text:
    Elizabeth Ann STEVENSON (Bruch) v. Charles Edward STEVENSON.
    Civ. 4158.
    Court of Civil Appeals of Alabama.
    May 16, 1984.
    Rehearing Denied June 13, 1984.
    John T. Alley, Jr. of Jones, Murray, Stewart & Yarbrough, Montgomery, for appellant.
    Joe A. Macon, Jr., Wetumpka, for appel-lee.
   HOLMES, Judge.

This is a child custody jurisdiction case arising primarily under the Parental Kidnapping Prevention Act of 1980, 28 U.S. C.A. § 1738A (1983 Supp.).

This appeal involves a minor child who has been the subject of several custody proceedings. In the latest proceeding the Circuit Court of Montgomery County declined to exercise jurisdiction on the mother’s petition to modify custody.

The mother through able counsel appeals contending the trial court erred to reversal in refusing to exercise jurisdiction. We find no error requiring reversal and affirm.

The record in pertinent part reveals the following:

The parties were married in June of 1977 in Montgomery, Alabama. Their only child, Stephanie, was born May 23, 1978. On February 20, 1979, when the child was eight months old, the parties divorced. Pursuant to the divorce agreement, the father was awarded primary custody of the child and the mother was given reasonable visitation rights.

Apparently because he was in the service, the father allowed his mother, the child’s paternal grandmother, to keep Stephanie at her home near Montgomery. The father visited with Stephanie on weekends when he was stationed at Keesler Air Force Base on the Mississippi Gulf Coast. In 1981, when he was stationed in England for seven months, he took Stephanie with him. He also had Stephanie with him when he was stationed in Denver, Colorado. She was with him for the eight months preceding April 28, 1983.

The present appeal stems from the second custody modification action filed with regard to Stephanie. The first action, filed by the paternal grandmother, ended with an order that custody be restored to the father.

On or about April 28, 1983, the father allowed Stephanie to travel with her grandmother back to Alabama. Less than two months later, on June 13, 1983, the grandmother initiated custody proceedings in El-more County Juvenile Court, alleging that Stephanie’s father had abused and/or neglected her while she was in Colorado. In her petition the grandmother alleged that the natural mother’s whereabouts were unknown and could not be ascertained after diligent search. On the same day the petition was filed, the Elmore County court granted temporary custody to the grandmother.

On July 20, 1983, the father moved to dismiss the grandmother’s petition on jurisdictional grounds, arguing that Colorado was the child’s home state. See 28 U.S. C.A. § 1738A(b)(4). The father’s motion was granted and the grandmother appealed, obtaining a stay and temporary custody award from Elmore County Circuit Court. After a September 8, 1983, hearing, in which Stephanie’s natural mother was not served, present, or represented by counsel, the Elmore County Circuit Court requested that the appropriate Denver, Colorado court hold a hearing to consider evidence on the grandmother’s charges of abuse and neglect. See § 30-3-39, Code 1975 (1983 Replacement Volume).

During the second week of October, Stephanie’s natural mother visited Alabama from her home in Connecticut and discovered the pending custody proceedings. Although the mother did not intervene or retain her own counsel, she agreed to accompany the grandmother to the Colorado hearing in order to testify on the grandmother’s behalf.

On November 30, 1983, the Colorado court issued its findings, recommending that the custody matter be transferred to Colorado and that actual physical custody of Stephanie be restored to her father, as there was no evidence that Stephanie would be in any danger, either physical or mental, should she be returned to her father’s home.

On December 13, 1983, the father moved the Elmore County court for immediate relief in order to obtain custody of Stephanie. On December 15, 1983, the Elmore County court ordered the grandmother to return the child to her father and further ordered that the matter be transferred to the District Court of El Paso County, Colorado. On or before that date, the grandmother turned Stephanie over to her natural mother. The next day the grandmother attempted to dismiss her action and the mother filed the instant action in Montgomery County Circuit Court. The Elmore County trial court never acted upon the grandmother’s motion to dismiss and she did not appeal.

On December 21, 1983, the mother petitioned the Montgomery County Circuit Court for a temporary restraining order enjoining the father from attempting to regain physical custody of Stephanie. The motion was granted December 28, 1983, and on December 30, 1983, the father filed his motion to dismiss based upon Colorado’s jurisdiction. As indicated, the Montgomery court granted the motion on January 12, 1984, finding that Alabama lacked proper jurisdiction over the child custody matter.

The next day the mother filed her notice of appeal and obtained a stay pending appeal from this court.

As indicated, the dispositive issue on appeal is whether the trial court erred in refusing to exercise jurisdiction over the instant case.

Under the Uniform Child Custody Jurisdiction Act, §§ 30-3-20 through -44, Code 1975 (1983 Replacement Volume), and the Parental Kidnapping Prevention Act, 28 U.S.C.A. § 1738A (1983 Supp.), even if a state has statutory jurisdiction over a child custody matter, it may decline to exercise its jurisdiction should it be made to appear that another state is the more appropriate forum. Such a decision will not be overturned on appeal, absent an abuse of discretion. Moore v. Perez, 428 So.2d 113 (Ala.Civ.App.1983). Accordingly, the issue in this case is not which was the home state as between Alabama and Colorado, but whether even assuming without so deciding Alabama was the “home state,” the Montgomery County Circuit Court abused its discretion in deferring to Colorado.

Viewing the record below with the attendant presumptions afforded the trial court’s decision after an ore terms hearing, see, e.g., Hudson v. Hudson, 404 So.2d 82 (Ala.Civ.App.1981), this court finds that the following facts support the trial court’s action: The father, who is the custodial parent pursuant to the 1979 divorce decree, resides in Colorado. Stephanie lived in Colorado with him for approximately eight months immediately before her grandmother was allowed to bring her back to Alabama. The grandmother within sixty days after the child came to Alabama initiated custody proceedings. The mother was a resident of Connecticut and had returned to Alabama only after the modification dispute had arisen. The abuse and/or neglect which underlies the mother’s petition for custody modification was alleged to have taken place while Stephanie lived in Colorado with her father. Any babysitters, teachers, family friends, or health care professionals who could offer testimony about Stephanie’s treatment would be found in Colorado. Under these circumstances, we cannot say that the trial court abused its discretion. In fact, it appears the trial court was imminently correct in its action. Hence no error. See Moore, at 113 and Ballard v. Ballard, 444 So.2d 872 (Ala.Civ. App.1984).

