. The appellant, himself, testified that the authorities at the Birmingham City Jail were very accomodating. Furthermore, the second confession was taken only after the appellant had been carefully instructed as to his Miranda rights (on at least two occasions after the first confession had been made) and had voluntarily agreed to answer questions. “Once it is shown [as it arguably was shown in the instant case] that the improper influence or inducement [for the earlier confession] had been dispelled, there is no reason not to admit the subsequent confession.” Hollis v. State, 399 So.2d 935 (Ala.Crim.App.1981), and cases therein cited.

For these reasons, we cannot hold that the trial court erred in admitting appellant’s second confession. This cause is, therefore, due to be affirmed.

.AFFIRMED.

All the Judges concur.


text:
    Sidney ROWLAND v. STATE of Alabama.
    7 Div. 251.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.
    Rehearing Denied Aug. 14, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1330.

      David C. Wear, Fort Payne, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Ellen Fike Forehand, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Sidney Rowland was indicted for burglary in the second degree in violation of § 13A-7-6, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment” and the trial judge sentenced him to life imprisonment in the penitentiary, according to the provisions of the Habitual Felony Offender Act.

We pretermit a recitation of the facts in this case as they are not germane to our discussion of the issues raised on appeal.

I

During the course of the trial, the appellant moved to suppress his statement on the grounds that it was involuntarily made. The trial judge held a hearing on this motion outside the presence of the jury. At the hearing, Officer Larry Wilson gave the following testimony.

“Q. All right. And did you tell him he might as well go ahead and tell you, it’d be easier on him?
“A. We told him if he wanted to cooperate with us we would make it known to the Judge and District Attorney that he did cooperate with us.
“Q. So, you promised him you’d do whatever you could to help him if he’d make a statement?
“MR. IGOU: We object to that. That’s not what the witness said.
“THE COURT: Overruled.
“Q. You promised him you’d take it up with the Judge and the D.A. if he would make a statement?
“A. I promised him that we would make it known to the Judge and also to the D.A. that he did cooperate with us, yes, sir, I did.” (R. 77).

The appellant contends that Officer Wilson’s statement that he would talk to the district attorney and the judge induced him to make his statement and, therefore, it should be rendered involuntary and should have been excluded from the evidence in this case.

The general rule of law in this area is that “[a]ny inducement of profit or benefit held out; any hope engineered or encouraged that the prisoner’s case will be lightened, meliorated, or more favorably dealt with if he will confess; either of these is enough to exclude the confession thereby superinduced.” Wallace v. State, 290 Ala. 201 at 204, 275 So.2d 634 (1973). However, the statement made by Officer Wilson to the appellant is not sufficient by itself to render the appellant’s statement involuntary and inadmissible. Wilson did not give the appellant any indication that he had any influence with the district attorney or the judge or that they would give him special treatment if he made a statement. He merely stated he would bring the appellant’s cooperation to their attention.

This same issue was addressed by the U.S. Fifth Circuit in United States v. Frazier, 434 F.2d 994 (5th Cir.1970). In that case the court stated:

“Frazier’s confession was not involuntary by reason of the single fact that the FBI agents told him if he cooperated with them his cooperation would be made known to the United States Attorney, that there might be some consideration given by the United States Attorney but that the agents could make no promises. Standing alone this was not sufficient to establish that appellant’s in-custody statement was involuntary. United States v. Ferrara, 377 F.2d 16 (2d Cir.1967); Fernandez-Delgado v. United States, 368 F.2d 34 (9th Cir.1966).”

United States v. Frazier at 995-996. See also, Moss v. State, 347 So.2d 569 (Ala.Crim.App.1977).

In the case at bar, Officer Wilson testified that he gave the appellant his “Miranda” rights and that the appellant stated he understood them and wished to make a statement. The facts surrounding the appellant’s statement indicate to this court that it was voluntarily made. Therefore, the trial judge’s decision to admit the appellant’s statement into evidence was proper and should be upheld. Tanner v. State, 57 Ala.App. 254, 327 So.2d 749 (1976).

II

On May 4,1983, defense counsel requested that a preliminary hearing be held in this case. The trial judge granted this request and set the hearing for July 27, 1983. On July 8, 1983, the State made it known to the court that it did not intend to present any evidence at the preliminary hearing, and which it also reiterated at the hearing. The trial judge then ordered the appellant discharged due to lack of probable cause. The appellant was then indicted for this offense on October 5, 1983.

