text:
    Paul HOWELL v. STATE.
    3 Div. 697.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied Jan. 27, 1984 Alabama Supreme Court 83-294.
    Stephen M. Langham, Prattville, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

The appellant was convicted of sexual abuse in the first degree in violation of § 13A-6-66, Code of Alabama 1975. Sentence was imprisonment for a term of ten years. Four issues are presented for our review.

Howell is charged with subjecting his seven-year-old daughter to sexual contact. During the course of the trial, his daughter testified that her father touched her between the legs and “played with her.”

I

The first issue is whether the trial court erred by allowing into evidence testimony concerning offenses not included in the indictment. The testimony tended to show that Howell had sexually abused the other children in his household.

It is clear from the record that Howell raised the issue of intent. The pertinent part of the record reads as follows:

Cross-Examination of Prosecutrix by the Honorable Steve Langham:

“Q. You testified earlier that your father touched you and you referred to it as playing with you.
“A. Yes.
“Q. When you were little did he ever give you a bath?
“A. I don’t know — I can’t remember.
“Q. Well, wasn’t there one period of time when you had some problems in the area between your legs, that you were sore and your father had to put medicine on you?
“A. No, but there was one time — I was about — I don’t remember how old I was, but I was taking a bath and when I got out I had powder on me. And he made me lie on the bed when he put it on me and he was playing with me.”

When intent is an issue, testimony concerning abuse of other children by an accused is admissible as bearing on that issue. Fuller v. State, 387 So.2d 256 (Ala.Cr.App. 1980); Whiddon v. State, 53 Ala.App. 280, 299 So.2d 326 (1973).

II

Howell next objects to the trial court’s having permitted into evidence opinion testimony from an expert witness concerning his mental condition as it existed some two months after the incident for which he was indicted. He asserted, as part of his defense, that he was suffering from a long existing unstable mental condition. The expert testified that Howell seemed normal during a counseling session that took place some two months after the incident in question.

In Odom v. State, 174 Ala. 4, 56 So. 913, 915 (1911), the supreme court said:

“Although the issue was specifically as to the mental condition of the defendant at the time of the homicide, the inquiry was not limited to that time alone.
“And it is a sound general rule that insanity at any particular time, if shown to be habitual and permanent in its nature, is prima facie presumed as a matter of law to exist at any future time; and alone from its existence at a later time a presumption of fact may arise of its existence at a given prior time.... ”

In the case sub judice, Howell contends that he is suffering from long term, habitual mental illness going back to his childhood. An opinion from an expert concerning his condition two months after the alleged crime would bear on the issue and is admissible.

Ill

Howell’s third argument is that a statement allegedly made by him was admitted without the proper predicate. During the course of the State’s direct examination of the prosecutrix, she testified that her father had “played with her” approximately twenty to thirty times. She was then asked what her father would say to her when he played with her. Defense counsel objected and asserted that the question had to be qualified as to time, place, and who was present. The objection was overruled and the prosecutrix answered that she was told not to tell anyone, not even her mother.

First it should be noted, as the State points out, that defense counsel could ascertain time, place and those present during the conversation from the whole of the prosecutrix's responses. Additionally, the Alabama Supreme Court held in Wade v. State, 50 Ala. 164 (1874), that exceptions founded on the manner of an examination of a young prosecutrix could not be sustained. There the court said:

“Obviously, the examination of witnesses, on all trials, is for the purpose of eliciting the truth.... In attaining this end, a very large discretion must be allowed the presiding judge; and this the more particularly, where the witness is a mere child, and a female, under circumstances which are unaccustomed and greatly embarrassing to her.” 50 Ala. at 166.

Even if this had been error, which it was not, it would have been harmless error. The statement by Howell to his daughter, the prosecutrix, would have gone to the issue of intent. There was other overwhelming evidence on this issue. However, on the authority of Wade, supra, we hold that the manner of examination of a very young prosecutrix in rape or similar cases is left to the discretion of the trial judge and will not be cause for error unless there has been obvious abuse of that discretion which results in prejudice to the defendant.

IV

The final issue raised is that the trial court permitted into evidence irrelevant testimony designed to inflame the jury. This issue arose out of a response by Howell’s ex-wife to a question put to her by defense counsel. The pertinent part of the record reads as follows:

Cross Examination of Mrs. Shirley Thornton by the Honorable Steve Lang-ham:

“Q. Was it in that house that Paul attempted to commit suicide?
“A. If that is what you want to call it, yeh.
“Q. What would you call it?
“A. Well I don’t know. When I called the paramedics out there and they carried him to the hospital, it was superficial wounds. I mean, they said he didn't want to kill his self. If he had, he had guns there and he could have, you know.”

Upon redirect examination, the State asked Mrs. Thornton how many guns Howell owned. After defense counsel’s objection to the question was denied, she answered that he had one.

Defense counsel’s question asking “What would you call it?” was the type of question that would naturally elicit an explanation from a witness. The fact that the answer was not anticipated does not automatically make it non-responsive. Counsel could have asked that the answer be excluded. He did not. Although the relevancy of this testimony is questionable, it was harmless in light of the fact that the response to the State’s question was that he owned only one gun.

For the foregoing reasons, the judgment of the lower court is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: JERRY M. WHITE, Circuit Judge.

license: Public Domain

text:
    John Wayne PHILLIPS v. STATE.
    8 Div. 733.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied Jan. 13, 1984 Alabama Supreme Court 83-285.

      Robert M. Shipman, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North and Ed Carnes, Asst. Attys. Gen., for appellee.
   JERRY M. WHITE, Circuit Judge.

John Wayne Phillips was charged with robbery wherein a person was intentionally killed (a capital offense) in Madison County. Upon a trial, he was convicted, adjudicated guilty, and sentenced to life without parole. This appeal follows.

During the early morning hours of February 12, 1981, the owner or part-owner of a night club in Huntsville, The Bridge Club, and a waitress who worked there, were killed during a robbery of the club. The present charge involves killing of the owner.

David Lynn Tibbetts, the State’s primary witness, who admitted being the trigger-man in the incident, testified under an agreement that the State would recommend as punishment two consecutive life sentences upon his pleas of guilty to the two murder charges.

Tibbetts and appellant had become acquainted in Oklahoma City in 1980. They had shared apartments and had traveled together quite a bit. According to the testimony of Tibbetts, he and appellant went to Huntsville from Oklahoma City in early February, 1981, for the purpose of obtaining and selling drugs. He testified that they burglarized several stores and veterinary clinics in order to steal money and drugs.

Tibbetts testified that on the evening of February 11, 1981, he went to a night club in Huntsville, at appellant’s direction, to “check it out” for the purpose of burglarizing it later. Being unable to distinguish the type of burglar alarm system the night club had, he “became frightened by the situation and shied away from it.” Tib-betts went to The Bridge Club, located directly across the street from the motel at which they were staying, “to check it out.” Tibbetts went to The Bridge Club around midnight of the evening of February 11th, staying for about an hour until it closed. He called appellant from the night club after the closing hour and in response to appellant’s questions, he told appellant that there was “probably a couple of thousand dollars” in the cash register and that four people, all employees, were in the club. According to Tibbetts, appellant then inquired whether Tibbetts could “rob the place.” Tibbetts left the club as two of the employees, a dancer and a waiter, left. Tibbetts testified that he walked across the street to the motel and informed appellant, who was sitting in their car, that he could not “rob the place.” According to Tibbetts, appellant stated that “the heat was on and we needed to get out of town.”

Tibbetts stated that appellant asked him if he could get back in the place and Tib-betts told him that he could gain entry by using the excuse that he wanted to get his address book which he inadvertently left lying by the telephone. Tibbetts related that appellant encouraged him to go back to the club for the purpose of robbing it, and gave him the admonition “to leave no witnesses.”

Tibbetts testified that he went back to the club, gaining entrance as he had planned. While he was in the process of the robbery, Tibbetts shot the owner of the club, McArthur Freeman. Mr. Freeman fired at Tibbetts, hitting him in the hand and shoulder. Tibbetts also shot and killed an employee of the club, Jackie Hobbs.

Tibbetts searched both victims for cash, getting about “$70 or $75” from Freeman and about “$35 or $40” from Hobbs. He then removed about $200 from the cash register, took Freeman’s gun, and went back to the motel. He gave the money to appellant.