A secondary issue on appeal is whether the trial court erred when it refused to award the mother temporary custody, finding that the preliminary abuse and/or neglect issues had already been resolved adversely to the mother by the Elmore County and Denver, Colorado courts.

Specifically, the mother argues that the Circuit Court of Montgomery County was without authority to enter the following:

“That Elizabeth Ann (Stevenson) Bruch is ordered to comply with the custody orders of the Circuit Court of El-more County, Alabama, Case No. DR-83-278, and of the District Court of El Paso County, Colorado, Juvenile Action No. 83-JV-1240.”

Clearly, in view of the posture of the case before the Circuit Court of Montgomery County and the facts as indicated, the above portion of the order was appropriate.

The mother had petitioned the Montgomery Circuit Court for custody; the trial court properly declined jurisdiction; certainly, it could then order the mother or anyone else before the court to comply with the appropriate orders regarding custody. See Owens v. Owens, 281 Ala. 239, 201 So.2d 396 (1967), regarding general equity power.

We would note that it is the law of Alabama and presumably that of other jurisdictions that the question of custody of a child is never res judicata. See Burleson v. Burleson, 269 Ala. 637, 114 So.2d 887 (1959). However, we further note that no court looks with favor on repeated litigation. Burleson, supra. The question of a proper forum is of course another matter.

In view of the above, the trial court’s order of January 12, 1984, is affirmed.

The mother’s request for an attorney’s fee for representation on appeal is denied.

Both parties have filed with this court certain motions regarding the proper record before this court. This court assures all concerned that we have only considered those matters properly presented before the trial court and this court.

The stay previously entered by this court is dissolved.

The trial court is due to be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge. WRIGHT, Presiding Judge.

license: Public Domain

text:
    Burson DOBBS v. Ann DOBBS.
    Civ. 4129-X.
    Court of Civil Appeals of Alabama.
    May 23, 1984.
    Rehearing Denied June 6, 1984.

      Charles E. Tweedy, Jr. of Tweedy, Jackson & Beech, Jasper, for appellant.
    James K. Davis of Fite, Davis & Atkinson, Hamilton, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

Appellee-cross-appellant, Ann Dobbs (wife) and appellant-cross-appellee, Burson Dobbs (husband) were married in 1960 and separated in 1982. They have no children. In Winston County Circuit Court wife filed for divorce on grounds of (1) incompatibility and (2) cruelty, actual and threatened, and sought a division of property, including real estate, an insurance business, an automobile dealership and other general relief.

In November 1983, following a trial, the court rendered a divorce decree which gave wife the marital home valued at about $100,000.00, $55,000.00 in cash and allowed her to keep her own cash assets and jewelry. The court awarded the remainder of the property to husband.

Husband filed timely notice of appeal. After thirty days elapsed and husband had not paid wife the $55,000.00 nor surrendered possession of the marital residence, wife petitioned the court to order execution and enforce the terms of the decree. Husband filed a supersedeas bond. Wife filed a cross-appeal. Husband has moved to dismiss the appeal. The motion is opposed with a request to affirm the judgment in all respects except for the cross appeal. The motion to dismiss the appeal is denied. Husband has not filed brief in support of his appeal. We therefore affirm insofar as his appeal. We consider the issues of the cross-appeal.

ON MERITS

On cross-appeal, the essential question is whether the trial court erred in its division of marital assets. Wife contends (1) that her award is inadequate, (2) that the court did not adequately consider the assistance she gave in helping to acquire the marital property, (3) that since husband was also at fault in contributing to the failure of the marriage, the element of fault should be disregarded and (4) that wife should be awarded between thirty-three percent and fifty percent of their combined estates as well as attorney fees.

Alabama courts have consistently held that judgments in divorce cases heard ore tenus are presumed correct and will not be disturbed on appeal unless palpably in error or unsupported by legal evidence. See, Williams v. Williams, 445 So.2d 570 (Ala.Civ.App.1984); Smith v. Smith, 369 So.2d 1235 (Ala.Civ.App.1978), cert. denied, 369 So.2d 1239 (Ala.1979). Wide discretion is given to a trial court in making a property division in a divorce case. Kilpatrick v. Kilpatrick, 411 So.2d 158 (Ala.Civ.App. 1982). Moreover, an equal division of property is not required in a divorce case, but rather an equitable division of property should be made according to the nature of the case. Willoughby v. Willoughby, 413 So.2d 1160 (Ala.Civ.App. 1982). In exercising discretion to divide property in a divorce case, a trial court may consider such factors as the earning capacity of the parties, their future prospects, their age, health, and duration of marriage, their standard of living, value and type of property and conduct of the parties. Butts v. Butts, 418 So.2d 161 (Ala.Civ.App.1982).

In our review of the record and consideration of the parties’ ages, health, earning capacity and future prospects for maintaining a standard of living reasonably comparable to their past standard of living, we do not find the court’s division of property either unsupported by the evidence or inequitable.

The record indicates that husband had the following assets: a Ford dealership worth approximately $780,265.00, a one-half interest in Dobbs-Thrasher Insurance Agency, a one-half interest in a condominium valued at $20,000.00, a one-half interest in a marital residence valued at approximately $45,000.00, and a one-third interest in an airplane valued at approximately $5,000.00. Husband also had various bank accounts in the approximate amount of $137,000.00 and outstanding loans from various banks in the approximate amount of $233,000.00.

The record further reveals that at the time of trial the wife had a one-half interest in their condominium valued at $20,-000.00, a one-half interest in the marital residence valued at approximately $45,-000.00, jewelry worth about $18,000.00 and $30,000.00 in cash. At the time of trial wife had no significant debts.

Wife is a vocational education supervisor with the State Department of Education with twenty-four years’ experience and tenure. She earns $29,000 in annual salary, and may retire in six years. She is in good health. Husband is fifty-three years old. Within the last year he has undergone hernia and by-pass heart surgery. Each party appears able to live adequately within the terms of the divorce decree without any significant loss of status accustomed to during marriage.

Each argues the fault of the other in causing the breakdown of the marriage. It is unnecessary, however, to delve into each incident of misbehavior or indiscretion, for when testimony regarding fault is in conflict and on both sides, a trial court is not required to determine relative fault in its division of marital property. Faught v. Faught, 423 So.2d 242 (Ala.Civ.App.1982).

