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

text:
    Lonnie E. TAYLOR v. STATE.
    4 Div. 85.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    Rehearing Denied Nov. 1, 1983.
    Certiorari Denied Jan. 27, 1984 Alabama Supreme Court 83-208.

      Donald F. Colquett, Opp, for appellant.
    Charles A. Graddick, Atty. Gen. and Richard L. Owens, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence in a case in which a jury had found defendant guilty under an indictment charging that he did “unlawfully possess marijuana, a controlled substance, contrary to and in violation of the provisions of the Alabama Uniform Controlled Substances Act, in violation of Title 20-2-70 of the Code of Alabama, 1975.”

The principal issue raised by appellant is as to the admissibility of the evidence of the results of the search of defendant’s automobile, which, according to the undisputed evidence, including the testimony of a qualified “Crime Laboratory Analyst” experienced in chemical analyses, consisted of the following: “0.11 of a gram of marijuana found in the glove compartment of the automobile; 3.24 grams of marijuana contained in a penny match box found on or about the front seat of the automobile; 0.06 gram of marijuana contained in 2 partially smoked cigarettes and 1 ‘Joker’ brand cigarette papers also found in the automobile.”

The question as to the admissibility of the evidence arose during the testimony of Investigator Roy Tabb of the Covington County Sheriffs Department, who testified in pertinent part as follows:

“I was sitting on a location in Opp, on the look-out for a vehicle that we thought may have been involved in the previous case that I was working on, and the car occupied by two subjects passed me. The license plate was hanging off the back of it in an awkward angle like it had been just tacked on, and they were driving on the wrong side of the road.
“Q. You observed the license tag, as they were driving on the wrong side of the road, of this vehicle?
“A. Yes, ma’am.
“Q. And then what did you do?
“A. I pulled over behind them. They pulled into the yard on Cummings Street. I pulled in behind them with my blue light on.
“Q. And, then, what happened, please?
“A. I went to the car.
“Q. Alright, you proceeded to the car. Is that what your last statement was, Mr. Tabb?
“A. Yes.
“Q. And, when you got to the car, what did you observe, if anything?
“A. I observed the driver appeared to be concealing something under his hand between him and the passenger.
“Q. Did you observe anything else at that time?
“A. At that time I thought that they may have had a weapon, and I asked them to get out of the car.
“Q. You were looking for a weapon?
“A. I didn’t know what he had concealed, ma’am.
“THE COURT: I believe he said he asked them to get out of the car.
“Q. And, when they got out of the car, then what happened, please.
“A. I asked the driver to produce a driver’s license, and he could not.
“Q. Alright.
“MR. COLQUETT [Defendant’s attorney]: Could not?
“A. He said he didn’t have one. He was only driving the car as a favor to his friend, the car belonged to his friend that was with him [the appellant herein],
“Q. And, then, what happened after that?
“A. I looked into the passenger’s compartment where I saw his hand earlier, and while I was looking in there, I observed a burned hand-rolled cigarette butt laying on the floorboard.
“Q. Was that on the driver’s side or the passenger’s side?
“A. It was laying in a compartment of a container on the drive shaft hump between the two of them.
“Q. They had already stopped when you stopped, had they not?
“A. They stopped when I pulled in behind them, yes sir. I didn’t know that they lived there at that time, or if that was where they were going. It just happened that way.
“Q. It wasn’t a period of time after they stopped before you got out?
“A. No, sir.
“Q. You are as sure of that as you are the rest of your testimony?
“A. Yes sir.
“Q. And, you asked if you could look inside the car. Is that your words?
“A. That’s correct.
“Q. And, you were told to go ahead?
“A. Yes sir.
“Q. Is that your words?
“A. Yes sir.
“Q. Alright.
“A. I’m not quoting directly, but that was an inference.
“Q. Was that all that was said? That’s all you asked, if you could look inside the car?
“A. Yes.
“Q. And, who told you to go ahead?
“A. Mr. Taylor.”

All of the testimony quoted above was taken out of the presence of the jury at the request of the defendant, which was concluded as follows:

“RECROSS-EXAMINATION
“BY MR. COLQUETT [Defendant’s attorney]:
“Q. One further question, did you know for a fact that those roaches or cigarettes contained marijuana when you saw them?
“A. No sir. They appeared to be.
“MR. COLQUETT: That’s all, now, we move to exclude any testimony in regards to the search, anything that was found at the search or any statement that was made subsequent to it, by this defendant or any other person.
“THE COURT: Overruled.
“MR. COLQUETT: We accept [which we construe as except].
“(Whereupon court was recessed.)”

Soon thereafter, the same witness testified in the presence of the jury. A pertinent part of his testimony follows:

“Q. Then, what happened after you spoke with the driver?
“A. I looked in the car toward where I thought something was being concealed, and while doing so, with my flashlight, I could see a partially rolled, hand-rolled cigarette butt laying in the compartment on the hump between the two passengers of the car.
“Q. And, what did you do then?
“A. I then, looked further with my flashlight, and I saw another hand-rolled cigarette butt laying on the floorboard below the passenger’s seat, front seat.
“MR. COLQUETT: Now, if it please the Court, we move to exclude this entire testimony. They had no right to be looking in that automobile.
“THE COURT: Overruled.
“MR. COLQUETT: We accept [which we construe as except].
“THE COURT: You may proceed.
“Q. And it was on the side of the car which Mr. Taylor was sitting, the defendant here was sitting?
“A. Yes ma’am.
“Q. And, after you saw these two things, what did you do then?
“A. I advised both gentlemen of their rights. I read them their rights off of a meranda [which we construe as Miranda] card. I looked at them. They both appeared unsteady, eyes were bloodshot. I shined my light in their eyes and their pupils were dilated and didn’t react to the light. At that time, I asked them for permission to check inside the vehicle further.
“Q. And, were you given permission to look inside the vehicle further?
“A. Yes ma’am.
“Q. And, who gave you that permission?
“A. Mr. Taylor.
“Q. What did you do then?
“A. I looked into a casette tape carrying case, on the front seat, which was between the two of them. And inside I found a package of Joker cigarette rolling papers.
“MR. COLQUETT: We object.
“THE COURT: Overruled.
“MR. COLQUETT: We except.
“A. A small Diamond match box containing a quantity of what appeared to be a green leafy vegetable material, which appeared to be marijuana to me.
“Q. And, what else did you find?
“A. I then looked in the glove compartment of the automobile and found a quantity of seeds and stems and what appeared to be more marijuana debris.”

As a caption to, the principal contention in appellant’s brief, he states:

“When the State relies upon consent to justify a search and seizure of evidence to incriminate, the consent must be given under circumstances to justify a waiver of known rights. This is not a matter that can be presumed, but the State has the burden of proving that the consent or waiver was given voluntarily without inducement or coercion and with knowledge of the right to refuse the request to search. HENDERSON VS. STATE, 49 Ala.App. 275, 270 So.2d 822, and cases cited thereunder.”

Appellant is correct in citing Henderson v. State, in support of the quoted caption in his brief. However, it should be noted that it was not held in Henderson v. State that the facts therein were not sufficient to show that the search of the automobile involved was valid, and appellant does not seem to claim otherwise. It appears that he uses the quoted caption as a prelude to the second issue presented by him, which is thus captioned as a correct direct quotation from Henderson v. State, supra:

“Testimony was offered by the State outside the presence of the jury on the question of consent to search. At the conclusion of the testimony offered by the State on this question, the attorney for the appellant requested permission of the court to examine the appellant in rebuttal to the State’s testimony. The request was refused by the court and proper objection and exception taken by the appellant to this action. In this respect the court committed reversible error.”

Appellant then argues, “The facts on this issue are identical with the facts stated above in the Henderson case.” We disagree with this statement, which appellant bases on the part of the transcript of testimony “offered by the State outside the presence of the jury on the question of consent to search” but it was before “the conclusion of the testimony offered by the State on this question.” It was during the cross-examination of State’s witness Investigator Tabb, as shown by the transcript as follows:

“MR. COLQUETT: I would like to put the defendant on the stand for just a moment.
“THE COURT: I’m not going to go that far on this.”

We can well understand that counsel could have thought that the State had concluded its testimony on the point out of the presence of the jury at the time he made his request to be allowed “to put the defendant on the stand for just a moment,” but the transcript does not support any such conclusion, and the trial court should not be placed in error for its not being willing for the defendant to be placed on the stand as a witness out of the presence of the jury during the time that the State’s witness was testifying out of the presence of the jury. It is to be noted also that no further request was ever made by the defendant that he be allowed to testify out of the presence of the jury on the question as to his consent to the search of the automobile.

In the only other issue raised by appellant, he contends that what he calls a “confession” by him at the Covington County Jail after his arrest was improperly admitted in evidence by reason of the claimed fact that there continued until that time “the taint” of an illegal arrest. The facts narrated above are sufficient, we think, to show that there is no merit to appellant’s contention that the arrest of defendant was illegal. The undisputed evidence shows that at the time of his actual arrest, the arresting officer knew there was some marijuana in appellant’s actual or constructive possession.

We now consider a question that goes to the heart of this case, which has not been raised in the trial court or in this court, but which gives us much greater concern than any of the questions we have already considered herein. We do so reluctantly in view of Rule 45B, Alabama Rules of Appellate Procedure, effective January 1, 1982, which provides:

“In all cases appealed to the Court of Criminal Appeals, except those in which the death penalty has been imposed, the Court of Criminal Appeals shall consider only questions or issues presented in briefs on appeal.”

