author: HARRIS, Judge. HUBERT TAYLOR, Judge,

text:
    Samuel Daniel CROSSLIN v. STATE.
    8 Div. 533.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Certiorari Denied March 2, 1984 Alabama Supreme Court 83-197.

      William R. Hovater and John C. Martin for Martin & Ford, Tuscumbia, for appellant.
    Charles A. Graddick, Atty. Gen. and Ed Carnes, Asst. Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   ON REHEARING

HARRIS, Judge.

The opinion released on July 5, 1983, is withdrawn and this is substituted therefor.

Appellant was indicted and convicted for the capital offense of murder in the first degree wherein two or more human beings are intentionally killed by one or a series of acts in violation of Alabama Code § 13A-5-31(a)(10) (Supp.1977). The victims in this case were appellant’s niece, Bobbie Sue Morris, and her husband, Barry Glendon Morris. Appellant shot each of them twice in the back of the head, execution style, with a .38 caliber Charter Arms Special. His punishment was fixed at death by electrocution. At arraignment, in the presence of counsel, appellant pleaded not guilty and not guilty by reason of insanity. Appellant is represented by court-appointed counsel on this appeal, as he was at trial, and has been furnished with a free transcript.

The facts surrounding this senseless crime proved without question that appellant and Dale, Pounders drove to the victims’ trailer some time around 3:00 a.m. on July 30, 1980, after visiting appellant’s sister and nephew at the Colbert County Hospital. By telling the victims that his nephew in the hospital “was supposed to die,” that “they needed to go and see him,” appellant was able to gain entrance inside the victims’ trailer. Once inside, appellant “pulled his revolver out” and ordered the victims to get on their stomachs. Appellant then tied the victims’ hands behind their backs, unloaded the victims’ .22 rifle and told them “he was going to take their pot.” Then, after telling Pounders to “pull the coil wire” on the victims’ Datsun pickup truck and after appellant had put a “big bag” of marijuana into his van, appellant led the victims to a brush pile behind their trailer where he summarily shot them.

By showing the detailed series of events which occurred just prior to the offense, during the res gestae of the offense and immediately after the offense, the State presented very strong evidence fully supportive of the jury verdict. Every element necessary to prove that appellant committed the capital offense was clearly established, including the element that the killings were intentional. The State presented convincing evidence that the slayings were calculated and were executed methodically. The precautionary steps taken by appellant prior to and during the commission of the crime suggest that appellant was well aware of what he was doing and intended the very consequences of his acts.

The State’s evidence in this case proved conclusively the defendant’s involvement in the murders of Barry Glendon Morris and Bobbie Sue Morris. The first witness called by the State was Dr. Joseph Embry, who was a doctor from the Department of Forensic Science, State of Alabama, who performed the autopsy on both bodies. His autopsy of July 30, 1980, established that each of the victims had been shot twice in the back of the head, producing large caliber bullet wounds. The bullets entered the back of the skull and penetrated the brain of each of the victims, Barry and Bobbie Sue Morris. These wounds caused the death of both of the victims. Dr. Embry testified that, in addition to similar bullet wounds in a similar position on both bodies, both bodies were found to have their hands tied behind their backs.

The State’s next two witnesses were local law enforcement officers who were on duty on the night of July 29 and the morning of July 30, 1980. Mr. Harget testified that, on the night in question, he received two phone calls in regard to this matter. The first came from Cherokee Police Officer Bogas at approximately 3:53 a.m. on the date of July 30. He received a second call from a person whose voice he recognized as the defendant’s at approximately 4:01 a.m. The defendant at this time indicated that there were three children in the trailer at the Morrises and that they needed to be taken care of. The caller would not identify himself. The next witness, Officer Bogas, testified that he received a call on the morning in question at the Cherokee Police Department. This caller indicated that there were three children inside the Morris trailer and that Morris and his wife were outside behind the trailer.

Colbert County Deputy Sheriff Dale Holley was dispatched to the Morris trailer on Highway 72 East. En route, he was followed by a Cherokee patrol car and he proceeded to the Morris trailer. Upon receiving no response at the door, the officers went inside the trailer to find only the sleeping children. A search of the area behind the trailer produced the bodies of Bobbie Sue and Barry Glendon Morris. They appeared to have been shot in the back of the head; both had their hands tied behind their backs.

Mrs. Pamela Crosslin, wife of the defendant, was called to the stand by the State. She chose to invoke her privilege not to testify against her husband. At this point the State offered her prior testimony which was taken at the preliminary hearing of the defendant. This testimony was later admitted and read into the record at page 164 of the transcript.

Mickey Wayne Dison testified that, on the night of July 29 and morning of July 30, he had been at his motel room when the defendant came over. The defendant asked Dison to go to Cherokee to “rip off some pot.” Dison indicated that he had to go to work the next day and would not go with him. Defendant then left but returned several hours later with a .38 pistol and a .22 rifle and a garbage bag full of marijuana. At the defendant’s return to the motel room, Dison’s girl friend left the room and went into the bathroom. With the defendant was one Dale Pounders. When they came into the room, the defendant threw some pot on the bed and said, “I did it, you didn’t think I was losing my touch, did you? But, I didn’t leave no witnesses.” Upon being asked what he was talking about, the defendant stated, “I’m talking about I tied them up and laid them down and blew their fucking brains out.” At this point Dison was asked to keep the guns there at his motel room for the defendant. Dison agreed to do so and received some marijuana for this favor. Dison testified that he woke up the next morning but did not go to work. He read about the murders in the newspaper. At that point, he called the defendant, asking him to pick up the guns. During the conversation, Cynthia Vaden asked the defendant if he shot them twice in the head and the defendant said he had.

Cynthia Vaden testified that she was with Dison in the motel room the night in question. Her testimony clearly supported that of Dison. She stated that while she was in the bathroom she watched and listened through the door to everything that was said. She verified that the defendant admitted to Dison and Pounders that he did it. This witness also indicated that Pound-ers told Dison that the defendant had in fact blown their heads off. Ms. Vaden also testified as Dison had that, after this second visit to the motel room, the defendant came back approximately 20 to 30 minutes later. At this point, the defendant expressed concern about the pistol and suggested that it be'buried or thrown in the river. Both Vaden and Dison testified that the guns were returned to the defendant at a point in Florence, Alabama, on the following day.

The State’s next five witnesses showed a clear chain of purchases and sales of the .38 Charter Arms pistol used to murder the Morrises. The testimony indicated clearly that the pistol was purchased at Barber’s Appliance Store in Tuscumbia, Alabama, in June of 1979, then changed hands several times before being sold to the defendant some three months before the murder. This same pistol was shown to be the one used to cause the death of the Morrises.

Officer John Mo.rse testified that he arrested the defendant in New Orleans, Louisiana, on August 4, 1980. At that time the defendant had in his possession a ring which was marked as State’s Exhibit 23. This ring was later identified as one belonging to the deceased Barry Morris. There was testimony that the deceased Morris had this ring the night before his death.

Officer Ronnie May of the Colbert County Sheriff’s Department testified that, on the day after the discovery of the bodies, the defendant had become a suspect. He, along with other officers, proceeded to the defendant’s house, and upon their arrival the defendant stated that he knew what they wanted to talk to him about. At this point the defendant said, “It’s about those niggers killing Bobbie Sue and Barry.” A search was made of the defendant’s house with his consent and later the defendant and Pounders consented to be fingerprinted, photographed, and have hair samples removed for the investigation. Further testimony from officers indicated that a comb was found at the scene on the night that the bodies were discovered. This comb was later admitted to be Pounders’.

Dale Pounders testified as to the defendant’s actions on the night in question, indicating that the defendant had been using drugs and was high that night. The defendant told this witness that he wanted him to go to Cherokee to get some pot. They proceeded to Cherokee in the defendant’s van at which time the defendant indicated that he wanted to beat Bobbie up. On the way the defendant went to the back of the van and retrieved some electrical wire. He also cleared his .38 revolver, saying “he was going to get Barry.” They went to the trailer of the Morrises, leaving the motor of the van running. Upon going in, the defendant and Pounders talked with the Morrises and the defendant found the Morrises’ .22 rifle inside and emptied the shells from it. He pulled the revolver on them and told them to lie on their stomachs. At this point he tied both victims’ hands behind their backs and instructed Dale to go pull the plug wires and coil wires out of the Morrises’ truck parked outside. The defendant, with Pounders, led the two victims down behind the trailer in the brush 100 to 150 yards, made them lie down on the ground and told them to keep quiet. At this point the defendant waited some seconds and then held the .38 to the head of Barry Morris and shot him. He then shot Bobbie Sue Morris in the back of the head twice before shooting Barry Morris a second time. At this point Pound-ers asked the defendant, “Do you know what you have just done?” He said, “Yes, let’s get the hell out of here.” The two then ran back through the trailer, picked up the .22 rifle, and headed to the van. At this point they discovered that the van had run out of gas while idling outside. Pound-ers indicated that they obtained gas from the Morris truck and then left the scene. After stopping for gas the defendant decided to make phone calls to the Cherokee Police and the Colbert County Sheriff’s Office. They proceeded to the Sheffield Motel and left the guns with Dison.

After this they went back to the defendant’s house in Sheffield. Some minutes later the defendant left again and stayed away some 15 to 20 minutes. The day following this incident the defendant and Pounders decided to pack their gear and move to New Orleans. They were later arrested by the New Orleans Police Department on August 4, 1980. At this point the State rested. There were no motions made at the close of the case.