Finding evidence in the record to support the trial court’s decision and that its decision is not unjust, we therefore affirm the trial court’s judgment in all respects and remand for the determination of liability under the supersedeas bond filed.

The wife’s request for attorney fees on appeal is granted in the sum of $500.00.

AFFIRMED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.

ON REHEARING

WRIGHT, Presiding Judge.

By motion for rehearing, appellee has complained of our direction to the trial court upon remand to determine the liability of appellant under his supersedeas bond. Appellee is correct that under § 12-22-72, Code of Alabama 1975, it is the responsibility of this court, upon an affirmance, to enter judgment against the obligors on the supersedeas bond. We therefore withdraw from our original opinion such direction to the trial court and enter judgment for all costs, interest, and ten percent penalty on all amounts determined by the trial court to have been superseded by bond, together with a $500 attorney fee for appellee on appeal.

ON MOTION FOR REHEARING, OPINION EXTENDED; FURTHER REHEARING DENIED.

BRADLEY and HOLMES, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    Donald P. CAIN v. Elizabeth G. CAIN.
    Civ. 4102.
    Court of Civil Appeals of Alabama.
    May 30, 1984.

      W.E. Garrett, Atmore, for appellant.
    Robert A. Wills, Bay Minette, for appel-lee.
   WRIGHT, Presiding Judge.

This is a divorce case.

Appellant, Donald P. Cain (husband), and appellee, Elizabeth G. Cain (wife), were married for twenty-five years when they were divorced in August 1980. The parties have two children, an adult daughter and a son who attained majority in February 1983. An agreement concerning custody of the children and division of the parties’ property was incorporated into the final decree of divorce. A dispute arose over the interpretation and execution of some of the provisions of that agreement.

At the time of the divorce the parties jointly owed Federal Land Bank (FLB) and Baldwin County Savings and Loan (BCS & L) a total amount approximating $98,000. The decree provided that wife was to sell the Driftwood Fishing Supply and use the proceeds to pay the parties’ indebtedness to FLB and BCS & L. The business had been in wife’s name since 1966, and she had operated it since that time. After wife sold the business for $130,000, she paid FLB and BCS & L a total of $97,915.98, leaving a remainder of $32,084.02 to be divided between the parties.

The divorce decree provided that no alimony would be paid to either party. Husband was granted reasonable visitation rights to see his then minor son. In lieu of child support, certain Social Security benefits were to go to wife and minor child. Rental property held by both parties was ordered sold with the net proceeds to be divided equally. Wife received the marital residence of the parties. A 120-acre parcel of property was divided, with wife taking forty acres and husband taking the remaining acreage. The retention of personal items was agreed upon but not specified in the decree.

On October 27, 1982, husband petitioned the Baldwin County Circuit Court to order wife to show cause why she had not paid husband monies the court ordered be paid him, had not paid FLB what the court directed her to pay, had not permitted husband to get certain personal items due him, and why wife had not transferred to husband the mineral rights granted him in the court order.

The parties reached a settlement agreement in January 1983. The final terms of the settlement were to be further clarified by a subsequent income tax accounting to be prepared by a certified public accountant. Afterwards, a final order was to be rendered by the court. In April 1983 the court entered the order. That order was subsequently set aside upon motion of the husband. Additional hearings were subsequently held and another order entered. Husband appeals.

Three issues are raised: (1) whether the trial court can construe the agreement of the parties which was incorporated into the final judgment of divorce, (2) whether the ruling regarding the division of personal property is arbitrary, capricious and against the great weight of the evidence, and (3) whether the trial court can require husband to pay child support for a child who has attained majority.

With regard to the first issue, husband contends that the trial court erred when it construed the following portion of the parties’ agreement.

“It is hereby agreed by the parties hereto that the store and the above described real property shall be placed on the market for sale as soon as reasonably possible and shall be sold for the highest obtainable market price. The proceeds from said sale shall be first used to liquidate certain indebtedness of the parties, a mortgage to the Federal Land Bank which is encumbering the residence of the parties hereto and the property on which it is located and the real property owned by the parties and located in Section 34, Township 2 South, Range 4 East, Baldwin County, Alabama and a mortgage to the Baldwin County Savings and Loan Association encumbering the Driftwood Fishing Supply and the real property on which it is situated. Any proceeds remaining from the sale of said property after the payment of the aforementioned indebtedness shall be equally divided between the parties.”

The court specifically interpreted the preceding provision:

“to permit the wife to deduct from the total sale price of the Driftwood Fishing Supply all ordinary and necessary expenses in the closing out of the business and those ordinary and necessary expenses incurred in the actual sale prior to a division of the proceeds from said sale between the parties hereto.”

Husband asserts that a property settlement provision of a divorce decree cannot be modified or changed, except to correct clerical errors, after a lapse of thirty days from entry of final judgment approving the settlement and cites DuValle v. DuValle, 348 So.2d 1067 (Ala.Civ.App.1977), in support thereof. Husband contends that the agreement is clear that once the business was sold and the debts paid, the proceeds should be equally divided. Under husband’s contention, the remaining proceeds from the sale of the business and payment of debts owed to FLB and BCS & L totalled $32,084.02 and that his half would be $16,-042.01. He states that wife gave him a check for $10,000, leaving a balance of $6,042.01 still due him.

Wife contends that it was the intent of the parties and the reasonable construction of the agreement that all costs of the sale and expenses related thereto should be first paid from the proceeds, with the net remainder divided equally.

“Divorce decrees are to be construed like other written instruments, and if there is any uncertainty, the court must construe them so as to express the intent of the parties. Such intent can be derived from the provisions of the agreement.” Satterfield v. Satterfield, 419 So.2d 601, 603 (Ala.Civ.App.1982), citing, Horsley v. Horsley, 390 So.2d 1058 (Ala.Civ.App.), cert. denied, 390 So.2d 1060 (Ala.1980).

Ambiguity exists in this case concerning this provision, as evidenced by the disparate interpretations of the parties. In looking at the record to discern the parties’ intent, the trial judge was reasonable in her determination that the true intended meaning was that the costs of winding up the business such as taxes and the expenses involved in the sale be included. On cross-examination wife testified,

“When we wrote up the agreement, we were both present and we agreed to name' these two businesses because of the large amount involved. We both knew there would be other expenses incurred and that would have to be paid at a closing of a business. Anyone has that much knowledge on those type things.
“So, I just, well, named those two mortgages because they were so expensive in money that was the only reason we named those and did not list everything else like income tax or anything as a reasonable expense that anybody has to pay in a business. Definitely those things had to be paid out of the business and it is common knowledge.”