After the verdict finding defendant guilty of possession of marijuana and the court’s adjudication of his guilt, it was made known to the court that defendant at the time of his arrest in the instant case was on probation for two felony convictions on December 18, 1978, one for burglary in the second degree and the other for grand larceny, for which he had received concurrent sentences of imprisonment for three years, with him to serve six months thereof and thereafter his sentence was suspended and he was placed on probation for five years. He had pleaded guilty to both offenses. The court ordered a presentence investigation and set the sentence hearing within approximately a month after his conviction in the instant case. At the conclusion of the sentence hearing in this case, the following occurred:

“THE COURT: Mr. Taylor, unfortunately, the Legislature has passed the Habitual Offenders Act that says, on conviction of any Class C felony, and you were convicted by a jury of the violation of the Uniform Controlled Substances Act, which is considered a Class C felony. Under the Habitual Offenders Act I would have no choice, with two previous convictions, but to sentence you as if it were a Class A felony, which would make the minimum ten years. You have been previously convicted. Now, you have anything to say before I impose sentence upon you?
“MR. TAYLOR: No, sir.
“THE COURT: I sentence you to ten years and one day in the penitentiary of Alabama. Now, you have the right to appeal. Under the law it is my duty to notify you of your right to appeal. At this time do you wish to give notice of appeal and ask for suspension of sentence?
“MR. COLQUETT: Yes, sir, and at this time, I want to file a motion for a new trial, and would you set a date for hearing other than today?
“THE COURT: Alright.
“(Whereupon court was adjourned).”

A motion for a new trial was filed on behalf of defendant and overruled by the court. A formal judgment entry was entered sentencing defendant to imprisonment for ten years and one day.

The question raised by us requires special, careful consideration of an important proviso of the Alabama Uniform Controlled Substances Act as found in Code of Alabama 1975, § 20-2-70, as follows:

“... Provided, that any person who possesses any marihuana for his personal use only is guilty of a misdemeanor and, upon conviction for the offense, shall be imprisoned in the county jail for not more than one year, and in addition, shall be fined not more than $1,000.00 ...”

The quoted proviso and related principles of law have been given discrete consideration in a number of cases. In one of the first cases on the subject, Powers v. State, 49 Ala.App. 690, 275 So.2d 369, 373 (1973), it was stated:

“We pretermit making an observation at this time as to which party — the State or the defendant — has the burden or duty to prove to the appropriate degree that the defendant did or did not have the marijuana for his personal use only. The Legislature at some early session may want to consider placing the burden. Suffice it to say the evidence, supra, created an issue for the jury to decide such use vel non. The defendant did not take the witness stand.”

It appears that the Legislature has not placed the burden and since Powers v. State, supra, it has been uniformly held that for a defendant charged with possession of marijuana to come within the quoted proviso the burden is upon him to show that his possession of marijuana was for his personal use only, since possession for personal use only is a defensive matter. Corbin v. State, 312 So.2d 604 (Ala.Cr.App. 1975); Roberts v. State, 349 So.2d 89 (Ala.Cr.App.1977), writ denied, 349 So.2d 94 (Ala.1977). It is to be noted that at times in an indictment for possession of marijuana it is expressly charged that defendant’s possession thereof was not for his personal use only, thereby expressly charging a felony, and at times the indictment has expressly charged the possession was for defendant’s personal use only, thereby expressly charging a misdemeanor. At still other times, we find that the indictment charges the defendant with the sale of marijuana, which precludes the notion that the charge is for a misdemeanor only.

Our review of the transcript in the instant case reveals that only at one time during the trial was the word “felony” used, which was during the first part of the court’s oral charge to the jury, wherein it was said:

“As you have been told, this indictment charges the defendant with the felony of possession of marijuana, and later in this charge, I will define to you the material elements contained in this offense.”

At no time during the trial, including the oral charge of the court, do we find any reference whatever to the question whether the defendant’s alleged possession of marijuana was for his personal use only. The trial court made it clear to the jury in its oral charge that it was for the jury “to determine whether or not the State has satisfied you beyond a reasonable doubt and to a moral certainty that the defendant possessed this prohibited substance,” without at any time affording the jury an opportunity to find that the defendant was guilty of the possession of it for his personal use only.

In our opinion, the jury correctly found the defendant guilty of possession of marijuana, but it is also our opinion that, according to the undisputed evidence, defendant was not guilty of selling or giving away marijuana or the possession of it other than for his personal use only.

We realize that the amount of marijuana possessed by a defendant is not the sole criterion for determining whether it is for his personal use only. Nevertheless, in accordance with logic and with previous decisions on the subject, the amount of marijuana possessed can have a material effect upon whether it was for the defendant’s personal use only.

As shown by the expert witness who analyzed all of the marijuana in the automobile at the time of defendant’s arrest for the offense of possession of marijuana, the total weight of the marijuana was less than 4 grams, or, stated otherwise, less than the weight of eight silver dimes. Even though marijuana has an extremely low specific gravity and the comparison of its weight with that of metal can be misleading, we further note that much more than three-fourths of the marijuana involved was contained in a penny match box. We realize that there can be and often is an illicit market for a penny match box of marijuana or even for one marijuana cigarette, but the undisputed evidence in this case was that the marijuana involved was not in the process of being sold or given away by defendant. In his own testimony he admitted possession of some of the marijuana that was found in his automobile. All of the evidence is to the effect that whatever marijuana was in his possession, actual or constructive, was in his possession for his personal use only.

In our opinion, the verdict and judgment of conviction were correct and should stand, but that they can justly stand only for a misdemeanor. It follows necessarily that there was no basis for the application of the Habitual Felony Offenders Act, which is limited in its application to the commission of a felony by a defendant who “has been previously convicted of any felony and after such conviction has committed another felony.” Alabama Criminal Code, § 13A-5-9(a).

The judgment of conviction should be affirmed and the cause remanded for the court to fix defendant’s punishment for a misdemeanor and sentence him accordingly-

In reaching the foregoing conclusion, we wish to make it clear that we do not intentionally minimize hereby the offense of possession of marijuana for personal use only, as to which there seem to be pro and con contentions in America today. We believe that the use of marijuana, by whatever of several names it has been called, is a matter of ancient history, but that its use is a relatively modern evil in our country, even though there are those who express a contrary view. Its use is a far cry from being a product of the founding fathers of this nation. Its origin is not to be found among civilized people but in paganistic parts of the world, long before the art of smoking anything was found to exist among the Indians of America, at a time when the use of marijuana or its equivalent was known to have been in existence among heathens, by whom it was brewed and drunk, as they knew nothing of smoking, for hallucinative effect, in their deification of phenomena of nature in their idolatrous worship, which has been well expressed in “The Brewing of Soma.” The poem is too long for a complete recital thereof herein. The following are some of its verses, as penned by John Greenleaf Whittier:

“The fagots blazed, the caldron’s smoke Up through the green wood curled;
‘Bring honey from the hollow oak,
Bring milky sap,’ the brewers spoke, In the childhood of the. world.
“And brewed they well or brewed they ill,
The priests thrust in their rods,
First tasted, and then drank their fill,
And shouted, with one voice and will,
‘Behold the drink of gods! ’
“They drank, and lo! in heart and brain A new, glad life began;
The gray of hair grew young again,
The sick man laughed away his pain,
The cripple leaped and ran.
“ ‘Drink, mortals, what the gods have sent,
Forget your long annoy.’
So sang the priests. From tent to tent The Soma’s sacred madness went,
A storm of drunken joy.
“The desert’s hair-grown hermit sunk The saner brute below;
The naked Santón, hashish-drunk,
The cloister madness of the monk,
The fakir’s torture-show!
“And yet the past comes round again, And new doth old fulfil;
In sensual transports wild as vain
We brew in many a Christian fane
The heathen Soma still!
“Dear Lord and Father of mankind, Forgive our foolish ways!
Reclothe us in our rightful mind,
In purer lives They service find,
In deeper reverence, praise.”

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

JUDGMENT OF CONVICTION OF POSSESSION OF MARIJUANA AFFIRMED, BUT MODIFIED SO AS TO SHOW CONVICTION OF THE MISDEMEANOR OF POSSESSION THEREOF FOR PERSONAL USE ONLY; REMANDED FOR SENTENCE.

HARRIS, TAYLOR and HUBERT, JJ., concur.

TYSON, J., concurs in the result.

BOWEN, P.J., dissents with an opinion, in which SAM W. TAYLOR, J., joins.

BOWEN, Presiding Judge,

dissenting.

While the author of the majority opinion commands my respect, as does the opinion of the majority, I find myself in fundamental disagreement with that part of the opinion which modifies the defendant’s conviction of felony possession and reduces it to the misdemeanor of possession of marijuana for personal use only.

This Court has consistently held that in prosecutions for the possession of controlled substances, the quantity of the drug possessed is immaterial. Allen v. State, 382 So.2d 1147, 1157 (Ala.Cr.App.1980), cert. denied, Ex parte Allen, 382 So.2d 1158 (Ala.1980); Sckenher v. State, 38 Ala.App. 573, 576, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956). “The possession of any amount contrary to the provisions of the act is a violation of the law.” Schenher, supra.

“However in Corbin v. State, 55 Ala.App. 33, 312 So.2d 604 (1975), this court held that it is not necessary for the state to prove that possession of marijuana was for personal use, since possession for personal use is a defensive matter. Possession for personal use is the exception to Section 258(47) and provides a lesser punishment for persons found in possession of marijuana for their personal use only on first conviction. Palmer v. State, 54 Ala.App. 707, 710-711, 312 So.2d 399 (1975). Showing possession for personal use is a matter for defense and the burden of adducing evidence on this issue is upon the accused just as in a prosecution for the possession of prescribed drugs, the burden is on the accused to show that the drugs were lawfully prescribed. See Knox v. State, 50 Ala.App. 494, 280 So.2d 200 (1973). In a prosecution for the unlawful possession of morphine, the defendant has the burden of bringing himself within any exception or exemption provided under the statute creating the offense. Fuller v. State, 39 Ala.App. 219, 96 So.2d 829 (1957), citing authority at 39 Ala.App. 221, 96 So.2d 829. The burden is on the accused to show that a statutory exemption or exception is applicable, and the state does not have the burden of proving that the accused does not come within excepted categories in the statute. 28 C.J.S. Drugs and Narcotics Supplement Section 190 at p. 279.
“Under Section 258(47) the degree of possession, whether a felony or a misdemeanor, depends upon the use of the marijuana and not the quantity involved. If for personal use only, the crime is a misdemeanor, otherwise a felony. Powers v. State, 49 Ala.App. 690, 275 So.2d 369 (1973).
“ ‘We are not prepared to say that any given quantity of marihuana possessed marks a line between possession for personal use and possession for such other purpose as sale, barter, or gift.’ Corbin, supra, 55 Ala.App. 36, 312 So.2d [604] 607.
“Yet, the smaller the quantity of marijuana possessed, the more consistent it would be with personal use. Compare Powers, supra, where there was testimony that a matchbox of marijuana was the quantity ‘common for personal use’, and Osner v. State, 54 Ala.App. 520, 310 So.2d 241 (1974) stating: ‘To indulge in the speculation that 800 pounds of marijuana is for personal use only is to strain credulity almost to the breaking point.’ “The statute prohibits the possession of any amount of marijuana. The burden is upon the accused to show that the amount possessed, however large or small it may be, is for his personal use only. The state is not required to prove that the marijuana is possessed for the purpose of sale under an indictment charging, as here, mere possession. Title 22, Section 258(47).” Roberts v. State, 349 So.2d 89, 93 (Ala.Crim.App.), cert. denied, Ex parte Roberts, 349 So.2d 94 (Ala.1977).
“In Alabama, in a prosecution for illegal possession of marijuana, there is a presumption that the possession is for other than personal use. The showing of possession for personal use is a defensive matter and the burden of proving this matter is upon the defendant. The State need not prove that the possession of marijuana was not for personal use.” Barnett v. State, 373 So.2d 1226, 1227-28 (Ala.Crim.App.), cert. denied, 373 So.2d 1230 (Ala.1979) (citations omitted).

