text:
    Joyce SANDERS v. Donald and Sibyl GUTHRIE.
    Civ. 3681.
    Court of Civil Appeals of Alabama.
    Sept. 7, 1983.
    Gerald R. Paulk of Livingston, Porter & Paulk, Scottsboro, for appellant.

      W.W. Haralson, Scottsboro, for appellee.
   HOLMES, Judge.

The mother appeals from an order of the Juvenile Court of Jackson County finding her two minor children dependent and placing their legal custody with their paternal aunt and uncle.

The issues on appeal are whether the evidence was sufficient to support the trial court’s finding of dependency and award of custody and whether the trial court erred to reversal in allowing certain evidence to be introduced at the hearing. Additionally, the mother alleges that the trial court erred in failing to grant a new trial, or alternatively, to alter, amend, or vacate the judgment. We find no error requiring reversal and affirm.

The following pertinent facts are revealed by the record:

In February, 1981, the appellant, Mrs. Sanders, contacted the Department of Pensions and Security (D.P.S.) complaining that her husband was abusing her. This was not the first time that Mrs. Sanders had complained to D.P.S. about her husband’s abuse toward her. Without going into detail at this time, it is safe to say that the Sanders-es have had a troubled and turbulent marriage from the start. As a result of D.P.S. ⅛ investigation into the Sanderses, D.P.S. filed a petition alleging the dependency of Mrs. Sanders’s two children.

In September, 1981, the Sanderses consented to D.P.S. receiving temporary custody of the children. The children were placed in a foster home and remained there until January, 1982. At that time the children were placed in the Guthries’ home at the Guthries’ request. The Guthries, the paternal aunt and uncle and the appellees here, petitioned for permanent custody of the children alleging that the children were dependent within the meaning of § 12-15— 1, Ala.Code (1975).

After an ore tenas hearing, the trial court found that the children were dependent “in that [their] home by reason of neglect, cruelty or depravity on the part of her parents is an unfit and improper place for [them].... ” The trial court further found that the Guthries were qualified to care for the children and awarded the Guth-ries legal custody.

Thereafter, Mrs. Sanders petitioned for a new trial, or in the alternative to alter, amend or vacate the judgment based partly on the grounds of change in circumstances in that she had filed for divorce and moved from her husband’s house. Mrs. Sanders’s motion was denied and, through able counsel who has favored this court with an excellent brief, she appeals.

Mrs. Sanders first contends that the evidence was insufficient to support the trial court’s finding of dependency. Mrs. Sanders bases her contention partly on the supposition that all of her problems were the result of her conflict with her husband, that she loved and cared greatly for her children, and that she never abused the children. Be that as it may, this court finds that the record contains sufficient evidence from which the trial court could find the children dependent.

Section 12-15-65(e), Ala.Code (1975), authorizes the trial court to make proper disposition of cases such as the present case if “the court finds from clear and convincing evidence, competent, material and relevant in nature, that the child is dependent and in need of care or supervision.... ”

In the present case, viewing the record with the attendant presumptions accorded the trial court’s actions, the evidence shows an unstable home life that had a detrimental effect on the children. At best, the evidence shows that the parents were so overwhelmed with their own conflicts and problems that the best interests of the children became secondary.

From the start of their marriage, the Sanderses experienced difficulties in maintaining a stable relationship. A pattern soon developed where Mr. Sanders would start drinking and abuse his wife, both physically and mentally. Mrs. Sanders would respond by leaving home, taking the children with her most times. Since late 1980, Mrs. Sanders has left home on at least a dozen occasions, and made at least some twenty-odd moves from place to place in search of somewhere to stay. On one occasion, Mrs. Sanders was forced to stay the night in a hospital lobby.

During these times, Mrs. Sanders did try to obtain assistance from D.P.S., Mental Health, and other agencies. On two occasions, Mrs. Sanders stayed in a home for battered wives, the most recent being just a few months before the dependency hearing. However, the evidence shows that neither Mrs. Sanders nor Mr. Sanders ever stayed with any one program long enough for it to be beneficial.

On at least two occasions, Mr. Sanders beat Mrs. Sanders to where she was visibly bruised and battered. There was some testimony that Mr. Sanders once pulled a gun on Mrs. Sanders and then another time tore Mrs. Sanders’s clothes off her body and burned them, threatening to burn Mrs. Sanders as well.

In response to at least one of these episodes of violence, Mrs. Sanders tried to commit suicide by taking an overdose of pills and she required hospitalization.

Mrs. Sanders frequently expressed the desire to kill her husband, although she claims this was only done in anger. Mrs. Sanders did have her husband arrested for child abuse on one occasion although at the trial she claimed that she had lied about that because she was “mad” at her husband for drinking.

The children were present during most of these instances of fighting and arguing. There was testimony that after the children were placed in the foster home, relations between Mr. and Mrs. Sanders remained the same and they made small effort to improve.

It is clear from the above that there was sufficient evidence from which the. trial court could find the children dependent. The record reveals the couple were married for seven stormy years. The mother never finished high school and has never held a job. The father is possibly an alcoholic who abuses his wife physically and mentally. The mother is forever leaving and coming back home. The implication is that she doesn’t know how to take control of her life. There is evidence that she is mentally and emotionally unstable. She has attempted suicide at least once, possibly twice. Neither parent can be said to have made a serious effort to utilize all the help and assistance offered them.

Furthermore, and most importantly, the evidence shows that the children were adversely affected by their turbulent home life. It was uncontradicted that the children were present during most of the parents’ troubles. There is some indication that the oldest child, aged 5, was becoming a discipline problem and the youngest child was withdrawn and would not talk. It can be gathered from the evidence that the parents’ problems prevented them from looking after the best interests and welfare of the children. While the mother obviously loves and cares a great deal for her children, the guiding principle and ultimate consideration in cases such as this one is the best interests and welfare of the children. Hamilton v. State, 410 So.2d 64 (Ala.Civ.App.1982). In the instant case the trial judge felt that the mother’s problems prevented her from adequately caring for the welfare of her children and that as a consequence of such neglect, the children are dependent within the meaning of § 12-15-1, Ala.Code (1975). We cannot say that the court erred in so doing.

Mrs. Sanders also contends that the trial court erred in awarding custody to the Guthries in that such was not the least restrictive disposition the trial court could have made. This court disagrees.

Once a trial court has found that a child is dependent, § 12-15-71, Ala.Code (1975), authorizes the court to make any of a number of dispositions including transferring legal custody to a relative who, after study by the probation services, is found by the court to be qualified to receive and care for the child.

In the instant case, the mother does not contend that the Guthries are unfit to receive custody, but that the court could have made another disposition less restrictive than awarding legal custody. In support of her position, Mrs. Sanders relies on a line of cases involving the termination of parental rights. That is not the case here. The parental rights of Mrs. Sanders were not terminated. The award of custody in the present case is not res judicata and should the parents ever straighten their problems out, it is conceivable that they could regain custody. Evans v. Wilkes, 48 Ala.App. 363, 265 So.2d 145 (1972). The alternative would be to maintain temporary custody of the children with D.P.S. Under the present circumstances, this court cannot see how that would be in the best interests of the children. Had Mrs. Sanders’s parental rights been terminated a different result might be warranted.

Mrs. Sanders’s next contention is that the trial court erred to reversal by allowing hearsay testimony from representatives of D.P.S. Assuming, arguendo, that the evidence was inadmissible, this court finds that such evidence was merely cumulative and, in any event, harmless error.

Mrs. Sanders and other witnesses, such as the Guthries and the drug and alcohol counselor, among others, provided substantially the same evidence as that objected to as being hearsay. Even without the evidence in question there remained sufficient evidence from which the trial court could have found as it did, hence no error. Worley v. Jinks, 361 So.2d 1082 (Ala.Civ.App.1978).

Mrs. Sanders also contends that the trial court erred in refusing to grant a new trial based partly at least on a change in circumstances, to wit, she no longer resided with her husband and had filed for divorce. However, the evidence at the hearing on the motion shows that Mrs. Sanders had only moved out and filed for divorce the week before the hearing. Furthermore, Mrs. Sanders admitted that she still saw her husband daily. It appears that this was merely a continuation of a pattern already established by Mrs. Sanders. Additionally, Mrs. Sanders admitted not telling the truth at trial even though she had consistently maintained at that time that she did not lie. Obviously there was not a sufficient change in circumstances to justify a new trial. If anything, Mrs. Sanders’s position seems to have worsened. She had moved in with her sister and her husband and child into a two bedroom house with no electricity and no water. Mrs. Sanders still did not have a job and her sister and brother-in-law were also unemployed.

In view of the above, i.e., the sufficiency of the evidence, etc., we need not consider Mrs. Sanders’s contention that she has been deprived of a constitutional right to maintain a family.

This case is due to be and is affirmed.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J., concur.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Carol Jeanne QUEEN v. John QUEEN.
    Civ. 3755.
    Court of Civil Appeals of Alabama.
    Sept. 7, 1983.

      Cathy S. Wright and J. Fred McDuff of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellant.
    James C. Pino of Mitchell, Green, Pino & Medaris, Alabaster, for appellee.
   BRADLEY, Judge.

This appeal is from an order modifying a child support decree and an order finding plaintiff not guilty of contempt.

John and Carol Queen were divorced on October 10, 1978. Custody of the parties’ two children was awarded to the wife, and the husband was ordered to pay $200 per month per child as child support. The husband was given visitation rights during the week, on alternate weekends, and during holidays and summer vacations.

On August 11, 1982 Mrs. Queen filed a petition for a rule nisi on the ground that Mr. Queen was $1,000 behind in child support and that he failed to return one of the children following visitation. She also petitioned to modify the divorce decree, seeking an increase in child support due to a material change in circumstances since the divorce, and to restrict her ex-husband’s visitation privileges.