Furthermore, evidence in the record indicates husband was familiar with the operation of the business and the various cost factors involved in the sale of a business. Husband does not deny a realization of the costs involved in the sale of a business, but, rather, argues a strict and literal reading of the provision. The court was not unreasonable or unsupported in construing the intent of the parties to include the costs of winding up and selling the business before dividing the proceeds. To interpret the provision as husband urges would be unfair and inequitable. The debts owed to FLB and BCS & L were joint debts, but from the time of divorce until the sale wife paid $21,299.13 to FLB and $7,787.64 to BCS & L, while husband made no payments on either note after the divorce.

Another provision of the agreement which the court construed and husband objects to is that regarding the conveyance of certain mineral rights upon sale of the rental property and the business. The provision stated that upon the sale of such property, “one-half of all oil, gas and other minerals” will be retained with each party being entitled to a “one-half interest in the one-half interest of all said minerals retained.” The trial court found it necessary for wife to convey the minerals along with the sale of the rental property in order to be able to sell the property in light of the current market conditions. The husband signed the deeds which contained no reservation of mineral rights. The decision of the trial court is presumed correct and will not be disturbed unless clearly and palpably wrong. Jenkins v. Jenkins, 406 So.2d 976 (Ala.Civ.App.1981).

The second issue raised by husband regarding the court’s decision with respect to the division of personal property is supported by the evidence and is not unjust, thereby warranting no further discussion. See, id. The court’s decision with respect to husband’s first two issues is affirmed.

The court’s decision with respect to child support for the parties’ son, however, is due to be reversed. “Without an agreement to the contrary, a parent is under no legal obligation to support or educate a child after it attains the age of majority.” Holmes v. Holmes, 410 So.2d 115, 117 (Ala. Civ.App.1982), citing, Ralls v. Ralls, 383 So.2d 857 (Ala.Civ.App.1980). Thus husband being under no legal obligation to support his adult son, the question becomes whether husband is contractually obligated to support the son. Wife contends that husband is obligated because it was the intent of both parties that husband would provide child support for their son and that the agreement and husband’s actions reflect such an intent.

The pertinent language of the agreement simply says, “It is agreed between the parties hereto that no child support requirements shall be placed upon the husband at this time. This agreement is made with the understanding that the wife and the minor child will receive certain Social Security payments based upon the husband’s disability.” A fair reading of the above language indicates that no child support payments were intended insofar as that document is concerned. Absent a contract or disability, husband is not legally responsible for the support of his adult son. Ex parte Brewington, 445 So.2d 294 (Ala.1983). Therefore, with regard to that part of the trial court’s decision, we hereby reverse.

Wife is granted $500.00 as attorney fee on appeal.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, as Subrogee of Hattie M. Taylor, and Hattie M. Taylor v. SCOTT PAPER COMPANY and Theodore Powell.
    Civ. 4140.
    Court of Civil Appeals of Alabama.
    May 30, 1984.

      William H. Sisson of Collins, Galloway & Smith, Mobile, for appellant.
    Douglas L. Brown and Edward A. Dean of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellees.
   BRADLEY, Judge.

Hattie Taylor, appellant, was involved in a multiple car accident on June 19, 1980 on county road 1 in Wilcox County, Alabama. At the time of the accident, Taylor’s automobile was insured by Alabama Farm Bureau Mutual Casualty Insurance Company, appellant.

On the day of the accident, it had been raining and the road was wet. Ms. Taylor proceeded down Bear Creek Hill and came upon several vehicles in the road. She applied her brakes and skidded into the cars, causing a small dent in her car.

After this accident Ms. Taylor sent someone to call the state troopers, and a man was sent to the top of the hill to flag traffic. Thomas McCaskey then drove up to the scene. McCaskey pulled up in the uphill lane so that the downhill lane was clear. As McCaskey pulled around the accident to let Ms. Taylor’s two daughters out at the scene, a Scott Paper Company (appellee) truck driven by a Scott Paper employee, Theodore Powell (appellee) came down the hill. Mr. Powell was heading home from the mill with an empty truck at this time.

Mr. Powell saw a boy flag a truck in front of his truck before he came to the top of the hill. Powell stopped, then pulled around the flagman and the other truck and came down the hill toward the accident scene at about 50-55 miles per hour. At this time Ms. Taylor’s vehicle, along with four other vehicles, was parked in the left lane of the road at the foot of the long, winding road. Mr. McCaskey was parked or slowly moving in the right lane, Mr. Powell’s lane of travel.

When Powell came around the curve, he saw McCaskey’s car, hit his brakes, and the truck began to switch back and forth. Powell again hit his brakes, crossed lanes, and hit Ms. Taylor’s car, along with the other cars. Ms. Taylor was not in her car at this time.

Complaint was filed in this case by Hattie M. Taylor, and Alabama Farm Bureau Mutual Casualty Insurance Company as subrogee of Hattie M. Taylor against Scott Paper Company and Theodore Powell for negligence on March 31, 1981. An answer was filed by defendants on April 29, 1981.

The plaintiffs amended their complaint on May 1, 1981, adding Thomas McCaskey as a defendant. On September 16, 1981 plaintiffs applied for a default against defendant Thomas McCaskey for failure to answer the complaint within thirty days and a default was subsequently entered. McCaskey then answered the complaint and filed a cross-claim against Scott Paper Company. McCaskey also asked that the default be set aside, and it was subsequently set aside.

Trial was had before the court sitting without a jury and judgment was entered in favor of defendants and against plaintiffs. Judgment also was entered in favor of cross-defendants, Scott Paper Company and Theodore Powell, and against cross-plaintiff, Thomas McCaskey. Notice of appeal was filed by plaintiffs, Ms. Taylor and Alabama Farm Bureau Mutual Casualty Insurance Company.

Plaintiffs argue on appeal that the trial court made findings that were unsupported by the evidence which require reversal of its decision. We disagree.

It is well-settled law in Alabama that there is a strong presumption on appeal as to the correctness of a trial court’s findings sitting ore tenus, and those findings will not be disturbed unless they are unsupported by the evidence or found to be clearly erroneous and against the great weight of the evidence. Davis v. Thomaston, 420 So.2d 82 (Ala.1982).