At the time of the preliminary hearing, the appellant was in jail on other charges. The appellant contends that the State did not present any evidence at the hearing because they did not wish to disclose any evidence they had against him and they knew that the appellant would remain in jail regardless of the outcome of the preliminary hearing. The appellant asserts that he was denied equal protection and due process of the law by the State’s action, because he was not allowed to discover the evidence which the State had against him on this offense. Therefore, his motion to dismiss should have been granted.

We find no merit to this contention. First of all, the purpose of a preliminary hearing is to determine if there is sufficient probable cause to hold the accused on the alleged offense. We can find no authority for the proposition that an accused has the right to a preliminary hearing for discovery purposes.

Secondly, the failure to hold a preliminary hearing is harmless error and a moot question once an indictment has been returned. Duncan v. State, 369 So.2d 885 (Ala.Crim.App.1979); Scaife v. State, 337 So.2d 146 (Ala.Crim.App.1976). Accordingly, we hold that the failure to present evidence at this preliminary hearing is not error once the accused has been indicted.

Thirdly, the failure to hold a preliminary hearing is not a denial of due process. Duncan, supra. As the State points out in its brief, the appellant fails to show any purposeful discrimination as a result of his status as an incarcerated person. Therefore, it cannot be said he was denied equal protection of the law.

The trial judge properly denied the appellant’s motion to dismiss.

For the reasons above, this cause is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ronald Ray COWAN v. STATE of Alabama.
    8 Div. 906.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.
    Rehearing Denied Aug. 14, 1984.

      Wesley M. Lavender, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Ronald Ray Cowan was indicted for escape in the first degree in violation of § 13A-10-31, Code of Alabama 1975.

The jury found the appellant guilty as charged in the indictment. The trial judge, following a habitual offender hearing, sentenced the appellant to life imprisonment in the penitentiary.

We pretermit a discussion of the facts in this cause since the only issues which the appellant raises on appeal concern procedural, rather than factual matters.

I

Defense counsel alleges reversible error occurred in this case because the trial judge refused to allow him to make a motion for judgment of acquittal outside the presence of the jury.

Rule 12.1(b), Alabama Rules of Criminal Procedure provides:

“Motions for judgment of acquittal may be made either in writing or orally upon the record and shall be argued outside the hearing of the jury; except that motions pursuant to Temporary Rule 12.3 shall be in writing.”

We quote from the pertinent portion of the record.

“MR. BROWN: I have a motion, Your Honor.
“THE COURT: All right. Make your motion.
“MR. BROWN: Can we approach the bench?
“THE COURT: No, make your motion for the record.
“MR. BROWN: Judge, I want to make a motion for a judgment of acquittal at this time, but I request of the Court to make that motion outside the presence of the jury.
“THE COURT: Motion is denied. Make your motion.
“MR. BROWN: We reserve the motions.
“THE COURT: All right. Call your first witness for the defendant.
“MR. BROWN: Your Honor, if we could go back into that request, we would want to make a motion or a request at this time to be heard outside the presence of the jury.
“THE COURT: I have ruled on that, Mr. Brown. Go ahead.
“MR. BROWN: Move for a judgment of acquittal for the state to fail to make out a prima facie case; for its failure to make out a prima facie case this defendant was lawfully in the custody of Sheriff Buford Burgess at the time of his alleged escape from the jail.
“THE COURT: Anything further?
“MR. BROWN: And the record shows he was sentenced to a term in the state penitentiary.
“THE COURT: Motion is denied. Give you an exception.
“MR. BROWN: Defense rests, Your Honor. (R. 45-47).

We do not find reversible error on this issue for several reasons. First, Rule 12.1(b) states that the motion for judgment of acquittal may be made in writing or orally on the record. From this court’s reading of the Rule, we are of the opinion that such rule does not require that the motion be made outside the presence of the jury, but only states that the argument on this motion shall be made outside the presence of the jury.

It is clear from the above quoted portion of the record that defense counsel wishes to make this motion outside the presence of the jury. Once the trial judge denied this request, the appellant made his motion for judgment of acquittal but at that time did not ask to argue the motion outside the ‘presence of the jury. Therefore, the appellant did not make the proper request to have this motion argued outside the hearing of the jury.