Appellant and Tibbetts left Huntsville shortly after these events and returned to Oklahoma City. Tibbetts testified that he and appellant burglarized several veterinary clinics to get drugs and money. Within a few days, they left Oklahoma City in the company of two females en route to Arizona or California. In the vicinity of Shamrock, Texas, the car in which they were riding developed water pump trouble, and they stopped at a service station, seeking assistance. Some disagreement ensued between appellant and the service station operator which culminated in appellant’s flashing the pistol which had been taken off McArthur Freeman in Huntsville. They left the service station and a short time thereafter were stopped by the Texas Highway Patrol, who were looking for the car driven by appellant, in response to a disturbance call involving “a man with a gun.”

The officers ordered the four occupants out of the car and placed them face down in the ditch. The occupants were searched for weapons, but none was found. The Shamrock, Texas, police chief arrived on the scene as the search of the occupants was being conducted. He walked over to their car and “pulled out a weapon from the front portion of the vehicle.” Appellant was then arrested for “unlawfully carrying a weapon.”

A computer check of the weapon’s make, serial number and model revealed that it was the same weapon taken from the body of McArthur Freeman at the time of the robbery and double murder in Huntsville.

Tibbetts gave police officers a number of conflicting statements concerning his bullet wounds and the events leading up to the appellant’s arrest.

I

In the hearing on his motion for a new trial, appellant adduced evidence that during the course of the trial one of the jurors discussed some facet or facets of the case with a non-juror. The juror admitted that taking part in the discussion was contrary to the trial judge’s explicit instructions. There was some conflict in the evidence as to the contents of the discussion, and whether it took place before or after the conclusion of the trial. The uncontra-dicted evidence showed that the non-juror who contacted the juror was a friend of appellant and that the initial contact, and possibly the second one, were made at the request of appellant. Appellant argues that such juror misconduct warrants the granting of a new trial and that the trial court erred to reversal in its failure to grant such a motion. We are not so persuaded. Under the law, on the motion for new trial the trial court was charged with the duty and responsibility of determining, as a matter of fact, whether or not the alleged communications between the juror and the non-juror caused prejudice to the appellant. Cox v. State, 394 So.2d 103 (Ala.Cr.App.1981); Woods v. State, 367 So.2d 974 (Ala.Cr.App.1978); Bascom v. State, 344 So.2d 218 (Ala.Cr.App.1977). The trial court resolved that issue against the appellant by denying the motion for new trial, and we are not convinced that the court’s discretion was abused in so doing. Additionally, the appellant certainly cannot be allowed to benefit by his own misconduct. The evidence clearly shows that he contacted the non-juror, his friend, several times prior to and during the trial, asking him to contact the juror in question. The friend did as he was asked, and now appellant seeks a reversal by activity which he himself set into motion. To allow such would be absurd.

II

Next the appellant contends that the trial court erred to reversal in allowing evidence of additional earlier criminal offenses committed by appellant and his co-defendant, to be introduced during the course of this trial. Generally, the law does not allow evidence of other acts which constitute independent and separate crimes to be introduced in the prosecution of an individual for a particular crime. There are a number of well-recognized exceptions to this rule, however. Hayes v. State, 384 So.2d 623 (Ala.Cr.App.), cert. denied, 384 So.2d 627 (Ala.1980), aff'd, 395 So.2d 127 (Ala.Cr.App.), cert. denied, 395 So.2d 150 (Ala.1981); C. Gamble, McElroy Alabama Evidence, § 69.01(1) (3rd ed. 1977). One of those exceptions allows the introduction of evidence of other offenses which constitute part of the res gestae of the offense being tried, Poke v. State, 387 So.2d 310 (Ala.Cr.App.1980); Hopkins v. State, 49 Ala.App. 159, 269 So.2d 175 (1972). Another allows the introduction of evidence of other criminal offenses when this evidence, considered along with evidence of the offense being tried, justifies a finding that all of the offenses were committed as part of a plan, design, scheme or system. Hardy v. State, 51 Ala.App. 489, 286 So.2d 899 (1973); Whitehead v. State, 16 Ala.App. 427, 78 So. 467 (1918).

From the outset, the State’s theory of this case was that the robbery and intentional killing of McArthur Freeman were parts of a much larger picture of criminal activity which began when appellant and Tibbetts left Oklahoma City, headed for Huntsville, and which was finished when they were arrested near Shamrock, Texas. Most of the evidence of other offenses about which appellant complains tended to establish this theory that the instant offense and those other offenses were all parts of a plan, scheme, or design. The evidence showed that the two left Oklahoma City in early February, 1981, traveling to Huntsville with the specific purpose and plan in mind to obtain and sell drugs and to commit burglaries and robberies for monetary gain. The evidence of other offenses which appellant contends was admitted in error simply proves that the plan and purpose of appellant and Tib-betts in going to Huntsville was carried out. Other evidence of offenses not included in the indictment were clearly part of the res gestae of the offense being tried, such as the evidence of possession and furnishing of illegal drugs and the evidence of possession of a stolen shotgun on the night in question. These possessory acts cannot be separated logically from the total story of what happened on the evening of February 11, and the early morning hours of February 12,1981, at The Bridge Club in Huntsville.

Ill

The appellant next insists that he was tried under a statute, § 13A-5-31(a)(2), Code of Alabama 1975, which had been repealed prior to his trial. The indictment against him was returned by the Grand Jury of Madison County on May 29, 1981, for acts committed on February 12, 1981. On both of those dates, this statute was the law in Alabama pertaining to the offense charged. Admittedly, the legislature did repeal Code of Alabama 1975, Sections 13A-5-30 through 13A-5-38; however, this repeal did not take effect until July 1,1981, and it specifically provided that it did not affect “the application of pre-existing law to conduct occurring before the effective date of this act.” 1981 Ala.Acts, No. 81-178, §§ 20, 24 at pages 214-215. Appellant also contends that the trial court erred in charging the jury on the lesser included offenses of murder and felony murder since the 1975 death penalty statute contained a clause precluding the charging of any lesser included offenses. Even if this were error, it would be harmless error since the jury found the appellant guilty of the offense charged and not a lesser included offense; however, it has now been held that the charging of lesser included offenses supported by the evidence under the 1975 capital penalty statute is required. Seck v. State, 396 So.2d 645 (Ala.1981).

IV

Finally, the appellant contends that the pistol removed from the automobile which he was driving when stopped by the state trooper in Texas was seized in violation of his constitutional rights and was erroneously admitted into evidence during the trial. The officer who stopped and arrested appellant had received a complaint that a person meeting the appellant’s description had caused a disturbance where a gun was involved at a service station sometime shortly prior to the time of appellant’s stop. The report also included a description of an automobile which the person causing the disturbance was supposed to be driving. Certainly this trooper had a duty to stop appellant’s car since appellant and the car being driven by him met the appropriate descriptions. In addition the trooper had a duty to make a limited protective search for concealed weapons in order to protect himself and others since it had been reported that appellant was armed. To do anything less than what this officer did in this instance would have been a neglect of official duty.

We feel that the search and seizure conducted by the trooper and the chief of police of Shamrock, Texas, were reasonable and justified under the circumstances. It was not made for the purpose of discovering evidence of a crime but rather it was made so that the officers could proceed with their investigation without fear of danger. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); DeLoach v. State, 356 So.2d 222 (Ala.Cr.App.1977), cert. denied, 356 So.2d 230 (1978).

The judgment of the circuit court is hereby affirmed.

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

AFFIRMED.

All the Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Barry Lee CHANDLER v. STATE.
    8 Div. 819.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 1, 1983.
    Certiorari Denied Jan. 27, 1984 Alabama Supreme Court 83-196.

      Edward W. Mullen, Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant was convicted of robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975. Appellant was sentenced to ninety-nine years in the penitentiary. Several issues are raised, but we shall confine our discussion to the illegal evidence argument.

During the course of the trial, the State put Anthony K. Brown on the stand. The State expected Brown to testify that Chandler had admitted being involved in the robbery of Mr. and Mrs. Threets. This conversation between Brown and Chandler was supposed to have occurred while the two were in a night club. On direct examination, Brown denied having heard Chandler talk about the robbery. At that point, the State asked Brown questions concerning a statement he allegedly made to police. He again insisted that Chandler had never told him anything about a robbery. The State, for the purpose of “refreshing” Brown’s memory, then showed him a statement.

In response, Brown testified that his parole officer had picked him up at work and carried him to the police station because he had been seen with Chandler. The parole officer, according to Brown, knew he had been to a night club and threatened to have his parole revoked if he did not cooperate with police. Brown further testified that the police composed the statement, inserting facts that they thought he knew. He said he did not read the statement and signed it to keep out of jail.