After an ore tenus hearing the trial court entered an order finding that there had been a material change in the parties’ circumstances, and increased child support to $225 per month per child. The court also modified the father’s visitation by increasing the times when he would have the children and also provided that he not pay child support when the children were with him. The court also ordered that Mr. Queen was not in contempt for any child support ar-rearage nor for failing to return one of the children in timely fashion following visitation. The ex-wife appeals.

In brief appellant argues that the trial court erred in failing to find that appellee was behind in his child support payments, that the court erred in relieving appellee of child support payments during the times the children are in his custody, and that the court erred by refusing to require of appel-lee a bond to assure compliance with the visitation schedule.

The evidence shows that at the time of the divorce the parties were living in Alabama. The husband worked for South Central Bell and earned about $23,000 per year. There were two minor children. In July 1981 the ex-husband was transferred to New Jersey where he works for American Telephone Company, earning about $45,000 a year. He has since remarried and has two children by his present wife.

Following the divorce the appellee not only paid the child support payments regularly, but he also gave appellant money to live on while she was completing her college education and until she could get a job.

It was not until the summer of 1982 that appellee failed to pay the child support payments. The appellant says that appellee failed to pay child support for the months of June, July, and part of August 1982, which amounted to $1,000. During part of these months, the children were visiting their father in New Jersey.

Appellant contends that a father cannot unilaterally reduce his child support payments unless authorized by the court. And, since it is undisputed that appellee is in arrears $1000 in his child support payments, the trial court erroneously must have given appellee credit for the sums of money voluntarily given to appellant since the divorce.

The Alabama rule is that a father may not unilaterally reduce child support payments where the decree does not so provide. Owens v. Owens, 412 So.2d 820 (Ala.Civ.App.1982). But, credit against claimed arrearages may be allowed the obligated parent when such parent actually furnishes support for the child while in his custody or the custody of another. Weaver v. Weaver, 401 So.2d 77 (Ala.Civ.App.1981).

The appellee proved that he had the two children in his custody in New Jersey for several weeks during the summer months of 1982, and also proved that he spent several hundred dollars for clothes for the two children while they were with him. Moreover, the appellee adduced proof of other payments made to appellant, above the amounts due as child support, that were partially used for the support of the children. Based on this evidence we conclude that the trial court did not err in finding that appellee was not in arrears in his child support payments.

Appellant next says that the net effect of the increase in monthly child support is to decrease the yearly amount of child support because the father was exempted from paying her child support during the periods when the children were in his custody. The modification order increased child support payments by $50 per month for both children but provided that no support payments were due the mother when the children were in the father’s custody.

We believe the decision to order that child support payments not be made to the mother when the children are in the father’s custody is within the discretion of the trial court. Taylor v. Taylor, 412 So.2d 1231 (Ala.Civ.App.1981). During those periods when the children are not in the mother’s custody, her expenses, such as food, clothing, medical and dental, and miscellaneous expenses, will be reduced considerably. Also, the trial court recognized that the mother had increased expenses caring for the children while in her custody and awarded her an increase in monthly child support benefits. Consequently, we do not find that the trial court abused its discretion by holding that the mother should not be paid child support when the children are not in her custody.

Finally, appellant argues that the trial court erred in refusing to require the appel-lee to post a bond each time he took the children to New Jersey to visit with him.

The evidence is in sharp dispute as to whether the father indicated to the mother that he would not return the children to Alabama after visitation in New Jersey. The resolution of disputed evidence is within the prerogative of the trial court and its decision will not be overturned except for plain and palpable error. Phillips v. Phillips, 344 So.2d 786 (Ala.Civ.App.1977); Pruitt v. Pruitt, 47 Ala.App. 126, 251 So.2d 624 (Ala.Civ.App.1971). No such error was found in the denial of the request to require the father to post a bond prior to visitation.

The judgment of the trial court is affirmed.

AFFIRMED.

WRIGHT, P.J., and HOLMES, J., concur.


author: BOOKOUT, Judge.

text:
    Samuel YARBER v. STATE.
    6 Div. 351.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Rehearing Denied Nov. 24, 1981.

      Frederick A. Erben of Beddow, Fullan & Vowell, Birmingham, and H. Powell Lipscomb III of Lipscomb & Lipscomb, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Second degree murder; sentence: twenty years’ imprisonment.

This is yet another case in a series of cases arising out of the kidnapping and double murder of Mrs. Clarice Knabe and Ronald Harvey White. The instant appeal is from a conviction resulting from appellant’s second trial for the murder of Mrs. Knabe. Appellant’s conviction in his first trial for murdering Mrs. Knabe was ultimately reversed because of prosecutorial comments on appellant’s failure to testify and because a proper predicate as to a chain of identification to certain evidence was not laid. For an appellate history resulting from appellant’s first trial for murdering Mrs. Knabe, see Yarber v. State, 375 So.2d 1212 (Ala.Cr.App.1977), reversed, 375 So.2d 1229 (Ala.1978), on remand, 375 So.2d 1231 (Ala.Cr.App.1978), reversed, 375 So.2d 1231 (Ala.1979), on remand, 375 So.2d 1236, (Ala.Cr.App.1979). See also Yarber v. State, 368 So.2d 868 (Ala.Cr.App.), cert. denied, 368 So.2d 871 (Ala.1978); Miles v. State, 343 So.2d 801 (Ala.Cr.App.), cert. denied, 343 So.2d 806 (Ala.1977).

I

Appellant’s first contention of error is that he was convicted on the uncorroborated testimony of an accomplice. Appellant argues that Danny Ray Mylar, alias Miles, was an accomplice and that insufficient evidence was presented by the State to corroborate his testimony. Because of our supreme court’s decision in Yarber v. State, 375 So.2d 1229 (Ala.1978), upon this exact issue, we find no merit to this contention.

In the case before us, Mylar took the stand but refused to testify based on the Fifth Amendment. The trial court then properly allowed the State to read into evidence Mylar’s prior testimony which he gave at appellant’s first trial for murdering Mrs. Knabe. Questions and answers were excluded where defense objections had been sustained in the original trial. See Yarber v. State, 375 So.2d at 1220-21, for the details of Mylar’s testimony.

The supreme court on review of appellant’s first murder trial held that it could not be said that Mylar was an accomplice as a matter of law because he denied his participation in the offense. The supreme court stated: “[I]t is apparent that whether Miles [Mylar] was or was not an accomplice was a disputed fact.” 375 So.2d at 1230. We believe it a fair reading of the supreme court opinion that, when there is a “disputed” fact as to whether a witness is or is not an accomplice, a jury question exists. When such a jury question exists, an appellate court cannot categorize that witness to be an accomplice as a matter of law.

Since, in the instant case, the testimony of Mylar which incriminated appellant consisted solely of his testimony at appellant’s first murder trial, it thus becomes readily apparent that Mylar cannot now be considered an accomplice as a matter of law. Yarber, 375 So.2d at 1230. If Mylar was not an accomplice as a matter of law at appellant’s first murder trial, he cannot be considered an accomplice now, there being no new incriminating testimony by Mylar offered by the State.

Thus, no corroboration of Mylar's testimony was necessary to sustain appellant’s conviction. Through Mylar’s eyewitness account of appellant’s heinous actions, each element necessary to prove second degree murder was sufficiently established. Any conflicting evidence was for the jury to resolve.

However, the supreme court went further in Yarber and found that even if it was assumed that Mylar was an accomplice his testimony was sufficiently corroborated. 375 So.2d at 1231. We have carefully compared the facts in this case with the facts in appellant’s first murder trial. Upon review we find that the facts corroborative of Mylar’s testimony are almost identical in pertinent part. Again we find, as the supreme court did, that even if it were assumed that Mylar was an accomplice his testimony was sufficiently corroborated.

Corroborative evidence need not be strong or sufficient of itself to support a conviction, the criterion being that it legitimately tend to connect the accused with the offense. Andrews v. State, 370 So.2d 320 (Ala.Cr.App.), cert. denied, 370 So.2d 323 (Ala.1979); Jacks v. State, 364 So.2d 397 (Ala.Cr.App.), cert. denied, 364 So.2d 406 (Ala.1978). Both circumstantial and direct evidence are competent to connect the defendant independently with the crime about which the accomplice has testified. Jacks, supra. As the supreme court stated in Dolvin v. State, 391 So.2d 133, 137 (Ala.1980), quoting from White v. State, 294 Ala. 265, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975):

“ ‘Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty. Lowe v. State, 90 Fla. 255, 105 So. 829 (1925). Circumstantial evidence is said to be the inference of a fact in issue which follows as a natural consequence according to reason and common experience from known collateral facts. Lowe, supra.’

In the instant case Alma Vest left the 2010 Lounge at approximately eleven o’clock on the night of the crime. She testified that Mylar, Yarber and the two victims were the only people in the bar when she left.- She had earlier observed Mylar, Yarber and Ronald White seated at the bar. White was seated on the middle stool and Mylar and Yarber were seated on either side of him. Mylar was agitating White in some manner. Ms. Vest said White “seemed to be wanting to be left alone” and that he “was trying to get his mind together to study” for his final examinations in college.

Gus Konstant, owner qf the lounge, arrived there at approximately 11:10 p.m. He found the front door locked. On going to the rear door, he entered and found the lounge to be deserted, and it appeared to him that a robbery had taken place. Thus, the time span between Yarber being seen with the victims and their kidnapping was only a few minutes — some ten or fifteen minutes.