The defense’s evidence in this case centered on the defense and plea of insanity. The testimony of the defendant’s mother, a friend, and another relative all focused on the change of the defendant’s behavior after he returned from military duty in Vietnam in approximately 1970. Some details of the defendant’s unusual habits after Vietnam were discussed.

Dr. Lauren Gary, a general practitioner in Tuscumbia, Alabama, took the stand and testified that he had met with the defendant on two occasions and had administered tests. All this testimony was in support of the defendant’s plea of not guilty by reason of insanity.

The defendant took the stand in this case and denied any memory of what had taken place on the night in question. His testimony tended to focus on his mental problems after returning from Vietnam and his recent difficulty with drugs. He testified that he was heavily “into drugs” during the time of the murder. He stated that he could not remember any of the details of going to the Morrises’ trailer. He could only remember events just prior to and just after the trip to the trailer.

Appellant contends that the trial court erred in failing to sustain his objections to improper prosecutorial remarks made during the course of his trial. In light of the plain error rule, Rule 45A, ARAP, whether error in the trial proceedings is properly preserved for review is merely academic. Rule 45A reads as follows:

“In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.” (Emphasis added.)

At trial, during the cross-examination of appellant by the District Attorney, the following occurred:

“Q. Well, you drew one of them the day before or two days before you did the killing, didn’t you?
“A. Those were back payments.
“MR. ROSSER (Defense Counsel): Judge, I will ask you to instruct Mr. District Attorney — this is the fifth time he has said, when you killed these people thus and so. That’s improper question and he well knows it.
“MR. PATTON (District Attorney): There’s nothing improper about it, he did kill them.
“BY THE COURT: Approach the bench, both of you.
“MR. ROSSER: He can’t stay there and say that either — he did kill them — and I object and ask for a mistrial.
“BY THE COURT: Overrule your objection. Approach the bench. (At this time the attorneys approached the bench.)”

Even though there is an abundance of evidence supporting the fact that appellant did kill the two victims, appellant never admitted to said allegations. Appellant only testified that he remembered nothing as to what happened the night of the killing while he was at the victims’ trailer. Where the evidence affords a reasonable inference adverse to the innocence of the accused, a jury question is presented. Suggs v. State, 403 So.2d 309 (Ala.Cr.App.), cert. denied Ex parte Suggs, 403 So.2d 313 (Ala.1981). Truthfulness of testimony is for the triers of fact. Bozeman v. State, 401 So.2d 167 (Ala.Cr.App.), cert. denied Ex parte Bozeman, 401 So.2d 171 (Ala.1981). Furthermore, the law is clear that a prosecutor should never express his personal opinion as to the guilt of the accused as such expression invades the province of the jury. Mainor v. State, 339 So.2d 147, 150 (Ala.Cr.App.1976).

The emphatic remarks by the District Attorney in the presence of the jury that appellant did kill the two victims was improper comment which resulted in prejudicial error when the trial court failed to sustain defense counsel's objection and immediately admonish the jury to disregard said comments. When defense counsel either objects to improper comment or moves to have the remark excluded, it becomes the duty of the trial judge not only to sustain the motion or objection, but to also exercise a reasonable degree of effort to eradicate its effect from the minds of the jury. Collins v. State, 385 So.2d 993 (Ala.Cr.App.1979), reversed Ex parte Collins, 385 So.2d 1005 (Ala.1980).

We would further point out that, while a trial is not a parlor social affair, Arant v. State, 232 Ala. 275, 167 So. 540 (1936), side-bar remarks have no place in the trial of any case, especially where a man’s life hangs in the balance, and should be studiously avoided by all parties. Edgeworth v. State, 54 Ala.App. 93, 304 So.2d 911 (1974). Considering other remarks made at trial, we do not find these remarks, standing alone, would require a reversal in this case, due to the fact that the trial court is in a better position to determine what effect, if any, certain occurrences may have had upon the jury’s ability to decide appellant’s fate fairly and justly. Washington v. State, 57 Ala.App. 465, 329 So.2d 155, 158 (1976). The prosecution is under a duty to prosecute with earnestness and vigor — to strike hard blows, but not foul ones. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).

At the close of all the evidence, the trial court in its oral charge instructed the jury on murder, under Ala.Code § 13A-6-2(a)(l) (Supp.1977), as being a lesser included offense of Ala.Code § 13A-5-31(a)(10) (Supp.1977), but evidently did not find that the evidence merited an instruction on manslaughter. Thus, the jury could either have found appellant guilty of the capital offense under Ala.Code 13A-5-31(a)(10) (Supp.1977), or of murder under Ala.Code § 13A-6-2(a)(l) (Supp.1977), or the jury could have returned a not guilty verdict. Manslaughter, a crime not requiring a specific intent to kill, was not given to the jury as an alternative.

Evidence was presented at trial showing that around the time of the murders appellant “appeared to be high,” and was “messed up,” “pretty looped,” and “kind of high.” There was evidence that he had been drinking beer, smoking pot, and taking Placidyl and “one or two Quaaludes.” Appellant testified in his own behalf that he had been “into drugs pretty heavy” for several days preceding the killings and that he had absolutely no recollection about anything that might have happened at the victims’ trailer. He denied remembering anything about the killings.

Based on the foregoing circumstances, appellant contends that the trial court committed reversible error in refusing to charge the jury on the lesser included offense of manslaughter.

Appellant’s basic argument in support of his contention that a manslaughter instruction should have been given is that he was so intoxicated at the time of the commission of the offense that a jury question was presented as to whether he was capable of forming the specific intent necessary for conviction under Ala.Code § 13A-5-31(a)(10) (Supp.1977) or § 13A-6-2(a)(l) (Supp.1977). The only portion of the trial court’s oral charge which deals with intoxication reads as follows:

“Intoxication, other than involuntary intoxication, is not a defense to a criminal charge, but may be considered by the jury if relevant on the question of whether the fact of intoxication negates an element of the offense charged, such as intent, but not the element of recklessness.”

As can be seen, this charge is completely silent on what course the jury should pursue if they were to find that appellant was intoxicated to such degree he was incapable of forming the specific intent necessary for the commission of the capital offense of murder.

Relying on that line of authority which holds that drunkenness may reduce murder to manslaughter where there is evidence of drunkenness to such degree that the accused is incapable of rational action and, hence, incapable of forming a specific intent essential to the higher offense, appellant contends that the trial court should have coupled its charge on the effects of intoxication with a charge on manslaughter. There has been uniform acceptance of the following statement as to effects of voluntary intoxication:

“Voluntary drunkenness neither excuses or palliates crime. But in murder cases evidence of drunkenness of such degree that the accused is incapable of rational action and hence incapable of forming a specific intent essential to a malicious killing may reduce the killing to manslaughter, or may negate the premeditation and deliberation essential to murder in the first degree, or reduce the crime to murder in the second degree.” (Emphasis added.) Ray v. State, 257 Ala. 418, 59 So.2d 582, 584 (1952); Helms v. State, 254 Ala. 14, 47 So.2d 276, 281 (1950); Ivory v. State, 237 Ala. 344, 186 So. 460 (1939); King v. State, 90 Ala. 612, 616, 8 So. 856 (1891); Stockard v. State, 391 So.2d 1049 (Ala.Cr.App.1979), rev'd on other grounds, 391 So.2d 1060 (Ala.1980)

It is true that the degree of intoxication necessary to negate specific intent and, thus, reduce the grade of an offense must amount to “insanity.” Maddox v. State, 31 Ala.App. 332, 334, 17 So.2d 283, 285 (1944). Mere drunkenness, voluntarily produced, is never a defense against a criminal charge, and can never palliate or reduce the grade of an offense, unless it is so extreme as to render impossible some mental condition which' is an essential element of the criminal act. Gautney v. State, 284 Ala. 82, 222 So.2d 175 (1969); Walker v. State, 91 Ala. 76, 9 So. 87 (1891). Partial intoxication will not avail to disprove the specific intent; the intoxication must be of such character and extent as to render the accused incapable of discriminating between right and wrong — stupefaction of the reasoning faculty. Green v. State, 342 So.2d 419 (Ala.Cr.App.1977).

However, it is equally clear that the degree of intoxication exhibited by an accused, such as to reduce murder to manslaughter, even where the evidence is in sharp conflict, is for the jury to decide. Helms, supra; Chatham v. State, 92 Ala. 47, 9 So. 607 (1891); Maddox, supra. In Chatham, supra, a larceny ease where there was some testimony that the accused was drunk at the time of the commission of the offense, and in which the accused testified “he did not remember anything which occurred,” the Supreme Court wrote the following:

“When the offense consists of an act committed with a particular intent,— when a specific intent is of the essence of the crime, — drunkenness, as affecting the mental state and condition of the accused, becomes a proper subject to be considered by the jury in deciding the question of intent.... ‘Although drunkenness, in point of law, constitutes no excuse or justification for crime, still, when the nature and essence of a crime is made by law to depend upon the peculiar state and condition of the criminal’s mind at the time, and with reference to the act done, drunkenness, as a matter of fact, affecting such state and condition of the mind, is a proper subject for consideration and inquiry by the jury. The question in such cases is, what is the mental status?’ The decided weight of authority sustains the doctrine that evidence of the condition of the accused, though caused by voluntary drunkenness, is receivable, and may be considered by the jury in determining the question of intent. (Citations omitted.) Charges as to this doctrine should, when necessary, be accompanied by such explanatory instructions as will prevent its misapplication by juries_ There being some testimony tending to show that defendant was drunk, he had a right to have the jury pass upon its credibility and sufficiency to prove that he was so drunk as to be incapable of forming the specific intent to steal _” (Emphasis added.) 9 So., at 607, 608.