Brown was then taken on voir dire, during which the State asked several specific leading questions about what Chandler was supposed to have said. Brown again answered that he had never given the police any information and that he signed the statement to keep out of jail. Upon the return of the jury, this witness was excused.

Up to that point, the State’s actions do not appear to have been improper. However, after nine other witnesses had given over seventy pages of testimony, the State recalled witness Brown. The first question posed to Mr. Brown was, “Mr. Brown, did you make a statement to Mr. Perkins and Mr. Ford on April the 8th of 1982 in which you said, ‘He,’ meaning Barry Chandler, ‘then told me they had just robbed the Threets.’ ” The witness denied making that statement and also answered several other leading questions in the negative. After a cross examination, the witness was excused and the State put Officer Charles Ford on the stand. Officer Ford testified that Mr. Brown had made a statement to him in which Brown said that Chandler was carrying a large amount of cash and had admitted he was involved in the robbery.

Because of the nature of the questioning, it is obvious that Mr. Brown was recalled so that he could be impeached. The State was no longer in a position of surprise; they knew exactly how Mr. Brown would testify. It is well established that a witness may not be called in order that he might be impeached. Fontaine v. Patterson, 305 F.2d 124 (5th Cir.1962). Any other rule would allow a party to put otherwise inadmissible evidence before the jury for no purpose other than getting in the inadmissible evidence. Although a party who is surprised by his witness may interrogate the witness, he may not impeach his own witness by introducing proof of prior inconsistent statements to avoid the effect of the unexpectedly unfavorable testimony given by such witness. Patrick v. State, 43 Ala.App. 338, 190 So.2d 551, 555 (1966).

Additionally, the particular method of impeachment used by the State is improper. The rule in Alabama is that a party who has been surprised by a witness may lead or cross examine him in order (1) to refresh the recollection of the witness or (2). to show the surprise of the party who called the witness. Randolph v. State, 331 So.2d 766 (Ala.Cr.App.1976). A party cannot impeach his own witness by showing through another witness inconsistent statements by the witness sought to be impeached. Randolph, supra; Isbell v. State, 57 Ala.App. 444, 329 So.2d 133 (Ala.Cr.App.1976).

The State’s action cannot be considered harmless. In this case, the officer was allowed to testify to what amounted to a confession. Coming from a police officer, testimony about an incriminating admission would weigh heavily on the minds of the jury. In light of the fact that the victims could not identify Chandler as being a participant in the robbery, the error caused Chandler substantial injury and the judgment of the lower court is due to be reversed.

Although we are not specifically addressing Chandler’s other issues, it seems appropriate for us to make a few comments on the issue of the admissibility of Chandler’s confession. A summary of the facts concerning the confession are set out below.

Chandler was incarcerated in the State of Florida. Police from Alabama went to Florida to interview him about the robbery. The Alabama officers were given the use of an interview room at the jail where Chandler was incarcerated. They waited in the room while a Florida officer was sent to escort Chandler from his cell to the interview room.

The Florida officer now claims that, either while in the elevator or just prior to turning him over to the Alabama police for their interview, he gave Chandler the Miranda warnings from memory, whereupon Chandler gave a complete oral confession indicating his involvement in the robbery. Chandler was then turned over to the Alabama police. During the interview, Chandler made a signed written statement denying any involvement in the robbery. The Florida officer was present during part, if not all, of the interview. After the written statement was prepared, the Florida officer signed it as a witness.

At no time while the Alabama officials were in Florida did the local officer tell them Chandler had given him a confession. This officer did not tell anyone of the confession until almost six months later, possibly when the need for one became apparent. Not all of these facts were brought out on voir dire during the original trial and undoubtedly the trial judge made the right decision at that time. During the course of any further proceedings on the admissibility of this confession, however, it is suggested that all parties involved thoroughly scrutinize the available facts, keeping in mind that the standard for admissibility is that the confession must be voluntary.

The judgment of the lower court is reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Frank Standley LUCY v. STATE.
    1 Div. 405.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied Jan. 20, 1984 Alabama Supreme Court 83-302.

      Christopher Knight, Mobile, for appellant.

      Charles A. Graddick, Atty. Gen., Rivard D. Melson, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Appellant was indicted on April 3, 1981, for the February 9, 1980, murder of his girlfriend, Josephine Crawford Warren. Ala.Code § 13A-6-2(a)(l) (1975). After a three day trial, commencing on March 10, 1982, appellant was found guilty of the above offense. On April 16, 1982, appellant was sentenced to life imprisonment. From that conviction he now appeals in forma pauperis.

We have completely reviewed the evidence presented by the state and find that it established a prima facie case of murder. Consequently, appellant’s motion to exclude the state’s evidence was properly denied. Only a narration of the facts is thus necessary for disposition of this cause.

Dr. Yiru Kothandapani, psychologist at Searcy Hospital, examined appellant to determine his mental condition. Appellant was admitted to the hospital on October 21, 1980, and discharged on November 26, 1980. A battery of tests was administered to appellant and several other members of the hospital staff examined, interviewed, and evaluated him. The evaluation revealed that:

“He’s [appellant] healthy in mind of borderline intellectual resources. His adapt-abilities are good, he’s not mentally retarded. His verbal and communicative abilities are adequate. There is no evidence of mental illness or brain damage or organisity (sic). There is considerable amount of narcissistic self centeredness, preoccupation with satisfying your own needs, that’s what' it is. Disregard for social values, hypersensitiveness and acting out seem to be the major personality features.
“There was a tendency, a strong tendency to escape tension and anxiety through alcohol and drug abuse, what we call substance abuse. And the overall personality profile suggested antisocial personality.”

Dr. Kothandapani stated that appellant had a low capacity for guilt and remorse and a high, level of self protection, the latter manifesting itself by acts or expressions which benefit or protect him. Appellant was characterized as having a very hypersensitive personality. Kothandapani stated that appellant was easily offended when such was not intended.

Dr. Kothandapani noted that generally one’s personality does not change appreciably once he has reached adulthood. He stated that such applied to appellant generally and in particular from the period of the victim’s death, February 9, to appellant’s admission to the hospital, October 21. Dr. Kothandapani testified that appellant complained of a ringing in his ears, but neither his tests nor those of a neurologist confirmed any physical or mental cause of such.

Dr. William Rudder, staff psychiatrist with Searcy Hospital, stated that he also examined appellant during his period of evaluation. Dr. Rudder confirmed the findings of Dr. Kothandapani as to appellant’s antisocial personality and its existence on February 9.

Mobile police evidence technician Ronald Meyers testified that, on February 9, 1980, he traveled to the residence of the victim and processed the scene for evidence. He took several photographs of the victim and the scene which he identified. They were admitted into evidence.

On February 9,1980,15-year-old Yolanda Crawford lived at 558-B Davidson Street in Mobile with her mother, Josephine Crawford Warren, and her sister, Felicia Wes-try. Around noon on February 9, Yolanda was preparing to mop the kitchen floor (she had just finished mopping the hallway to the kitchen) when appellant entered the house. Appellant had been the “boyfriend” of Yolanda’s mother for some four months, and on occasion he had spent the night there but did not live there or keep any clothes there. Also present were three friends of Yolanda’s, who were waiting for her to finish so that they could go downtown.

When appellant entered the house, Yolanda’s mother was coming out of the kitchen, and Yolanda asked her to tell appellant not to walk on the wet hallway. Appellant and Mrs. Warren then went into her bedroom. A friend of the victim’s, Dorothy Robinson, was already in the bedroom.

After appellant and Mrs. Warren went into the bedroom, Yolanda finished mopping the kitchen and went into the living room to wait for the floor to dry. While waiting for the floor to dry, Yolanda heard a scream from the bedroom where her mother, appellant, and Dorothy Robinson were. Yolanda did not recognize the voice of the person who screamed, and she did not pay any attention to it because she “thought they were playing.” Dorothy Robinson then ran out of the bedroom and Yolanda immediately entered the room and found her mother standing there screaming. Appellant was still in the room, and Yolanda grabbed her mother by the arm and pulled her from the room into the hallway and toward the living room. There was a “whole lot of blood” on Mrs. Warren and the blood got on Yolanda.

Appellant followed Yolanda and grabbed her mother by the shoulder, and Mrs. Warren fell back in appellant’s arms. Appellant began striking Mrs. Warren with a closed fist and stated, “If I am going to die, you are going to die.” Yolanda told appellant “to stop whatever he was doing.” Yolanda did not see a knife. Appellant then lay Mrs. Warren, who was bleeding, on the floor near the bathroom door and ran out of the house. Yolanda then went next door and called an ambulance.