See also Lee v. State, 350 So.2d 743 (Ala.Cr.App.1977); Corbin v. State, 55 Ala.App. 33, 312 So.2d 604 (1975); Peppers v. State, 53 Ala.App. 695, 304 So.2d 39, cert. denied, 293 Ala. 770, 304 So.2d 43 (1974); Watkins v. State, 50 Ala.App. 111, 277 So.2d 385, cert. denied, 291 Ala. 801, 277 So.2d 389 (1973).

The State’s evidence in this case shows that in the vehicle with the defendant was a second individual. Investigator Tabb advised both men of their Miranda rights and noticed that “both appeared unsteady, eyes were bloodshot.... their pupils were dilated and didn’t react to light.” Without further recitation of the facts, the evidence justified a reasonable inference that both the defendant and his companion were under the influence of the drug.

If the defendant was sharing his marijuana with another, a finding the evidence fully justifies, it can hardly be said that his possession was for his “personal use only.” Section 20-2-70 (emphasis added). Consequently, the finding of the majority that “(a)ll of the evidence is to the effect that whatever marijuana was in his possession, ... was in his possession for his personal use only” is simply not supported by the record.

As noted by the majority, “At no time during the trial, ... do we find any reference whatever to the question whether the defendant’s alleged possession of marijuana was for his personal use only.” For all this Court knows, the defendant could have had a previous misdemeanor possession conviction which would have precluded a second misdemeanor conviction. Section 20-2-70.

For these reasons, I dissent from the majority opinion and would simply affirm the judgment of the circuit court.

      . Not involved but not overlooked is the relatively new statute, Trafficking in Illegal Drugs (Acts 1980, No. 80-587). Code of Alabama 1975, 1982 Cum.Supp. § 20-2-80.


source: Caselaw Access Project

author: SAM W. TAYLOR, Judge.

license: Public Domain

text:
    Earnestine Bryant BROOKS v. STATE.
    5 Div. 737.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Jan. 27, 1984 Alabama Supreme Court 83-93.
    J. Michael Williams, Sr., Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   SAM W. TAYLOR, Judge.

Earnestine Bryant Brooks was indicted for murder of her live-in boyfriend, Benny Harris, Jr. The jury convicted her of manslaughter and she was sentenced to ten years’ imprisonment. She appeals, setting forth three contentions.

A brief review of the facts reveals the following: It appears that the decedent, Mr. Benny Harris, Jr., who lived with the appellant, Earnestine Bryant Brooks, spent most of July 5, 1983, drinking. Earlier that day he had had a tussle with appellant at her cousin’s house and he later tried to get back into the apartment they shared. Appellant put the deceased out the door. Mr. Harris tried to re-enter the apartment but was not allowed back inside. Mr. Harris then broke the outer pane of the storm window with his fist and walked into the yard and picked up a broom which he used to beat on the door and window. Appellant’s son ran around to the front of the apartment and threw a stick at Mr. Harris, hitting him in the chest. Mr. Harris scared the child off and proceeded to walk across the yard away from the house. At this point, the appellant unlocked the door, came out and advanced on Mr. Harris with a knife in her hand. Mr. Harris began backing away from her, swinging or waving the broom to try to ward her off. She finally got to him and began stabbing him. He grabbed her in a “bear hug.” A neighbor sitting on the front porch watching this, said she heard the appellant say as she came out the front door, “I’m fixing to kill you.” The appellant herself said that when she came out the door “I didn’t stop ... I just went up on him.” She then stopped stabbing the deceased. The police drove up and a neighbor asked Harris why not go to the police, and he said that he was going to die anyway. He fell down across the sidewalk and was pronounced dead at the scene. There was no question as to who killed Harris; as to how he died, or as to what happened.

I

Appellant contends that the court erred when it denied or refused a challenge for cause of Mr. Carlos Rabren. Mr. Rabren was the head of the Department of Forensic Sciences at Auburn. As such, he was senior to Dr. Thomas Gilchrist and Mr. William H. Landrum, a criminalist, both members of the department he headed, and both of whom were to testify in the trial. Mr. Rabren was not a member of the trial jury. Dr. Gilchrist, the forensic pathologist, testified the cause of death of Benny Harris, Jr., was a single deep stab wound to the right axilla, or the armpit, which cut or severed the axillary artery, resulting in death by bleeding. Gilchrist testified the blood sample of the victim showed an alcohol level of .38%. He further testified that the deceased had two shallow stab wounds and ten superficial incised wounds. He testified that an injury to the deceased’s hand could possibly have been caused by glass.

Mr. Landrum, the criminalist, testified about the blood type found on the knife and the clothing of the appellant and he stated that it matched the group B blood of Benny Harris, Jr.

Mr. Rabren, when first asked if he would give any greater credence to the testimony of any of the employees of his department because of the fact that he was aware of their knowledge or expertise than he would someone else, answered, “It’s possible.” Later, however, he was asked: “Well, could you still, if you sat on the jury, would you still base your verdict, regardless of who you might know testifying, or who you might not know, would you still base your verdict solely on the evidence in the case?” He answered, “Yes, sir, I would. I’d do my best to do that.”

The challenge for cause should fail in any event. We conclude first that the testimony of the people from the Dept, of Forensic Sciences was as to matters not contested in the case. It was never denied that the appellant approached the deceased and stabbed him with a knife, nor that the knife wound was the cause of death. There was no question that the deceased was extremely intoxicated. We conclude also that the answer of the prospective juror was sufficient to establish his impartiality. The appellant would have suffered no injury had Mr. Rabren served on the jury. She suffered none from his being retained as a venireman.

II

Appellant next contends that revers- ■ ible error was committed by the judge in denying a motion in limine directed to exclude evidence of prior altercations. This court has previously ruled that the denial of a motion in limine cannot in and of itself rise to the level of reversible error. Oliver v. State, 440 So.2d 1180 (Ala.Cr.App.1983). This is true because the material against which the objection has been made has not yet been heard by the jury and may never be heard by them. See 75 Am.Jur.2d Trial, Section 165 (1974), Annot. 63 A.L.R.3d 311, Section 5 (1975).

In the case at bar, it appeared that appellant had stabbed Benny Harris, Jr. in the heart in September of 1980; also a month before the killing, she had stabbed Benny Harris with a fondue fork. The appellant testified to several prior altercations. There were several other witnesses who testified to altercations without objection being made.

Such testimony is relevant on the issue of intention in a case such as this one. The question of intent presumably played a large part in the jury’s decision to convict the appellant of manslaughter instead of murder. Certainly, the testimony was admissible and the court did not err in denying the motion in limine.

III

Appellant contends that the court committed reversible error by denying the defense motion to dismiss the evidence. We have examined the transcript and conclude that the trial court acted properly in denying the motion to exclude the evidence. This was a murder trial and the trial judge at sentencing stated, as regards the sufficiency of the evidence:

"... I also heard some two or three days of the evidence in the case, and I can’t help consider the evidence that I heard there. To be quite frank with you, you should consider yourself very fortunate that you were not convicted of murder, because of my opinion the jury would have been justified in finding you guilty of murder, you would be facing a life sentence today. What I’m saying, is: your attorney has done you a very excellent job and you should feel very fortunate that you are not facing a life sentence here today.” (R 462-3)

We find no error; this case is affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Calvin Brooks ZEIGLER v. STATE.
    6 Div. 350.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Jan. 20, 1984 Alabama Supreme Court 83-68.

      Orson L. Johnson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Zeigler was convicted of second degree forgery in May, 1980, and sentenced to eight years’ imprisonment. His conviction was subsequently affirmed without opinion by this Court in October of 1980. Subsequently, Zeigler filed a petition for writ of error coram nobis. In May of 1983, this Court set aside our prior judgment and reinstated Zeigler’s appeal on proof that he had been denied an appeal of his conviction through no fault of his own. Zeigler v. State, 432 So.2d 542 (Ala.Cr.App.1983). The only issues raised by Zeigler in his renewed appeal concern the alleged denial of his constitutional right to the effective assistance of counsel.

I

Zeigler contends that he was denied the assistance of counsel during the striking of the jury.

We recognize that the striking of the jury is a critical stage of any trial and carries with it the right to the effective representation of counsel. Ford v. State, 356 So.2d 720 (Ala.Cr.App.), cert. denied, 356 So.2d 723 (Ala.1978). It is patently clear from the record, however, that Zeig-ler himself was responsible for his lack of counsel at this time.

Before the jury venire was brought into the courtroom, Zeigler told the trial judge that he did not wish to be represented by his court appointed attorney, Mel Burns. After ascertaining that Zeigler had not retained other counsel, although he had had over six months to do so, the trial judge questioned him as to his age, educational level, and prior experience with the judicial system. He then asked Zeigler if he felt he had learned enough to represent himself, to which Zeigler responded affirmatively. After cautioning Zeigler as to the dangers of self-representation, the trial judge stated that he would keep Burns in the courtroom in ease Zeigler needed his assistance.