The standard to be applied in this state is that in a capital case the jury must be instructed on each lesser-included offense which has “any basis in the evidence.” Beck v. State, 396 So.2d 645 at 658 (Ala.1980); Ex parte Kyzer, 399 So.2d 330 (Ala.1981). A lesser-included offense instruction should be given if “there is any reasonable theory from the evidence which would support the position.” Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982); Chavers v. State, 361 So.2d 1106 (1978); Fulghum v. State, 291 Ala. 71, 75, 277 So.2d 886, 890 (1973). Our decisions are to the effect that “Every prisoner at the bar is entitled to have charges given, which, without being misleading, correctly stated the law of his case, and are supported by any evidence, however weak, insufficient, or doubtful in credibility." (Emphasis added.) Gibson v. State, 89 Ala. 121, 8 So. 98 (1889). See also Burns v. State, 229 Ala. 68, 155 So. 561 (1934).

No matter how strongly the facts may suggest that appellant was not so intoxicated at the time he committed the offense that he was incapable of forming the necessary specific intent, the jury should have been instructed on manslaughter as a lesser included offense since there was a “reasonable theory from the evidence which would support the position.”

During cross-examination of State witnesses Cynthia Vaden and Karen Foster, appellant requested certain written statements these two witnesses had given to the prosecution concerning their respective knowledge about the case. Both of these witnesses saw appellant and Pounders at Mickey Dison’s room at the Alabama Motel in Sheffield shortly before 4:00 on the morning of the killings, and Ms. Vaden, in particular, heard appellant confess to the crime on that occasion.

Ms. Vaden and Ms. Foster both admitted that they had given written statements to the police about the case. Ms. Vaden, on cross-examination, testified that her present testimony was “word for word” the same as her prior written statement. Ms. Foster, on the other hand, testified that she could not remember if her prior written statement contained anything in addition to her present testimony. “Well, there is a lot of things that I’m not sure about, but it's mostly the same.” Appellant made it clear at the time he made the request that he wanted the statements to compare them with each witness’s present testimony, to see if the present testimony “is any different.” The trial court denied appellant’s request to see the prior statements on the basis the statements were the “work product of the prosecution.”

The Supreme Court of this State, in Ex parte Pate, 415 So.2d 1140 (Ala.1981), reviewed the question “whether or when the defendant in a criminal case is entitled to inspection of a statement of a prosecution witness for the purpose of cross-examination or impeaching the witness.” This case held the following:

“[W]here a prosecution witness had testified on direct examination in the trial of the case, ... defendant, upon laying a proper predicate, is entitled to have the Court, at least, conduct an in camera inspection as outlined in Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). The trial court could determine initially (1) whether the statement made by the witness before the trial differed in any respect from statements made to the jury during trial, and (2) whether the statement requested was of such nature that without it the defendant’s trial would be fundamentally unfair.”

We believe that a proper predicate was established by appellant in this case for the trial court to have conducted an in camera inspection of the witnesses’ prior written statements in the manner set out above.

Appellant’s wife, Pamela Crosslin, when called as a State witness, asserted her spousal privilege not to testify against her husband and did not testify against him at trial. Undaunted by the exercise of this privilege, the State then proceeded to introduce a transcript of Mrs. Crosslin’s former testimony at appellant’s preliminary hearing. The transcript was admitted over objection and subsequently was read into evidence. Appellant contends this was error. Appellant maintains that the transcript of his wife’s former testimony exposed certain confidential communications he had with her which were his privilege to not have revealed, despite any rules otherwise allowing for the admission of her former testimony.

Clearly, appellant’s wife was entitled to assert her privilege not to testify at appellant’s trial. Arnold v. State, 353 So.2d 524 (Ala.1977). “The husband and wife may testify either for or against each other in criminal cases, but shall not be compelled so to do." (Emphasis added.) Ala.Code § 12-21-227 (1975). And, where a witness avails himself or herself of a privilege not to testify, that witness’s testimony in a former proceeding may be admissible in a subsequent proceeding where the former testimony was given under oath, the issues in the subsequent proceeding are substantially the same as in the former proceeding, and the party against whom the former testimony is offered was given an opportunity to cross-examine the witness during the former proceeding. C. Gamble, McElroy’s Alabama Evidence §§ 245.07(5), (6), (8) and (10) (3rd ed. 1977); Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837, cert. denied, 254 Ala. 74, 46 So.2d 847 (1950).

Mrs. Crosslin’s testimony at appellant’s preliminary hearing met all of the above requirements. Thus, it can be seen that the pure assertion of one’s privilege not to testify against his or her spouse is not sufficient, in and of itself, to prevent former testimony from being introduced against one’s spouse at a subsequent proceeding.

Be that as it may, the statutory rule discussed above in no way alters or diminishes the common law privilege which protects the communicating spouse from having confidential communications disclosed. Arnold, supra; McCoy v. State, 221 Ala. 466, 129 So. 21 (1930). “The privilege for confidential communications ... belongs to the communicating spouse, and he or she may prevent the other spouse from testifying to any conversation or action performed in the privacy of the marriage.” Arnold, 353 So. at 526; Cooper v. Mann, 273 Ala. 620, 143 So.2d 637 (1962).

Appellant cites four statements from the transcript of Mrs. Crosslin’s testimony at appellant’s preliminary hearing which he claims were wrongfully disclosed at trial. Appellant claims that said statements were intended as confidential communications by him to his wife, and hence, were privileged.

However, upon review of the supplemented record, we find that even if said communications were privileged, no reversible error resulted in the introduction of said testimony due to the fact that appellant testified himself to these very statements later in the trial. As stated in Lewis v. State, ex rel. Evans, 387 So.2d 795 (Ala.1980), a defendant cannot complain of the admission of improper evidence when he himself has testified to the same facts. Wyrick v. State, 409 So.2d 969 (Ala.Cr.App.1981); Ala.Dig.Crim.Law § 1169(2).

As much as we regret the result of this case on appeal, the worst wretch that walks the earth is entitled to a fair trial. Watts v. State, 282 Ala. 245, 210 So.2d 805 (1968); Commander v. State, 374 So.2d 910 (Ala.Cr.App.1978); writ quashed, 374 So.2d 921 (Ala.1979). Because of the errors committed in the trial court, appellant has been denied a fair trial. Of necessity, therefore, the judgment of conviction must be reversed and the cause remanded.

Application for Rehearing Overruled.

REVERSED AND REMANDED.

BOWEN, P.J., and TYSON, J., concur in the result only.

HUBERT TAYLOR, J., dissents with opinion which SAM W. TAYLOR, J., joins.

HUBERT TAYLOR, Judge,

dissenting.

The remarks of the prosecutor were within the scope of the evidence presented, i.e., a senseless, cold blooded murder.

. No evidence was presented that would justify a charge on manslaughter. The facts show human nature in its darkest form. There can be only one result to this type conduct — the one reached by the jury and trial court.

      . Since the crime in this case occurred in 1980, the trial court properly considered only those crimes found in the new criminal code, which were in effect then, as lesser included offenses to the capital crime sub judice, and correctly did not charge the jury on first and second degree murder as lesser included offenses.


source: Caselaw Access Project

author: BOWEN, Presiding Judge.

license: Public Domain

text:
    Charles McCORKLE v. STATE.
    1 Div. 546.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.
    Certiorari Denied March 2, 1984 Alabama Supreme Court 83-423.

      Gregory S. Combs, Spanish Port, for appellant.
    Charles A. Graddick, Atty. Gen., and Peggy Schmitz, Asst. Atty.. Gen., for appel-lee.
   BOWEN, Presiding Judge.

While incarcerated in the Baldwin County Jail, Charles McCorkle, the appellant, cut his wrist with a razor blade in what he contends was an attempt to commit suicide. He was convicted of violating Section 13A-14-1, Code of Alabama (1975), entitled “Maiming one’s self to escape duty or obtain alms.” He was sentenced as an habitual offender to fifteen years’ imprisonment. Section 13A-14-1 provides:

“Every person who, with design to disable himself from performing a legal duty, existing or anticipated, shall inflict upon himself an injury whereby he is so disabled and every person who shall so injure himself with intent to avail himself of such injury to excite sympathy or to obtain alms or some charitable relief shall be guilty of a felony.”

McCorkle contends that this statute is unconstitutionally vague and indefinite.

“As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, — U.S. -, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (citations omitted). A statute challenged for vagueness must therefore be scrutinized to determine whether it provides both fair notice to the public that certain conduct is proscribed and minimal guidelines to aid officials in the enforcement of that proscription. See Kolender, supra; Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). If the statute “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application”, it is void for vagueness. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).

Section 13A-14-1 prohibits the self-infliction of injuries with either the design to avoid the performance of a legal duty or the intent to excite sympathy or obtain alms or charitable relief. The injury contemplated by the statute appears to be an injury which disables .one from performing a legal duty. No guidance, however, is offered as to what is encompassed by the term “legal duty”.