The fact that the deceased was last seen in the presence of the accused is a circumstance to consider. Kozlowski v. State, 248 Ala. 304, 27 So.2d 818 (1946); Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). See also Hayes v. State, 395 So.2d 127 (Ala.Cr.App.1980), cert. denied, 395 So.2d 150 (Ala.1981), where the deceased was seen dancing with the defendant some fifteen minutes before being last seen alive by her friends. Additionally, sufficient corroboration of the testimony of an accomplice may be furnished by a tacit admission by the accused, by the suspicious conduct of the accused, and the association of the accused with the accomplice, or by the defendant’s proximity and opportunity to commit the crime. Jacks v. State, supra. “In determining the sufficiency of corroborative evidence testimony the entire conduct of an accused within reasonable time limits of the date of the offense may be examined.” Fuller v. State, 34 Ala.App. 211, 215, 39 So.2d 24 (1948), cert. denied, 252 Ala. 20, 39 So.2d 29 (1949).

The rule is often stated that when an accomplice and an accused are seen together in rather unusual places and times in proximity to the locus of the crime, which occurs at an unreasonable hour, the requirements of corroboration are met. Robinson v. State, 40 Ala.App. 74, 108 So.2d 376 (1958), cert. denied, 268 Ala. 698, 108 So.2d 377 (1959). It may be more properly and correctly said of the rule, as was held in Kimmons v. State, 343 So.2d 542, 547 (Ala.Cr.App.1977):

“[T]he fact that at or about the time of the commission of the offense with which the accused is charged, he and the accomplice were together, in or near the place where the crime was committed, may, in conjunction with other facts and circumstances, sufficiently tend to connect the accused with the commission of the crime to furnish the necessary corroboration of the accomplice.... ”

See also Dolvin v. State, supra.

II

Appellant next contends that the trial court made an impermissible comment on the effect of certain evidence in charging the jury concerning Alma Vest’s testimony. We disagree.

It has been stated numerous times that the court’s oral charge should be considered as a whole. Brooks v. State, 353 So.2d 1 (Ala.Cr.App.1977). For the sake of clarity we here set out the entire portion of the oral charge which deals with corroboration of an accomplice’s testimony:

“Now, ladies and gentlemen, it is the law of this State that a person charged with a felony such as murder cannot be convicted upon the uncorroborated testimony of an accomplice. That is where two people combine or conspire to commit a crime and they both commit that crime. One cannot be convicted upon the uncorroborated testimony of another. That is uncorroborated means that standing alone with no other evidence tending to connect the other to a crime.
“You heard the testimony of one Danny Ray Mylar. If you believe that he is an accomplice in this case, if you believe that — of course, the testimony — you heard that testimony.
“But, if you believe he is an accomplice in this case you cannot convict this defendant, Samuel Yarber, unless you further believe beyond a reasonable doubt the testimony of Alma Vest in this case. This is the only other evidence in this case which would tend to connect this defendant. That is even if you believe Danny Ray Mylar’s testimony, if you believe he is an accomplice, I’m not saying you should or shouldn’t, that is up to this jury. If you believe he is an accomplice in this case or participated in this case where he was an active participant you cannot convict Samuel Yarber, unless you also believe beyond a reasonable doubt the testimony of Alma Vest. Then assuming everything else you believe beyond a reasonable doubt of this defendant, and I’m not suggesting by that that you should believe beyond a reasonable doubt this defendant, but if you believe beyond a reasonable doubt from all the evidence, including the testimony of Danny Ray Mylar, that this defendant is guilty, either as an aider or abettor or an active participant in the killing, you cannot convict him if you believe Danny Ray was an accomplice or a participant unless you believe beyond a reasonable doubt the testimony of Alma Vest.”

The following exchange includes defense counsel’s exception to the above charge and the trial court’s response:

“The other thing is that the — on the charge of accomplice, Your Honor has taken from consideration from this jury the true corroboration theory that Your Honor had committed that if they believe the testimony — if they believe the testimony of Danny Ray Mylar they could not convict the defendant unless they believed testimony of Alma Vest.
“And when Your Honor says that, it then takes the theory of corroboration. You have left no other thing if you believe the testimony of Alma Vest. You have now instructed the jury through your charge that if they do believe Alma Vest and Danny Ray Mylar, convict this defendant then Your Honor is then commenting on the testimony.
“We object to that, may it please the Court, and ask they be remedied.
“THE COURT: Well, of course, that was the exact same charge in McElroy on Evidence as to disputed accomplice. I will clarify to the point that I’m not hinging on the case on whether or not they believe Alma Vest, that this jury is still to believe beyond a reasonable doubt. That is the defendant’s charge I gave.
“(Within hearing of the jury.)
“THE COURT: Of course, ladies and gentlemen, I want to clarify what I was talking about, if you believe beyond a reasonable doubt about the accomplice, whether or not it was corroborated or not. Of course, the test in order to convict this defendant must always be is the evidence as believed by you, to convince you beyond a reasonable [sic] that this defendant is guilty, even though you may believe certain testimony of any particular witness beyond a reasonable doubt. “The test remains the same. The burden is on the State to convince all of you beyond a reasonable doubt of the guilt of this defendant.”

Appellant relies on Burney v. State, 87 Ala. 80, 6 So. 391 (1889), and maintains that the “practical effect” of the trial court’s charge here was that the testimony of Vest, if believed, sufficiently corroborated the testimony of Mylar.

We note that Alma Vest’s testimony in this case is basically the same in pertinent part as her testimony in appellant’s first murder trial which is reported in 375 So.2d at 1222-23. Ms. Vest did further testify that she noticed an altercation between Mylar and Ronald White while she was at the 2010 Lounge. Mylar “appeared to me to be agitating Ronny White.”

While that portion of the trial court’s charge set out above may not be a model of perspicuity, we do not believe it amounted to an impermissible comment on the effect of the evidence which would require reversal.

In Burney, supra, the defendant was accused of “receiving and concealing stolen money.” A witness, Maria Sharp, was determined to be an accomplice, evidently as a matter of law. Her testimony proved most of the criminating facts. Another witness, Frank Coskrey, testified for the purpose of corroborating Sharp’s testimony. Coskrey testified that near the time and place the money was stolen he heard Sharp tell the defendant in reply to something the defendant said, “There aint [sic] no more to get.”

The court charged the jury in Burney as follows:

“ ‘If you believe from the evidence that Frank Coskrey heard a conversation at or near the gate between Wes. Burney and Maria Sharp, the accomplice, and heard Maria, to what he said, reply, “There aint no more to get;” this is corroborative evidence, tending to connect defendant with the commission of the offense, if committed.’ ”

Mr. Chief Justice Stone, in reversing Bur-ney’s conviction, wrote the following in regard to the trial court’s erroneous instructions:

“It will be seen that this remark — all that the witness Coskrey is claimed to have heard — does not mention money, nor expressly refer to it. That may have been her meaning, and if so, it is not only not improbable, but very likely, that his remark, not heard by the witness, referred to the same subject, and that his request was that she should bring him money. If so, this would ‘tend to connect defendant with the commission of the offense.’ But, to have this effect, there was an inference to be drawn, and only the jury could draw that inference. The charge under discussion was a charge on the effect of the evidence; and such charge should never be given, when a material inquiry of fact rests in inference .... ” 87 Ala. at 82, 6 So. 391.

In other words, the instruction was bad because the trial judge had deduced for himself that Sharp was referring to the stolen money in the conversation Coskrey overheard between Sharp and Burney. Sharp could have been referring to money or to something else in her reply to Burney. Whether she was referring to the stolen money or to some other article was a question of fact for the jury. To put it another way, it was the trial judge’s drawing inferences from the evidence in making his charge which infringed on questions for the jury that caused error in Burney. Error did not rest simply because the trial judge gave a charge which elucidated or drew attention to certain corroborative evidence tending to connect the defendant with the commission of the offense.

By statute the “court may state to the jury the law of the case and may also state the evidence when the same is disputed, but shall not charge upon the effect of the testimony, unless required to do so by one of the parties.” (Emphasis added.) Ala.Code § 12-16-11 (1975). The court does not invade the province of the jury in a criminal prosecution by stating that there is or is not evidence of particular facts when such is the case. Seibold v. State, 287 Ala. 549, 258 So.2d 302 (1970). Moreover, it is not error for the court in its general charge to state the tendencies of the evidence for the State and the defendant. Crain v. State, 166 Ala. 1, 52 So. 31 (1910).

A close review of the oral charge before us, as set out above, reveals a far different situation from that described in Burney, supra. The trial judge here drew no inferences from the evidence nor infringed on questions for the jury in making his charge. The charge was in no way a statement as to the effect of the evidence or as to the effect the jury should give particular testimony.

A charge upon the effect of the evidence is a charge which instructs the jury that certain facts in issue have been proved, or that certain evidence in the case does or does not establish a certain fact or facts in dispute, or directs the jury what their finding on an issue of fact must be if they believe the evidence in the case. Wyman v. State, 47 Ala.App. 643, 259 So.2d 849 (1972); Dunn v. State, 8 Ala.App. 410, 62 So. 996 (1913).

The trial judge did not relate Alma Vest’s testimony so as to influence the jury one way or the other, McCovery v. State, 365 So.2d 358 (Ala.Cr.App.1978); nor was his statement calculated to control the jury in its consideration of the weight to give her testimony. Seibolds, supra.

As we read the charge the trial judge simply instructed the jury as follows:

(1) You may not convict the defendant on the uncorroborated testimony of an accomplice.

(2) If you believe Danny Ray Mylar’s testimony, it is up to you to decide whether or not he is an accomplice.

(3) If you believe Danny Ray Mylar’s testimony and believe him to be an accomplice, then you cannot convict the defendant unless you further believe Alma Vest’s testimony, because her testimony is the only other evidence which would tend to connect the defendant.

The trial court did not instruct the jury, as the appellant alleges in brief, that if they believed Mylar to be an accomplice and also believed Vest’s testimony they must convict the defendant. The trial court carefully phrased his charge in the negative—“cannot be convicted,” “cannot convict this defendant,” and “cannot convict him.”