Upon sending for the venire, the judge asked Zeigler if he were going to strike the jury and Zeigler replied that he was not. Zeigler further stated: “I don’t want him (Burns) striking it.” Faced with a situation that he termed a “sit-down strike”, the trial judge stated that he would strike the jury and explained to Zeigler that he would do so in a purely numerical fashion, merely striking the next person on the list. Zeig-ler indicated that he understood what the judge was going to do.

After the venire was present in the courtroom, Zeigler stated that he was not representing himself and that he “(did) not need the assistance of Mr. Burns”, and a discussion with the trial judge ensued. Zeigler informed the judge that he was not capable of representing himself, but maintained that he had relieved Burns from the case. The trial judge asked, “Do you want to strike the jury under those circumstances, Mr. Burns, or shall I?” Burns replied that he preferred the judge to do so. The judge then asked Zeigler who he wanted to strike the jury. When Zeigler replied that “it doesn’t matter”, the judge proceeded to strike the jury in Zeigler’s behalf.

These facts clearly show that the defendant was not denied the assistance of counsel during the jury selection process, but, rather, through his own conduct, prevented his court-appointed attorney from participating in the process. In view of Zeigler’s unequivocal statement to the court that he did not want Burns striking the jury and his repeated insistence that he did not need Burns’ aid, we fail to see how Burns could have done anything other than request the court to strike the jury. If Zeigler had changed his mind and wanted Burns to select the jury, he should have said so when asked who he wished to strike the jury. A defendant who refuses to allow his court-appointed attorney to strike a jury cannot then come before this Court and argue that he was denied the assistance of counsel during the jury selection process. Cf. Hance v. Zant, 696 F.2d 940, 950 (11th Cir.1983) (“A defendant who chooses to represent himself cannot later complain that the management of his own defense amounted to a denial of effective assistance of counsel.”); Johnson v. State, 54 Ala.App. 586, 310 So.2d 509 (1975) (where defendant was uncooperative and neglected to give information to his attorney he could not later claim that he was denied effective assistance of counsel).

II

Zeigler also claims that he was denied the effective assistance of counsel because Burns’ representation was inadequate.

The Sixth Amendment guarantees to indigent defendants not only the assistance of counsel, but the effective assistance of counsel. See Ford, supra; Goodman v. State, 387 So.2d 862 (Ala.Cr.App.), cert. denied, 387 So.2d 864 (Ala.1980). However, on the review of a coram nobis proceeding, counsel is presumed to be adequate, Sheehan v. State, 411 So.2d 824 (Ala.Cr.App.1981); Summers v. State, 366 So.2d 336 (Ala.Cr.App.1978), cert. denied, 366 So.2d 346 (Ala.1979), and the heavy burden of proving otherwise rests upon the defendant. Behel v. State, 405 So.2d 51 (Ala.Cr.App.1981).

Effective representation of counsel does not require that counsel be errorless, Graham v. State, 403 So.2d 275 (Ala.Cr.App.1980), writ quashed, 403 So.2d 286 (Ala.1981), cert. denied, 454 U.S. 1152, 102 S.Ct. 1020, 71 L.Ed.2d 307 (1982), and a showing that counsel made a mistake unfavorable to the defendant is not sufficient to establish inadequate representation. Goodman, supra; Lewis v. State, 367 So.2d 542 (Ala.Cr.App.1978), cert. denied, 367 So.2d 547 (Ala.1979). The defendant must show that the conduct of the attorney reduced the trial to a sham, farce, or mockery of justice. Bass v. State, 417 So.2d 582 (Ala.Cr.App.), cert. denied, 417 So.2d 588 (Ala.1982), and cases cited therein; Shee-han, supra.

Zeigler argues that Burns’ ineffectiveness is established by the following: (1) failure to conduct a voir dire of the jury venire and select a jury, (2) failure to move to suppress the in-court identification of the eyewitness, (3) failure to object to certain testimony, and (4) failure to submit written requested charges.

Part I of this opinion is dispositive of the first allegation and we see no need for further discussion of the issue. As to the remaining allegations, this Court recently noted that “counsel’s failure to act, whether it is a failure to object, to make certain motions, or to request certain charges, does not of itself constitute inadequate representation. Rather, the attorney’s failure to act must cause the trial to be reduced to a farce, sham, or mockery of justice.” Woodyard v. State, 428 So.2d 136, 138 (Ala.Cr.App.1982), affirmed, 428 So.2d 138 (Ala.1983).

The eyewitness making the identification was the bank teller to whom Zeig-ler was alleged to have presented a forged check. The record does not disclose whether she had made a pretrial identification. She testified that she had observed Zeigler for some three or four minutes while he was at her teller window. When she noticed that the check presented her was drawn on a construction company, she told Zeigler that her brother did construction work and asked him if he knew her brother. Her identification of Zeigler, which was unequivocal even under Burns’ vigorous cross examination, was therefore shown to have a basis independent from any pretrial identification procedure and was properly admissible for that reason alone. Jackson v. State, 414 So.2d 1014 (Ala.Cr.App.1982); Matthews v. State, 401 So.2d 241 (Ala.Cr.App.), cert. denied, 401 So.2d 248 (Ala.1981). Counsel’s failure to move to suppress an in-court identification which is properly admissible does not amount to ineffectiveness. See Bass, supra. Cf. Sheehan, supra (counsel’s failure to move to suppress confession did not amount to ineffectiveness where he had inquired into the issue and determined that it was unlikely that the confession would be suppressed).

Objections to testimony are clearly a matter of trial strategy, Trammell v. State, 276 Ala. 689, 166 So.2d 417 (1964); Woodyard, supra, and, absent a clear showing of improper or inadequate representation, are to be left to the judgment of trial counsel. Hall v. State, 421 So.2d 1334 (Ala.Cr.App.1982); Goodman, supra.

The court’s oral charge adequately covered the legal principles involved in this case. The defendant does not contend otherwise, nor has he pointed to any supplemental charges which might have been appropriate. Moreover, we are of the opinion that requests for jury charges are included in the “practical questions” that an attorney must deal with in formulating trial strategy, see Trammell, supra, and, consequently, should be left to the trial attorney’s judgment. Hall, supra; Goodman, supra.

Zeigler also argues that Burns “could not function in (his) defense” due to their irreconcilable differences. The record reflects that there was friction between the defendant and Burns. However, a defendant is not denied effective assistance of counsel merely by reason of a disagreement with his attorney. See Jacques v. State, 376 So.2d 821 (Ala.Cr.App.1979); Johnson v. State, 54 Ala.App. 586, 310 So.2d 509 (1975); Annot. 2 A.L.R.4th 27, Section 15(a) (1980). In addition, we note that the problems that existed appear to be largely of the defendant’s making. A defendant who deliberately creates discord between himself and his court-appointed attorney will not be allowed to argue on appeal that this conflict denied him effective assistance of counsel. See Jacques, supra; Johnson, supra. Cf. Tate v. State, 346 So.2d 515, 521 (Ala.Cr.App.1977) (“A defendant’s freedom of choice of counsel may not be manipulated to subvert the orderly procedure of court or to interfere with the fair administration of justice.”)

It is our judgment that Zeigler has fallen far short of establishing that Burns’ conduct reduced his trial to a sham, farce, or mockery of justice thereby denying him his constitutional right of effective assistance of counsel. On the contrary, Burns’ representation of Zeigler was commendable in view of the handicap imposed by Zeig-ler’s belligerent and uncooperative manner. Our review of the record shows that Burns made opening and closing statements in Zeigler’s behalf, effectively cross examined the majority of the State’s witnesses, was successful in having Zeigler’s confession suppressed, and made a timely motion to exclude the State’s evidence. Burns also conferred with Zeigler a number of times during the trial and presented to the court several motions at Zeigler’s request. Even applying the stricter Fifth Circuit standard of “reasonably effective assistance”, Harris v. Oliver, 645 F.2d 327 (5th Cir.1981), in evaluating Burns’ representation, we find that Zeigler was not denied effective assistance of counsel.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.

      . Zeigler does not contend that the trial judge acted improperly or was without authority to strike the jury. We note that the legislature recently amended Section 12-16-100, Code of Alabama 1975, to include the following provision: "If any defendant shall refuse to exercise a strike to which he is entitled, then the judge presiding shall exercise that defendant’s strike for him.” 1981 Ala.Acts 1381, No. 81-788; 1982 Ala.Acts 267, No. 82-221. Although not in effect at the time of defendant's trial, it is clear that this amendment is intended to apply to situations of the type involved in this case.


author: TYSON, Judge. TYSON, Judge. HUBERT TAYLOR, Judge

text:
    Johnny EDDINGS v. STATE of Alabama.
    7 Div. 132.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    On Return to Remand Oct. 4, 1983.
    Rehearing Denied Nov. 1, 1983.
    Certiorari Denied Jan. 13, 1984 Alabama Supreme Court 83-209.
    Andrew W. Redd, Sylacauga, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Johnny Eddings appeals his conviction in the Circuit Court of Talladega County, Alabama, had pursuant to § 13A-7-7, Code of Alabama 1975. Following a guilty verdict, a sentence of three years’ imprisonment was imposed.

I

Just prior to trial, appellant’s counsel filed a motion to quash raising the issue of the fact that a law partner of the assistant district attorney had served as foreman of the Grand Jury which returned the indictment in this cause. The Honorable Barry N. McCrary is, in fact, a law partner of the assistant district attorney, the Honorable Julian M. King.

At the hearing on the plea and the motion in which this issue was discussed, the following occurred: (R. 34).

“2/15/83 Pretrial motion to bring Steve Eddings to Court as witness granted. All other pretrial motions filed by defendant denied after hearing. JLF” (s/Jerry L. Fielding).

This court on August 2, 1982, in the case of Ervin v. State, 442 So.2d 123 (Ala.Cr.App.1983), has ruled on this very issue involving these same parties. In Ervin we remanded that case to the circuit court with directions that the appellant and his counsel be present and a hearing conducted on the issue as originally raised. We further directed that a transcript of this hearing be prepared, with appropriate findings set forth in writing by the trial judge, determining whether or not there had been confidential information with reference this cause exchanged between the law partner and the district attorney and any full or part time member of his staff.