“Where a statute does not define a term, a court must ... give words their common and ordinary meaning, absent some established technical definition, unless the legislature intended otherwise.” High Ol’ Times, Inc. v. Busbee, 673 F.2d 1225, 1229 (11th Cir.1982). The term “legal duty” has several established meanings. It may refer strictly to those duties imposed by statute, such as filing income tax returns, Section 40-18-27, Code of Alabama (1975), or giving information and rendering aid in the event of an automobile accident, Section 32-10-2, Code, supra. It may also refer to the duties voluntarily assumed by entering into a contract. In negligence law, “legal duty” generally refers to a duty to exercise due care to prevent injury to another. See 65 C.J.S. Negligence Section 4(1) (1966). In that context, the duty may vary from case to case depending on the circumstances involved, C.J.S., supra, Section 4(2), and the social conditions of the moment, see W. Prosser, The Law of Torts, Section 53 (4th ed. 1971).

These are the usual definitions attributed to “legal duty”. See Black’s Law Dictionary 804 (5th ed. 1979). They are not, however, exhaustive. For instance, if there is a legal duty to live, it is not imposed by statute, contract, or negligence law.

We are constrained to agree with McCorkle that Section 13A-14-1 is unconstitutionally vague and indefinite. The statute prohibits self-inflicted injuries which would disable one from performing a legal duty, yet fails to define “legal duty”. Without some indication of what legal duties are contemplated, there is no way to determine whether an injury comes within the purview of the statute. Clearly, the statute fails to adequately apprise the public of what conduct is prohibited. Even more importantly, the statute fails to provide the required minimal guidelines for enforcement and would allow arbitrary and discriminatory prosecution based on the police officers’, prosecutors’ and juries’ perception of “legal duty”. See Kolender, 103 S.Ct. at 1858-59.

■ The judgment of the circuit court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.

      . The current criminal code does not contain a provision prohibiting suicide.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Stephen Franklin YANCEY v. STATE.
    4 Div. 175.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.
    Certiorari Denied March 2, 1984 Alabama Supreme Court 83-435.

      Larry R. Grissett of Prestwood, Prest-wood & Grissett, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and Russell C. Stoddard, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence for the possession of marijuana. A jury had found defendant guilty, and the trial court fixed his punishment at imprisonment for six years. On the sentence hearing, it was shown that he had been previously convicted of possession of marijuana for his personal use only.

Although appellant does not question the sufficiency of the evidence to support the verdict, we think a brief resume of the evidence is appropriate for a better understanding of the five issues presented by appellant.

According to the testimony of Officer Bill Shaw, chief deputy sheriff of Coving-ton County at the time of his testimony, he was on routine patrol duty as an investigator with the Opp Police Department on June 17, 1982, on a dirt road near Highway 331 and was accompanied by an Alabama state trooper when they observed an automobile parked on the side of the road that was occupied by a woman driver, whom Officer Shaw knew, and a small child. He was told by the woman that her husband, whom Officer Shaw also knew, was out in the woods. Soon thereafter, the woman’s husband and another man came out of the woods. Soon thereafter, a red and white van” came on the scene, which Officer Shaw flagged down. He testified:

“Q. After you got up to the van there, what did you do next?
“A. I observed the occupants and contents in the vehicle.
“Q. And, what did you observe in the vehicle besides the occupants?
“A. At that time, in my opinion, it was a stack of marijuana, cannabis plants, in the rear.
“Q. And, who were the occupants of that vehicle?
“A. Paul Joseph Finedore and Stephen Franklin Yancey.”

The defendant took the stand and set forth clearly in his testimony that he did not place the marijuana plants in the van he was riding in when stopped by Officer Bill Shaw. He testified that the van belonged to him and that it was being driven at the time by Paul Finedore, whom the defendant had picked up in Opp, where defendant lived, earlier that day and the two had gone to the river where they had previously set out some lines with baited hooks thereon to catch fish in the river, to which lines and hooks they returned to procure their catch a short while before they were stopped by Officer Shaw. The transcript does not seem to show the name of the river, but the writer believes that it was the Yellow River, which flows gently near the western edge of Opp on its way to the bay north of Pensacola and which, to the happy recollection of the writer as a youth, abounded with fish — catfish, bream and bass. Defendant said he did not ever see the marijuana plants in the van, which according to the undisputed evidence and according to a photograph of the marijuana plants in the van, could have been readily seen from the open back door of the van but that it could not be observed by anyone while the back door was closed except by persons sitting in one of the two bucket seats, including the driver’s seat, located in the front part of the body of the van. He further testified that while he was attending to his part of the fish hooks he observed a pickup truck come close to the van and heard "the door open and shut” but did not “go up there when” he “heard that noise.” When he and Finedore finished baiting the hooks, they went back to the van, Finedore got in the driver’s seat, the defendant got in the other seat without looking in the back of the van. He testified that one of his hands had been injured prior to June 17, 1982, that it was still in a cast or splint, which to some extent impaired his driving capacity.

I.

By the first issue presented in appellant’s brief, he asks the question: “Did the Trial Court err in allowing into evidence transcribed testimony from the trial of another Defendant?” The brief sets forth the ruling or rulings of the court on the point as shown by the following portion of the court reporter’s transcript:

“MR. LOGGINS [District Attorney]: Your Honor, at this time I would like for this witness to remain on the stand if he could to read Fred Burdick’s prior testimony — to assist me in reading Fred Bur-dick’s prior testimony — that was given in the Paul Finedore trial due to Officer Burdick’s unavailability.
“MR. PRESTWOOD: And, we object. It has not been properly predicated for such a substitution of a witness’ testimony- ,
“THE COURT: Overruled.
“MR. PRESTWOOD: And let me get my specific grounds in there. He is dealing strictly with hearsay. And, Your Honor can’t accept hearsay in a case like this. He hasn’t said that he is a physician or he has been down there to talk to him. He doesn’t have anything direct from the facts that he is talking about.
“THE COURT: Overruled. I am assuming, I do not know what you are offering, but I will limit it to the chain of custody of the material taken from the van.
“MR. LOGGINS: Yes, sir, it is only offered to prove the chain of custody.
“THE COURT: AH right.
“MR. PRESTWOOD: We add the further ground, Your Honor, that he could have taken the deposition of the witness. He knew when this case was set before Mr. Burdick went in the hospital.
“THE COURT: Overruled. You may proceed.”

From the court reporter’s transcript of the proceedings in the instant case as she testified from her transcript as court reporter in the other case, it is clear to us that Officer Burdick’s testimony was addressed solely to the question of showing an unbroken chain of custody of a portion of dried remnants of the marijuana plants found in defendant’s van from the time they were found until the portions thereof constituting State’s Exhibit B in the instant case were delivered to Mr. Joe Saloom, a crime laboratory analyst of the Alabama Department of Forensic Sciences, Enterprise Division, who testified on call of the State in the instant case in part as follows:

“I found that the green dried plant material was marijuana. It’s weight in grams was 1001.9, which translated to ounces is 33.35 or in pounds, 2.21.”

We are not in entire accord with appellee’s response to the first issue presented by appellant, to the effect that the testimony of Officer Burdick in the former trial, particularly as to whether the testimony introduced in the instant case met the requirements as to identity of or relationship between the parties in both cases, as comprehensively covered in Gamble, McElroy’s Alabama Evidence, § 245.-07, cited by appellee. However, we do agree with the following concluding sen-tenee of appellee’s argument on the point: “Furthermore, any error claimed by appellant should be considered harmless since the testimony in question was only offered to establish the chain of custody even dismissing the statements of the absent witness.” The testimony of Officer Burdick on the trial of Finedore was of little, if any significance, as to the issue of defendant’s guilt or innocence of knowledgeable possession of marijuana. There is no contention on appeal that there was not sufficient evidence to support the verdict or that the former testimony of Officer Burdick received in evidence in the instant case had any influence whatever on the jury in its determination that defendant was guilty.

II.

The second issue presented by appellant is related to appellant’s first issue. By Issue Two appellant challenges the admission into evidence of State’s Exhibit B, a portion of remnants of the marijuana plants found in the van of defendant, which was subjected to chemical analysis by chemical analyst Joe Saloom. Appellant relies upon the quoted testimony of Police Chief Jerry Brannon, who said upon direct examination that the material did not seem to be altered, but on recross-examination on the point said, “No, sir,” in reply to the question, “But, you don’t know that do you, Chief?” It-should be stated that counsel for appellant also states that the witness, Ray Bozeman, Circuit Clerk, also testified on cross-examination as follows:

“Q. Could you say with complete confidence and accuracy that it is in the same condition there, the same way it was the first time it was brought in your office?
“A. It is not the same because extra tape has been added to it.”

In our opinion, the trial court was not in error in its ruling that State’s Exhibit B could be received in evidence. In this connection, however, we note that oft-times there is presented on appeal the issue as to whether, in prosecutions under the Alabama Controlled Substances Act, exhibits containing some of the substance that is alleged to have been possessed or sold by defendant should be admitted in evidence, but seldom, if ever, has there been an occasion in which the actual introduction thereof into evidence served any useful purpose. Almost invariably it is not introduced for the purpose of minute examination by the trier of facts, who generally would not be qualified to say whether or not it was the prohibited substance charged, and there has been little, if any, occasion on the part of an appellate court to examine or have such exhibit examined to determine its chemical analysis. We can assume, we think, that the actual contents of State’s Exhibit B had no influence on the jury, and are hopeful that in the future unnecessary controversies on issues similar to appellant’s Issue Two in the instant case can be avoided.