Secondly, “[a] motion for judgment of acquittal tests the sufficiency of the evidence to support a conviction.” Comment following Rule 12.1(b).

The appellant on this appeal does not assert the insufficiency of the State’s evidence. No such argument is here made as error. Therefore, it cannot be said that he was prejudiced because he was not allowed to argue the motion for judgment of acquittal outside the presence of the jury since he does not in this court challenge the sufficiency of such evidence.

Furthermore, the appellant rested immediately after his motion was overruled and did not present any evidence on behalf of his client. The appellant could not, therefore, be prejudiced. We have reviewed the record in any event on this issue, and hold that the State did make out a prima facie case. See testimony of Deputy Green R. 40-45 and Sheriff Burgess R. 21-40. Therefore, the appellant was not prejudiced by the trial court’s ruling here at issue.

II

The appellant alleges the trial judge erred because he refused to require the State to elect between counts in the indictment until after the State had made its closing argument. The appellant contends the State should have been required to elect after it rested in presenting its evidence.

We do not agree with this contention. First of all, this issue was addressed recently by Judge Bowen in Dietz v. State. [Ms. 8 Div. 866, March 20, 1984] (Ala.Crim.App.1984). In that case, the State was not required to elect between counts until all of the evidence had been presented.

Secondly, the appellant filed the motion to elect before the jury was impaneled and renewed it before opening statements. The motion was denied by the trial judge in both instances. The appellant did not again renew this motion until after the State had made its closing argument. Since the appellant did not renew the motion after the State closed its evidence, he had no grounds for complaint that it was not granted at that time.

For the reasons stated above, this cause is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.

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


author: SHORES, Justice.

text:
    Ex parte Ronald Ray COWAN. (In re Ronald Ray Cowan v. State of Alabama).
    83-1353.
    Supreme Court of Alabama.
    Oct. 19, 1984.
    Wesley M. Lavender, Decatur, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   SHORES, Justice.

We should not be understood as agreeing with the Court of Criminal Appeals’ restrictive interpretation of the dialogue between the trial court and Mr. Brown and that court’s conclusion that defendant’s trial counsel did not make a proper request to have the motion argued outside the hearing of the jury. 460 So.2d 284. However, the Court of Criminal Appeals’ interpretation of that dialogue in no way affects the decision reached in the case. Therefore, the writ is denied.

WRIT DENIED.

TORBERT, C.J., and JONES, EMBRY and BEATTY, JJ., concur.


text:
    Gene MOON v. STATE.
    8 Div. 992.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.
    Rehearing Denied Aug. 14, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1394.

      John Mark McDaniel and Marc Sandlin, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Callen Sparrow, Asst. Atty. Gen., for appel-lee.
   PATTERSON, Judge.

Appellant Gene Moon was convicted of third degree burglary and second degree theft by a Madison County Circuit Court jury. He was sentenced to -30 years’ imprisonment under the Alabama Habitual Felony Offenders Act. The relevant facts as they were presented by the State’s case in chief revealed the following:

Robert Knight testified that on the evening of April 29, 1983, he returned to his house to find that it had been broken into and several thousand dollars’ worth of property stolen, including a Polaroid camera, a shotgun, a channel scanner, and a quantity of jewelry.

Donald Bryant testified that on the evening of April 29 he and appellant Gene Moon drove to Robert Knight’s house in appellant’s Chevrolet after they had driven by the house earlier in the day. The two men broke into the building and stole, among other items, a television, a channel scanner, a shotgun, and a camera. They hid the stolen property in appellant’s car trunk and the next day sold the items in Birmingham.

Witness James Hardy stated that he operated a pawn shop in'Birmingham called Birmingham Loan Service. He said that appellant came in at the end of April 1983 with three Polaroid cameras and Hardy told the appellant that he would try to sell the cameras for him. These cameras were eventually confiscated by law enforcement authorities. The witness stated that appellant and Donald Bryant had been in his store together; he testified that he obtained a scanner from one of them. The scanner was also subsequently confiscated by the police.

Detective William B. Black, Jr. and Sergeant Nolan Bragg both testified that the camera recovered in Birmingham from James Hardy had the same serial number as the one stolen from the Knight residence.

Four issues are raised on appeal.