As with Ervin, should the trial judge find that the law partner possessed no disqualifying knowledge when the Grand Jury was convened, then he was, in fact, competent to serve as a member of and to be the foreman of the Grand Jury. Ervin, supra.

Because of the necessity to clarify this issue, i.e., whether or not there existed a conflict of interest in this case, we hereby remand this cause with directions that a full hearing be conducted on the issue as herein set forth and that a transcript of such proceeding be promptly returned to this court. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956).

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN FROM REMAND

TYSON, Judge.

Johnny Eddings was indicted for burglary in the third degree in violation of § 13A-7-7, Code of Alabama 1975. The appellant was granted youthful offender status and following a non-jury trial, he was found guilty as charged and sentenced to three years in the custody of the Alabama Department of Corrections.

I

This case was remanded to the trial court with directions that it make a factual determination as to whether the law partner of the assistant district attorney, who served as foreman of the grand jury which returned the indictment in this case, possessed any disqualifying information relative to this case. The trial court submitted its written findings to this court which revealed:

“that Barry McCrary possessed no disqualifying knowledge when this Grand Jury that indicted Johnny Eddings was convened on January 10, 1983, and was therefore competent to serve as a member of and to be foreman of the Grand Jury based on the following findings of fact:
“(1) That Assistant District Attorney King did not confer with his partner, Barry McCary relative to the prosecution of Johnny Eddings at any time prior to the convening of the Grand Jury on January 10, 1983 or subsequent to the convening thereof in which Johnny Eddings was indicted.
“(2) That Assistant District Attorney King had no knowledge that Johnny Ed-dings had been charged with any crime or that his case was to be presented to a Grand Jury for its consideration prior to January 10, 1983.
“(3) That Assistant District Attorney King did not participate in prosecution of Johnny Eddings at this Grand Jury during this session. In fact, Mr. King was in the hospital when this Grand Jury was convened by Judge William C. Sullivan on January 10, 1983. That a true bill was rendered by this Grand Jury as to Johnny Eddings on January 10, 1983 and Assistant District Attorney King did not make an appearance at this Grand Jury until January 12 or January 13, 1983.
“(4) That the law partner to Assistant District Attorney King, namely Barry McCrary, did not confer with Assistant District Attorney King or any other member of the District Attorney’s staff including the District Attorney, Robert Rumsey, relative to the prosecution of Johnny Eddings at any time prior to the convening of this Grand Jury on January 10, 1983, that indicted Johnny Eddings.
“(5) That Attorney Barry McCrary had no knowledge that Johnny Eddings had been charged with any crime or that this case was to be presented to a Grand Jury for its consideration prior to January 10, 1983.
“(6) That Attorney Barry McCrary and Assistant District Attorney King did not confer with each other after the convening of this Grand Jury relative to the prosecution of Johnny Eddings while this Grand Jury was in session.
“(7) That Attorney McCrary had no preconceived bias or prejudice as a Grand Juror in this case either because of his partnership with Assistant District Attorney King or for any other reason presented to this Court.”

From the above recitation, this court finds that what appeared to have been a possible conflict of interest was, in fact, no conflict whatever. See Terry v. State, 424 So.2d 710 (Ala.Cr.App.1982). We can find no violation of §§ 12-16-207, 209, Code of Alabama 1975 or the Code of Ethics for Lawyers. Therefore, we hold the assistant district attorney’s law partner was competent to serve as a member of and to be foreman of the Grand Jury which returned the indictment in the case at bar. The appellant’s motion to quash the indictment was properly denied by the trial judge.

II

The issue we must now examine is whether the appellant’s waiver of his constitutional rights and his subsequent confession were voluntary. Since confessions are prima facie involuntary, we must look to see if the State proved, in fact, the appellant’s waiver and confession were understanding^, knowingly and intelligently made. Garrett v. State, 369 So.2d 833 (Ala.1979); Hines v. State, 384 So.2d 1171 (Ala.Cr.App.), cert. denied, 384 So.2d 1184 (Ala.1980).

Mary Hawthorne, the owner of Krystal Service Station, testified that on the morning of August 21, 1982, she arrived at her store and discovered it had been burglarized. Entry into the store was gained through a hole in the wall where the air conditioner had been removed. That day she observed the appellant and his brother, Richard Eddings, go around to the back of the station and point to the hole where the air conditioner had been. The boys did this five or six times throughout the course of the day, so she called Theodore Wilson of the Sylacauga Police Department and complained.

Wilson found the two boys in the area of the store so he asked them to go to the police station with him to talk over the matter and they agreed. On the way to the station, Wilson stopped at the appellant’s house and asked his stepfather to accompany them to the station which he did.

At the station, Wilson read the boys their Miranda rights and a waiver of these rights and they indicated they understood what was read to them. The appellant then told Wilson that he and his brother were riding around on the night of the burglary and went to the service station. They removed the air conditioner, entered the store and took some beer and cigarettes.

Wilson then turned the boys over to Detective Ken Brasher. On August 23, 1982, Brasher read the boys their Miranda rights and obtained a statement from them. Mary Thomas, the person who transcribed the appellant’s statement, testified he was extremely nervous when he gave his statement and when she read it back to him.

Prior to trial, a hearing was held on the appellant’s motion to suppress his statement. At the hearing, Horace Pope, the Director of Special Education for the Tal-ladega County Schools, testified that the special education students’ records were kept in his custody, and he brought with him to trial court, the psychological evaluations of the appellant and his brother, Richard. The evaluations were done every three years and the appellant had last been tested on April 9, 1981, and withdrew from school on March 23, 1982. The test revealed the appellant’s IQ was 49 which places him in the trainable mentally retarded (TMR) classification. Persons in this classification are only able to learn basic skills that will help them function in society, such as the ability to count change, take a bus, shop in grocery stores, etc. A TMR would be able to understand simple instructions but would not understand complex instructions involving more than two things without in-depth training. Pope further testified that neither the appellant’s abilities nor his IQ would have improved over time without any additional training.

Betty Milam, a teacher of educable mentally retarded (EMR) students at B.B. Comer High School, testified the appellant was in her class for the two and a half years before he quit school. The appellant could not read or write but could copy. However, he could not understand what he was copying.

In her opinion, the appellant would not understand the Miranda rights without further explanation. Milam testified the appellant would not understand the words “waiver”, “coercion”, or “rights”. She also stated that if the appellant were asked whether he understood something, he would probably answer yes in order to please the person asking the question.

“ ‘[I]n most cases, the defendant’s mental deficiency will be but one factor to be considered in the ‘totality of the circumstances’ surrounding the confession. In some cases, however, it may be the most important or controlling factor. See e.g. Dover v. State, 227 So.2d 296 (Miss.1969); People v. Langston, 57 Mich.App. 666, 226 N.W.2d 686 (1975). See also Redwine v. State, 258 Ala. 196, 61 So.2d 724 (1952). The importance of this factor increases with - the degree of the accused’s mental retardation because he must be able to understand his right to remain silent and to an attorney before he can waive them. It is a knowing and intelligent waiver that is required. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)’; Garrett v. State, 369 So.2d 833, 836 (Ala.1979).” (Footnote omitted.)

Hines v. State, 384 So.2d 1171 (Ala.Cr.App.), cert. denied, 384 So.2d 1184 (Ala.1980).

Although in very few cases will the mental deficiency of the appellant be the controlling factor in the determination as to whether the appellant’s confession was voluntary, we believe this case is such a case. Officers Brasher and Wilson were well aware of the fact the appellant could not read or write but stated they did not know he was “slow”. Both officers said they read the Miranda warning and the waiver to the appellant slowly, but this is not enough. Hines v. State, supra. In this case, it is clear from the record that the appellant could not understand his constitutional rights without adequate explanation. However, neither officer attempted to explain what they were reading to him even though they knew he was unable to read or write and was extremely nervous.

Furthermore, the suggestibility of this appellant must be taken into account. See Hines v. State, supra. Since the appellant’s teacher testified he would be willing to say he understood a statement, even if he did not understand it in order to please the person asking the question, we believe there is a strong possibility the appellant made the statement at issue for this reason.

It is obvious from the testimony that the appellant would not understand certain key words in the Miranda warnings or what the word “waiver” meant. Since it is impossible for the appellant to knowingly, intelligently and voluntarily waive his constitutional rights without understanding their meaning or the consequences of the waiver of those rights, we must hold the appellant did not, in fact, knowingly, intelligently and voluntarily waive his constitutional- rights. Therefore, we find that the appellant’s confession was involuntary and inadmissible at trial and his conviction must be reversed for this reason.

This cause is due to be and is hereby reversed and remanded to the trial court for a new trial.

REVERSED AND REMANDED.

BOWEN, P.J., and TYSON and HARRIS, JJ., concur.

HUBERT TAYLOR, J., files dissent in which SAM W. TAYLOR, J., joins.

HUBERT TAYLOR, Judge

(dissenting).

The judgment of the trial court should be affirmed. A police officer should not have the burden of determining the mental skills of an accused. His duty is to (1) advise the accused of his rights under Miranda, and (2) not use force, coercion, or any undue pressure, mental or physical, in obtaining a statement. These standards were fully complied with by the police officers. A relative of the accused was present at the time the statement was made. The statement was supported by the store owner. Under these circumstances, it is not for this court to hold the trial court abused its discretion in finding the confession to be voluntary.

      . The Fifth Amendment to the United States Constitution requires an indictment by a legally constituted and unbiased grand jury.


text:
    Robert Lewis HAWKINS, Jr. v. STATE.
    1 Div. 605.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Jan. 13, 1984 Alabama Supreme Court 83-99.

      Paul D. Brown, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

The appellant, Robert Lewis Hawkins, Jr., was indicted and convicted for the murder of Anthony Francis Carter. He was sentenced as a habitual offender to life imprisonment. Three issues are raised on appeal.

I

Hawkins argues that the typewritten transcript of his tape-recorded statement to the investigating officers was improperly admitted over the objections that it violated the best evidence rule and the parol evidence rule.

After his arrest, Hawkins was interrogated and gave an oral statement. This statement was tape-recorded and a written transcript was made from that recording.