The court’s pointing out to the jury that Alma Vest’s testimony, if believed beyond a reasonable doubt, was the “only other evidence in this case which would tend to connect this defendant” is in line with the authority of Seibolds and Crain, supra. That statement instructed the jury that evidence was presented which, if believed, would tend to connect the defendant with the crime when such was the case.

Furthermore, the instruction was favorable to appellant in that it eliminated from the jury’s consideration all other evidence as being corroborative in the case except Alma Vest’s testimony, if believed, as tending to connect him with the crime. In effect, the jury was instructed that if they found Mylar to be an accomplice the only corroborative evidence they could consider as tending to connect appellant with the crime was the testimony of Alma Vest. If the jury did not believe Alma Vest’s testimony sufficiently corroborated Mylar’s testimony and connected appellant with the crime, then according to the trial court’s charge they could not convict.

We have considered and construed the trial court’s oral charge as a whole in connection with the evidence and find no reversible error.

Ill

Appellant next argues that the trial court committed reversible error in refusing the following requested charges:

“Defendant’s Charge No. 27
“Ladies and Gentlemen of the jury, it is your determination under the law to say whether or not any witness is considered by you to be an accomplice of the defendant; if you so believe that any witness is an accomplice, then under the law you may accept other testimony of other witnesses who are not considered to you to be accomplicé for the purpose of corroborating the statement of any accomplice. However, if you believe that witness’s testimony not to be substantial evidence against the defendant, then you cannot convict the defendant.”
“Defendant’s Charge No. 74
“Ladies and gentlemen of the Jury, it is your determination under the law to say whether or not any witness is considered by you to be an accomplice of the defendant; if you so believe that any witness is an accomplice, then under the law the corroboration of an accomplice is not sufficient if it merely shows commission of offense or circumstances thereof or that the accomplice and defendant are acquainted or connected, but there must be independent evidence supporting testimony of accomplice or tending to confirm him which must be of a substantive character, and must tend to connect defendant with commission of crime charged or to identify him as guilty person, and which is inconsistent with his innocence.”
“Defendant’s Requested Charge No. 79
“Ladies and gentlemen of the jury, the State of Alabama has submitted to you that Danny Ray Mylar and the defendant were joint venturers in this case thereby telling you that Danny Ray Mylar is an accomplice. If you believe that Danny Ray Mylar is an accomplice with the defendant, then all other evidence, exclusive of that testimony of the accomplice must sufficiently connect defendant with the commission of the offense before you can convict.”
“Defendant’s Requested Charge No. 80
“Ladies and gentlemen of the jury, the State of Alabama has submitted to you that Danny Ray Mylar and the defendant were joint venturers in this case thereby telling you that Danny Ray Mylar is an accomplice. If you believe that Danny Ray Mylar is an accomplice with the defendant, I charge you that the corroboration necessary to support the testimony of an accomplice must be unequivocal and of a substantive character, must be of some fact tending to prove the guilt of defendant and such as legitimately tends to connect defendant with the crime, must be inconsistent with innocence of defendant, and must do more than raise a suspicion of guilt.”

We have carefully reviewed each of these requested charges and find them properly refused. The charges were either covered substantially by the trial court’s oral charge, were abstract, were confusing and misleading, were ungrammatical, were not hypothesized on a “belief from the evidence,” contained more than one legal principle, or were incorrect statements of law. Lambeth v. State, 380 So.2d 923 (Ala.1979); Wilbanks v. State, 289 Ala. 171, 266 So.2d 632 (1972); Gaston v. State, 359 So.2d 1170 (Ala.Cr.App.1978); Harris v. State, 358 So.2d 482 (Ala.Cr.App.), cert. denied, 358 So.2d 487 (Ala.1978); Hudson v. State, 335 So.2d 208 (Ala.Cr.App.), cert. denied, 335 So.2d 211 (Ala.1976); Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813, cert. denied, 292 Ala. 723, 297 So.2d 817 (1974).

IV

Appellant contends he was denied the right of cross-examination when Mylar’s testimony from the previous trial was admitted into evidence.

In the previous trial defense counsel elected not to cross-examine Mylar. On the instant trial Mylar refused to testify, claiming the Fifth Amendment. The trial court ruled that it was going to dismiss the pending cases against Mylar, that Mylar had no Fifth Amendment privilege. However, the trial court did not force Mylar to testify, stating that Mylar was “serving life and 18 years and there isn’t much I can do to him.”

Before Mylar’s testimony was read into evidence in the instant trial, defense counsel argued that he be allowed to cross-examine Mylar. The trial court ruled that appellant’s failure to cross-examine Mylar at the previous trial constituted a waiver. Defense counsel than presented two reasons why he should be allowed to cross-examine Mylar. We shall consider these arguments separately.

Defense counsel first argued that because “[t]he Supreme Court ... changed the law or altered it regarding the accomplice theory” in Yarber, 375 So.2d 1229, a “new and significantly material line of cross-examination needs to be shown.” Defense counsel cited as authority Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, .33 L.Ed.2d 293 (1972). In essence, defense counsel argued that because of an alleged “change in the law” he had the right under Mancusi to cross-examine Mylar in this case. We disagree with this argument.

In Mancusi the defendant, due to a successful habeas corpus action, was retried for murder some ten years after first being convicted. At the retrial the prior testimony of a key witness, who was then unavailable, was read into evidence over objection. The defendant argued he was denied his right to confront the witness. In recognizing that prior recorded testimony may be admitted in appropriate cases, the Supreme Court held that the prior testimony must bear some “indicia of reliability” before it can be placed before the jury when there is “no confrontation of the declarant.” 408 U.S. at 213, 92 S.Ct. at 2313.

Two factors which Justice Rehnquist considered in finding the appropriate “indicia of reliability” were: (1) the defendant was represented by counsel at the first trial and was afforded the opportunity to fully cross-examine the witness, and (2) defense counsel at the retrial did not in his proffer show any new and significantly material line of cross-examination that was not at least touched upon in the first trial. 408 U.S. at 214-15, 92 S.Ct. at 2313-2314. It was further pointed out in Mancusi that defense counsel at retrial placed in the record a list of twelve questions he wished to ask which he did not ask of the unavailable witness at the prior trial. 408 U.S. at 214, 92 S.Ct. at 2313.

An examination of the record before us from the time the State first moved to have admitted Mylar’s prior testimony until the time it was read into evidence fails to reveal one instance where defense counsel complained that Mylar’s prior testimony was unreliable. While Mylar’s prior testimony may have, in fact, been most unreliable (see Yarber, supra), this point was not raised.

It was uncontested that defense counsel had the opportunity to cross-examine Mylar at the prior trial, but chose not to do so. Defense counsel’s only comment which relates to this .part of his argument, which was not connected with the issue of reliability, was that because the law on the accomplice theory was allegedly changed he should now have the right to cross-examine Mylar. This argument is not in juxtaposition with the propositions contained in Mancusi, supra.

In applying the second factor Justice Rehnquist considered in determining the appropriate “indicia of reliability,” upon which defense counsel here seems to rely, it is apparent from the record that defense counsel did not proffer “any new and significantly material line of cross-examination.” He did not submit a single question he intended to ask Mylar. Defense counsel’s argument concerning the “law changing” misses the mark. The trial court cannot be put in error for failing to apply the Mancusi rationale.

Our review is limited to matters included in the record. Lucy v. State, 340 So.2d 840 (Ala.Cr.App.), cert. denied, 340 So.2d 847 (Ala.1976). Facts asserted in the brief of appellant, which cannot be ascertained from the record, cannot be reviewed. Lucy, supra. A trial court is required only to pass upon grounds of an objection which are announced and those omitted are deemed waived. Rogers v. State, 53 Ala.App. 573, 302 So.2d 547 (1974). Specified grounds of an objection to evidence waive all other grounds. Ward v. State, 376 So.2d 1112 (Ala.Cr.App.), cert. denied, 376 So.2d 1117 (Ala.1979). A trial court need not cast about for tenable grounds of an objection to evidence. Watkins v. State, 219 Ala. 254, 122 So. 610 (1929).

Defense counsel argued secondly that Mylar was available on the instant trial as a witness. Defense counsel contended that Mylar was “not unavailable” because of the trial court’s clarification that Mylar had no Fifth Amendment privilege. When the trial court asked Mylar if he understood that he did not have a Fifth Amendment ground not to testify, Mylar replied, “No, I don’t understand how I lost it.” We, too, do not understand how Mylar “lost” his Fifth Amendment rights.

It is true that Mylar’s convictions for offenses arising out of the same transaction presently before us had been affirmed by the State court action and that all the other pending cases against Mylar were dismissed. However, this being the case does not negate the possibility that Mylar might apply for relief in the federal courts. Man-cusi, supra, is a classic example where the defendant’s conviction and state court af-firmance were set aside when habeas corpus relief was subsequently granted. Under the circumstances of Mylar’s situation, we do not see how he forfeited his rights under the Fifth Amendment.

Mylar steadfastly refused to testify on Fifth Amendment grounds, and even though the trial judge asserted another ground for Mylar not testifying, we find that Mylar was in fact unavailable by reason of his Fifth Amendment claim. Miles v. State, 343 So.2d 801 (Ala.Cr.App.), cert. denied, 343 So.2d 806 (Ala.1977). Because appellant had the opportunity to cross-examine Mylar at the first trial, he cannot now complain because of his failure to do so. This exact situation was presented in Parker v. State, 51 Ala.App. 362, 285 So.2d 526, cert. denied, 291 Ala. 795, 285 So.2d 529 (1973):

“Appellant also argues that the trial court committed reversible error in allowing the State to read into evidence the testimony of Lucy Meriweather from the prior trial. Appellant claims this was reversible error because he chose, for tactical reasons, not to cross-examine the witness in the first trial and was thereby prevented from doing so in the second trial.
“This point is discussed in Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837, cert. den., 254 Ala. 74, 46 So.2d 847, where the court stated:
“ ‘The testimony of a witness at a former trial is admissible in a second trial when at the time the witness is dead, under disability, is permanently absent from the State, or becomes unavailable by reason of claim of privilege at the second trial....
“ ‘Opportunity to exercise the right of cross examination, and not the actual exercise of the right, is sufficient. One’s failure to exercise the right does not furnish grounds to exclude the former testimony. Long v. Davis, 18 Ala. 801; Percy v. State, 125 Ala. 52, 27 So. 844; Wig-more, supra.’
“Appellant had the opportunity to cross-examine the witness at the first trial and he cannot now complain because of his failure to do so.”