Ms. Taylor contends that Mr. Powell was negligent in operating the Scott Paper truck. In a case analogous to ours, the Alabama Supreme Court upheld a jury verdict for the defendant. McKinney v. Alabama Power Co., 414 So.2d 938 (Ala.1982). The McKinney case was a suit brought against a defendant for negligently operating a vehicle that collided with plaintiffs automobile. Defendant claimed that the car between him and plaintiff swerved around plaintiffs automobile and that defendant did not have time to stop once he saw plaintiff. In short, defendant claimed that the accident was unavoidable and, hence, he was not negligent. The jury agreed. A jury verdict was rendered for defendant and plaintiff appealed. On appeal the Alabama Supreme Court affirmed the jury verdict, which was presumed correct, because the question of whether defendant departed from the standard of care appropriate to the emergency situation was a question for the trier of fact.

In the case at bar, the trial court was the trier of fact, and under the ore tenus rule our review must be to look at the evidence in a light most favorable to the prevailing party and which supports the judgment. Barnes v. Barnhart, 420 So.2d 282 (Ala.Civ.App.1982). As in McKinney, supra, the record in the present case contains evidence to support the court’s finding that in this emergency Mr. Powell did not deviate from a reasonable standard of care due in such a situation. He was on his side of the road and was not exceeding the speed limit. Moreover, he would not have been required to apply his brakes and swerve had Mr. McCaskey not been in his lane of traffic.

AFFIRMED.

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


author: WRIGHT, Presiding Judge. HOLMES, Judge

text:
    Karen Jonita Burton FINKENBINDER and Michael Finkenbinder v. Larry Eugene BURTON.
    Civ. 3975.
    Court of Civil Appeals of Alabama.
    June 6, 1984.

      William S. Halsey of Burnham, Klinefel-ter, Halsey & Love, Anniston, for appellants.
    Gordon F. Bailey, Jr. of Bolt, Isom, Jackson & Bailey, Anniston, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from an order denying a petition to intervene in the modification of a divorce decree.

Between 1979 and July 22, 1982, Karen Jonita Burton Finkenbinder and Larry Eugene Burton were married and lived together as husband and wife. During a six-month portion of that time, from summer 1979 until November or December 1979, Karen entered into an extra-marital relationship with Michael Finkenbinder, with whom she commuted to and from college. Finkenbinder and his then wife, Janice, were social acquaintances of the Bur-tons. Michael and Karen’s relationship culminated in sexual intercourse on at least three occasions, the last such occasion being in November 1979, when they were together on ROTC field exercises. Shortly thereafter, Karen discovered that she was pregnant. Michael, recognizing the possibility that the child might be his, asked Karen if he was the father. Karen, who admits that she and Larry Burton were also having sexual intercourse, although infrequently, during the time the child was conceived, assured Michael that he was not the father.

Subsequently, Karen and Michael’s relationship dissolved. She gave birth to a son, Joseph Andrew Burton, on July 29, 1980. Thereafter, Michael and Janice moved from Leavenworth, Kansas, where both couples were residing during Karen and Michael’s relationship, to Missouri. The Burtons and Finkenbinders thereafter ceased contact with one another. Neither Janice nor Larry had any knowledge of their respective spouse’s infidelity until institution of the current suit.

Michael and Janice Finkenbinder were divorced in Oklahoma in November 1981. Karen and Larry Burton’s marriage ended in divorce on July 22, 1982. The decree divorcing Karen and Larry, was rendered by the Circuit Court of Calhoun County. It recited that one child, Joseph Andrew Burton, had been born of their marriage and it incorporated the parties’ agreement concerning the child. Article V of their agreement provides in pertinent part as follows:

“1. The parties have given serious consideration to the future welfare of their child and agree, subject to the further order of any court of competent jurisdiction, that the full care, custody and control of the parties’ minor child, Joseph Andrew Burton, born July 29, 1980, shall be joint with the custody during the school year from September 1 to May 31 being in the Husband, and the custody during the summer months, June 1 through August 31, in the Wife....”

In January 1983, Karen, having learned of Michael’s divorce, telephoned him, reestablishing contact for the first time in approximately two and one-half years. Subsequent to that call, Michael traveled from Fort Benning, Georgia, where he was stationed at that time, to visit Karen at Fort McClellan. During that visit, he saw photographs of young Joseph. Michael, recognizing a similarity between those photographs and photographs of himself at the same approximate age, again asked Karen if he was the child’s father. At this point, she informed him that, indeed, he was the father. She now alleges that she knew of Michael’s paternity since very shortly after conception and testifies that she has previously told her best girlfriend that Michael is Joseph’s father. Karen and Michael resumed their relationship and were married some sixty days later, on March 18, 1983. That same day Karen, through her attorney, informed Larry Burton that he was not Joseph’s father.

On March 28, 1983, Karen filed a petition to modify the original divorce decree. Said petition set forth the facts of Karen and Michael’s relationship and Karen’s long-held belief that Michael, not Larry, was Joseph’s biological father. The petition, which indicated that tissue and blood-typing tests conducted at the University of Alabama Medical Center placed the probability of Michael’s paternity at 97.1%, requested that full care, custody and control of Joseph be awarded to Michael and Karen and that Joseph’s name be changed to Joseph Michael Finkenbinder.

On April 1, 1983, Michael filed a petition to intervene in Karen’s petition to modify, seeking to be declared the child’s father and have custody granted to Karen and himself. A guardian ad litem was appointed and a hearing was held on Michael’s petition to intervene on June 9, 1983. On August 2, 1983, his petition was denied. He appeals here, asserting that the best interest of the child requires that he be allowed to intervene. Larry Burton (appel-lee) counters by arguing that the denial of a motion to intervene is a non-appealable interlocutory order and that, even if appeal-able, the denial of such motion is discretionary with the trial court and should not be disturbed on appeal, absent an abuse of discretion. Further, he raises certain affirmative defenses, including unclean hands, laches and equitable estoppel, which he argues may be applied against Karen in her petition to modify and which he argues may be applied with equal force against Michael.

The affirmative defenses, asserted against Karen, are not before us on this appeal. We do not accept Burton’s argument that, because of the now-existing marital relationship between the Finkenbin-ders, these defenses may be imputed against Michael. No authority is cited for this proposition. We deem it to be waived. Super X Drugs of Alabama, Inc. v. Martz, 51 Ala.App. 370, 286 So.2d 47 (1973). (We note that this court, speaking through an opinion written by Judge Scruggs, retired circuit judge, held that the question of the parentage or the legitimacy of a child born during the marriage and averred in the divorce to be a child of the marriage is res judicata as between the parties after the judgment of divorce. Stewart v. Stewart, 392 So.2d 1194 (Ala.Civ.App.1980), cert. denied, 392 So.2d 1196 (Ala.1981).)