Mobile Police Detective Walter Pickett testified that he was present during the entire questioning of Hawkins, that he listened to the recording, that he read the typewritten version, and that the typewritten version truly and accurately reflected what was on the tape recording and what Hawkins said during the interrogation. Pickett testified that the transcript was “the same statement ... (Hawkins) gave us on the tape the night in question.” The trial judge admitted the transcript, finding that “this man listened to the tape and read this transcript, that he was present during the entire questioning of the defendant, and that in his opinion this transcript is substantially what the man said on the day that he was interrogated.”

Sergeant Rivers Johnson testified that the actual tape recording was missing and had been misplaced. He stated that on the morning of the trial he spent fifteen or twenty minutes looking in the location where the recording should have been. There was evidence that the tape might have been lost when the homicide squad relocated its offices.

Here, the State could have proved the contents of Hawkins’ statement without the tape recording or the typewritten transcript. Any person who was present and heard the statement could have testified to its content. Gordon v. State, 34 Ala.App. 278, 280, 41 So.2d 608, affirmed, 252 Ala. 492, 41 So.2d 610 (1949). The unavailability of a tape recording of a confession does not preclude the admission of the oral testimony of a witness to the incul-patory statement. Fleming v. State, 57 Ala.App. 556, 329 So.2d 616 (1976). “If the accused makes an oral confession, and minutes later signs a written confession of somewhat similar content to the oral confession, there are two distinct confessions and neither the best evidence rule nor the parol evidence rule debars the State from proving either or both confessions.” C. Gamble, McElroy’s Alabama Evidence, Section 200.19 (3rd ed. 1977).

Hawkins’ argument that the tape recording was the best evidence of his statement is without merit. The best evidence rule is applicable only to writings and does not apply to tape recordings. United States v. Conway, 507 F.2d 1047 (5th Cir.1975); United States v. Duffy, 454 F.2d 809 (5th Cir.1972); Annot. 58 A.L.R.3d 598, Section 7 (1974). “Although it is sometimes said loosely that a party must produce the best evidence which the nature of the question admits, there is no rule of law that is so all-encompassing.” C. Gamble, McElroy’s Alabama Evidence, Section 212.01 (3rd ed. 1977). “Where a tape recording of accused’s confession has been made, the best evidence does not require that the recording be produced in court.” 23 C.J.S. Criminal Law, Section 833(e) (1961).

However, once the State attempted to show that the confession was in writing, “then the best evidence rule governed the question of identifying the writing setting forth the confession.” Bennefield v. State, 281 Ala. 283, 285, 202 So.2d 55 (1967); Gordon v. State, 252 Ala. 492, 493, 41 So.2d 610 (1949); Elkins v. State, 250 Ala. 672, 674, 35 So.2d 693 (1948). Once the State attempted to prove the contents of the confession by the use of the typewritten transcript of the lost tape recording, the best evidence rule became applicable and the authenticity of the transcript became the pivotal question.

Here, defense counsel objected to the admission of the typewritten transcript on the ground that “there’s been no testimony by the person that typed this that this is a true and accurate copy.” In Ben-nefield, “the stenographer who took down the questions and answers in shorthand and later prepared the transcription did not testify. She was the only one who could testify to the authenticity of the transcription made from her shorthand notes.” Bennefield, 281 Ala. at 285, 202 So.2d 55 (emphasis added). Here, Detective Pickett could and did authenticate the typewritten transcript.

“Although the defendant maintains that the stenographer who transcribed the tape recording is the only person who could authenticate the transcript, the stenographer could only testify that the transcript accurately reflected what was on the tape recording. Smith, who was present during the interrogation, who listened to the tape recording, and who read the written transcription, could properly testify that the transcript accurately reflected what was contained on the tape and that the tape recording accurately reflected that which was actually said during the interview. Gwin v. State, 425 So.2d 500, 505 (Ala.Crim.App. 1982), cert. quashed, Ex parte Gwin, 425 So.2d 510 (Ala.1983).

See also Watson v. State, 398 So.2d 320, 326 (Ala.Cr.App.1980), cert. denied, 398 So.2d 332 (Ala.1981).

We do not think that Bennefield provided the only way in which a transcript of a confession may be authenticated. A typewritten transcript of a recorded conversation is admissible where the officer who listened to the conversation at the time of the recording testifies that the transcript accurately reflected the conversation. People v. Ketchel, 59 Cal.2d 503, 30 Cal.Rptr. 538, 381 P.2d 394, 401 (1963).

Where the use in evidence of typewritten transcripts of sound recordings has been objected to as in violation of the best evidence rule, the general rule is that the typewritten transcripts have been held admissible in evidence if their accuracy and reliability is clearly established. 29 Am. Jur.2d Evidence, Section 436 (1967); An-not. 58 A.L.R.3d 598 (1974). Since the accuracy and reliability of the transcript was adequately established, we find no error in its admission into evidence.

II

Contrary to Hawkins’ contentions, we find that the State did exercise good faith in attempting to locate the unavailable witness, Bruce Carter, the brother of the deceased. Consequently, Carter’s testimony from the preliminary hearing was properly admitted.

There was evidence that Carter “just disappeared” approximately ten months before the trial. His grandmother, with whom he had been living, testified that he telephoned her and said that he was going to start a new life for himself and that he was going to leave town.

Detective Pickett stated that he had “dealt” with the grandmother in an attempt to locate Carter and had “gone out looking for him where he usually hangs— where Ms. Emma said you might could find him and places where he stayed.” Pickett did not check with the bonding company that had Carter on bond. There was also evidence that Carter had “jumped bond” and fled to New Orleans.

Under Barber v. Page, 390 U.S. 719, 724-725, 88 S.Ct. 1318, 1321-22, 20 L.Ed.2d 255 (1968), “a witness is not ‘unavailable’ for purposes of the ... exception to the confrontation requirement unless the pros-ecutorial authorities have made a good-faith effort to obtain his presence at trial.” Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597 (1980). “The length to which the prosecution must go to produce a witness ... is a question of reasonableness.” California v. Green, 399 U.S. 149, 189, n. 22, 90 S.Ct. 1930, 1951, n. 22, 26 L.Ed.2d 489 (1970). “The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness.” Roberts, 448 U.S. at 74, 100 S.Ct. at 2543.

The question in this case is the sufficiency of the State’s efforts to procure the missing witness’s attendance to justify the admission of his former testimony at the preliminary hearing. Generally see Annot. 3 A.L.R.4th 87 (1981). Here, the police knew that Carter had “jumped bond”, that he had told his grandmother with whom he had been living and who had been giving him money that he was leaving town, and that Carter could not be located in any of his usual places.

Although it is clear that the State did not do everything that foreseeably could have been done in order to secure Carter’s attendance at trial, it is equally clear that the efforts it did make were in good faith and were reasonable. Alexander v. State, 418 So.2d 973, 978 (Ala.Cr.App.1982). Although Hawkins argues that the State failed to subpoena Carter, the facts of this case suggest that such an effort would have been a useless gesture as the State had no address at which to serve any subpoena. “The law does not require the doing of a futile act.” Roberts, 448 U.S. at 74, 100 S.Ct. at 2543.

“The sufficiency of the proof of the predicate of unavailability of an absent witness is addressed to the sound discretion of the trial judge.” Napier v. State, 377 So.2d 1135, 1138 (Ala.Cr.App.), cert. denied, Ex parte Napier, 377 So.2d 1138 (Ala.1979). We find no evidence that the trial judge abused his discretion in this case.

Ill

Carter’s testimony at the preliminary hearing bore sufficient “indicia of reliability” and “afforded the trier of fact a satisfactory basis for evaluating the truth of the prior statement” because of the “accouterments of the preliminary hearing itself.” Roberts, 488 U.S. at 73, 100 S.Ct. at 2542. Hawkins argues that the evidence of Carter's former testimony lacks any such indicia of reliability because the Assistant District Attorney who related Carter’s testimony repeatedly stated on cross examination that he could not remember certain details of Carter’s testimony although he did recall its substance.. “No requirement exists that the exact words be given, where secondary evidence is offered, if such witness is able to give the substance of all that was sworn to by the unavailable witness.” Williams v. State, 375 So.2d 1257, 1270 (Ala.Cr.App.), cert. denied, Ex parte Williams, 375 So.2d 1271 (Ala.1979). See also Davis v. State, 17 Ala. 354 (1850); Gildersleeve v. Caraway, 10 Ala. 260 (1846). Here, as in Williams, the assistant district attorney’s inability to remember certain details of Carter’s testimony would pose a question for the jury as to the weight it would accord his testimony. 375 So.2d at 1270.

IY

The defendant was informed that the State intended to invoke the Habitual’ Felony Offender Act at the time of the jury’s verdict, seventeen days before the sentencing hearing. This constituted reasonable notice. Holley v. State, 397 So.2d 211 (Ala.Cr.App.), cert. denied, Ex parte Holley, 397 So.2d 217 (Ala.1981); A.R. Crim.P.Temp.- 6(b)(3)(ii).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Valory ROCKER v. STATE.
    1 Div. 430.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 1, 1983.
    Certiorari Denied Jan. 13, 1984 Alabama Supreme Court 83-211.

      Ronnie E. Keahey, Grove Hill and William E. Kimbrough, Thomasville, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   GARDNER GOODWYN, Jr., Retired Circuit Judge.

The appellant was indicted for murder under § 13A-6-2, Code of Alabama 1975, by a grand jury of Clarke County, charging that he intentionally caused the death of William C. Darrington by shooting him with a rifle.

Upon a plea of not guilty a jury was duly selected, including two alternate jurors under the provisions of § 12-16-100, as amended, Code of Alabama 1975, and the trial resulted in a verdict of “guilty of manslaughter,” a Class C felony which is a lesser included offense of murder. The trial judge imposed sentence of imprisonment of ten years, and the present appeal is from the final judgment of conviction and sentence.

On the morning of the second day of trial, the judge received notice that one of the principal jurors, a Mrs. Overstreet, may have received an unauthorized communication from her husband after she had been selected as a juror for this trial.