I

Moon first contends that there was insufficient corroboration of an accomplice’s testimony to sustain a conviction for third degree burglary. He cites Section 12-21-222, Code of Alabama 1975, which reads as follows:

“A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.”

Appellant claims that both Donald Bryant and James Hardy were accomplices and thus he could not be convicted by their uncorroborated testimony. The test for determining whether an individual is an accomplice is whether he could have been indicted and convicted of the same offense, either as a principal or an accessory. Jacks v. State, 364 So.2d 397 (Ala.Crim.App.1978).

Hardy testified that he had no knowledge that the property given to him by Moon was stolen. The burden of proving a witness is an accomplice for the purposes of invoking the rule of § 12-21-222 is on the defendant (see annotations to § 12-21-222), and clearly this burden was not met. The testimony concerning Hardy’s culpability was conflicting and inconclusive, and we find he was not an accomplice within the meaning of the statute.

The evidence remaining after accomplice Bryant’s testimony is eliminated is sufficient to connect Moon with the crimes in question. See Ware v. State, 409 So.2d 886 (Ala.Crim.App.1981), and cases cited in Ala.Digest, Criminal Law, Key No. 511.2.

Hardy’s testimony established that Moon was in possession of recently stolen property and such possession “will support an inference of burglary if there is also proof of breaking and entering so connected in time as to permit the inference that the larceny was the product of that breaking and entering.” Burlison v. State, 369 So.2d 844 (Ala.Crim.App.1979).

We conclude that it could have been fairly inferred from the facts that the appellant was connected with the offense in question, Jacks, supra, and thus we find no merit in the first issue raised on appeal.

II

Appellant next asserts that while he was indicted for the second degree theft of a shotgun and a camera, the evidence adduced at trial never showed that he had the gun in his possession and control. Thus he contends that there was insufficient evidence to sustain his conviction for second degree theft. Section 13A-8-4, Code of Alabama 1975, reads in pertinent part as follows:

“(a) The theft of property which exceeds $100.00 in value but does not exceed $1,000.00 in value, and which is not taken from the person of another, constitutes theft of property in the second degree.”

We find that the evidence showed that the value of the stolen camera exceeded one hundred dollars and since testimony did place the camera within appellant’s possession and control, the evidence was sufficient to sustain his conviction under § 13A-8-4. The portion of the record concerning Robert Knight’s testimony about the value of the stolen camera reads as follows:

“Q. Are you familiar with the fair market value of cameras of that type at the time that camera was stolen?
“A. My insurance company established the price.
“MR. McDANIEL: We object.
“THE COURT: Sustained.
“A. About a hundred fifty dollars.
“Q. Do you have an opinion?
“A. No, I don’t have a rough idea.”

We must agree with the State that appellant’s attorney objected only to the unresponsive answer, “My insurance company established the price.” The objection did not reach the testimony concerning the value of the camera and thus this evidence was before the jury for its consideration. See Chambers v. State, 356 So.2d 767 (Ala.Crim.App.1978). Appellant failed to move to exclude the response and he did not ask that the evidence concerning value be stricken. We must conclude, therefore, that appellant’s second issue is also merit-less.

Ill

The third issue raised is whether or not the trial court committed error when it refused to grant appellant’s request for production and disclosure. A portion of that request included the following:

“2. (a) Any and all statements of any other person made in connection with the investigation of this case and which implicates the Defendant.
(b) Any and all notes, memoranda or reports relating to such statements.”'

Specifically, Moon claims it was error not to provide him with a copy of a statement made by Donald Bryant. As authority for his argument appellant cites the case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In Brady, the Supreme Court ruled that the prosecution’s failure to produce requested material evidence favorable to an accused is violative of due process. The statement made by Donald Bryant was clearly incul-patory rather than exculpatory in nature, and thus the Brady decision was not relevant to its production. We further note, as did the State in brief, that there is no general constitutional right to discovery by a defendant in a criminal case. Bass v. State, 417 So.2d 582 (Ala.Crim.App.1982). Appellant’s request for production was not specific; as this court has pointed out in the past, a motion for discovery should not be a mere “fishing expedition”, Giddens v. State, 333 So.2d 615 (Ala.Crim.App.1976), and we find no error in the lower court’s denial of appellant’s request for production and disclosure.