III.

Appellant insists that the trial court erred in sustaining the State’s objection to the offer into evidence by the defendant of “the indictment and verdict in the case against Paul Finedore” where Finedore had been arrested with the Defendant and the prosecution had already introduced the transcribed testimony from Finedore’s trial. In concluding his argument on the point, appellant’s counsel states: “The Trial Court held the Defense to one standard regarding the Finedore trial and the State to another.” Although, as indicated above, there was little, if anything, to be gained by the State in its introduction into evidence of the testimony of a witness for the State in the Finedore trial, we do not agree with appellant’s conclusion in his brief that the indictment and verdict of the jury in the Finedore case should have been admitted in evidence in the instant case, as “The obvious point to be made [was] that the prohibited substance belonged to Fine-dore.” It is true that in many criminal cases the conviction of one defendant for a particular crime is inconsistent with the conviction of another defendant for the same crime. On the other hand, in many criminal cases it is made clear that two or more defendants are guilty of the same crime. There was never any contention in the instant case by the State that defendant was the sole possessor of the marijuana found in his van. The trial court was correct in sustaining the State’s objection to the defendant’s offer to prove the indictment and verdict in the Finedore case.

IV.

During the cross-examination of Mr. Joe Saloom, who testified as an expert that State’s Exhibit B contained marijuana, he testified:

“Q. Do you know anything about soil samples?
“A. I know a few things about it.
“Q. Well, let’s assume that a marijuana plant was pulled from Conecuh County and one was pulled from Covington County and one was pulled from Alaska. Do you have enough knowledge of soil types to say whether you could trace substantially what kind of soil it came from?
“A. I don’t have that knowledge.”

Mr. Saloom further testified that there was an analyst, whom he named, that worked under Mr. Saloom at the laboratory at Enterprise that analyzed soil samples. Mr. Saloom testified:

“Q. Based on what you know of his performance of his duties under your direction and supervision, could he have taken a soil sample from either one of these plants and reached some conclusion as to what kind of soil it was and where it might have come from?
“A. As far as I know he could determine what the components of the soil were.”

Mr. Saloom further testified that no one connected with the District Attorney’s office or “the Police Department at Opp,” had ever asked Mr. Saloom “to have" the named analyst who could determine what the components of the soil were “to do a soil test on the soil that was attached to the root systems of these particular plants [marijuana plants found in the van].” Appellant argues that the trial court erred in prohibiting the defense from making a closing argument relative to soil samples. The contention is apparently directed to the following, which occurred during the closing argument to the jury of one of the attorneys for the defendant, as shown by the following portion of the transcript:

“MR. PRESTWOOD: I was obviously disappointed in Mr. Saloom’s attitude about the soil samples. And he has got a man over there, paid by the taxpayers, to make soil tests. To identify soils. And in this case, if they had carried the full plants with the dirt on the roots and let that man make a soil test it might have helped in the investigation to know where the stuff came from.
“MR. LOGGINS: We object, to that argument about soils. It is mere speculation. There is evidence from the witness stand that they could determine where it came from.
“THE COURT: I will sustain it on the basis of this, that where it came from would be immaterial. I would sustai' the objection to the soil sample.
“MR. PRESTWOOD: We respectfully except and remind the Court that we went into detail with Mr. Saloom on the question of soil identification. Are you saying that I can’t argue about the soil identification?
“THE COURT: I am just saying that the argument as presently constituted I consider it objectionable and I sustain the objection. (After which Mr. Prestwood continued with his closing arguments to the jury in behalf of the Defendant).”

It may well be that the trial court held the reins too tight on defendant’s counsel in his attempted argument as to the failure of someone connected with the prosecution to have had soil tests made of the soil on the roots of the plants involved, but we are persuaded that no error prejudicial to defendant resulted from the trial court’s ruling on the point. It is not clear to us what defendant’s attorney thought would have been beneficial to defendant by a ruling from the court overruling, instead of sustaining, the State’s objection to the particular argument of defendant’s attorney as shown above. On the whole, we think that defendant and defendant’s attorneys made clear their position that regardless of where the marijuana plants were grown, whether near the banks of the Yellow River, or in Conecuh County beyond the Cone-cuh River, or even in Alaska, which was mentioned by defendant’s attorney, defendant did not knowingly possess any of such marijuana. A soil analysis would have shed no light on that question.

V.

After the trial court had completed its oral charge to the jury and just before the jury left the courtroom to commence deliberations, counsel for defendant stated: “We except to the Court’s refusal to tell the jury what the penalty would be in this case.” By the fifth issue presented by appellant, it is contended that the court “erred in failing to inform the jury of the range of punishment for the crime of possession.” In appellant’s brief, it is argued that “since there was evidence that the defendant had been previously convicted of a misdemeanor possession of marijuana ... the jury was left with the impression that the possession was only a misdemeanor offense.”

The premise just quoted in appellant’s argument is correct, but the quoted conclusion does not necessarily follow. The trial court was not in error in declining to inform the jury of the range of the statutorily prescribed punishment, the fixing of which was in the exclusive province of the trial judge.

The judgment of the trial court should be affirmed.

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.

AFFIRMED.

All the Judges concur.


text:
    Patricia Ann Thomas JACKSON v. STATE.
    6 Div. 160.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.
    Certiorari Denied March 2, 1984 Alabama Supreme Court 83-425.
    Joel L. Sogol, Tuscaloosa, for appellant.

      Charles A. Graddick, Atty. Gen., and Ed Carnes and Jennifer M. Mullins, Asst. At-tys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a denial after an evidentiary hearing of appellant’s petition for writ of error coram nobis filed November 3, 1982, seeking relief from the effect of a judgment of conviction and sentence for murder on November 9, 1966. The petitioner alleges, inter alia, that said “conviction was used to make a subsequent act a capital offense” and that she thereby “is currently on death row awaiting execution in Case No. CC-81-865, having been convicted of Murder by a Convicted Murderer.” It is understood by the writer of this opinion that an appeal in Case No. CC-81-865 is now pending in this Court, but he does not plan to examine the record, transcript or briefs in that case, believing it appropriate for him not to inject himself into the other case.

The gravamen of the coram nobis petition is that upon her conviction and sentence in 1966, she “was not advised of her right to appeal, nor her right to appellate counsel, by her appointed attorney or by the Court” and that she was “entitled to an out of time appeal or, if that is not possible, a new trial, because of the failure of her appointed counsel, and of the court to advise her of her appellate rights.”

At the hearing of the petition, the petitioner and her appointed attorney in the case in which she was convicted of murder in 1966 were the only witnesses. In denying the petition, the trial judge delivered his written “FINDINGS OF FACT & MEMORANDUM OF LAW,” by which we are convinced that the trial court was not in error in denying the petition. We quote therefrom as follows:

“UNCONTESTED AND/OR STIPULATED FACTS

“On the stipulation, testimony and exhibits admitted, there are several uncontested or stipulated facts which may be recited:

“1. Judge, W.C. Warren, [the judge presiding in the 1966 case] died on February 2, 1973.
“2. Mr. J.P. Carr, the official court reporter to Judge W.C. Warren, died on May 19, 1971.
“3. The State has been unable to find any shorthand notes, or transcript of such notes, or any record of any notes being transcribed. All known files and records were searched.
“4. Hon. Louis Lackey, now a retired circuit judge, would have testified if called that he was the district attorney who prosecuted the defendant in 1966, and that he has no present recollection of whether or not the defendant was advised of the right to appeal, or of a right to a transcript, or of a right to appellate counsel.

“THE DISPUTED FACTS & THE COURT’S FINDINGS

“The^factual dispute essentially surrounds the events of November 9, 1966. The Petitioner’s position is that she was tried by a jury on a charge of Murder in the First Degree, was found guilty of Murder in the Second Degree, and was sentenced to twelve (12) years. The State’s position is that the proceedings of November 9, 1966, did not constitute a trial, but a settlement.

“In 1966, Murder in the First Degree was a capital charge. Punishment was either death or life imprisonment at the discretion of the jury. Title 14, Section 319, Ala. Code (1958 Recomp.). Every charge of Murder in the First Degree included Murder in the Second Degree, and even upon a confession of guilt, the court had to proceed to establish the degree of the crime by a jury verdict after an examination of the evidence. The jury determined the sentence as well as the degree. Title 14, Section 317, Ala. Code (1958 Recomp.). It was not until 1969 that Alabama judges were permitted to accept pleas of guilty, determine the degree of the offense, and fix punishment in such cases without intervention of a jury. See Title 15, Section 277, Ala. Code (Sup.1973, as amended 1969). Even under the 1969 amendment, the court could not bind a jury already empanelled in a murder case. See, e.g., Waldrop v. State, 54 Ala.App. 163, 306 So.2d 29 (Ala.Cr.App.1974), cert. denied, 293 Ala. 777, 306 So.2d 33 (Ala.1975).