The judge promptly held a hearing in camera at which the juror was questioned by the court and counsel for appellant. The hearing revealed that the juror’s husband had handed her a written note at the time he delivered to her some personal effects the night before while the jury was sequestered for the trial. She had mentioned this incident to the bailiff and asked his advice as to what she should do.

The note was as follows: “Go see that judge first thing in the morning and tell him about me knowing them. I don’t want you on this trial. Elwood.” At the hearing, Mrs. Overstreet testified that her husband had orally given her the same message at the time he handed her the note. She testified that her husband was raised among the people involved, but she did not know them except by name. Her husband did not indicate how he wanted her to decide the case, and she said she would be able to give a fair and impartial trial on behalf of both the defendant and the State. Her husband just did not want her up there, but this would not in any way influence her opinion and she did not know her husband’s feelings one way or the other about the defendant. She had no opinion one way or the other, but her husband knew the families of both sides.

After this hearing, the trial judge stated that he would consider whether or not this juror would remain on the jury or be replaced by an alternate at a later time.

Whereupon, the appellant moved for a mistrial on the ground that communications had been had with the jury contrary to law and the instructions of the court. This motion was overruled, and the trial was resumed with no change in the jury that had been originally selected.

The following day, immediately before the case was submitted to the jury for its deliberations, the judge excused Mrs. Over-street from the jury and substituted in her place the first alternate juror. He also excused the second alternate and submitted the case to the remaining eleven principal jurors and the first alternate. The jury thus organized rendered the verdict in the case.

The appellant in open court excepted to the ruling of the court in excusing Mrs. Overstreet and bringing forward the first alternate, and assigned as grounds that Mrs. Overstreet had testified her husband had not communicated his feelings one way or the other to her, and she knew none of the parties involved and nothing about the case, and had an open mind.

The judge stated that the basis of his decision was the written communication to the juror and the possibility that her impartiality might be impaired thereby.

Under these facts we find no error in the denial of the motion for a mistrial or the replacement of the principal juror by the first alternate.

A mistrial should not be granted unless there is a manifest necessity to discharge the jury or unless the ends of justice would otherwise be defeated. Hallman v. State, 36 Ala.App. 592, 61 So.2d 857 (1952); Crouch v. State, 53 Ala.App. 261, 299 So.2d 305, cert. denied, 292 Ala. 718, 299 So.2d 312 (1974); Diamond v. State, 363 So.2d 109 (Ala.Cr.App.1978); Woods v. State, 367 So.2d 982 (Ala.1978).

A trial judge is allowed broad discretion in deciding whether under the law a ground for a mistrial exists. Brewer v. State, 24 Ala.App. 410, 137 So. 454 (1931); Hallman, supra; Ballard v. State, 51 Ala.App. 393, 286 So.2d 68, cert. denied, 291 Ala. 772, 286 So.2d 72 (1973); Woods, supra.

The presence of the trial judge at the scene places him in the best position to determine what effect, if any, some event may have upon the ability of the jury to render a just and true verdict in the case, and his decision in this matter will not be reversed except for a clear abuse of discretion. Franks v. State, 45 Ala.App. 88, 224 So.2d 924 (1968); Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Woods, supra.

In the present case the unauthorized communications reached one juror only, and no other juror was involved or affected. There was no cause under these facts to declare a mistrial and to discharge the entire jury. If one principal juror should become disqualified, as the trial judge so found, this could be corrected by bringing forward an alternate as a substitute, and a mistrial thus avoided. The trial judge followed this course, which is contemplated by the statute that authorizes the selection of alternate jurors, and we find no error in his denying the motion for a mistrial under the facts of this case. Hallman, supra; Woods, supra.

Nor do we find error in the ruling of the court in discharging Mrs. Overstreet as a principal juror in favor of the first alternate under the provisions of § 12-16-100(c), as amended, Code of Alabama 1975.

Subsection (c) provides for the use of an alternate “if it becomes necessary for an alternate to replace a principal juror .... ”

The use of alternate jurors under this salutary statute permits the court to avoid a costly and burdensome mistrial that would otherwise be required when a juror during the trial becomes unable to perform his duties satisfactorily. We find that the trial judge made such use of this statute.

Whether it is necessary for an alternate juror to replace a principal juror under § 12-6-100(c), as amended, Code of Alabama 1975, is a decision within the sound discretion of the trial judge, subject only to review for an abuse of discretion. Winstead v. State, 53 Ala.App. 222, 298 So.2d 642, cert. denied, 292 Ala. 761, 298 So.2d 646 (1974); Gaffney v. State, 342 So.2d 403 (Ala.Cr.App.1976), cert. denied, 342 So.2d 404 (Ala.1977); Cox v. State, 394 So.2d 103 (Ala.Cr.App.1981).

The test of whether a potentially prejudicial event has disqualified a juror does not necessarily require proof that prejudice has in fact been created in the juror, but that prejudice might unlawfully influence such juror. Woods, supra.

In determining what action to take when a potentially prejudicial event has occurred, the trial judge may take into account the desirability of maintaining public confidence in the judicial process and that the appearance of impropriety, if uncorrected, may infect respect for the verdict of the jury. Woods, supra.

Without dispute, the principal juror had received during the trial an unauthorized communication that pertained to her serving as a juror on the trial then in progress; and although she testified she had an open mind and was not influenced by the communication, it was for the trial judge, who was on the scene and who saw and heard the witness, to determine whether under all the circumstances it was necessary to replace her on the ground that she had become unable to perform her duties satisfactorily. Winstead, supra; Woods, supra.

We find no abuse of discretion in the ruling of the court in this respect, nor do we find error in the judge’s delay in replacing her from the second day of trial, when the event first came to his attention, to the third day immediately before the case was submitted to the jury. We are unable to assume that the excused juror improperly influenced the other jurors, especially in view of the court’s instructions to the jury at the commencement of the trial that they were not to discuss the case among themselves until it was submitted to them for deliberation, and the absence of any intimation or suspicion of improper conduct on her part while on the jury.

As a ground for reversal, the appellant urges in this court that § 13A-5-6(a)(5), as amended, Code of Alabama 1975, under which he received a ten year sentence for a Class C felony, involving the use of a firearm, is violative of the due process clause and the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.

Section 6(a) is as follows:
“(a) Sentences for felonies shall be for a definite term of imprisonment, which imprisonment includes hard labor, within the following limitations:
“(1) For a Class A felony, for life or not more than 99 years or less than 10 years.
“(2) For a Class B felony, not more than 20 years or less than 2 years. “(3) For a Class C felony, not more than 10 years or less than 1 year and 1 day.
“(4) For a Class A felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, not less than 20 years.
“(5) For a Class B or C felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, not less than 10 years.”

Subdivisions (4) and (5), which require a mandatory minimum sentence when a firearm or deadly weapon is used or attempted to be used, were added by the legislature in an amendment effective May 27, 1981.

Specifically, the argument of the appellant is that the statute, which requires imposition of a mandatory minimum sentence in the case at bar of ten years for conviction of a Class C felony involving use of a firearm, is violative of the Due Process and Equal Protection clauses of the Fourteenth Amendment to the Federal Constitution. He argues that although the State may classify offenses according to their nature and affix penalties according to discretion, such classification must rest on some reasonable difference in relation to which the classification is proposed in order to save the act from violating the equality clause; and that the act in question is invalid because the same mandatory minimum sentence of ten years is imposed for both a Class B and a Class C felony in spite of the variance in severity of these two classes of felonies.

He further argues that the statute arbitrarily imposed a mandatory minimum sentence on the appellant for use of a firearm and did not allow the trial court to inquire into mitigating circumstances or whether the appellant is a first offender.

In support of his arguments, he cites Birmingham Waterworks Co. v. State, 159 Ala. 118, 48 So. 658 (1909); Hubbard v. State, 382 So.2d 577 (Ala.Cr.App.), affirmed, Ex parte Hubbard, 382 So.2d 597 (Ala.1980); and Evans v. Britton, 472 F.Supp. 707 (S.D.Ala.1979), reversed 628 F.2d 400 (5th Cir.1980), modified, 639 F.2d 221 (5th Cir.1981), reversed Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).

We hold that these arguments are not well taken and that the statute in question is valid as against the attack made thereon.

The general rule is found in In re Opinion of the Justices, 410 So.2d 60 (Ala.1982), at page 61:

“Generally, any law with respect to the punishment to be given must operate equally on every citizen or inhabitant of the state, and a statute is void as a denial of equal protection of the laws which prescribes a different punishment or different degree of punishment for the same acts committed under the same circumstances by persons in like situations.”

Under this principle, a statute that imposed a fine in a certain amount upon an individual and a different fine upon a corporation for the same criminal act was declared invalid in the cited case of Birmingham Waterworks Co., supra.

But separate treatment of defendants does not violate the equal protection clause so long as that treatment is reasonable and founded on a rational basis. Wheatt v. State, 410 So.2d 479 (Ala.Cr.App. 1982).

Section 6(a)(5) treats alike Class B and Class C felonies, although Class B felonies in general require a more severe sentence under § 6(a)(2) — two to twenty years — than Class C felonies receive under § 6(a)(3)— one year and a day to ten years.

Joining Class B and Class C felonies under § 6(a)(5) is reasonable and is founded on a rational basis and is not viola-tive of the equal protection clause. The purpose of requiring a mandatory minimum sentence of ten years when a firearm is used is an effort by the legislature to protect the public from physical injury and death at the hands of violent criminals, whether the felony be Class B or Class C. It is a warning to potential criminals that they face a severe and fixed sentence if they use a firearm under these conditions. It is also intended to remove dangerous criminals from society during a substantial period for the protection of society. In enacting criminal statutes the legislature is not required to limit itself to considerations of reformation of the criminal.

Certain Class C felonies constitute great physical danger to the victim, or the public, if committed with a firearm, which makes it reasonable and rational for the legislature to group such felonies with the more serious Class B felonies for imposition of a mandatory minimum sentence when a firearm is used.