And in Bridges v. State, 26 Ala.App. 1, 152 So. 51.(1933), the Court of Appeals said in addressing this issue:

“The witness Gilpin, when called, refused to testify, claiming his constitutional right not to be forced to give evidence which would tend to incriminate him. He thereby placed himself where he was not available to the state to be used as a witness. Thereupon, over the objection and exception of defendant, the state was allowed to make preliminary proof that this witness had been examined and cross-examined as a witness for the state on the former trial of this same case in the circuit court of Jefferson county, and over objection and exception of defendant the state was then allowed to read to the jury the testimony of the witness Gilpin given on such former trial. This is not now an open question in this state, and while there are some decisions to the contrary, this court and the Supreme Court have spoken on the question and we see no reason to reopen the subject. The witness Gilpin having testified on a former trial of this case, with full opportunity for cross-examination and when called to testify on this trial he rendered himself incompetent as a witness without fault on the part of the state, the trial court properly allowed his testimony on the former trial to be read in evidence .... ”

y

The question whether state law enforcement agents have the power and authority to grant an accused immunity from arrest and prosecution for violating our criminal law has been definitively answered in the negative. Yarber v. State, 375 So.2d 1212 (Ala.Cr.App.1977), reversed on other grounds, 375 So.2d 1229 (Ala.1978). This holding was implicitly affirmed by our supreme court. Yarber v. State, 375 So.2d 1231 (Ala.1979).

VI

Appellant alleges as his final contention of error that a plea bargaining agreement had been reached with the State in this case, but that at the last moment the district attorney refused to abide by the agreement and the case was brought to trial.

No guilty plea was ever entered in the case. The record fails to show that appellant ever did anything in reliance on an agreement made with the prosecution. There was no -written plea bargaining agreement ever signed by appellant or any of the attorneys. From the record all the negotiations surrounding a possible settlement of the case were verbal. We conclude that Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), does not apply in the instant case.

We have considered each issue raised by appellant. In addition we have searched the record for reversible error and have found none.

AFFIRMED.

All the Judges concur.


author: PER CURIAM. BEATTY, Justice

text:
    Ex parte Samuel YARBER. (Re: Samuel Yarber v. State of Alabama).
    81-242.
    Supreme Court of Alabama.
    March 4, 1983.
    Rehearing Denied June 24, 1983.

      Frederick A. Erben of Beddow, Fullan & Vowell, Birmingham, and H. Powell Lipscomb, III of Lipscomb & Lipscomb, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Samuel Yarber (defendant) petitions this court to review the decision of the Court of Criminal Appeals which affirmed his conviction following his second trial for murder. We granted certiorari to review two issues. The first is: Whether defendant can compel the enforcement of a negotiated plea agreement which had been broken by the state. The second is: Whether defendant’s conviction rests on the uncorroborated testimony of an accomplice in violation of Code 1975, § 12-21-222. After reviewing the facts and applicable law, we conclude that defendant can compel the tender of the plea agreement to the trial court, as we explain below. On the other issue, we quash certiorari as having been improvidently granted.

The Court of Criminal Appeals, in its opinion, sets out the facts surrounding the crime. Our review is concerned solely with the issue of the enforceability of the plea agreement. The Court of Criminal Appeals gave the following treatment to this issue.

VI

Appellant alleges as his final contention of error that a plea bargaining agreement had been reached with the State in this case, but that at the last moment the district attorney refused to abide by the agreement and the case was brought to trial.
No guilty plea was ever entered in the case. The record fails to show that appellant ever did anything in reliance on an agreement made with the prosecution. There was no written plea bargaining agreement ever signed by appellant or any of the attorneys. From the record all the negotiations surrounding a possible settlement of the case were verbal. We conclude that Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), does not apply in the instant case.

Pursuant to Rule 39(k), Alabama Rules of Appellate Procedure, defendant requested on his application for rehearing that the Court of Criminal Appeals consider facts in addition to those stated in its opinion. That court denied defendant’s request, so he now presents the same additional facts to us for our review. Under Rule 39(k), A.R.A.P., we find the additional facts to be correct, and we consider them in this opinion.

The additional facts come from a pretrial motion hearing, one object of which was to compel the enforcement of the broken plea agreement. Frederick A. Erben, Esq., represented the defendant at trial and on appeal. At the pretrial motion hearing, Er-ben called Charles Barton Dunn, Esq., Assistant District Attorney for Jefferson County, to testify. Dunn was assigned to try defendant’s case for the state. Erben and Dunn had negotiated the plea agreement.

Dunn gave the following testimony. One Friday in April 1981, Erben and Dunn discussed the possibility of a negotiated plea in defendant’s case. Dunn felt the state had the problem of having to prove its case with the testimony of Danny Ray Mylar. Dunn explained that he considered Mylar’s testimony to be substantially unreliable and lacking in credibility. Dunn, therefore, thought a negotiated plea to be advisable. He and Erben discussed a tentative agreement which entailed dismissing one indictment, amending the other indictment from murder to manslaughter, and allowing defendant to plead guilty and receive a sentence equal to the time he had already served while incarcerated.

Initially, Dunn told Erben that the agreement could not be confirmed until he received the approval of Earl C. Morgan, Esq., with whom final authority rested in the Jefferson County District Attorney’s Office. Dunn spoke to Morgan and recommended the agreement. Morgan advised Dunn that the agreement sounded good, but that he wanted to discuss it with another member of their office. After doing so, Morgan told Dunn he should accept the plea agreement on the agreed upon terms. Thereafter, the following week, Erben met with Dunn at Dunn’s office. Dunn informed Erben that he had not yet been able to finalize everything with Morgan. Nevertheless, the two went before Circuit Judge Charles R. Crowder, to whom defendant’s case had been assigned. Apparently, an informal and off-the-record discussion took place in which Judge Crowder indicated that he believed he would accept the plea agreement if it were entered before him. Later that day, Dunn received final approval for the plea agreement from Morgan. Dunn then called Erben and informed him that the agreement was acceptable. The Circuit Court was subsequently advised that the hearing scheduled for the next two days on the pretrial motions was no longer necessary.

Erben and Dunn planned to formally take the plea to Judge Crowder the next day. The next day, however, Dunn could not do so because he became ill. Erben spoke with Dunn by telephone and asked if some member of Dunn’s office could appear in court for the plea. Dunn responded that the victim’s family should be notified before the plea was taken so that they would not learn of it first in the newspaper. Dunn explained that he wanted .to apprise the victim’s family of the reason for the plea agreement. Dunn suggested that Erben call Morgan to secure someone else to appear for the plea, and to be certain someone from the district attorney’s office spoke to the victim’s family. Erben and Dunn next spoke two days later. At that time, Dunn informed Erben that his office had an extended conversation with the victim’s family, who expressed opposition to any plea agreement, and, therefore, that the agreement would not be honored.

Erben also testified at the pretrial motion hearing and recounted many of the same facts. Erben added that he conveyed the offer of the negotiated plea to defendant. Defendant accepted it, and Erben then advised Dunn of the acceptance, indicating everything was finalized for the plea. Er-ben also testified that he and Dunn agreed that the plea was to be taken on that Wednesday morning as planned. As requested by Dunn, Erben called Morgan in an attempt to find someone else to appear in court for the district attorney’s office so that the plea could be taken. Erben conveyed Dunn’s request that the victim’s family be contacted by Morgan. Erben tried unsuccessfully to reach Morgan again that day to learn when the victim’s family would be advised of the plea agreement. However, he did reach Morgan the next day and asked if the delay meant Morgan would not honor the agreement. Morgan advised that was not the case, and that the agreement was sound. Erben learned of the agreement’s breach on Friday, when he spoke to Dunn. Neither Dunn nor Morgan had stated that the agreement was subject to the acquiescence of the victim’s family.

What we have said here is meant in no way as a reflection on the district attorney Mr. Morgan, or his assistant district attorney Mr. Dunn. This court had not previously decided the specific issue involved here. Indeed, the federal appeals court for the circuit of which Alabama is a part had decided against the enforceability of plea bargains before a guilty plea was entered.

At the conclusion of the pretrial motion hearing, the trial court concluded that the parties had, in fact, entered into the plea agreement. Nevertheless, it declined to enforce the agreement, and defendant stood trial. The jury returned a verdict of guilty of murder in the second degree. Defendant received a sentence of twenty years.

Whether a defendant can compel the enforcement of a plea agreement, broken by the state, where he had not yet pleaded guilty or otherwise relied on the agreement to his disadvantage, is a question of first impression before the appellate courts of this state. The United States Supreme Court noted the validity of negotiating pleas in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), that Court acknowledged both the desirability and enforceability of a negotiated plea. That Court’s consideration of the enforceability of a negotiated plea arose in a setting in which the state violated the agreement after the defendant had pleaded guilty in reliance on it. It has yet to speak to the issue framed under facts similar to those of our present case. Other courts that have considered the present issue are split in their rationale and holding.