“The bench notes of the trial judge summarily state:

“ ‘Nov. 9 ’66 Jury and verdict guilty of Murder in 2nd degree as charged and the defendant’s punishment is fixed by the jury at impronment [sic] in state [prison] for twelve years — Defendant then by the Court adjudged guilty accordingly of Murder in the 2nd degree as charged in the indictment and the defendants [sic] punishment is fixed at imprisonment in the State penitentiary for a term of twelve years — Defendant then being in open Court and being asked by the Court if she had anything to say whether the sentence of law should not now be pronounced upon her and Defendant says nothing. Defendant is sentenced to imprisonment in the penitentiary of Alabama for twelve years as punishment for this offense in manner and form provided by law./s/ W.C. Warren, Judge Presiding.’

“Although the judgment entry seemingly indicates a trial, it also supports a conviction based upon the ‘mini-trial’ required at the time. The credible evidence eliminates the ambiguity. On November 9, 1966, the case against Patricia Ann Thomas was settled, with the defendant receiving a twelve year sentence for Murder in the Second Degree. A review of the evidence before the Court establishes this fact.

“Mr. Ward, the appointed counsel, testified that he reached an agreement with the State, and communicated the proposed sentence of twelve years to the defendant. He further testified that she agreed to accept the sentence, and that he would not have taken the settlement without her consent. [R.27, 33] He also stated that he explained to her on the day she came to court that a settlement would be entered. [R.39] He recommended the settlement to her, stating that he thought it was a good settlement. He further testified that the proceedings were upon an agreement between the District Attorney, the defense counsel, and the Judge. The petitioner testified that Mr. Ward had previously communicated an offer of life to her, and that she told him she did not want to spend the rest of her life in prison. Later, he informed her that he could settle the case for twelve years. She testified, ‘I told him, you know, ‘ “You’re my lawyer.” ’ If that’s what he thought, it was you know ...” [R.10, 18] She then described the events of November 9, 1966, as follows:

“ ‘All of us came in and they told us to stand up and we took — we raised up our right hand and took our little pledge, and they called a witness to the stand. She testified. Then they passed a yellow legal tablet to some people sitting up there. They read it. They passed it back to the Judge. They told me and my attorney to stand up and come forward. We came up to a little table and he asked the Judge to sentence me to twelve years in the women’s penitentiary and he asked each one of them, one by one, sitting over on that side would they go along with it, and they said yes. [R.ll]’

“Several notations also support the settlement finding. Mr. Ward testified that at the time he made a notation on the back of his file: ‘Agreed settlement, twelve years.’ [R.44] The official Consolidated Docket reflects the following fee entries by the Circuit Clerk: ‘Felony — P.G. (15.00) 12.00 12-00’ Thus, the clerk taxed the cost based on a plea of guilty.

“Therefore, based upon the evidence before the Court, and the fact that this Court finds the Petitioner’s testimony is not believable on some points, this court finds that the Petitioner and her attorney settled her case and that the proceeding on November 9, 1966, was simply the required ‘mini-trial’ to effectuate the agreement. See, e.g., Howard v. State, 280 Ala. 430, 194 So.2d 834 (1967), for a case with a similar judgment entry, and a like result.

“The settlement of November 9, 1966, was pre-Boykin, and therefore does not meet the procedures and record requirements of that case. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The Petitioner has made no claim that her settlement of November 9, 1966, constituted an illegal -pre-Boykin plea. She takes the position that she did not settle the case. Again, the credible evidence is that she knowingly and voluntarily entered into a settlement ‘mini-trial’ knowing that she would receive twelve years upon a conviction for the lesser-included offense of Murder in the Second Degree. Mr. Ward testified that Judge Warren:

“ ‘[Generally went through the formality of informing the Defendant what they ... of pleading guilty and so forth and so on and he had a regular procedure that he went through where he instructed the jury and ... [interrupted by defense counsel] [R.41]

“The focus of the hearing before this Court was on the issues previously mentioned. There was no direct attempt to invalidate the settlement on the grounds of an unknowing or involuntary settlement. Because this settlement was pre-Boykin the burden is on the Petitioner to show an invalid settlement, and she did not do so. See Bryant v. Elliott, 472 F.2d 572, 573 (5th Cir.1973). See also Hudson v. State, 45 Ala.App. 449, 231 So.2d 772 (Ala.Cr.App.1969), cert. denied, 285 Ala. 754, 231 So.2d 773 (1970) [Boykin not retroactive].

“The Petitioner says that neither the Court nor her appointed counsel advised her of her right to an in forma pauperis appeal. The Court finds that the Petitioner is not a credible witness on this point. Her demeanor and appearance on the stand, and her testimony as a whole, compels this Court to reject some of her testimony. Her testimony is in direct conflict with that of her attorney on several critical points. Mr. Ward’s testimony is credible; hers is not. In some instances, her answers are to specific questions which are themselves open to interpretation. For example, she did not testify that the settlement entered was over her objection or without her approval. She was asked if her attorney explained to her that he would be recommending to a jury that she be found guilty and sentenced to twelve years. She said no. [R.10] She was asked if she ‘wanted’ to plead guilty ‘to that.’ [RIO] She said no. Neither of these answers show an unknowing or involuntary plea. There is no requirement that an attorney explain the fact that the settlement would be presented to a jury. It is entirely understandable that she may not have wanted to plead guilty and accept a twelve year sentence, but she told Mr. Ward that he was her attorney and ‘if that’s what he thought

“The Court specifically rejects as not credible her testimony that neither the Judge nor her attorney informed her of her right to appeal, her right to a transcript, or her right to appellate counsel. [See, e.g., R.ll] She further testified that Mr. Ward informed her that Alabama did not have a defense of self-defense. [R.12] Again, her testimony on this point is not believable. Mr. Ward denied making such a statement, and his testimony is credible. [R.29, 33]

“On the question of whether she was informed of a right to in forma pauperis appeal, Mr. Ward testified:

“ ‘Well, let me say, I do not recall advising her to appeal from the agreed settlement, no sir. I would—to me, that would be the height of absurdity to appeal from an agreed settlement. [R.33-34]
“ ‘Q. Do you recall if the Judge advised her?
“ ‘A. Recall if the Judge—not in my presence.
“ ‘Q. Of her right to appeal?
“ ‘A. Not in my presence.
“ ‘Q. Not in your presence?
“‘A. No. [R.34]
“ ‘Q. Mr. Ward, you do not have an independent recollection as to whether Judge Warren told her she had a right to appeal or not, do you?
“ ‘A. No, sir, I don’t. I don’t have any
“ ‘Q. And there's no indication in your notes one way or the other whether he told her she had a right to appeal?
“ ‘A. No. I don’t have any ... I didn’t take down his ... what he told her.
“ ‘Q. Fine, sir.
“ ‘A. He generally went through the formality of informing the Defendant what they ... of pleading guilty and so forth and so on and he had a regular procedure that he went through where he instructed the jury and ... ’ [interrupted by defense counsel] [R.41]

“There has been no showing by credible evidence that Petitioner was not told by either Judge Warren or Mr. Ward that she had a right to in forma pauperis app'eal. She testified that she was not so informed. She also testified that Mr. Ward told her that there was no defense of self-defense in Alabama, which Mr. Ward denied. The Court found Mr. Ward’s testimony credible. She further testified that she did not know of her right to appeal until the day before the hearing on this petitioner. [R.12, 14] Yet it was later shown that she had filed an affidavit in this proceeding on December 22, 1982, which she had signed under oath on December 17, 1982, in which she stated:

“ ‘We had a trial on November 9, 1966, wherein I was found guilty of Murder Second Degree and sentenced to twelve (12) years imprisonment. At no time was I advised by Mr. Ward or by the Court that I had a right to an appeal or a right to a transcript or a right to an attorney to represent me on an appeal.’

“Further, she later was asked if she talked with her attorney at the capital trial about her right to appeal the first case. She answered, T think so. I would say we did.’ [R.15] And although she ‘remembers’ virtually everything she avers in support of her petition, she could not remember pleading guilty to a charge of Leaving the Scene of an Accident before Judge Baird on December 9, 1980, in Case No. CC-80-589. She indicated that she did not plead guilty, although the records of this Court show she did, and she remembers the sentence imposed. [See R.22]

“Therefore, the Court finds the Petitioner failed to produce clear and convincing evidence [and in fact failed to reasonably satisfy this Court] that she was not informed of her right to in forma pauperis appeal.