Neither do we accept Burton’s argument that the denial of a motion to intervene as of right is non-appealable. We have held that such denials are final as to the intervention and, thus, appealable. Thrasher v. Bartlett, 424 So.2d 605 (Ala. 1982); Pruett v. Ralston Purina Co., 273 Ala. 594, 143 So.2d 309 (1962); Beitel v. Board of School Commissioners, 419 So.2d 242 (Ala.Civ.App.1982).

In Alabama intervention is permitted as of right in certain circumstances and with permission of the court in others. Walker County Department of Pensions & Security v. Mason, 373 So.2d 863 (Ala. Civ.App.1979). Rule 24, Alabama Rules of Civil Procedure provides in pertinent part:

“(a) Intervention of Right. Upon timely application, anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

The purpose of Rule 24 is to anticipate future litigation, to discourage multiplicity of litigation and to relieve the inter-venor from possible prejudice of stare deci-sis in later litigation involving the same questions of law and fact to which the unsuccessful application for intervention is finally a party. Committee Comments, Rule 24, A.R.Civ.P.; Hughes v. Newton, 295 Ala. 117, 324 So.2d 270 (Ala.1976). For this reason Rule 24 should be liberally construed. Hughes, supra. We consider that the matter of custody of a child to which one seeks to establish paternity is a matter of such interest as to provide intervention of right. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

In all custody matters, the best interest of the child is of paramount consideration. Gazaway v. Gazaway, 423 So.2d 1375 (Ala.Civ.App.1982). We agree with our sister state, Florida, that in cases of this nature a determination of paternity may be necessary for the trial court to properly decide the child’s best interest, Kendrick v. Everheart, 390 So.2d 53 (Fla.1980). We agree that the party seeking to determine paternity must have standing to do so. Kendrick, supra. He must show a claim of interest in the matter being litigated. State v. Colonial Refrigerated Transportation, Inc., 48 Ala.App. 46, 261 So.2d 767 (Ala.Civ.App.), aff'd, 288 Ala. 433, 261 So.2d 772 (1972).

We have recently, again through an opinion written by Judge Scruggs, held that a reputed biological father of a child born during the marriage of the mother to another man, has the right and standing to bring an action for declaratory judgment to establish his paternity of the child. Davis v. Sparks, [Ms. April 25, 1984] (Ala.Civ. App.1984). If an action to establish paternity of a child born during the marriage of the mother to another may be brought through suit for declaratory judgment, we perceive no basis for denying it being done by way of intervention in an already pending action relating to custody and best interest of the child. The purpose of avoiding multiple suits and speeding the determination of issues is served in both intervention and declaratory judgment actions.

We have studied the judgment of the trial court by which the motion to intervene was denied. (It is to be noted that substantial testimony was heard by the court in support of the motion.) The court relates therein certain findings of fact which strongly support the allegations of the motion as to the issue of paternity. However, immediately thereafter, the court said,

“10. It is discretionary with the court whether to grant the motion to intervene even though the petitioner might well be the biological father of the child.
“11. The question of whether or not the motion should be granted needs to be considered along with what would be in the best interest of the child.”

The court then denied the intervention.

It appears to this court that these and other findings of the trial court exemplify what we have previously said, that there is allegation and evidence that the movant might well be the biological father of the child in controversy, and such relationship needs to be determined in order to decide the best interest of the child. We find the court to be in error in finding, as a matter of law, that intervention in this case is discretionary with the trial court. To the contrary, motion to intervene under Rule 24(a) is not a matter of discretion but one of right. Thrasher v. Bartlett, supra.

This court fully recognizes the unhappiness and even injury which could occur in a family in which there has been no divorce nor prior rupture of familial peace by the appearance of a previously unknown claim of biological parenthood. We recognize the possible, even probable, traumatic effect of such a claim and its establishment in court upon a child without knowledge. However, we also consider the possible consequences of refusal to allow the proof of such a relationship.

It is established that a married woman who conceives a child by one not her husband may institute paternity proceedings against the putative father. State v. Palmer, 439 So.2d 174 (Ala.Civ. App.1983). We say here, as we said in Davis v. Sparks, supra, that there is reasonable cause for debate as to whether denial of a similar right to the putative father may be contrary to the equal protection clause of the fourteenth amendment to the Constitution of the United States.

It is the judgment of the court that the trial court erred in denying intervention. The judgment of denial is reversed and the cause is remanded.

REVERSED AND REMANDED.

BRADLEY, J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

Based upon the following reasoning, I must respectfully dissent.

A party seeking to determine paternity must have standing to do so. Kendrick v. Everheart, 390 So.2d 53 (Fla.1980). In order to have standing to determine paternity by way of intervention, the would-be inter-venor not only must show that he has manifest substantial concern for the welfare of the child, Kendrick, supra, but he also must affirmatively show a requisite interest in the pending litigation and facts establishing his right to relief. Kennesaw Life & Accident Insurance Co. v. Old National Insurance Co., 291 Ala. 752, 287 So.2d 869 (1973). Thus, he must show a claim of interest in the matter being litigated. State v. Colonial Refrigerated Transportation, Inc., 48 Ala.App. 46, 261 So.2d 767 (Ala.Civ.App.1971), aff'd sub nom. Ex Parte Windham, 288 Ala. 433, 261 So.2d 772 (1972).

One of the strongest presumptions known to the law is that a child born to a married woman is the legitimate offspring of her husband. Leonard v. Leonard, 360 So.2d 710 (Ala.1978); Curry v. Curry, 402 So.2d 1019 (Ala.Civ.App.1981). The measure of proof necessary to rebut this presumption is great, requiring clear and convincing evidence tending to show that it is naturally, physically or scientifically impossible for the husband to be the father. Curry, supra, at 1020. While the common law requirement limiting such evidence to proof that the husband was incapable of procreating or was absent beyond the realm has been relaxed, Leonard, supra, at 713, the presumption of legitimacy remains essentially irrebuttable. Holt, A Plea For Moderation of Alabama’s Harsh Treatment of Succession to Parental Property By Illegitimates, 12 Cum.L.Rev. 27 (1981).