Some courts decline to enforce a negotiated plea where the state has broken the agreement and where the defendant has neither pleaded guilty in reliance on the agreement, nor cooperated with the state to his disadvantage under the agreement. United States v. Aguilera, 654 F.2d 352 (5th Cir.1981); United States v. Ocanas, 628 F.2d 353 (5th Cir.1980); Government of the Virgin Islands v. Scotland, 614 F.2d 360 (3rd Cir.1980); Shields v. State, 374 A.2d 816 (Del.1977), cert. denied, 434 U.S. 893, 98 S.Ct. 271, 54 L.Ed.2d 180 (1977). To varying degrees, the holdings of these cases are based on a limited application of contract law to the problem of a broken plea agreement. Absent a showing of detrimental reliance, they reason, specific performance will not lie to enforce the agreement. Thus, a defendant, who has not pleaded guilty or otherwise detrimentally acted in reliance under the terms of the agreement, cannot compel its enforcement. The Fifth Circuit cases adopt the viewpoint that:

Thus, the realization of whatever expectations the prosecutor and defendant have as a result of their bargain depends entirely on the approval of the trial court. Surely neither party contemplates any benefit from the agreement unless and until the trial judge approves the bargain and accepts the guilty plea. Neither party is justified in relying substantially on the bargain until the trial court approves it. We are therefore reluctant to bind them to the agreement until that time. As a general rule, then, we think that either party should be entitled to modify its position and even withdraw its consent to the bargain until the plea is tendered and the bargain as it then exists is accepted by the court.

United States v. Ocanas, 628 F.2d at 358; quoted with approval in United States v. Aguilera, 654 F.2d at 353-4.

We decline to accept the rationale or holdings' of these cases. Employing contract law by way of analogy, we cannot conclude that a plea agreement is unenforceable merely because it is tentative in the sense that it is subject to the trial court’s approval. The mere fact that a contract is subject, in effect, to the approval of a third-party, does not, by itself, render it unenforceable. For example, a contract for the purchase of realty is not rendered unenforceable because it is subject to the release and approval of the seller’s contemplated mortgage. Olen Real Estate and Investment Company v. Zieman & Company, 269 Ala. 106, 110 So.2d 890 (1959).

However, we agree with the proposition that contract law cannot be rigidly applied in deciding whether to enforce a broken plea agreement. “Principles of contract law provide a useful analytical framework, but surely they cannot be blindly incorporated into the criminal law in the area of plea bargaining.” United States v. Ocanas, 628 F.2d at 358. Courts enforcing a plea agreement, where defendant has shown no detrimental reliance, have also recognized the limited application contract law has to this problem. Cooper v. United States, 594 F.2d 12 (4th Cir.1978); Kisamore v. State, 286 Md. 654, 409 A.2d 719 (1980). Other compelling principles must be given due consideration.

Chief Justice Burger, speaking for the majority in Santobello v. New York, observed the importance of negotiated pleas:

The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called “plea bargaining,” is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.
Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See Brady v. United States, 397 U.S. 742, 751-752, 90 S.Ct. 1463, 1470-1471, 25 L.Ed.2d 747 (1970).

Santobello v. New York, 404 U.S. at 260-1, 92 S.Ct. at 498, 30 L.Ed.2d at 432.

Similarly, the Court of Appeals of Maryland also recognized the importance of negotiated pleas.

This Court has recognized that plea bargains “when properly utilized, aid the administration of justice ...” and, “within reason, should be encouraged.” State v. Brockman, 277 Md. 687, 693, 357 A.2d 376, 381 (1976). Plea agreements account for the disposition of an overwhelming percentage of all criminal cases, and serve to relieve “the overcrowding of our courts” and to “eliminate many of the risks, uncertainties and practical burdens of trial .... ” Id. Thus, they “permit the judiciary and prosecution to concentrate their resources on those cases in which they are most needed, and further law enforcement by permitting the State to exchange leniency for information and assistance.” Id.

Kisamore v. State, 286 Md. at 656, 409 A.2d at 720.

Negotiated pleas, thus, serve a valuable role in the criminal justice system. If the integrity of that role is to be maintained, certainty must prevail. The state need not enter into a plea agreement. It may choose not to do so, and proceed to trial on any case. The United States Supreme Court states there is no constitutional right to a negotiated plea. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). However, once the state chooses to make an agreement, it should not be allowed to repudiate that agreement with impunity. State v. Brockman, 277 Md. 687, 357 A.2d 376 (1976) (cited with approval in Kisamore v. State, supra). A contrary result would not encourage a defendant to come to grips with the moral and strategic considerations necessary to accepting a negotiated plea, and pleading guilty, if he knows the very agreement he must consider is subject to unilateral speculation by the state. If we allow the state to dishonor at will the agreements it enters into, the result could only serve to weaken the plea negotiating system. Such a result also is inconsistent with the “honesty and integrity” encouraged by Canon 1, Alabama Code of Professional Responsibility.

The Third Circuit Court of Appeals in Government of the Virgin Islands v. Scotland, supra, held that where the state breaches a plea agreement before the defendant acts in reliance on it, specific performance is denied because the defendant has the adequate remedy of a jury trial. We cannot accept that proposition. We agree with the Third Circuit that the right to a jury trial is an important and fundamental right. Nevertheless, it may be an inadequate remedy for a defendant seeking to enforce the terms of an agreed upon plea. In so holding, we do not belittle the value of that fundamental right. We merely recognize that the uncertainty of its outcome is likely to make a jury trial less than a meaningful remedy. One commentator observes:

To the defendant, a trial appears risky and unpredictable when compared with the plea bargaining process. Many factors, including limited pretrial discovery, indeterminate questions of credibility, and the uncertainties of jury decisions, make the outcome of a trial unpredictable. In addition, unpredictability is often prevalent in sentencing procedures. Most criminal statutes grant the judge a wide and largely uncontrolled latitude of sentencing discretion. Plea bargaining eliminates many of these uncertainties by providing a predetermined charge and sentence. See Note, supra note 22, at 564.

Note, Plea Bargaining Agreements — Right to Enforcement Derived from Fifth and Sixth Amendments, 3 Western New Eng.L. Rev. 249,252, N. 24 (1980), citing Note, Plea Bargaining and the Transformation of the Criminal Process, 90 Harv.L.Rev. 564 (1977). There are, undoubtedly, other factors that could be added to the above list.

In its opinion, the Court of Criminal Appeals notes the fact that defendant and the state did not enter into a written plea agreement. We are unaware of any requirement that the agreement be reduced to writing. Regarding negotiated pleas, two commentators have remarked, “[A] plea bargain is a matter of honor between opposing counsel. It is not reduced to writing.” Bailey and Rothblatt, Handling Misdemeanor Cases, § 39 (1976). The same is true in our jurisdiction. Although a plea agreement may be reduced to writing, the prevalent custom in Alabama is that such agreements are verbal understandings between the attorneys involved. We point out this to dispel any suggestion that a plea agreement is unenforceable merely because it is unwritten.

Because we have decided that the plea agreement is enforceable, the question which next arises is: What is defendant’s remedy on remand? Because the trial court is not bound to accept an agreement between the defense and prosecution, defendant cannot compel the entry of a judgment of guilty coupled with the terms embodied in the plea agreement. Nevertheless, defendant is not without a remedy. Under the posture of the agreement in this case, defendant is entitled to compel the enforcement of that for which he bargained — that is, the tender of the negotiated plea, with its attendant terms, to the trial court for its consideration. The Court of Criminal Appeals is directed to instruct the trial court to consider the negotiated plea and its terms entered -into by the state’s counsel and defendant’s counsel. As pointed out by the state in its brief, this case has now been pending before the courts of this state for more than seven years. We hope that on remand it will be brought to the conclusion which is so long overdue.

REVERSED AND REMANDED WITH DIRECTIONS.

TORBERT, C.J., and FAULKNER, JONES, EMBRY and ADAMS, JJ., concur.

MADDOX, ALMON, SHORES, and BEATTY, JJ., dissent.

BEATTY, Justice

(dissenting):

Even assuming there was a valid plea bargain between Yarber and the district attorney, I believe that before the plea bargain is tendered to the court, the better rule would be either to allow the defendant to withdraw his offer to plead guilty, or to allow the district attorney to change his recommendations. Thus, neither party would be bound until that time. In fact, I believe proposed Rule 14.3, Alabama Rules of Criminal Procedure, contemplates such a rule of procedure. I am of the opinion that neither party is justified in relying upon the bargain until the trial court approves it; therefore, I must respectfully dissent.

MADDOX, ALMON and SHORES, JJ., concur.

      . Yarber v. State, [MS. October 27, 1981] 437 So.2d 1319 (Ala.Cr.App.1981).

      . Apparently, Mylar is also known as Miles. Along with Yarber, Mylar also was indicted for the murders.

      . The Fourth Circuit Court of Appeals upholds the right of a defendant to compel specific performance of a negotiated plea where there has been no detrimental reliance, based on constitutional considerations. That court, speaking through Judge Phillips, perceptively observes that allowing the state to repudiate a plea agreement effectively diminishes the defendant’s confidence in his counsel. Such action by the state, that court observes, runs afoul of the state’s “fundamental duty to negotiate with scrupulous fairness in seeking guilty pleas.” Cooper v. United States, 594 F.2d at 19. See, Note, Plea Bargaining Agreements— Right to Enforcement Derived from Fifth and Sixth Amendments, 3 Western New Eng.L.Rev. 249 (1980).

      . “A lawyer should conduct himself at all times, both personally and professionally, in accordance with the highest standards of honesty and integrity and should cooperate with the state and local bar associations in maintaining such standards.” [Emphasis supplied.]


author: SAM W. TAYLOR, Judge.

text:
    Samuel YARBER v. STATE.
    6 Div. 351.
    Alabama Court of Criminal Appeals.
    Aug. 16, 1983.
   AFTER REMANDMENT

SAM W. TAYLOR, Judge.