IV

The last issue before us is whether the lower court committed reversible error when it failed to grant appellant’s pre-trial motion in limine; in that motion he asked the court to instruct State witness Hardy “to refrain from .... testifying about any statements made by Defendant or any trips Defendant may have made” to the witness’s business except on the occasions relevant to the offenses charged in the indictment.

At trial Mr. Hardy testified about a channel scanner he had received. Moon’s attorney objected to the testimony about the scanner on the ground that the theft of the scanner was not charged in the indictment. Appellant claims that such testimony was “irrelevant and immaterial”, and only served to “inflame the passions of the jury”. We cannot agree. The victim, Robert Knight, testified that one of the items stolen from his home was a police scanner. As we discussed in Section I above, possession of recently stolen goods may support an inference that a burglary was committed. The theft of the scanner occurred at the same time as the theft of the items mentioned in the indictment; thus the testimony was relevant to appellant’s participation in the theft and we find the testimony was clearly admissible as part of the res gestae. See Cole v. State, 352 So.2d 17 (Ala.Crim.App.1977).

For the reasons cited above we find that the judgment of the trial court must be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Olivettis WOODS v. STATE.
    7 Div. 186.
    Court of Criminal Appeals of Alabama.
    July 17, 1984.
    Rehearing Denied Aug. 14, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1354.

      Thomas W. Harmon, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and T.A. Harding Fendley, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Appellant, Olivettis Woods, was convicted of murder and sentenced to life imprisonment.

On November 3, 1982, appellant and the deceased, George Hill, were involved in an altercation outside a shot-house in Anni-ston, Alabama. Words and blows were exchanged between the two and then appellant shot Hill with a .38 caliber revolver.

At trial, the State’s witness testified that Hill was on the porch of his house attempting to go inside, when appellant shot him in the back. Appellant testified on direct examination that he was backing away from Hill and drew the gun from the rear waistband of his trousers to protect himself.

Appellant testified that he fired once at Hill’s feet, but that it did not deter Hill’s advance. He testified that as he fired the second shot, Hill turned and was struck in the back as he attempted to retreat. Appellant then turned and ran away. Hill was taken to the Northeast Alabama Regional Medical Center where surgery was performed. Hill died during surgery and his body was transported to Birmingham for an autopsy by a pathologist, Dr. Joseph Embry.

Dr. Embry testified at the trial that Hill died as a result of the gunshot wound and that the bullet entered Hill’s back and exited from the front of the body. He stated further that the exit wound was one inch lower than the entrance wound in relation to the abdomen, which could indicate that the bullet was travelling downward through the body. Since the State’s evidence indicated that Hill was on his porch above the street where appellant was standing when the fatal shot struck home, the defense counsel made reference to the trajectory of the bullet during cross-examination of Dr. Embry. Some question was raised as to what Hill’s posture was at the time he was shot.

The first issue on appeal raised by appellant is that the trial court erred in allowing into evidence, State’s Exhibit # 3, a photograph of Hill’s body after surgery had been performed. We disagree.

The photograph was taken after Hill’s death at the Northeast Alabama Regional Medical Center. It was described by Dr. Embry during the trial as showing a large abdominal incision which had been sewn back together, a tube coming out of the stomach, an intravenous catheter going into a vein below the right collarbone, another intravenous catheter in the right elbow, EKG electrodes on the shoulders, two tubes in the deceased’s mouth and a bandage on his left arm.

At trial defense counsel objected to the introduction of State’s Exhibit #3 on grounds that it was prejudicial and had no probative value.

As a general rule, photographs are admissible if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence offered or to be offered. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Arthur v. State, 8 Div. 873 (Ala Crim.App.1984); Hopkins v. State, 429 So.2d 1146 (Ala.Crim.App.1983); Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922 (1973).

State’s Exhibit #3 depicted the exit wound on the body in relation to the abdomen. It tended to corroborate the testimony of the pathologist as to the location and character of the wound. Grant v. State, 250 Ala. 164, 33 So.2d 466 (1948); Palmore v. State, 283 Ala. 501, 218 So.2d 830 (1969); Thigpen, supra. Photographs which show a victim’s wounds are admissible in corroboration of a pathologist who describes and details such wounds. Godbolt v. State, 429 So.2d 1131 (Ala.Crim.App.1982); Carpenter v. State, 400 So.2d 417 (Ala.Crim.App.), cert. denied, 400 So.2d 427 (Ala.1981). The record indicates that at trial, Dr. Embry described the wounds, incision and tubes visible in the photograph.