“Petitioner also avers that her appointed counsel failed to properly advise her, thus raising the issue of incompetency of counsel. A short review of Mr. Ward’s actions, as found from the credible evidence, shows that after being appointed to represent the Petitioner, Mr. Ward participated in an arraignment; he interviewed his client; he interviewed possible witnesses; he prepared a pretrial motion, although it was not filed due to the settlement; he and his client waived a special venire and in return the State waived capital punishment; he negotiated a settlement with the State and informed his client of his actions. There is nothing in the evidence which leads this Court to think that Mr. Ward’s pretrial preparation was inadequate. Once a settlement had been reached and the Petitioner, in effect, had told Mr. Ward to do what he thought was best, he settled the case for what he thought was a good settlement. Mr. Ward did testify that he had no present recollection on the question of appeal, and said that he did not recall advising her to appeal from the settlement. He further stated that he thought that an appeal from an agreed settlement would be the ‘height of absurdity.’ [R. 33-34]. Aside from the obvious ‘absurdity’ of settling a case, then entering an appeal in Mr. Ward’s opinion, there would have been a very real reason to advise a client not to appeal such a settlement. The Petitioner had been indicted for Murder in the First Degree, a capital charge. The settlement was for twelve years on a conviction for Murder in the Second Degree. The jury fixed the punishment and the degree. In Clark v. State, 48 Ala.App. 108, 262 So.2d 310 (Ala.Cr.App.), cert. denied, 288 Ala. 736, 262 So.2d 312 (1972), the defendant entered a plea of guilty to Murder in the Second Degree after being indicted for Murder in the First Degree. He was sentenced to life imprisonment. Later, he gave notice of appeal, and he received an in forma pauperis appeal, with a free transcript and appointed counsel. The conviction was reversed for failure to fully comply with Boykin. After the reversal, the case was tried on the original charge of Murder in the First Degree, and the defendant was convicted as charged and sentenced to life imprisonment by the jury. On appeal, the Alabama Supreme Court held that the conviction on the original charge was not barred by the reversed conviction on the lesser charge after the void plea. Clark v. State, 294 Ala. 485, 318 So.2d 805 (1974), cert. denied, 423 U.S. 937, 96 S.Ct. 298, 46 L.Ed.2d 270 (1976). Thus, had there been an appeal which resulted in a reversal of the settlement, the Petitioner could have been tried on the original charge of Murder in the First Degree. She would have faced a penitentiary term of life upon conviction for that offense, assuming of course that the State did not or could not seek the death penalty at the trial. If she was convicted of Murder in the Second Degree, she would have faced a sentence of any number of years more than ten, including the possibility of a life sentence. Another example: Sammie Beckley was convicted in this Circuit before Hon. Aubrey Dominick [now retired] of Burglary in the First Degree and Rape. The jury imposed sentences of thirty years for the Burglary and fifteen years and one day for the Rape. The cases were reversed on appeal. Beckley v. State, 342 So.2d 1330 (Ala.Cr.App.), cert. denied, 342 So.2d 1331 (Ala.1976). The defendant was subsequently retried, and for the Rape the jury sentenced him to one hundred fifty years imprisonment as opposed to the original fifteen years and one day. The conviction was affirmed on appeal. Beckley v. State, 353 So.2d 542 (Ala.Cr.App.1977). Likewise, he was retried for the Burglary, and upon conviction the jury sentenced him to life imprisonment as opposed to the original thirty years. Beckley v. State, 357 So.2d 1022 (Ala.Cr.App.1978). Sometimes there are very real reasons for an attorney not to advise a client to appeal.

“This Court has been cited to some cases on competency of counsel. The Court finds these cases are distinguishable on their facts. For example, in Hudson v. Alabama, 493 F.2d 171 (5th Cir.1974), the Fifth Circuit reversed the denial of Federal habeas corpus by the District Court, finding that the defendant had protested the settlement of his case by his attorney and insisted on abiding by his plea of not guilty. Yet counsel proceeded to settle the case without any evidence being presented to the jury. The Court found:

“ ‘[B]latant disregard by Hudson’s attorney for the rights and wishes of his client. Under the standards of this circuit, Hudson was entitled to counsel reasonably likely to render and rendering reasonably effective assistance.... Hudson’s counsel hardly rendered reasonably effective assistance when he informed the jury of the agreement for conviction and sentence which he had made with the State Solicitor, over the defendant’s protestation, and when he allowed a conviction without any presentation of evidence.’

493 F.2d, at 173. There were no protestations by Petitioner or blatant disregard of her wishes in this case. The duty of the attorney under Alabama law was to prevent the trial from being or appearing to be a farce or mockery of justice. Gore v. State, 45 Ala.App. 146, 227 So.2d 432 (Ala.Cr.App.), cert. denied, 284 Ala. 729, 227 So.2d 435 (1969), cert. denied, 397 U.S. 966, 90 S.Ct. 1002, 25 L.Ed.2d 258 (1970). The standard imposed by the Fifth Circuit is ‘not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.’ MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir.1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961) [emphasis in original]. There is nothing under the facts of this case to lead this Court to believe that Mr. Ward’s representation constituted ineffective assistance of counsel. He was able to settle a capital case on the basis of a twelve year sentence on a lesser-included offense. His actions were in his judgment in his client's best interests, and even judged by hindsight, this Court cannot say that his decisions were ineffective or his representation incompetent.”

We think that nothing else needs to be stated to support our opinion that the judgment of the trial court should be affirmed.

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.

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Chris Allen MONTGOMERY, Michael Sanderson, Albert William Pugh v. STATE.
    6 Div. 211.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.
    Certiorari Denied March 2, 1984 Alabama Supreme Court 83-440.

      Nobie Hudson, Cullman, for Chris A. Montgomery.
    Pamela E. Nail, Cullman, for Michael Sanderson.
    Eddie Lee Lewis, Cullman, for Albert W. Pugh.
    Charles A. Graddick, Atty. Gen., and R. David Christy, Asst. Atty. Gen., for appel-lee.
   HARRIS, Judge.

On April 1, 1983, the Cullman County Grand Jury twice indicted Chris Allen Montgomery, Michael Sanderson and Albert William Pugh for the offense of robbery first degree. The charges were based on a single transaction and consisted of one indictment alleging the robbery of Donald Steele and one indictment alleging the robbery of Truman Waters.

The District Attorney moved to consolidate all indictments and all defendants for purposes of trial, and defendant Pugh moved to sever his case from those of Montgomery and Sanderson. The State’s motion to consolidate was granted by the court, and Pugh’s motion to sever was denied.

On May 10, 1983, the jury returned verdicts of guilty of robbery in the first degree, as charged in the indictment, for each of the three defendants. Each was adjudged guilty and each received a sentence, pursuant to the Habitual Felony Offender Statute, of life without parole on both convictions. Each defendant appeals from his sentencing and the cases remain consolidated for purposes of this appeal.

On February 10, 1983, Truman Waters was conversing with Donald Steele at Steele’s Grocery Store in the Jones Chapel Community in Cullman County, Alabama, when at about 2:50 p.m., three men entered the store. The men, positively identified at trial as the defendants, Montgomery, Sand-erson and Pugh, each held out a pistol and announced, “This is a stick-up.” Montgomery held a large, western-style revolver, Sanderson a smaller revolver and Pugh an automatic pistol.

While Montgomery held his gun on the victims, Sanderson removed a total of thirteen firearms, including rifles, shotguns and pistols from the wall behind the cash register and from a floor rack. Pugh took $580.00 from Steele’s wallet, and one of the three men took $271.00 from Waters’ billfold and cleaned out the cash register, taking currency, change and checks.

Before the robbers left they bound Steele and Waters with gray duct tape, leaving them on the floor. Steele, however, managed to get to his feet in time to observe a red Ford pickup truck leaving the store’s parking area. He was also able to hobble to the telephone and call the sheriff’s office, reporting the robbery and giving the officer a description of the vehicle and the direction in which it was headed.

Within minutes after Steele’s call Deputy Hobson spotted the truck and gave chase. Eventually, several police cars converged on the truck forcing it into a driveway. When thus cornered, Pugh jumped from the driver’s side of the truck and ran, firing on the police officers as he fled.

Three of the officers pursued Pugh, and, after an exchange of gunfire, apprehended him. A subsequent search of Pugh’s clothing yielded $769.00 in currency, three checks made payable to Steele’s Grocery, and gray duct tape.

During the chase and capture of Pugh, Sanderson and Montgomery were quietly taken from the truck into the custody of the police officers. Two pistols were found in the seat of the truck, and thirteen firearms were recovered from the bed and the cab.

The three suspects were returned to the store where they were identified by both Steele and Waters as the men who had robbed them half an hour earlier.

It is settled law in Alabama that prompt on-the-scene confrontation and identification of suspects are consistent with good police work and not a denial of due process. Cornelius v. State, 49 Ala.App. 417, 272 So.2d 623, (Ala.Cr.App.1973), citing Bates v. United States, 405 F.2d 1104 (3d Cir.1969). As emphasized by the Cornelius, supra, court, the action of police in returning suspects to the vicinity of the crime for immediate identification encourages accuracy, since the witness’s memory is fresh, and allows for release of innocent suspects so that police are able to pursue the true culprits as soon as possible. In Cornelius, supra, as in this case, there had been a robbery and the suspects were returned to the scene half an hour later.

Appellant Albert William Pugh raises two issues on appeal. First, he contends that the trial court committed reversible error when it granted the State’s motion for consolidation of the cases and defendants. In this vein, appellant argues that: (1)he was so prejudiced by this joinder of cases that a fair trial could not be had, (2) his request of immediate trial opposed his co-defendant’s requests for delays, (3) he was not aware of his co-defendants' intentions vel non of testifying at trial, and (4) the rules pertaining to joinder and consolidation are unconstitutionally vague and indefinite.

In upholding the constitutionality of A.R.Crim.P.Temp. 15, this court, in Holsemback v. State, 443 So.2d 1371 (Ala.Cr.App.1983) held that joinder and consolidation of defendants and indictments are procedural, and as such, do not generally affect the substantive rights of the parties. The court, in Holsemback, supra, set out a test for when a severance should be granted on the ground of prejudice to the defendants. The test is: “whether under all the circumstances as a practical matter it is within the capacity of the jurors to follow the court’s instructions and to collate and appraise the independent evidence against each defendant solely upon that defendant’s own acts.” Holsemback, supra. In addition, the court observed that the trial judge must, of necessity, weigh the prejudice attendant to a joint trial against the interests of judicial economy, and that an appellate court should not disturb the trial court’s ruling absent a showing that the lower court abused its discretion.