The Reverend Marion Lewis Newman, pastor of Stewart Memorial Church in Mobile, testified that on February 9, 1980, he was alone at his home at 1252 Davis Avenue.

Reverend Newman was upstairs when he heard “a lot of banging” on the glass side door of his house. When Reverend Newman went downstairs, he saw appellant “... laying down there knocking on the door, and he was hollering, Treacher, preacher, preacher, open the door quick, open the door quick, open the door quick.’ And he stated the police was trying to find him and kill him.” When Reverend Newman inquired as to appellant’s identity, appellant told Reverend Newman who his mother was. Appellant’s mother was known to Reverend Newman as a neighbor of a member of his congregation. Appellant was not a parishioner of the parish.

Reverend Newman then told appellant to go around to the front door, and, while appellant was doing this, Reverend Newman went upstairs, got a gun, concealed it on his person, and returned to the front door. Reverend Newman had noticed appellant’s bloody clothes as well as a knife in his hand. Reverend Newman insisted that appellant relinquish control of the knife to him before he would allow appellant to enter. Appellant complied with the request and gave Reverend Newman the bloody knife. He then entered the living room. Reverend Newman inquired of appellant as to what had happened, to which appellant replied that he had cut his “girlfriend” or “old lady.” Reverend Newman told appellant, “Well, don't be too afraid” and “Maybe she is all right. Everybody get cut don’t die.” Appellant replied, “Well, I believe this one is dead.”

After they had talked for a while, under the pretext of calling someone to determine the “young lady’s” condition or to get her to a hospital, Reverend Newman summoned the police. At no time did appellant express any concern about the victim’s condition. Rather, he was more concerned about his own protection.

Sergeant Wayne Ivie of the Mobile Police Department was on patrol on February 9, 1980. Shortly after leaving the victim’s home, he received a dispatch to proceed to Reverend Newman’s residence and arrest appellant. Sergeant Ivie found appellant at Reverend Newman’s residence and observed his bloody hands and clothing. He advised appellant of his Miranda rights and placed him under arrest for murder. Sergeant Ivie received a blood-covered knife from Reverend Newman.

Mobile Police Detective Thomas H. Smith was dispatched to the victim’s residence, located at 558 Davidson Street in Mobile. Upon arriving, he found the victim had been stabbed several times. After being informed of Reverend Newman’s telephone call to the police, Detective Thomas dispatched Sergeant Ivie to Reverend Newman’s house to take appellant into custody and transport him to police headquarters.

At the police station, officers seized appellant’s shirt, sweater, pants, and shoes. The clothing had fresh bloodstains on it. When initially brought to the police station, appellant was very upset and was “pulling hair from his head, hands full of it.”

At 9:00 a.m. on February 12, 1980, appellant was brought to an interrogation room and again advised of his Miranda rights. Appellant had “calmed down a lot more” as compared to the day that he was arrested, although he complained of a “ringing in his head and in his ears” and of his eyes hurting. Smith stated that appellant responded to their questions with understandable answers. Appellant had an eighth grade education and could sign his name, but had difficulty reading. His rights were explained to him orally and he was questioned about his understanding of them. The waiver of rights form was then signed by appellant.

A statement was then taken from appellant. The statement was taken down in shorthand by a stenographer and transcribed. The statement was read to appellant. He initialed each page of the statement and signed it at the end. Appellant’s transcribed statement was admitted into evidence.

Reverend Newman was also present at police headquarters on February 12, 1980, when appellant confessed. According to Reverend Newman, he had returned to the police station to check on appellant out of a sense of duty to assure that he was “safe and secure” because of his involvement and his having promised appellant that the police would not harm him. No one requested Reverend Newman to visit appellant.

When Reverend Newman arrived at the police station, he was told appellant would not communicate with anyone. When Reverend Newman saw appellant he told him “get the show on the road. Make this statement. Tell them exactly what happened.” Reverend Newman asked appellant if he wanted to make a statement and told him (although appellant appeared normal but reluctant because of being where he was), “Frank, the best thing to do is go ahead and tell them just what happened, and get it over with,” and “If you feel, go ahead and make it because I can’t do it no good.” It was then that police officers explained appellant’s rights and took his statement. Reverend Newman was present while the statement was being taken, typed, read back to appellant, and signed by him.

Pathologist Dr. Ford Boudreau performed an autopsy on the body of the victim on February 10, 1980. He noted approximately 30 stab wounds to the body, some of which entered the lungs and heart. In his opinion, blood loss as a result of these stab wounds caused the death of the victim, although the wound to the heart alone would have been fatal. Dr. Bou-dreau stated that the stab wounds were consistent with being made by the knife Reverend Newman removed from appellant.

Appellant asserts that he was denied his constitutional right to a speedy trial. Appellant offered no testimony to support his contentions made in his motion. Based upon such, the trial court denied appellant’s motion to dismiss.

Initially, we note that appellant’s pro se motion for “Speedy Trial Rule Without Demand,” filed August 13, 1981, is based upon the Uniform Mandatory Disposition of Detainers Act. Ala.Code §§ 15-9-80, et seq. (1975). The time provisions of the above act are not applicable to the speedy trial issue. Tyree v. State, 439 So.2d 1346 (Ala.Cr.App.1983).

Appellant’s sole contention is that the length of time between his arrest and trial “is ⅛ itself prejudicial” so as to mandate reversal of this cause, even though he admits that “there is no showing in the record that [he] was ... prejudiced by the length of delay....”

Appellant was arrested on February 9, 1980, and tried on March 10, 1982, resulting in a twenty-five month delay between such. Numerous events occurred between the time of appellant’s arrest and trial which caused a substantial portion of the delay. On February 27, 1980, appellant moved and was granted a psychiatric evaluation. On October 21, 1980, he was transferred to Searcy Hospital. The delay between the time of appellant’s motion and his transferral was caused by the unavailability of space at the hospital. On November 26, 1980, appellant’s evaluation was completed and he was returned to the county jail. Appellant waived a preliminary hearing on December 8, 1980, and was bound over to the Mobile County Grand Jury. Appellant was indicted on April 3, 1981, and on June 9, 1981, was appointed counsel. On August 13, 1981, appellant filed his pro se motion previously discussed. On September 9, 1981, appellant filed a special plea of not guilty by reason of insanity. On September 16, 1981, the trial court granted appellant’s “speedy trial” motion and set November 3, 1981, as the date of trial. On November 3, 1981, appellant’s case was continued at the state’s request with such being reset for February 16, 1982. On February 5, 1982, appellant properly asserted his right to a speedy trial through a “motion to dismiss.” On February 16, 1982, the trial court continued appellant’s case for one day to allow the state to secure the attendance of a witness. The trial court continued the case on February 17, 1982, because appellant was dressed in prison garb. It set the date of trial specially for March 8, 1982. On March 8, 1982, due to the large court docket, appellant’s case was continued, by the court, to March 10, 1982. On March 10, 1982, appellant’s trial began.

We have assessed the above facts in light of the four factors enumerated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and find no error in the trial court’s denial of appellant’s motion. We note that appellant did not initially assert his right until eighteen months after his arrest. From that point, seven months passed before appellant was brought to trial. However, appellant’s pro se motion filed on August 13, 1981, did not properly present to the trial court the speedy trial question. On February 5, 1982, appellant properly asserted his right to a speedy trial and, a little over one month later, was brought to trial. Of the delays noted above, some can be attributed to the state, some to appellant, and others to the methodology of judicial administration. Of those we find attributable to the state, the delay caused thereby is not so great as to cause a violation of the Sixth Amendment. Lastly, we agree that no prejudice was suffered by appellant due to the delay in bringing him to trial.

The trial court properly denied appellant’s pretrial “motion to exclude evidence of confidential communication with clergyman.”

We have reviewed the testimony of Reverend Newman, offered at appellant’s pretrial hearing on the above motion, and find that it does not support appellant’s motion for suppression. In pertinent part, Reverend Newman, a licensed and ordained Methodist minister, testified that: (1) On the afternoon of February 9, 1980, he saw appellant outside his home, which was four blocks away from the murder scene, and observed his bloody clothes, bloody knife, of which he subsequently received possession, and his nervous and excited condition; (2) on that occasion, Reverend Newman had a conversation with appellant in which appellant stated that he had severely cut his girl friend and thought she was dead; (3) appellant’s purpose for requesting entrance to Reverend Newman’s home was that the “police [were] looking for [him]” and he was afraid that they would kill him; (4) Reverend Newman observed no injury on appellant, who became more relaxed upon entering his home; (5) appellant was not one of his parishioners although he knew appellant’s mother; (6) appellant did not seek spiritual counseling from Reverend Newman and did not request that he keep their conversation confidential; (7) Reverend Newman did not think he had spoken to appellant confidentially; (8) Reverend Newman promised appellant that the police would not kill him and that he would safely reach the jail; and (9) appellant never asked Reverend Newman not to reveal his whereabouts, which he reported to the police during a telephone conversation, initiated by Reverend Newman and conducted in appellant’s presence.