Appellant argues that the only probative value of the photograph was to illustrate the location of the exit wound and that was accomplished by another photograph, State’s Exhibit #4, which was admitted without objection. According to the record, this photograph shows a close-up of the incision without any reference to the abdomen or other region of the body. Apparently the intravenous catheters, tubes and EKG patches, which are not in State’s Exhibit # 4, were the items that made State’s Exhibit # 3 prejudicial in appellant’s opinion. We disagree.

State’s Exhibit # 3 shows the exit wound in relation to the abdomen and is relevant as shedding light on the character and location of the wound and is corroborative of the pathologist’s testimony, even though it was cumulative evidence and there was no dispute as to the location of the wound. Robinson v. State, 342 So.2d 1331 (Ala.Crim.App.1977); Wilson v. State, 31 Ala.App. 21, 11 So.2d 563, cert. denied, 243 Ala. 671, 11 So.2d 568 (1943); Snow v. State, 50 Ala.App. 381, 279 So.2d 552 (1973). This relevance and materiality is also made certain in light of the dispute at trial as to the path of the bullet through the body and the upward or downward angle of the trajectory relative to the location of the deceased at the time he was shot.

By referring to this court’s decision in Cayler v. State, 353 So.2d 8 (Ala.Crim.App.1977), appellant contends that the surgical incision and medical apparatus totally obscured the exit wound and, therefore, the photograph should be inadmissible. But on cross-examination, Dr. Embry testified that the incision did not cut through the exit wound. According to the pathologist, the wound was not obscured.

Appellant’s argument likens State’s Exhibit # 3 to the gruesome photograph in McKee v. State, 33 Ala.App. 171, 31 So.2d 656 (1947). The contention is that the ghastliness of State’s Exhibit #3 is not from the wound itself, but from the surgery performed afterwards. The marks from surgery were sufficiently identified to the jury and distinguished from the wounds caused by the bullet. Where a photograph depicts not only the wound which allegedly caused death, but also depicts a surgical incision, such a photograph is not rendered inadmissible because of the depiction of the incision, where that incision is clearly identified. Hurst v. State, 277 Ala. 686, 174 So.2d 325 (1965); Maness v. State, 57 Ala.App. 431, 329 So.2d 120, cert. denied, 295 Ala. 411, 329 So.2d 126 (1976); Peterson v. State, 350 So.2d 771 (Ala.Crim.App.1977); Voudrie v. State, 387 So.2d 248 (Ala.Crim.App.), cert. denied, 387 So.2d 256 (Ala.1980).

It is settled law in this State that gruesome, even ghastly and unsightly, photographs properly identified and authenticated are admissible if they tend to shed light on, strengthen or illustrate the truth of other testimony. Richardson v. State, 376 So.2d 205 (Ala.Crim.App.1978). Admission of such photographs is within the sound discretion of the trial judge. Washington v. State, 415 So.2d 1175 (Ala.Crim.App.1982); Hurst, supra; Fletcher, supra.

State’s Exhibit # 3 gave the jury a better understanding of the nature and gravity of the deceased’s injuries, and we do not believe the photograph distorted the injuries or misled the jury in any way. We feel the photograph, unsightly as it may be, aided the jury in understanding the location of the wounds and the extent of the injuries inflicted by the gunshot. Goffer v. State, 430 So.2d 896 (Ala.Crim.App.1983).

Courts and juries cannot be too squeamish about looking at unpleasant things, objects or circumstances in proceedings to enforce the law and especially if truth is on trial. The mere fact that an item of evidence is gruesome or revolting, if it sheds light on, strengthens or gives character to other evidence, it should not be excluded. McKee, supra.

The second issue raised by appellant is that the trial court erred in refusing to grant a mistrial, and later in denying a motion for a new trial after the prosecutor intentionally placed inadmissible and highly prejudicial information before the jury. We disagree.

At trial, appellant took the stand to testify in his own behalf. On direct examination, he testified that he had been convicted of manslaughter ten years earlier. On cross-examination, the prosecutor asked appellant if he had been convicted of a crime involving moral turpitude. The appellant again admitted he had been. From the record:

“MS. ROBERTS: You were convicted for moral turpitude, manslaughter in the first degree?
“WITNESS: Yes, ma’am.
“MS. ROBERTS: And that charge was—
“MR. HARMON: Judge, I’m going to object to that. It was admitted that he was convicted and the State is not entitled to go into this, the circumstances of this charge.
“THE COURT: Sustained.
“MS. ROBERTS: Let me ask you this. Is this the first time you ever shot anybody?
“MR. HARMON: Judge, may I approach the bench?”