Because a husband and wife are incompetent to testify that a child born to them in wedlock is not the husband’s offspring, the only evidence sufficient to rebut the presumption of legitimacy is a showing that it was impossible for the husband to have had sexual relations with the wife at the probable time of conception. Leonard, supra, at 713; Curry, supra, at 1020.

On his motion for leave to intervene, Michael Finkenbinder was given adequate opportunity to present evidence tending to rebut the above presumption; however, no such evidence was presented. In fact, the testimony revealed, without dispute, that Karen continued to have sex with Larry Burton throughout the entirety of her affair, including the probable time of Joseph’s conception.

The only evidence that Michael presented at trial was directed at proving the likelihood of his paternity, not at disproving the possibility that Larry Burton may be Joseph’s father. Although he produced blood tests indicating the probability of his paternity to be 97.1 percent, he produced no evidence showing Larry Burton’s lack of access to Karen at the time of conception nor any other evidence precluding Larry Burton from being the biological father.

Without such evidence, I would find that Michael Finkenbinder has failed to rebut the presumption favoring Larry Burton as the father and, thus, has failed to prove either a requisite interest in Joseph’s paternity or a right to the relief he now seeks. Having failed to do so, he has no standing to intervene, and I would find no abuse of discretion in the trial court’s dismissing his petition at this time.

Furthermore, I would distinguish the present case from Davis v. Sparks, [Ms. May 30, 1984] (Ala.Civ.App.1984), in which we addressed the presumption of legitimacy and opined that the equal protection clause requires that a putative father be allowed to institute proceedings and present evidence at trial in an attempt to prove his paternity. In that case the putative father’s motion for declaratory judgment was dismissed pursuant to a motion to dismiss, without a hearing on the merits. In contrast, Finkenbinder’s petition was dismissed after a hearing at which he presented testimony in an attempt to establish his paternity. His petition was denied because he failed to meet the burden of proof. Having received a fair hearing on the merits, Michael Finkenbinder can claim no violation of his right to equal protection of the law.

Lastly, I feel that the majority opinion underestimates the importance of Stewart v. Stewart, 392 So.2d 1194 (Ala.Civ.App. 1980), cert. denied, 392 So.2d 1196 (Ala.1981), to the instant ease. In Stewart, res judicata barred an ex-husband from reliti-gating the paternity of his ex-wife’s child conceived during the marriage when the original divorce judgment recited that the infant was “the minor child of the parties.” Because Stewart prohibits Karen Finken-binder from injecting the issue of Joseph Andrew Burton’s paternity into this custody modification action, I would find that there are no common questions of law or fact to support Michael Finkenbinder’s intervention petition under Alabama Rules of Civil Procedure 24(b).

Insofar as intervention under A.R.Civ.P. 24(a) is concerned, I cannot agree with the majority’s statement that “the matter of custody of a child to which one seeks to establish paternity is a matter of such interest as to provide intervention of right” or their reliance on Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), as relieving the intervenor of his duty under Rule 24(a)(2) to establish that

“[he] claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless [his] interest is adequately represented by existing parties.”

In neither his petition to intervene nor his briefs on appeal has Michael Finkenbinder ever given even a simple example of how his inability to intervene in the present case will in the future, as a practical matter, impair or impede his ability to protect his interests relating to Joseph Andrew Burton’s paternity. I can find nowhere during the hearing on Finkenbinder’s motion to intervene that he offered any evidence to satisfy 24(a)(2)’s requirements. Accordingly, I would find that because Michael Fink-enbinder failed to satisfy his burden of proof under 24(a)(2), he is not entitled to intervention as of right.

I would, needless to say, affirm the trial court’s action.

      . The record shows that both Karen and Michael are currently serving as officers in the United States Army.

      . The record indicates that Larry Burton is a sergeant in the United States Army and that at the time of his divorce both Larry and Karen were stationed at Fort McClellan, where Karen remains stationed.


text:
    Flavous J. FINCH v. Julie Alexander FINCH.
    Civ. 4134.
    Court of Civil Appeals of Alabama.
    June 6, 1984.
    Daniel J. Burnick of Tipler, Johnson, Ro-den, Hayes & Cory, Birmingham, for appellant.
    Alvin T. Prestwood and Claude P. Ros-'ser, Jr., Montgomery, for appellee.
   BRADLEY, Judge.

Husband appeals from a conditional judgment of forfeiture of an appearance bond.

In 1974 husband and wife were divorced by a decree of the Circuit Court of Montgomery County. Under an agreement incorporated into the decree, husband was ordered to pay child support of $300 per month.

Since the divorce husband has become delinquent in the payment of child support and, as a result, was placed in jail.

On May 26, 1983 husband was found to be in arrears in child support in the amount of $6,863. The court ordered that husband could be released from custody by posting a bond in the amount of $6,863 made payable to wife, and that the bond would be forfeited if husband did not satisfy the total arrearage within thirty days. However, the court did not order husband to reappear at the end of thirty days if the arrearage was not paid.

On May 27, 1983 husband executed a bond with A-l Bonding Company, through its agent, D.R. Goolsby, and was released from jail. The bond provided:

“We Flavous Finch Principal, and others [A-l] ... sureties, agree to pay to the State of Alabama, 6,863.00 Dollars, unless the said Flavous Finch appear in person at the present term of the Juvenile and Court of Domestic Relations of Montgomery County on the 27 day of June 1983 and from term to term thereafter, until discharged by law, to answer a charge for the offense of non support _” (Emphasis added.)

On July 21, 1983 the court entered an order finding husband to be in contempt of court for failing to pay the child support, ordered that the amount of the bond remain the same, awarded attorney’s fees, and entered a conditional forfeiture of the bond Finch had posted on May 27, 1983.

Mr. Finch filed his first notice of appeal on September 2,1983 from the judgment of the trial court dated July 21, 1983 and filed in the clerk’s office on August 12, 1983.

At the time this appeal was taken, no docket fee or security for costs was paid. Furthermore, the motion to proceed on appeal in forma pauperis was denied both at the trial court level and by this court, and no record or transcript was obtained and presented to the appellate court.

This court ultimately issued a notice under rule 2(a)(2), Alabama Rules of Appellate Procedure, advising Finch that the appeal was deficient and that it would be automatically dismissed if Finch did not cure the deficiency within seven days. Finch took no action to cure the deficiency.