Under Section 12-21-166(b) Code of Alabama 1975, any person who communicates in a confidential manner with a clergyman, who is acting in his professional capacity, and such communication is, inter alia, a “confession,” then “such person or the clergyman shall have the privilege ... to refuse to disclose and to prevent the other from disclosing anything said by either party during such communication.” The requirements which must be met in order for a “priest-penitent” communication to be privileged are:

(1) The communication must be made to a clergyman as defined,
(2) The clergyman to whom the communication was made must have received such “in his professional capacity,”
(3) The communication must have been made in a confidential manner.

Communities discussing statutes similar to § 12-21-166 note that such are strictly construed and make privileged only those communications which are made under the exact conditions enumerated in the statute. The authorities agree that simply because a communication is made to or by a clergyman does not cause it to be privileged. Further, the penitent’s communication must be penitential in character so as to fit within those provisions providing for privileged communications of “confessions.” Consequently, the term confession as used in the above statute refers “to a penitential acknowledgment to a clergyman of actual or supposed wrongdoing while seeking religious or spiritual advice, aid, or comfort” with such applying “to a voluntary confession as well as one made under a mandate of the church.” Annot., 71 A.L.R.3d 794, 808 (1976).

The authorities state that the communicant must have intended his communication to be confidential. Such does not require that the communication be made under an express promise of secrecy, but must have been made in confidence and with the express or implied understanding that it should not be revealed to anyone. Id. at 809.

The facts of the instant case do not establish (1) the confidential nature of appellant’s statements; (2) the reception of such by Reverend Newman in his professional capacity, i.e., “confessional relationship,” as a clergyman; and (3) the penitential character of appellant’s “confession.” Appellant has, therefore, failed to establish the privilege created under § 12-21-166. The trial court did not err in admitting-such evidence. See 8 Wigmore, Evidence § 2394-96 (McNaughton rev. 1961); N. Carraway & E. Currie, Jr., Privileges 48 Miss.L.J. 989, 1049-56 (1977); S. Reese, Confidential Communications to the Clergy 24 Ohio St.L.J. 55 (1963); Annot., 49 A.L.R.3d 1205 (1973); Annot., 22 A.L.R.2d 1152 (1952).

Appellant challenges the trial court’s admission of his extrajudicial statement on the ground that it was coerced due to Reverend Newman’s exhortation to him to “tell them just what happened.”

The testimony of the police officers clearly established that appellant was given his Miranda warnings prior to making his statement and that he understood his rights and freely and voluntarily waived them. Appellant was not threatened, forced, or intimidated into making his statement.

Reverend Newman testified that on February 12, he visited appellant at the jail. His purpose in seeing appellant was to insure, within his power, that appellant was in “good shape” as he had earlier promised that he would be. At the jail, Reverend Newman was informed that appellant had not made a statement or spoken to anyone since his arrest. He told appellant, “Frank, the best thing to do is go ahead and tell them just what happened, and get it over with.” Reverend Newman assured appellant that “nothing [would] happen to ... [him] that shouldn’t to this point.”

After his conversation with Reverend Newman, appellant made a lengthy statement wherein he confessed to killing Crawford.

It is constitutionally permissible to tell the accused that it is best to tell the truth. Edwardson v. State, 255 Ala. 246, 51 So.2d 233 (1951); Curry v. State, 203 Ala. 239, 82 So. 489 (1919); Ellis v. State, 398 So.2d 402 (Ala.Cr.App.1981); Parker v. State, 351 So.2d 927 (Ala.Cr.App.), cert. denied, 351 So.2d 938 (Ala.1977).

A review of the circumstances surrounding the promise of Reverend Newman to appellant reveals that such did not operate to produce in the mind of appellant an apprehension of harm or hope of favor rendering his subsequent confession involuntary. Wallace v. State, 290 Ala. 201, 275 So.2d 634 (1973); Sullivan v. State, 340 So.2d 878 (Ala.Cr.App.), cert. denied, 340 So.2d 881 (Ala.1976).

No error was committed by the trial court’s admission into evidence of the photographs of the victim taken at the scene. Carpenter v. State, 400 So.2d 417 (Ala.Cr.App.), cert. denied, 400 So.2d 427 (Ala.1981).

The trial court properly admitted the opinion testimony of Dr. Kothandapani, wherein, based upon a hypothetical question, he stated that the fact that appellant' had killed a woman in February, 1980, would not have affected his personality-significantly between the date of the killing and October, 1980, the month of appellant’s psychiatric evaluation.

Dr. Kothandapani was the first witness called by the state. Proof of the corpus delicti had not been established at the time he gave the above opinion. However, the state’s evidence that followéd unequivoca-bly established the criminal nature of Crawford’s death and appellant’s perpetration thereof.

As stated in Gamble, McElroy’s Alabama Evidence § 130.01 (3rd ed. 1977):

“It is quite generally stated in the decisions that a hypothetical question asked of an expert cannot be based upon facts which are not in evidence. The better procedure to follow in keeping with this rule, of course, is to bring the expert witness to the stand after all the facts have been introduced upon which you wish to base the hypothetical question. If the expert is asked a question based upon facts not in evidence, the trial court will be upheld on appeal for sustaining an objection to such a question. There are instances, however, when a party can ask the expert witness a hypothetical question based upon some facts which have not yet been placed in evidence. This occurs when the party asking the question promises to introduce the facts at a later point in the trial. The result of this exception is that if the trial court overrules an objection to a hypothetical question based upon facts not in issue, such a ruling will be upheld on appeal if, subsequent to asking the question, the facts are introduced into evidence.”

Consequently, any error in the order of the state’s proof was subsequently cured.

Appellant did not properly preserve for review the failure of the trial court to give his written requested charges 8, covering the lesser included offense of manslaughter, and 18, 19, and 20, dealing with self-defense. Johnson v. State, 433 So.2d 479 (Ala.1983); Knight v. State, [Ms. 4 Div. 7, May 3, 1983] (Ala.Cr.App.1983); Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), aff'd, 414 So.2d.993 (Ala.1982).

Nevertheless, all of the charges were without support of the evidence and were thus properly refused. In particular, charge 8 was abstract and charges 18 and 19 were not predicated upon the evidence.

Lastly, we find no merit to appellant’s contention that absent introduction of appellant’s inculpatory statements into evidence, the state’s evidence was insufficient to prove a prima facie case of murder. To the contrary, it fully established appellant’s commission of the instant offense and was further strengthened by his own admissions. Consequently, no error was committed by the trial court in the denial of appellant’s motion to exclude.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Geraldine KOGER v. STATE.
    1 Div. 463.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied Jan. 20, 1984 Alabama Supreme Court 83-315.

      Edward R. Tibbetts, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Martha Gail Ingram, Asst. Atty. Gen., for ap-pellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

Appellant was convicted in the Mobile Circuit Court of murder and sentenced to life imprisonment. She appeals to this court.

The appellant gives three reasons why her conviction should be reversed. First, that the trial court committed reversible error by admitting into evidence her confession when the evidence showed that the confession was based on fear. Second, by admitting into evidence the confession when the evidence showed that the accused was confused and distraught. Third, in denying appellant’s motion to exclude the evidence in that the State did not prove a prima facie case against the appellant.

The appellant filed a motion to have her confession suppressed. After a hearing on the motion, the trial court, entered an order denying appellant’s motion.

State’s evidence on the motion to suppress tended to prove that Nicki Patterson, on November 18, 1981, was employed by the Mobile County District Attorney’s office as an assistant district attorney. She had been assigned a case involving a Reuben Campbell, who was charged with the murder of Sherman Roger, a baby child of the appellant. On November 18, 1981, a preliminary hearing was held, after which Reuben Campbell was bound over to await action of the grand jury. Immediately after the preliminary hearing, Patterson went back to her office and was there confronted by the appellant, Geraldine Roger, and Reuben Campbell’s attorney, Bob Sterling. Sergeant J.D. Fail of the Prichard Police also arrived about that time. The defendant told Patterson that she wanted to talk with her, and that she wished that Patterson had asked her more questions on the stand because she would have told Patterson what had happened. Mr. Sterling told Patterson that he did not know what was going on, but that Ms. Roger had come up to him after the hearing and said she wanted to talk to Patterson and Patterson assumed Ms. Roger was ready to tell the district attorney’s office something about Reuben Campbell.