Among such Class C felonies which increase the danger to the public when a firearm is used are: Manslaughter, § 13A-6-3; assault in the second degree, § 13A-6-21; rape in the second degree, § 13A-6-62; sodomy in the second degree, § 13A-6-64; sexual abuse in the first degree, § 13A-6-66; burglary third degree, § 13A-7-7; criminal mischief first degree, § 13A-7-21; breaking and entering a vehicle, § 13A-8-ll(b)(3); extortion second degree, § 13A-8-15; robbery third degree, § 13A-8-43; impersonating a peace officer, § 13A-10-11; escape second degree, § 13A-10-32; escape third degree, § 13A-10-33; facilitating escape first degree, § 13A-10-34; hindering prosecution first degree, § 13A-10-43; and intimidating a witness, § 13A-10-123.

In fixing punishment, it is reasonable for the legislature to take into account that the danger to the victim is the same when the criminal uses a firearm, whether the felony be Class B or Class C; and on this basis to join them for punishment.

In reviewing prior decisions involving laws similar to the one presently before us, we find that in this State the courts have upheld statutes imposing mandatory minimum sentences as against the contention that they violate the equal protection and due process clauses and the prohibition against cruel and unusual punishment.

The mandatory death penalty has been upheld against one who is convicted of murder in the first degree while serving a life sentence. Thigpen v. State, 355 So.2d 392 (Ala.Cr.App.1977), affirmed, 355 So.2d 400 (Ala.1978).

The statute imposing a mandatory minimum sentence without parole or probation upon one who is convicted of trafficking in illegal drugs in excess of a stated quantity does not offend the equal protection clause or the prohibition against cruel and unusual punishment. Wheatt, supra.

As against the contention of a denial of equal protection of the law, due process of law, and the inability of the court to consider mitigating circumstances, the courts have upheld § 13A-5-9, Code of Alabama 1975, which imposes a mandatory minimum sentence upon habitual offenders. Thatch v. State, 397 So.2d 246 (Ala.Cr.App.), cert. denied, 397 So.2d 253 (Ala.1981); Douglas v. State, 406 So.2d 1051 (Ala.Cr.App.), cert. denied, 406 So.2d 1053 (Ala.1981); Holley v. State, 397 So.2d 211 (Ala.Cr.App.), cert. denied, 397 So.2d 217 (Ala.1981).

These cases recognize that the legislature alone is given the power to fix the limits of punishment for criminal offenses, and the courts are bound in the imposition of punishment to the authority granted to them by the legislature, in the absence of constitutional infirmities in the statute.

Even where the punishment prescribed by the legislature is severe by reason of its extent, as distinguished from its nature, there is no collision with the Eighth Amendment. Beasley v. State, 408 So.2d 173 (Ala.Cr.App.1981), cert. denied, 408 So.2d 180 (Ala.1982).

Our decision in upholding the constitutionality of the act in question is in accord with decisions from other jurisdictions, which hold that a statute requiring the imposition of a mandatory minimum sentence, or an increased sentence, for conviction of a felony when a firearm is used in the commission thereof, does not violate the equal protection clause, the due process clause, or the prohibition against cruel and unusual punishment, of the Federal Constitution, nor does it violate the separation of the legislative and judicial powers. Sowell v. State, 342 So.2d 969 (Fla.1977); Ansell v. Commonwealth, 219 Va. 759, 250 S.E.2d 760 (1979); State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978); State v. Warner, 52 Or.App. 987, 630 P.2d 385 (1981); State v. Parker, 128 Ariz. 107, 624 P.2d 304 (Ct.App.1980), other portion of opinion vacated, 128 Ariz. 97, 624 P.2d 294 (1981).

The cases of Hubbard, supra, and Evans, supra, cited by appellant, involve the death penalty, which is inapplicable to the issues in the present ease.

On the authority of the cases cited from this and other jurisdictions, we hold that § 13A-5-6(a)(5), as amended, Code of Alabama 1975, is not violative of the constitutional provisions urged against it by appellant; and that the trial court did not err in imposing sentence of imprisonment of ten years upon the appellant for conviction of manslaughter, a Class C felony in which a firearm was used in the commission thereof.

We find no error in the record, and, therefore, the judgment should be, and the same is hereby, affirmed.

The foregoing opinion was prepared by the Honorable GARDNER GOODWYN, 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.

TYSON, HARRIS and SAM W. TAYLOR, JJ., concur.

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

      . The decision of Ex parte Hubbard, 382 So.2d 597 (Ala.1980), was later reversed on the second application for rehearing at 405 So.2d 695 (Ala.1981); and the Alabama Court of Criminal Appeals on the authority of such reversal rendered its opinion at 405 So.2d 695 (1981), reversing the judgment of the trial court.


author: HUBERT TAYLOR, Judge.

text:
    Ralph Eugene HAYES v. STATE.
    1 Div. 551.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 1, 1983.
    Certiorari Denied Jan. 20, 1984 Alabama Supreme Court 83-200.

      Arthur J. Madden, III, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   HUBERT TAYLOR, Judge.

Appellant was convicted of robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975. Sentence was fifteen years in the penitentiary. Two issues are presented on appeal.

The first issue concerns appellant’s waiver of his right to counsel after initially requesting counsel. After the arrest, Hayes was given his Miranda rights and asked to sign a waiver form. At that point, he indicated that he wanted to call his lawyer.

On voir dire examination, the police officer in charge of the interrogation testified that all questioning stopped when Hayes asked to call his lawyer. The officer further testified that Hayes failed to reach his lawyer and after a few minutes decided to sign the waiver form and make a statement. The officer testified that questioning of Hayes had not resumed once he failed to contact his attorney, rather, Hayes initiated the act of signing the waiver and made a spontaneous statement admitting his involvement in the robbery.

Defense counsel made no offer of proof to rebut the officer’s testimony, and, on the basis of that testimony, the trial judge allowed the statement into evidence. The circumstances of this ease clearly meet the requirements of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), concerning the waiver of counsel after the accused has previously invoked his right to counsel. The key element of an effective waiver is that the accused initiate any further discussion with the authorities, as was the case here.

Although later in the trial Hayes took the stand and contradicted the officer’s version of the facts, the trial judge had already made his ruling. Conflicting testimony at this late stage in the trial went to the weight of the statement and not to its admissibility.

The second issue is whether certain tangible items were properly put before the jury. Particularly, Hayes complains of the admission of a .22 caliber pistol taken from the back pocket of his companion, a black tee-shirt dangling from Hayes’s pants, a black strip of cloth hanging from thorns located along the path that police dogs took in tracking the men, and a green plaid shirt found about one hundred yards from the scene of the crime.

Although the victim testified that a gun was used during the robbery and that one of the robbers wore a dark tee-shirt and the other wore a green plaid shirt, she was never asked to identify any of those items before their introduction into evidence. Hayes now claims that a proper predicate was never laid because of the lack of identification of the items by the victim. He asserts that there is nothing connecting the items to the crime; he particularly objects to the introduction of the pistol since it was in the possession of another man.

Although the general rule is that items must be properly identified and shown to be connected with the crime, this is not an absolute rule. Where there is sufficient evidence to justify a reasonable inference that items were used by the accused in the commission of the crime charged, those items are admissible. 22A C.J.S. Criminal Law § 712 (1961).

In Andrews v. State, 406 So.2d 1041, 1044 (Ala.Cr.App.1981), this court said:

“Another ground of defendant’s motion for a new trial was to the effect that the victim did not sufficiently identify the pistol aimed at him at the time of the robbery as the pistol taken from the automobile at Enterprise. Such an identification was not necessary in order for the pistol to be admitted as evidence of the fact that the person driving the automobile in Enterprise was the same person that robbed the alleged victim while armed with a pistol.”

In Deloach v. State, 356 So.2d 222 (Ala.Cr.App.1977), a sawed-off shotgun was identified by appellant as the one he was carrying when arrested. It was likewise identified by the arresting officer and appellant confessed that he used the gun in the robbery. The court held, “The rule favoring admissibility of such a weapon is especially applicable where, as in the instant case, the appellant admits possession of the weapon and its use in the crime.” 356 So.2d at 230. See also Blackburn v. State, 38 Ala.App. 143, 88 So.2d 199 (1954).

The case of McCulloch v. State, 338 So.2d 187 (Ala.Cr.App.1976), involved the introduction of items found on an accomplice at the time of arrest shortly after a burglary. Although the two defendants could not be identified as the burglars, they were identified as the men arrested near the scene of the crime, and one was in possession of ski masks, gloves, and a bag containing drugs. The court held that, “The mere fact that the particular items of evidence were found on the other participant does not insulate them from admissibility.” 338 So.2d at 188.

In Ware v. State, 409 So.2d 886 (Ala.Cr.App.1981), one of the issues was the admissibility of a telephone found in appellant’s truck. There the court said:

“While it cannot be ascertained with certainty that State exhibit 8 was actually used during the burglary, it can be fairly inferred from the evidence that it was- [Wjhere the evidence is probative of an element of the corpus delicti and of the defendant’s participation in the offense, it is relevant and should be admitted.” 409 So.2d at 892. See also McLeod v. State, 383 So.2d 207 (Ala.Cr.App.1980).

For further comment on the admissibility of items found at or near the scene or in the possession of the appellant at the time of arrest, despite the lack of a witness connecting them with the crime, see White v. State, 249 Ala. 501, 31 So.2d 335 (1947); State v. Nelson, 261 La. 153, 259 So.2d 46 (1972). (For admission, it suffices if the evidence establishes that it is more probable than not that the object is connected with the case.)

In the case sub judice, the victim testified that she was robbed at gun point by two men, one wearing a dark tee-shirt and the other a green plaid shirt. Dogs were immediately put on the trail of the two men, resulting in the capture of Hayes and a companion about two or three hours later. One was carrying a pistol; the other was carrying a dark tee-shirt, which had a torn sleeve. There was also found a torn piece of dark cloth and a green plaid shirt. Additionally, after the arrest, Hayes admitted his involvement in the robbery. The overwhelming inference is that these were the same items mentioned by the victim, making them highly relevant despite her lack of actual identification. Where the circumstances strongly connect the items with the defendant and the crime, there is a confession, and there is no problem of remoteness either in the place or the time of finding the items, lack of an eyewitness identification goes only to the weight and not to the admissibility of the evidence.

The judgment of the lower court is due to be affirmed.

AFFIRMED.

All the Judges concur.