In accordance with the direction of the Supreme Court of Alabama in Ex Parte: Yarber, 437 So.2d 1330 (Ala.1983), this cause is reversed and remanded with directions to the trial court to consider the negotiated plea and its terms entered into by the state’s counsel and defendant’s counsel.

REVERSED AND REMANDED WITH DIRECTIONS.

All the Judges concur.


author: BARRON, Judge. HARRIS, Presiding Judge,

text:
    James Ray McDONALD, alias v. STATE.
    6 Div. 861.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.
    Rehearing Denied Feb. 1, 1983.

      J. Edmund Odum, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BARRON, Judge.

In 1975, appellant was convicted of buying, receiving, concealing stolen property and sentenced to ten years’ imprisonment. This court affirmed the conviction in McDonald v. State, 349 So.2d 100 (Ala.Cr.App.), cert. denied, 349 So.2d 102 (Ala.1977).

In 1981, appellant filed a petition for writ of error coram nobis, along with supporting affidavits, challenging his conviction on the basis of newly discovered evidence. After a hearing in February 1982, the trial court denied the petition and appellant filed notice of appeal.

The primary witness for the State at trial in 1975 was a Homewood police officer who identified appellant as the driver of a vehicle, subsequently found to contain stolen property, which he pursued on August 11, 1972. Upon stopping the automobile, the officer ordered the two occupants to exit the car and put their hands on the roof. At that point, the passenger, Tommy Frank Hare, fled and the officer gave chase. The passenger was later apprehended but the driver, identified at trial as the appellant, escaped. Appellant presented an alibi defense.

Appellant’s coram nobis petition alleged that he had recently discovered evidence proving that he was not the driver, that he was not involved in the offense, and that one John W. Hare was the driver of the vehicle on the date in question.

The petition contained affidavits from John E. Hare and his brother, Tommy Frank Hare, and their mother to the effect that John E. Hare, and not the appellant, was the driver of the vehicle in question; the Hare brothers, both of whom are presently incarcerated in penal institutions, are friends of the appellant. Also, the petition included affidavits from the attorney who represented appellant at the original trial to the effect that appellant was in his office at the time of the incident, and from the attorney who represented the Hare brothers in 1972 to the effect that his clients advised him shortly after the incident that John E. Hare, and not the appellant, was the driver of the vehicle in question. Additional affidavits to the same general effect were included in the petition.

At the hearing on the coram nobis petition, the attorney for the Hare brothers in 1972 was the only witness who testified. He related facts stated in his affidavit and added that, at the time, he was concerned that appellant had been charged with, and convicted for, an offense which he believed his own client had committed, yet he concluded that, based on the attorney-client privilege, he was unable to divulge facts which would implicate his client or exonerate the appellant. He stated that he had recently secured a waiver of that privilege from both of his clients and was at liberty to divulge the information he had received from them in 1972. He added that at the time of the offense his client, John E. Hare, and the appellant had similar physical appearances. He also testified that, in his judgment, his client John E. Hare had neither the time nor the motive to fabricate his involvement in the offense when he (Hare) related the facts to the attorney on August 11, 1972.

At the conclusion of the coram nobis hearing, after listening to the arguments of counsel urging that the newly discovered evidence overcame the effect of the identification testimony given at trial, the trial court denied the petition, stating:

“I’m going to cite one case for the record to make sure if this is reviewed they will have the benefit of what I am thinking. You mentioned the police officer, testimony of the police officers. In United States versus Gravero, 530 Federal 2nd 666, in the Fifth Circuit, 1976, they explained the role of the trial judge and the role of a jury as far as credibility of witnesses, whether it be a State witness, government witness, whatever witness, and that’s strictly within the province of the jury, and I am denying the petition for writ of error coram nobis.”

The thrust of the newly discovered evidence is (1) an alibi defense that appellant was in an attorney’s office at the time the incident happened and, therefore, could not be guilty of the offense, and (2) that the driver of the car in question was his friend, John E. Hare, and not appellant.

At his original trial, appellant presented alibi witnesses, but there was no evidence presented to the effect that he was in his attorney’s office at the time of the incident. Certainly, the information as to his whereabouts at the time in question would have been available to both the appellant and his then attorney at the time of the original trial, and thus cannot serve as newly discovered evidence to justify the issuance of the writ. Writ of error coram nobis is appropriate only when petitioner’s claim is based on facts which were not known and could not have been discovered with the exercise of reasonable diligence at the time of trial. Summers v. State, 366 So.2d 336 (Ala.Cr.App.1978), writ denied, Ex parte Summers, 366 So.2d 346 (Ala.1978). A petition for writ of error coram nobis is not intended to relieve a party of his own negligence. Behel v. State, 405 So.2d 51 (Ala.Cr.App.1981).

The trial court was apparently not impressed, and neither are we, with a “confession” by a criminal friend of the appellant after the expiration of the statute of limitations for prosecution of the offense.

Appellant urges a reversal on the ground that the newly discovered evidence would probably have changed the result of the original trial. Such newly discovered evidence appears to be cumulative to the alibi evidence presented by appellant at the original trial, which was obviously rejected by the jury. Additionally, we perceive the proper standard to be that the newly discovered evidence would be such as would have prevented the conviction, not “would probably have changed the result.” Lewis v. State, 367 So.2d 542 (Ala.Cr.App.1978), writ denied, Ex parte Lewis, 367 So.2d 547 (Ala.1979). In view of the positive in-court identification of appellant at the original trial by two Homewood police officers, appellant’s position does not measure up to the required standard.

Appellant has not established his right to relief by the required clear, full, and satisfactory proof. The judgment of the trial court denying the petition is due to be, and is hereby, affirmed.

AFFIRMED.

TYSON, BOWEN and DeCARLO, JJ., concur.

HARRIS, P.J., dissents.

HARRIS, Presiding Judge,

dissenting:

This case was originally assigned to me for preparation of an opinion for this court, but it was not accepted by the majority.

If the testimony set forth in my original opinion together with the supporting affidavits are true, then appellant is innocent and is serving time for a crime which he did not commit. If he is serving time for a crime which he did not commit, then a grave miscarriage of justice has been perpetrated. I, therefore, respectfully dissent.

In 1975, appellant was convicted of buying, receiving, concealing stolen property and sentenced to ten years’ imprisonment. This court affirmed the conviction in McDonald v. State, 349 So.2d 100 (Ala.Cr.App.), cert. denied, 349 So.2d 102 (Ala.1977).

In 1981, appellant filed a petition for writ of error coram nobis, along with supporting affidavits, challenging his conviction on the basis of newly-discovered evidence. After a hearing in February 1982, the trial court denied the petition and appellant filed notice of appeal.

The primary witness for the State at trial in 1975 was a Homewood police officer who identified the appellant as the driver of a vehicle, subsequently found to contain stolen property, which he pursued on August 11, 1972. Upon stopping the automobile, the officer ordered the two occupants to exit the car and put their hands on the roof. At that point, the passenger fled and the officer gave chase. The passenger was later apprehended but the driver, identified at trial as the appellant, escaped. Appellant presented an alibi defense.

Appellant’s coram nobis petition alleged that he had recently discovered evidence proving that he was not involved in the offense and that one John E. Hare was the driver of the vehicle on the date in question. The following offers of evidence were attached to the petition:

(1) Affidavit of John E. Hare, stating that he, and not the appellant, was driving the vehicle containing the stolen property, and that he was accompanied by his brother, Tommy Frank Hare;
(2) Affidavit of Tommy Frank Hare stating that he and his brother John were the only occupants of the automobile in question and averring that appellant had no part in stealing, receiving, or concealing the property;
(3) Affidavit of Dorothy Hare, mother of John E. and Tommy Frank Hare, stating that her son John told her that he and Tommy, rather than appellant, were involved in the crime for which appellant was convicted;
(4) Affidavit of Annette Wells stating that on August 11, 1972, she loaned her car to the Hare brothers and they were the only occupants of the vehicle when it left her residence;
(5) Affidavit of attorney Arthur Parker stating that at the time of the alleged offense appellant was in his (Parker’s) office;
(6) Affidavit of Rubinelle S. Singleton stating that she was with appellant from 11:00 a.m. to 12:15 p.m. on August 11, 1972, and that she drove appellant to attorney Arthur Parker’s office for an appointment;
(7) Letter to attorney Edward L. Hardin from Clyde A. Wolfe, Commercial Polygraph, Inc., stating that he had given appellant a lie detector examination on the facts surrounding the instant offense and that the results indicated appellant’s denial of involvement was “substantially the truth.”
(8) Affidavit of appellant, James Ray McDonald, stating that he learned of the involvement of the Hare brothers in the crime for which he was convicted during a telephone conversation with Tommy Frank Hare in January, 1979, and that he was unaware of this evidence at the time of his trial in 1975.
(9) Affidavit of attorney J. Wilson Dins-more stating that he represented both of the Hare brothers in 1972, and that on August 11 of that year, John E. Hare related to him the facts surrounding the offense for which appellant was convicted. Hare said that the brothers had been stopped by the police, that Tommy Frank had been caught and that John E. had escaped. Dinsmore’s affidavit concluded as follows: “I determined the police had Tommy in custody and had misidentified John E. Hare, and were looking for one (1) James R. McDonald. Johnny told me James R. McDonald had nothing to do with the theft of the Buick or the Chevrolet.”

At the hearing on the coram nobis petition, attorney J. Wilson Dinsmore was the only witness who testified. He related facts stated in his affidavit and added that, at the time, he was concerned that appellant had been charged with and convicted for an offense which he believed his own client had committed, yet he concluded that, based on the attorney-client privilege, he was unable to divulge facts which would implicate his client or exonerate the appellant. He stated that he had recently secured a waiver of that privilege from both of his clients and was at liberty to divulge the information he had received from them in 1972.