State’s evidence further tended to prove that Patterson took the appellant back to her office and, at this point, the appellant told Patterson that the appellant had killed the baby. Patterson stopped her and got someone that could take shorthand. Patterson then explained to the appellant that the appellant had the right to remain silent, not to make any statement, not to incriminate herself in any way, that anything she said could be used against her, that she could have an attorney of her choice present, and if she was unable to hire an attorney, the State would furnish one without cost to her. Patterson also informed appellant that she had a right to have an attorney present during the time she was being questioned, that she could stop the questioning at any time, that Bob Sterling was not her attorney, that no one present then had a right to promise or threaten her in any way, and asked if she understood these rights. Appellant stated that she understood all of her rights, and that she came there of her own free will, nobody forced her. She then indicated that she did not want a lawyer. Patterson further testified that the appellant did not appear to be under the influence of alcohol, or any other narcotic substance, that the appellant responded to the questions asked and that sometimes during the taking of the statements the appellant would cry. Patterson asked the appellant if she wished to make a statement, and she said she did. At no point did the appellant indicate that she wanted an attorney or desired to stop giving her statement. Patterson asked the appellant if anyone had promised her anything, threatened her, or done anything in any way to induce her to make a statement. Appellant stated she had not been promised anything, no threats had been made to her, and the statements were freely and voluntarily made. On cross-examination, Patterson’s testimony tended to prove that the appellant was coherent, she did not contradict herself at any time during the giving of the statement, and that she was making the statement freely and voluntarily.

The evidence further tended to prove by Bob Sterling’s testimony, in substance, that he represented Reuben Campbell at a preliminary hearing on November 18, 1981. At the conclusion of the hearing, the appellant came up to him in the hall and stated that it looked like Reuben Campbell was going to jail unless somebody else confessed and asked if that was right. Mr. Sterling said to her that was the way it looked. Sterling further testified that about two weeks before the 18th, he told the appellant that if Reuben Campbell was not convicted, then the police would be looking for someone else, and that the three most likely subjects would be either her, her mother, or her sister. Appellant asked him if he meant that her mother could be arrested or go to jail, and he told her that he guessed anybody could. He never discussed the matter with the appellant again.

Geraldine Roger testified, in substance, as follows: That Sherman Roger, the deceased, was her son and his father was Reuben Campbell; that after the preliminary hearing, Mr. Sterling told her twelve people would never find Reuben Campbell guilty, and that someone else would be arrested; that that person would be the last person with the baby. She testified that Sterling told her her mother would be the one arrested, and the only way to stop her mother from going to jail was for someone to come forward and confess. He then took her to the district attorney’s office. She testified that the statement was absolutely false, but that it was voluntarily made to keep her mother out of jail. She stated that Mr. Sterling was lying at the hearing when he stated that he did not tell her anything about her mother going to jail. She stated that everything Patterson had testified to about the confession was true, but the confession was not.

On cross-examination, appellant testified ■ that Patterson did not offer her any reward, nor tell her she had to make a statement, threaten her in any way, or tell her something bad would happen to her; that the statement was voluntary, and that she was not offered any reward. In the statement, the appellant admitted that she had thrown the baby across the room, and its head had struck a board nailed across the window over a couch. She also testified that the people present at the solicitor’s office were Nicki Patterson, assistant district attorney, Bob Sterling, who now represents Reuben Campbell, Fail of the Prich-ard Police, and Lee Ann Anderson, stenographer from the district attorney’s office, and that none of them had made any promises or threats in any way to her.

We will consider together appellant’s contentions: (1) that the court erred to her prejudice by admitting into evidence the confession of the appellant when the evidence showed that the confession was based on fear, and (2) that the evidence shows that the accused was confused and distraught. It is well settled by the law of this State that before a confession may be admitted into evidence, the State must make a showing that the confession was voluntary. Additionally, all confessions are presumed to be involuntary. It is the duty of the trial court to determine if the confession was voluntarily given based on all of the facts surrounding the giving of the confession. When there is a conflict in the evidence surrounding the taking of the confession, and there is sufficient evidence to support the trial court’s finding, this court will not disturb the finding of the trial court on appeal, unless it appears contrary to the great weight of the evidence, or is manifestly wrong, or unjust. The trial judge need only be convinced from a preponderance of the evidence that the confession was knowingly and voluntarily made.

We hold that under the facts in this case, the trial court did not err to the prejudice of the appellant when it allowed into evidence the appellant’s confession. Jones v. State, 292 Ala. 126, 290 So.2d 165 (1974); Smith v. State, 291 Ala. 507, 282 So.2d 907 (1973); Ball v. State, 409 So.2d 868 (Ala.Cr.App.1979), writ quashed, 409 So.2d 876 (Ala.1980); Sullivan v. State, 351 So.2d 659 (Ala.Cr.App.), cert. denied, 351 So.2d 665 (Ala.1977); Thomas v. State, 393 So.2d 504 (Ala.Cr.App.1981); Holt v. State, 372 So.2d 370 (Ala.1978); Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1960).

Appellant’s third contention is that the trial court erred in denying appellant’s motion to exclude the evidence. The indictment charges that the appellant did, with intent, cause the death of Sherman Roger by causing multiple injuries to the head of Sherman Roger in violation of § 13A-6-2, Code of Alabama 1975, which provides:

“(a) A person commits the crime of murder if:
“(1) With intent to cause the death of another person, he causes the death of that person or of another person; or “(2) Under circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person.”

State’s witness Leroy Riddick, M.D., coroner of Mobile County, testified, in substance, as follows: He performed an autopsy on the victim in this case in October 1981; that in his opinion the child died from a blunt force to the head; that the infant weighed sixteen pounds and was normally developed, generally healthy, and had massive head injuries. He stated there was about a ten-inch long fracture that started on the right side of the skull and went all the way around to the left side of the skull, and that the brain was swollen so much that the fracture was separated by a little more than a quarter of an inch. In the back of the head, on the left side, there were four more fractures at the base of the brain. The brain was massively swollen, and when that happens, it compresses the vital centers that concern the heart rate of beating and breathing. There were five fractures of the skull that could have been caused by banging the child’s head on a flat object, and that the banging of the head would have to have been very, very forceful.

Joseph Crenshaw, a police officer, testified, in substance, that he went to the home of the appellant, saw a bar in the room and, across the room a sofa under a window across which a board had been nailed.

The statement made by the appellant was admitted into evidence before the jury. In the statement, the appellant stated that she killed the deceased by throwing him across the room and hitting his head on a board nailed across the window above the couch.

When the State rested its case, the appellant made a motion to exclude State’s evidence because the State had failed to make a prima facie case against the appellant.

When a motion to exclude State’s evidence is made on the grounds that the State has failed to make a prima facie case, it is the duty of the trial court to determine the sufficiency of the evidence to sustain a conviction under the indictment. In its determination, the trial court should consider only the evidence before the jury at the time the motion is made and must consider it most favorably to the State. When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit it to the jury. This court will not disturb the trial court’s decision.

The evidence in this case is sufficient for the jury to find that the deceased was killed by a banging of his head on a flat object in a very, very forceful way, so as to fracture the skull in five places. The appellant, in her statement, stated that she did it by throwing the baby across the room and hitting its head on a board nailed across the window over a couch.

We hold that the trial court did not err in denying appellant’s motion to exclude the evidence. Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.), writ quashed, 378 So.2d 1173 (Ala.1979); Kelly v. State, 423 So.2d 343 (Ala.Cr.App.1982); Hinds v. State, 423 So.2d 1382 (Ala.Cr.App.1982); Bozeman v. State, 401 So.2d 167 (Ala.Cr.App.), writ denied, 401 So.2d 171 (Ala.1981), cert. denied, 454 U.S. 1058, 102 S.Ct. 606, 70 L.Ed.2d 595 (1981).

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

The foregoing opinion was prepared by Retired Circuit Judge JOSEPH J. MULLINS, 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.

AFFIRMED.

BOWEN, P.J., and TYSON, HARRIS and SAM W. TAYLOR, JJ., concur.


author: TYSON, Judge.

text:
    J.C. SMITH v. STATE of Alabama.
    No. 1 Div. 594.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied Jan. 27, 1984 Alabama Supreme Court 83-283.