A bench conference was then held outside the presence of the jury. Defense counsel objected to the prosecutor’s going into the details of a prior conviction. The judge sustained the objection and defense counsel moved for a mistrial saying the prosecutor intentionally asked the question and put the information before the jury. The judge denied the motion for a mistrial and immediately instructed the jury:

“THE COURT: All right, Ladies and gentlemen, you should disregard that last question by the Attorney for the State, as to whether or not this person had ever shot anybody. You should disregard that and not consider it in your deliberation. I’ll sustain the objection you had, and you should disregard it.”

Appellant argues that the prosecutor’s objective was not to challenge the credibility of the witness, but instead was to prejudice the jury by putting information before them that he was previously charged with having shot someone and the charge was reduced to manslaughter. Appellant contends that the prejudicial effect was such that a limiting instruction could not overcome it.

When, as here, a trial court immediately charges the jury to disregard improper remarks, there is a prima facie presumption against error. Elmore v. State, 414 So.2d 175 (Ala.Crim.App.1982); Kelley v. State, 405 So.2d 728 (Ala.Crim.App.), cert. denied, 405 So.2d 731 (Ala.1981); Chambers v. State, 382 So.2d 632 (Ala.Crim.App.), cert. denied, 382 So.2d 636 (Ala.1980);" Nix v. State, 370 So.2d 1115 (Ala.Crim.App.), cert. denied, 370 So.2d 1119 (Ala.1979).

Where a trial court acts promptly to impress upon the jury that improper questions are to be disregarded by them in their deliberations, the prejudicial effects of such remarks are removed. Minor v. State, 402 So.2d 1121 (Ala.Crim.App.1981); Grey v. State, 369 So.2d 889 (Ala.Crim.App.1979); Brown v. State, 366 So.2d 334 (Ala.Crim.App.1978); Woods v. State, 344 So.2d 1225 (Ala.Crim.App.), cert. denied, 344 So.2d 1230 (Ala.1976). Even “inadvertent slips” which are prejudicial to a defendant need not be cause for a mistrial where the judge acts promptly to impress upon the jury that improper statements are not to be considered by them. Richardson v. State, 374 So.2d 433 (Ala.Crim.App.1979); Elmore, supra.

The actions of the trial judge were prompt in this case. The matter was not so prejudicial that it could not be erased from the minds of the jury. In such a case, the right to declare a mistrial rests in the sound discretion of the presiding judge. Shadle v. State, 280 Ala. 379,194 So.2d 538 (1967); Hallman v. State, 36 Ala.App. 592, 61 So.2d 857 (1952); Durden v. State, 394 So.2d 967 (Ala.Crim.App.), writ quashed, 394 So.2d 977 (Ala.1981).

Such action by the trial judge will only be disturbed upon a showing of manifest abuse, and no such abuse is evident in this case. Woods v. State, 367 So.2d 982 (Ala.1978); Shadle, supra; Kennedy v. State, 371 So.2d 464 (Ala.Crim.App.1979); Moore v. State, 49 Ala.App. 408, 272 So.2d 615 (1973).

The entry of a mistrial is not lightly to be undertaken. It should be only a last resort, as in cases of otherwise ineradicable prejudice. Where error is eradicable a mistrial is too drastic and is properly denied. Chillous v. State, 405 So.2d 58 (Ala.Crim.App.1981); Van Antwerp v. State, 358 So.2d 782 (Ala.Crim.App.), cert. denied, 358 So.2d 791 (Ala.1978); Thomas v. Ware, 44 Ala.App. 157, 204 So.2d 501 (1967).

When prejudicial remarks have been made, the trial judge is in a better position than the appellate court to determine whether the remarks were so prejudicial as to be ineradicable. Chambers, supra.

The record supports no finding of abuse of the trial judge’s discretion in overruling the request for a mistrial and denying the motion for a new trial.

We have reviewed the issues in this case as presented by appellant. In addition, we have searched the record for errors injuriously affecting appellant’s substantial rights and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.