Dinsmore added that at the time of the offense his client, John E. Hare, and the appellant had similar physical appearances. He also testified that, in his judgment, his client John E. Hare had neither the time nor the motive to fabricate his involvement in the offense when he (Hare) related the facts to Dinsmore on August 11, 1972.

At the conclusion of the coram nobis hearing, after listening to the arguments of counsel urging that the newly-discovered evidence overcame the effect of the identification testimony given at trial, the court stated the following:

“I’m going to cite one case for the record to make sure if this is reviewed they will have the benefit of what I am thinking. You mentioned the police officer, testimony of the police officers. In United States versus Cravero, 530 Federal 2nd, 666, in the Fifth Circuit, 1976, they explained the role of the trial judge and the role of a jury as far as credibility of witnesses, whether it be a State witness, government witness, whatever witness, and that’s strictly within the province of the jury, and I am denying the petition for writ of error coram nobis.”

In Cravero, the government appealed from a decision of the trial court granting a motion for judgment of acquittal, based on insufficiency of the evidence, after the jury had returned a verdict of guilty. The trial judge had expressed doubts about the credibility of the government’s main witness, but ruled that, even accepting the witness’s testimony as true, the government had not “presented a sufficient prima facie case for the jury.” 530 F.2d at 670.

The Court of Appeals for the Fifth Circuit reversed the trial court’s ruling, found that the evidence was sufficient to establish a prima facie case, reinstated the jury’s verdict, and observed that “[t]he trial judge cannot arrogate to himself this power of the jury [to determine the credibility of witnesses] simply because he finds a witness unbelievable.” Id.

Citing Cravero, the Alabama Supreme Court upheld the grant of a writ of mandamus to compel a circuit judge to set aside his ruling that a defendant was entitled to a new trial because the judge had “doubts” about the testimony of the State’s key witness. Ex parte Nice, 407 So.2d 874, 876 (Ala.1981). The court determined that the trial judge’s ruling was a “usurpation of power,” 407 So.2d at 879, and “in excess of his judicial power,” 407 So.2d at 880.

It is apparent, therefore, that both the Fifth Circuit Court of Appeals in Cravero and the Alabama Supreme Court in Ex parte Nice based their holdings on the fact that the trial court had, as a “thirteenth juror,” invaded the province of the fact-finders. That situation, however, is not present here. A petition for writ of error coram nobis on grounds of newly discovered evidence does not ask the trial judge to substitute his judgment for that of the jury. It requires the trial court to weigh evidence other than what the jury had before them at trial, and it requests the court to determine whether, based on evidence the jury did not hear, the petitioner is entitled to a new trial.

Thus, a trial court who rules on whether newly-discovered evidence entitles a petitioner to a retrial cannot usurp the function of the original jury. Unlike a trial judge who grants a post-judgment motion for new trial based on his own belief that the jury verdict was wrong, a court which grants a coram nobis petition on grounds of newly-discovered evidence has not determined that the jury verdict was in error. Instead, he has found that, notwithstanding the sufficiency of the evidence originally testified, the newly-discovered proof, had it been known, would have prevented the original conviction. See Goodman v. State, 387 So.2d 862 (Ala.Cr.App.), cert. denied, 387 So.2d 864 (Ala.1980).

In my judgment, the holdings of Cravero and Nice are inapplicable to post-conviction motions based on newly-discovered evidence. In such motions, the trial court is necessarily required to determine the credibility of the allegedly-new proof, see Robinson v. State, 389 So.2d 144 (Ala.Cr.App.), cert. denied, 389 So.2d 151 (Ala.1980); Prince v. State, 356 So.2d 750 (Ala.Cr.App.1978), and he does not invade the province of the jury by making that determination.

I would, therefore, remand this cause and direct the trial court to determine, based upon his judgment of the credibility and admissibility of the evidence alleged to be newly-discovered, whether appellant is entitled to a new trial. “The truthfulness or falsity of the evidence presented is not for this court to decide.” Robinson v. State, supra at 149.


author: BEATTY, Justice.

text:
    Ex Parte James Ray McDONALD. (Re James Ray McDonald, alias v. State).
    82-436.
    Supreme Court of Alabama.
    July 1, 1983.

      J. Edmund Odum, Jr., Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for respondent.
   BEATTY, Justice.

Certiorari was granted to resolve an apparent conflict between the opinion of the Court of Criminal Appeals in this case and the opinion of this Court in Ex Parte Vaughn, 395 So.2d 95 (Ala.1979), pertaining to the review of a petition for a writ of error coram nobis.

The facts of this case are fully stated in the opinion of the court below. After reviewing that opinion and the pertinent authorities, this Court has concluded that the dissenting opinion of Harris, J., states the proper rule of review of such petitions. Accordingly, that opinion is hereby adopted as the opinion of this Court. The judgment is reversed and the case remanded to the Court of Criminal Appeals with directions to remand the cause to the trial court to determine whether, under the petition, the petitioner is entitled to a new trial.

REVERSED AND REMANDED WITH DIRECTIONS.

TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.


text:
    James Ray McDONALD v. STATE.
    6 Div. 861.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
   AFTER REMANDMENT

SAM W. TAYLOR, Judge.

Reversed and remanded with directions to the trial court to determine whether, under the petition, the petitioner is entitled to a new trial, on authority of the Supreme Court of Alabama, Ex Parte James Ray McDonald, 437 So.2d 1342 (Ala.1983).

REVERSED AND REMANDED WITH DIRECTIONS.

All the Judges concur.


author: BARRON, Judge. TYSON, Judge,

text:
    Raben James HICKS v. STATE.
    6 Div. 907.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.
    Rehearing Denied Feb. 1, 1983.
    Arthur Parker, Birmingham, for appellant.
    No brief filed for appellee.
   BARRON, Judge.

Raben James Hicks was charged by a Jefferson County Grand Jury with the offense of trafficking in cannabis. He entered a plea of not guilty and waived a jury trial. During all of the proceedings, including this appeal, appellant was represented by retained counsel.

The matter was tried by the trial court under an agreed stipulation of facts. Appellant was found guilty of the offense and was sentenced to three years. Hence this appeal.

The only issue presented on appeal relates to the validity of the search warrant involved.

The search warrant in question, which was issued by Judge Peter A. Hall, Judge of the Municipal Court of the City of Birmingham, was directed to “the Chief of Police or any police officer of the City of Birmingham, Alabama,” commanded a daytime search for marijuana of 6305 Crest Club Circle, Birmingham, Alabama, and was returnable to the judge of the Jefferson County District Court. The search was carried out solely by Birmingham police officers, who were not accompanied by any sheriff or deputy sheriff, and who did not conduct the search at the request of, or in aid of, any sheriff or deputy sheriff. None of the police officers were constables for the county.

Appellant filed a motion to suppress the evidence obtained as a result of the search on the basis that the search warrant was defective. The trial court denied the motion to suppress.

Appellant contends that the search warrant is defective because it does not comply with §§ 15-5-5 and 15-5-7, Code of Alabama 1975, in that (1) the search warrant is directed to municipal police officers, and (2) the warrant was executed without the authority of any sheriff, deputy sheriff, or constable.

The applicable Code sections provide:

Section 15-5-5:
“If the judge or the magistrate is satisfied of the existence of the grounds of the application or that there is probable ground to believe their existence, he must issue a search warrant signed by him and directed to the sheriff or to any constable of the county, commanding him forthwith to search the person or place named for the property specified and to bring it before the court issuing the warrant.”
Section 15-5-7:
“A search warrant may be executed by any one of the officers to whom it is directed, but by no other person except in aid of such officer at his request, he being present and acting in its execution.”

Appellant relies on Rivers v. State, 406 So.2d 1021 (Ala.Cr.App.1981), in furtherance of the contention that these statutes dictate that a sheriff or a constable must execute the warrant.

Without doubt, §§ 15-5-5 and 15-5-7, Code of Alabama 1975, do not include municipal police officers as among those authorized to execute search warrants. However, we do not believe that these statutes are intended to be all-inclusive in their application so as to prohibit the execution of search warrants by others where there is statutory authorization.

Act No. 1205 of the 1975 Acts, codified in' Title 12, Code of Alabama 1975, the purpose of which was to implement the Judicial Article Amendment to the Alabama Constitution, in dealing with municipal courts, provides in part as follows:

Section 12-14-4:
“The sheriffs of the counties and law enforcement officers of the municipalities of the state of Alabama shall obey the municipal judge having legal authority in faithfully executing the warrants and processes committed to them for service according to their mandates.”
Section 12-14-32:
“Municipal judges are authorized to issue arrest and search warrants for municipal ordinance violations returnable to the municipal court and for violations of state law returnable to any state court.”

We construe these Code sections as authorizing municipal judges to direct the execution of search warrants to municipal law enforcement officers, as was done in the case before us. As a consequence, we find that the search warrant was not defective, and that the motion to exclude the evidence was properly denied by the trial court.

Our holding in this case is not in conflict with the holding in Rivers, supra. In Rivers, it was held that a search warrant was defective because it was directed to “any ABC agent” rather than to a county official, pointing out that the obvious impact of §§ 15-5-5 and 15-5-7, Alabama Code 1975, is that a local official will be in charge of searches within his county. Certainly, municipal police officers would be local officials. Also, Rivers recognized that, other statutory authority could supplement the provisions of Code §§ 15-5-5 and 15-5-7 in holding: “[Sjince these broad statutes exclude ABC agents as among those authorized to execute search warrants, we must look for some specific authorization.” (Emphasis in original.) The statutory authority for the search in the case before us is found in Code §§ 12-14-4 and 12-14-32.

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

AFFIRMED.

HARRIS, P.J., and BOWEN and DeCAR-LO, JJ., concur.

TYSON, J., dissents.

TYSON, Judge,

dissenting on authority of Rivers v. State, 406 So.2d 1021 (Ala.Cr.App.1981), and authorities therein cited.