      Neil L. Hanley, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

The appellant, J.C. Smith, was indicted for unlawfully selling a controlled substance, Pentazoftine, in violation of § 20-2-70, Code of Alabama 1975. The jury found him “guilty as charged” and the trial judge sentenced him to 15 years’ imprisonment in the penitentiary.

On November 12, 1982, Wilson Mitchell, an undercover narcotics officer with the Mobile Police Department, and a confidential informant named “Fats” went to the home of the appellant to purchase some drugs. When they arrived, Wilson Mitchell said he wished to buy two packages and the appellant, Smith, stated he had just received a shipment. A young woman named Ann then went into a bedroom and removed the pills from a box approximately two and one-half feet high. After Wilson Mitchell received the pills, he gave the appellant $130.00. There were 10 pills in each of the two packages. The appellant told them he would let them know when he received another shipment and the two left.

Sylvia Bryant, a criminalist with the Mobile Police Department, testified on November 15, 1982, that two packages containing 39 pills were turned over to her for examination. After a series of tests, she identified 20 of the pills as the controlled substance Talwin (also known as Pentazocine).

The defense then called Officer Rasey Smith who testified the police believed the appellant, Smith, was selling large quantities of drugs from his- home — approximately $50,000 every one or two weeks.

The appellant took the stand and denied selling the drugs or that he had ever sold pills. He stated he was 64 years old and had lived in the same Jim Walter home for 30 years. He received income from selling goldfish, working on cars, cutting grass and social security.

I

The appellant claims he was denied the effective assistance of counsel. The standard in the courts of Alabama for determining whether a defendant has received ineffective assistance of counsel in a legal sense is that the attorney’s conduct must be shown to have reduced his client’s trial to a farce, sham, or mockery of justice. Bass v. State, 417 So.2d 582 (Ala.Cr. App.1982), writ denied, 417 So.2d 588 (Ala.1982).

Representation is presumed to be adequate and the defendant has the heavy burden of establishing that it was not, particularly when the appellant has retained his own attorney, as the appellant, Smith, did here. Bass v. State, supra.

The appellant claims his attorney should have filed pre-trial discovery motions. “... [TJhere is no rule stating that trial counsel’s failure to file pre-trial motions constitutes per se inadequacy of representation. The failure to act must cause the trial to be reduced to a farce, sham or mockery of justice. See generally Pace v. State, 369 So.2d 1281 (Ala.Cr.App.1979).” Bass v. State, supra. The appellant has not shown us that his trial was reduced to a farce, sham or mockery of justice by his trial counsel’s failure to file pre-trial discovery motions.

The appellant’s contention that his attorney’s failure to object to the chain of custody of the alleged drugs which were introduced at trial was ineffective representation is also without merit.

From our review of the record, the attorney wisely used his professional judgment and decided not to object because he saw no problems with the chain of custody and wished to conserve the court’s time and not distract the jury with needless objections.

The appellant further contends that he was not well represented at trial because defense counsel purposefully elicited unfavorable evidence concerning the appellant on examination of Rasey Smith. Obviously, defense counsel was attempting to get the State’s witnesses to portray the appellant as a major drug dealer, hoping the jury would think this was absurd, because the appellant was elderly and lived so very modestly. “An adequate defense in the context of a constitutional right to counsel does not mean that counsel will not commit what may later prove to be tactical errors.” Bass v. State, supra. Although this may not have been the best course of defense to pursue, we must admit it was ingenious and a valid defense. We fail to see how this particular defense tactic denied the appellant adequate trial representation.

Lastly, the appellant argues that defense counsel’s failure to object to the trial judge’s instructions to the jury when they returned during their deliberations to ask a question was error.

The pertinent part of the record is as follows:

“THE COURT: The jury have a question?
“MR. HORTON: Yes, sir. We have three of us that couldn’t find a verdict cause they have reasonable doubt and we was just wanting to know how long we’re suppose to deliberate.
“THE COURT: Well, your verdict must be unanimous either way. That is either to convict or to acquit. And I’d rather not declare a mistrial at this point. I’d rather have you deliberate further in the case.
“Let me say this to you, and at the outset let me say that in no way am I trying to suggest to any of you that you should compromise your principles, but you do owe a duty to yourselves and to the Court and to the defendant and the State to sit down and reconsider and re-evaluate your positions and, you know, see if you have not maybe considered something that the other jurors have and just exchange fully your views and try to reach a verdict. We don’t like to declare mistrials because you people represent a cross section of our community and you’re good and intelligent jurors and someone somewhere has got to resolve this and you’ve heard all the evidence that any twelve jurors could hear and the State’s entitled to a verdict and the defendant’s entitled to a verdict. So would you just consider it a little bit further?
“Is there any point of law that I might help you with? Any juror have a question or anything? All right. Yes, sir?
“JUROR: The question that some of us had was the fact that there were possibly two other witnesses to this alleged crime that were not present here today.
“THE COURT: All right. My recollection of the testimony, and if you all have a different recollection let me know, was that there was one witness whose whereabouts are unknown. Is that the testimony?
“MS. BEDWELL: Yes, sir.
“THE COURT: So we’ll never be able to get him here. I mean, there’s no reason to know that we’d have any reason to believe that we could get him here. And the other witness, do you remember ... ?
“MS. BEDWELL: Ann Holloway.
“THE COURT: Pardon?
“MS. BEDWELL: Ann Holloway, Judge. “THE COURT: Ann Holloway.
“JUROR: If I’m not mistaken there were four people there when the alleged transaction took place and we heard the testimony of two.
“THE COURT: All right. Well, I can’t tell you why they didn’t call Ann Holloway, either the State or the defendant. And the only thing I can tell you is that you’ve heard all of the evidence either side chose to present. And I have no reason to believe they’d want to present any more testimony to anyone else. And beyond that I can’t ... I really think if we deal too much in that we’re perhaps speculating on your verdict, you know, as to what the evidence may or may not be, and your verdict should not be based upon speculation. What I’d like you to do is to address yourselves to the evidence you’ve heard and try to come up with a verdict. Sometimes you can’t and in which event I guess we’ll just have to declare a mistrial but I’d like you to consider that you’re a pretty intelligent looking jury and I don’t have any reason to believe we’re gonna get any other twelve jurors who are going to see things any better than you have. So let me ask you to retire and consider it further.” (R. 60-63).

The appellant’s contention that defense counsel’s failure to object was error is without legal merit. The trial judge did not inquire as to the numerical division of the jury. This was volunteered by the foreman of the jury. The trial judge then gave the above instruction to the jury. From our review of the court’s instruction to the jury, we find no error therein.

After examining the entire record, we conclude that the appellant was completely and adequately represented by his counsel at trial in every legal sense.

This appellant has fallen far short of establishing that he was denied the “reasonably effective” assistance of counsel standard set forth in Harris v. Oliver, 645 F.2d 327 (5th Cir.1981) and Trammell v. State, 420 So.2d 855 (Ala.Cr.App.1982).

II

The appellant’s second contention is that he was not properly sentenced because the trial judge did not order a pre-sentence investigation.

At the conclusion of appellant’s trial, defense counsel orally requested a pre-sen-tence investigation. The trial judge stated he felt this was unnecessary because the appellant himself had testified he had no prior convictions and that he was 64 years old, retired and had lived in the same house for 30 years. The trial judge asked defense counsel if he would like to present any evidence other than that which was presented at trial, and he replied the appellant’s advanced age. The appellant was then sentenced to 15 years’ imprisonment.

The following day the trial judge held a hearing on defense counsel’s written motion for a pre-sentence investigation which was filed after the trial judge had imposed sentence. Once again, defense counsel was asked if there was anything else he wished the trial judge to consider on the appellant’s behalf. Defense counsel then offered a detailed account of the appellant’s background. The trial judge stated he had considered all of this information and would not alter or change the sentence as imposed.

First of all, defense counsel failed to make a written motion for a pre-sentence investigation as required by § 13A-5-5, Code of Alabama 1975, until after the sentence had been imposed.

Secondly, the trial judge gave defense counsel ample opportunity to present to the court any beneficial information concerning his client. Therefore, we find no error which would require reversal. See Traylor v. State, 439 So.2d 178 (Ala.Cr.App.1983).

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

AFFIRMED.

All the Judges concur.


text:
    James Beck WILSON v. STATE.
    2 Div. 335.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied Jan. 27, 1984 Alabama Supreme Court 83-278.
    Bill Kominos, Ozark, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.
   ON REHEARING

HUBERT TAYLOR, Judge.