The cases against defendants Pugh, Montgomery and Sanderson present a paradigmatic case for consolidation of trials under Rule 15.4, supra. Paragraph “(a)” of that rule sets out the following three alternative circumstances under which join-der of defendants in one indictment would be proper:

(i) if they are alleged to have participated in the same act or transaction; or
(ii) when the several offenses are a part of a common conspiracy, scheme, or plan; or
(iii) when the several offenses are otherwise so closely connected that it would be difficult to separate the proof of one from the proof of the other.

The cases of Pugh, Montgomery and Sand-erson qualified for joinder under all three tests since they were alleged to have participated jointly in a single transaction involving a robbery of two persons.

Pugh argues that the consolidation of defendants resulted in denial to him of his constitutional right to a speedy trial. There is, however, nothing in the record to indicate that either delay or continuance of trial occurred, and trial commenced less than ninety days after the robbery.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) the Supreme Court identified four criteria for consideration in speedy trial questions. They are: (1) length of delay, (2) reason for delay, (3) defendant’s assertion of his right, and (4) prejudice to defendant. In Barker, supra, the Court held that where defendant was not seriously prejudiced by more than five years delay between arrest and trial that his right to a speedy trial was not violated. Pugh has not shown that he was prejudiced by the three month interval between arrest and trial. See, also Diamond v. State, 49 Ala.App. 68, 268 So.2d 850 (1972); Sellers v. State, 48 Ala.App. 178, 263 So.2d 156 (1972); Schillaci v. State, 347 So.2d 552 (Cr.App.)

Appellant complains that there were inadequate discovery procedures to allow him advance notice of whether his co-defendants intended to testify. The state was not in a position to inform Pugh of the intentions of his co-defendants. Pugh’s counsel, however, was informed at the motion hearing that the State had no statement of any defendant to introduce at trial, no statement was introduced and no defendant testified.

Pugh has not shown that he was in any way prejudiced by the joinder of defendants for purposes of trial, or that the trial court abused its discretion in granting the State’s motion to consolidate. Therefore, under Holsemback, supra, the trial court’s ruling on the matter must be upheld.

The second issue Pugh raises is whether the trial court erred in admitting evidence, in the form of certified copies of trial docket sheets, of three prior felony convictions. It is well established that such records are sufficient proof of prior felonies in an habitual offender context. E.g., Gilbert v. State, 410 So.2d 473 (Ala.Cr.App.1982); Thomas v. State, 395 So.2d 1105 (Ala.Cr.App.1981). Pugh argues that such evidence was not adequate proof that he acted knowingly and voluntarily in pleading guilty in the prior cases since it did not demonstrate that he was represented by counsel. Whether or not such was the case, this contention has no merit, since Pugh admitted at his sentence hearing both the convictions and the fact that he was represented by counsel. Gilbert v. State, 410 So.2d 473 (Ala.Cr.App.1982).

Appellant Montgomery raises three issues on appeal. First, appellant contends that the sentence of life imprisonment without parole mandated by Alabama’s Habitual Felony Offender Statute, § 13A-5-9, Code of Alabama 1975, is a violation of his rights under the Eighth Amendment of the Constitution of the United States. The constitutionality of Alabama’s Habitual Felony Offender Statute has been affirmed on numerous occasions by this court, most recently in Weaver v. State, (Ala.Cr.App.1983, aff’d) 437 So.2d 626. In this ease appellant was a participant in an armed robbery, which is precisely the type of violent crime the statute is primarily designed to deter. Hence, the Habitual Felony Offender Statute is constitutional as applied to appellant.

Montgomery next contends that a prior federal conviction was erroneously used to enhance his punishment under the Habitual Felony Offender Statute. It is settled law that the trial court will not be placed in error on appeal for grounds not specified during the sentence hearing. Smith v. State, 409 So.2d 455 (Ala.Cr.App.1981); Slinker v. State, 344 So.2d 1264 (Ala.Cr.App.1977); Rogers v. State, 53 Ala.App. 573, 302 So.2d 547 (1974). Here, appellant raises different grounds on appeal from those raised during the sentence hearing, and there being no proper objection at the trial level, the sentencing must be affirmed.

Montgomery contends lastly that a remark made by the district attorney during the course of the trial should have resulted in a mistrial, on a motion of appellant’s counsel. The remark complained of is as follows: “Mr. Harris: Yes, sir. I think that is the procedure that the courts have said is the best procedure for identification is what we have just been over during voir dire.” The witness had testified on voir dire concerning a “show up” of the three defendants, but nothing was said in front of the jury to inform them of what “procedure” the prosecutor was referring to. Defense counsel objected and moved for a mistrial which was denied.

It is axiomatic that the grant or denial of a motion for mistrial is a matter within the sound discretion of the trial court which will only be disturbed upon a showing of manifest abuse. Durden v. State, 394 So.2d 967, cert. denied, 394 So.2d 977 (Ala.1981); Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Ala.Code § 12-16-233 (1975). We find no such abuse here.

Appellant Sanderson also raises three issues- on appeal. Appellant first contends that the trial court erred in admitting twelve evidence tags over the objection that the best evidence rule required admission of the guns as best evidence. The tags in question had been attached to twelve stolen weapons which form part of the basis of the indictments against appellant. The weapons themselves were not introduced. Appellant complains that the guns, and not the evidence tags, were the best evidence.

The best evidence rule is defined in C. Gamble, McElroy’s Alabama Evidence, § 212.01 (3d ed. 1977) as follows: “When a party wishes to prove the terms of a writing, the original itself must be introduced into evidence if available. The original is said to be the best evidence of its terms and, consequently, is to be desired above such secondary evidence as a copy of oral testimony. A witness, therefore, cannot testify to the terms of a 'writing unless it is shown to be unavailable for some reason other than his own fault.”

As is apparent from this definition, the best evidence rule has no application to physical objects, but rather is pertinent only to documentary evidence. Dunaway v. State, 50 Ala.App. 198, 278 So.2d 198, 50 Ala.App. 200, 278 So.2d 200 (1973); Watercutter v. State, 21 Ala.App. 248, 108 So. 870 (1926). The court, in Bell v. State, 364 So.2d 420, cert. denied, 364 So.2d 424 (Ala.1978), observed that chattels bearing an inscription could fall within the best evidence rule, but that Alabama cases have not so held. Rather, the Bell court reiterated that in Alabama the best evidence rule does not include chattels. Appellant’s contention is, therefore, without merit.

The second issue raised by Sanderson on appeal is whether the trial court committed reversible error in allowing witness Truman Waters to remain in the courtroom during the cross-examination of witness Donald Steele.

Steele was the first witness called by the state and when the prosecution reached the matter of identification, the jury was excused on motion of defense’s counsel and counsel requested that Waters be excused for the duration of the voir dire examination, stating, “I don’t object to him being in the courtroom during the actual testimony of the case ...” After the conclusion of the voir dire examination and the return of the jury to the courtroom, and Steele’s subsequent testimony concerning the robbery and the identification of the robbers, defendant’s counsel requested that Mr. Waters be excluded from hearing the cross-examination of Steele, “because he has not been through a voir dire hearing of this matter ... on the identification.”

The enforcement of the rule of exclusion of witnesses is a matter within the sound discretion of the trial court. Chatman v. State, 380 So.2d 351 (Ala.Cr.App.1980); Stone v. State, 55 Ala.App. 663, 318 So.2d 359 (1975); Gamble, McElroy’s Alabama Evidence, § 286.01 (3d ed. 1977). Furthermore, the decision as to whether Waters would be allowed to testify, after having heard earlier evidence is normally not open to review. Averitte v. State, 384 So.2d 1245 (Ala.Cr.App.1980); Stewart v. State, 49 Ala.App. 681, 275 So.2d 360 (1973).

We are of the opinion that the court did not abuse its discretion in this matter.

The third issue appellant raises is whether the court erred in not ordering a new trial based upon certain remarks of the prosecutor during closing arguments. The prosecutor’s statement asked the jurors to put themselves in the place of the victim. When defense counsel objected, the court immediately gave curative instructions to the jury regarding the remark.

A motion for mistrial implies a miscarriage of justice and is such a serious matter that it should be granted only where there is a fundamental error in trial which would vitiate the result. Floyd v. State, 412 So.2d 826 (Ala.Cr.App.1981); Stennett v. State, 340 So.2d 67 (Ala.Cr.App.1976); Ala. Code, § 12-16-233 (1975). In Borden v. State, 337 So.2d 1388 (Ala.Cr.App.1976), the court held that when a trial judge sustained an objection and properly instructed the jury to disregard the matter that such action was not erroneous unless the matter was of such a nature that it created ineradicable bias or prejudice. Furthermore, it is a basic premise that when prejudicial remarks have been made the trial judge is in a better position than is an,appellate court to determine whether the remarks were so prejudicial as to be ineradicable. Favor v. State, 389 So.2d 556 (Ala.Cr.App.1980); Chambers v. State, 382 So.2d 632, cert. denied, 382 So.2d 636 (Ala.1980); McAllister v. State, 44 Ala.App. 511, 214 So.2d 862 (Ala.1968).

The trial court acted properly in giving immediate instructions to the jury regarding the prosecutor’s remarks and we find no ineradicable prejudice to appellant.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellants Pugh, Montgomery and Sanderson, and have found none. The judgment of conviction is affirmed in each case.

AFFIRMED.

All the Judges concur.