This court originally, without opinion, reversed appellant’s conviction for possession of marijuana based upon an opinion dated October 12, 1982, in the companion case of Schultz v. State.

On rehearing, the October 12 opinion in the Schultz case was withdrawn and the judgment of the lower court reinstated and a new opinion issued. On the authority of the opinion on rehearing in Schultz v. State, 437 So.2d 670 (Ala.Cr.App.1983), we now withdraw our order of reversal and affirm the judgment of the lower court.

ORDER OF REVERSAL WITHDRAWN; APPLICATION FOR REHEARING GRANTED; JUDGMENT AFFIRMED.

All the Judges concur.

Case below: Ala.Cr.App., 425 So.2d 1378.


author: JOSEPH J. JASPER, Circuit Judge.

text:
    Melvin James LAWRENCE, alias v. STATE.
    4 Div. 48.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied Jan. 20, 1984 Alabama Supreme Court 83-310.

      Larry R. Grissett of Prestwood, Prest-wood & Grissett, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   JOSEPH J. JASPER, Circuit Judge.

After trial at nisi prius pursuant to an indictment charging burglary in the first degree of Thomas Aaron Ward’s dwelling, appellant was found guilty as charged and sentenced to twenty years’ imprisonment.

The state’s case consisted of the testimony of three witnesses: Ward, the victim and state’s only witness to the crime who testified, and two members of the Opp Police Department, Charles D. McLeMore and Jenkins Logan. Ward’s testimony tended to show that on the night of December 7, 1981, the defendant, aided by an unidentified female and male, burglarized the home of Ward.

The victim lived in Opp with his invalid wife and brother-in-law who was deaf. He had retired about 8:00 p.m. on the seventh and was awakened by the doorbell at approximately 11:15 p.m. After turning on the lights Ward opened the door and the defendant pushed him back and entered the home. The unidentified female and male also entered. The female, who was armed with a pistol, demanded money from Ward as the defendant pushed him into the house. Soon after the entry the female turned off the lights, and the defendant instructed her to shoot Ward if he moved. The defendant, who was wearing gloves, pushed the victim to the floor in the living room and held him down. He demanded money of Ward and called him a liar when he said he had none. The defendant threatened to blackmail the victim if he summoned the police. The unidentified male went into other rooms of the house. Later Mrs. Ward’s watch was found to be missing. After the intruders left, Ward went to a neighbor, who took him to the police.

Officer McLeMore went to Ward’s house after the burglary. In one of the bedrooms he found the bed rumpled and drawers pulled out with their contents disarrayed. On the dining room table, he found the telephone, which had been severed from the wall during the burglary, but was unable to lift any prints from it. A short time later, during the early morning hours of the eighth, Ward accompanied an Officer Mike Naro of the Opp Police Department to an establishment named “Popeye’s Corner.” There, in the presence of Captain Logan, he identified the defendant, who was standing outside with several other people. The defendant was taken into custody. When questioned he denied being involved in the burglary. A search of the. defendant did not disclose a watch or gloves.

The defense of alibi was presented through the testimony of the defense witnesses, including that of the defendant. Basically, they stated the defendant was at “Popeye’s Corner” from approximately 7:30 p.m. on the seventh until he was arrested by the police. There were, however, some minor conflicts as to who was present at what time and what certain people were doing.

I

One of appellant’s three contentions of error on appeal is that the trial court erred in denying his motion for new trial in that there was insufficient evidence to support the conviction as to the identification of the appellant as one of the perpetrators.

The victim, who was seventy-four years of age, was the only person who identified the defendant as one of the burglars. He admitted he did not have his glasses on when the burglary occurred. However, he maintained he could see almost as well without his glasses and identified the defendant in court without wearing them. Further, the victim testified that while the defendant had him on the floor their faces were close together. The unidentified female also turned off the house lights. There was, however, light, from a street light, shining through the window from across the street according to the victim. The victim went into “shock” about 2:00 a.m. on the eighth, after he had identified the defendant, and was admitted to a hospital. Ward testified he was not in shock when he identified the appellant but that he was “just nervous, scared.”

Evidence is to be taken in the light most favorable to the state in determining motions concerning the sufficiency of the evidence. The court should not substitute its judgment for that of the jury in determining the credibility of witnesses. Only when a witness physically could not have observed, or events could not under the laws of nature have occurred, may a trial judge substitute his judgment. United States v. Cravero, 530 F.2d 666 (5th Cir.1976); United States v. Palacios, 612 F.2d 972 (5th Cir.1980); and Ex Parte Nice, Ala. 407 So.2d 874. Shortly after the offense, the victim made an identification of the appellant and named him in his statement to the police; even though he testified under cross examination at trial that he did not know the appellant’s name until the police told him. Further, he identified the appellant in court. It was not physically impossible that the victim observed the appellant and the events he testified about were possible under the laws of nature. A jury question was presented and the trial judge was correct in not interfering with the jury’s decision. Barker v. State, 55 Ala.App. 332, 315 So.2d 129.

II

It is maintained that the trial court erred in not allowing the defense to examine Ward’s statement to the police.

During cross examination of Logan the defense attorney asked for the statement. Logan testified he did not take the statement and the court sustained the state’s objection to the defense’s motion to produce the statement. Counsel for appellant then asked the court to be allowed to ask where the statement was and Logan stated that the other officer had it. The assistant district attorney then said: “I have got a copy of it. I will let you look at it.” The record reflects there was then a brief interruption in the proceedings. After this line of questioning, appellant’s attorney did not recall McLeMore, who had earlier testified that Ward made an “official statement” to him and named the defendant as one of the perpetrators. Further, he did not recall the victim who had earlier testified that he told the officer what he had testified to in court. Earlier in the trial Ward, under cross examination, said that he did not know the name of the defendant until the police told him.

To secure production of a statement of a witness, it must be shown that it was in writing prepared by him or at his instance and signed or authenticated by him. Further, it must be shown that it is essential for cross examination and to guilt or innocence. Redus v. State, Ala.Cr.App., 398 So.2d 757. These requisites were not met by the appellant. The court did not abuse its discretion in denying the production of the statement. Further, the record indicates that the appellant was allowed to see a copy of the statement and that he recalled for further examination neither the officer who took it nor the victim who made it. Therefore, even if there had been error, it would have been harmless.

III

Appellant asserts the trial court erred in not allowing him to testify that the victim had solicited his assistance in procuring young women for sexual favors. He contends this would have impeached the victim’s testimony and would have showed motive on the part of the victim to falsely accuse him.

The victim testified that he had not known the appellant, though he had seen him several times as he passed “Popeye’s Corner.” He denied he had ever been in an automobile with him. The appellant testified that he had seen the victim nine or more times, talked with him and that they always met around “Popeye’s Corner.” He further testified that they had ridden in an automobile together talking. After the appellant testified about their having had conversations his attorney asked what they discussed and the court sustained the state’s objection to the question. Counsel for the appellant then made an offer of proof that it concerned the procurement of young women and the court again sustained the objection. Appellant then testified that the last conversation he had with Ward was about a week before he got arrested and that they had gone to Elba. The state’s objection was sustained to a question concerning what happened in Elba.

A witness may not be impeached on an immaterial matter. Ciervo v. State, Ala.Cr.App., 342 So.2d 394, and Williams v. State, Ala.Cr.App., 383 So.2d 547. It is the duty of the trial judge to limit the evidence to matters in issue so that the jury is not distracted from the main issue or to questions which are of doubtful relevancy. Gulley v. State, Ala.Cr.App., 342 So.2d 1362. Further, erroneous exclusion of evidence is rendered harmless by subsequent disclosure of testimony of substantially the same effect. Smith v. State, Ala.Cr.App., 393 So.2d 529.

The central issue presented at trial was that of identity. It was the trial judge’s duty to limit the evidence to the matters in issue. The determination of what evidence was relevant was within the trial court’s discretion. The court’s ruling concerning conversations between the appellant and the victim which occurred a week or more before the burglary should not be disturbed on appeal since it was attempted impeachment on an immaterial matter. Further, substantially the same testimony was brought out through the appellant’s testimony that he had previously talked and ridden in an automobile with the victim, contrary to the victim’s testimony. Therefore, even if there had been error, it would have been harmless.

From the examination of the issues raised on appeal we conclude error is not made to appear.

The foregoing opinion was prepared by Hon. JOSEPH J. JASPER, Circuit Judge, temporarily on duty on the Court pursuant to the authority contained in the provisions of Section 6.10 of Constitutional Amendment No. 328, of the Constitution of Alabama 1901, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

All the Judges concur.