The trial court rendered another judgment on September 20, 1983 which was filed on September 26, 1983. The September 26 order found that the bond filed by Finch on May 27, 1983 was a good and valid bond and the court again entered a conditional forfeiture of that bond and held that within thirty days the forfeiture would be made final absent a compliance with the terms and conditions of the bond.

Mr. Finch filed his second notice of appeal on October 19, 1983 from the trial court’s order of September 26, 1983. As in the first appeal, no docket fee or security for costs was paid, and the motion to proceed in forma pauperis was denied at the trial court and appellate court levels. In addition, no record or briefs were presented to the appellate court. Thus, the appeal was again deficient.

As noted above the September 26, 1983 judgment held that the bond was conditionally forfeited and that the forfeiture would be made final in thirty days. On November 29, 1983 the trial court entered a final judgment of forfeiture against A-l Bonding Company.

Finch filed a third notice of appeal on December 13, 1983. The notice provided that the appeal was from the order of September 26, 1983. Appellant filed a docket fee and security for costs and presented both a record and briefs for review. This court treats the third appeal as a cure for the deficiency in the second appeal.

A-l Bonding Company has asked this court to dismiss the appeal. One of the grounds for dismissal is that the appeal is from an interlocutory judgment and not a final judgment.

The judgment that Finch appealed from is the September 26, 1983 judgment. That judgment conditionally forfeited the bond in question and specifically provided that the forfeiture would become final at the expiration of thirty days if Finch had not complied with the conditions of the bond.

An appeal from any final judgment in the circuit court lies to the appropriate appellate court as a matter of right by either party. Kelley v. U S A Oil Corp., 363 So.2d 758 (Ala.1978); § 12-22-2, Code 1975. Appeals lie from the final forfeiture judgment in bail bond cases. Ex parte Moore, 244 Ala. 28, 12 So.2d 77 (1942).

In the case sub judice, the notice of appeal indicated that the appeal was from the September 26, 1983 judgment. Finch, in brief and at oral argument, said that his appeal was from the September 26, 1983 judgment, and he argued the reasons why he considered this judgment to be erroneous. But, as noted above, the September 26, 1983 judgment specifically provided that the judgment was conditional or interlocutory and that the final judgment would be handed down in thirty days absent compliance with the conditions of the bond. A final judgment of forfeiture was entered but Finch did not appeal from that judgment; he appealed from the interlocutory judgment. Only final judgments in bail bond cases will support an appeal. Ex parte Moore, supra. Accordingly, the appeal must be dismissed.

Finch’s first appeal, although timely, was deficient, and is considered to have been dismissed or abandoned. Finch made no effort to correct the deficiencies after his motion to proceed in forma pauperis was denied. No record was established and no briefs were filed. Moreover, no issue was raised in the brief now before us other than the invalidity of the bond. The other issues involved in the first appeal are not presented to this court for decision.

APPEAL DISMISSED.

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


text:
    Ex parte Anthony Keith JOHNSON.
    8 Div. 141.
    Court of Criminal Appeals of Alabama.
    Rehearing Denied May 24, 1984.
    Writ Denied May 25, 1984.
    Joseph W. Propst, II and Thomas M. Di Giulian, Decatur, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   IT IS ORDERED that the petition for writ of prohibition be denied on the authority of United States v. Crowder, 543 F.2d 312 (D.C.Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 788, 50 L.Ed.2d 779 (1977); State v. Richards, 585 S.W.2d 505 (Mo. App.1979); State v. Lawson, 187 N.J.Super. 25, 453 A.2d 556 (1982).

IT IS FURTHER ORDERED that the request for stay be denied.

BOWEN, P.J., and TYSON, TAYLOR and PATTERSON, JJ., concur.


author: BOWEN, Presiding Judge.

text:
    Hollis Eugene GOTHARD v. STATE.
    6 Div. 191.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari stricken, Ala., 450 So.2d 479.

      Dwight L. Driskill and Jack G. Davis, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

On October 10, 1981, Hollis Eugene Gothard, the appellant, was “totally drunk” and driving his northbound automobile in the southbound lane of U.S. Highway 31 in Jefferson County. A two and one-half mile path of near tragedies climaxed in a horrible disaster when Gothard collided head-on into a car in which Richard Reeves, his twenty-three-year old wife and their eleven-month old infant were riding. Mrs. Reeves was killed, with almost every bone in her body being broken. Gothard was indicted and convicted for her murder. Alabama Code Section 13A-6-2(a)(2). Sentence was ten years’ imprisonment. Two issues are argued on appeal.

I

Gothard contends that the State failed to establish a proper chain of custody of the blood sample taken from him after the wreck.

It is undisputed that on October 10, 1981, a sample of blood was withdrawn from Gothard in the presence of State Trooper Robert Bell. A urine sample was also taken. The samples were placed in vials and given to Bell who, within an hour, personally delivered the vials to Corporal T.M. Rushing. Rushing testified that he delivered the vials to Forensic Toxicologist Chip Walls “right about noon” on October the 12th. Walls testified that he received the vial from Rushing at 10:25 A.M. on October the 13th. Walls also stated that Rushing would be incorrect if he testified that the vials were delivered on the 12th “unless there is a mistake on the receipt form.”

Gothard contends that “because the State’s witnesses could not agree on when these vials were transferred from one officer to another, that there is sufficient doubt and sufficient question that the chain of custody had been broken.”

Despite the difference in dates, the record clearly shows that the State accounted for all the successive steps in the handling of the blood and urine samples from the time they were taken until the time they were analyzed. The “chain of custody” involves “the necessity of proving where and by whom the specimen was kept and through whose hands it passed.” J. Richardson, Modern Scientific Evidence Section 13.14a (2nd ed. 1974). “The chain of custody rule provides that the party seeking to introduce into evidence the results of an expert analysis has the burden of proving that the specimen or object analyzed was, in fact, derived or taken from the particular person or place alleged.” A. Moenssens & F. Inbau, Scientific Evidence In Criminal Cases Section 1.18 at 56-57 (2nd ed. 1978) (containing an excellent treatment of this subject in general and on blood samples in particular at Section 6.35).

“To establish a sufficient predicate for admission into evidence it must be shown that there was no break in the chain of custody of the projectile. Identification and continuity of possession must be sufficiently established to afford ample assurance of the authenticity of the item. Aaron v. State, 271 Ala. 70, 122 So.2d 360 (1960); Dennison v. State, 259 Ala. 424, 66 So.2d 552 (1953); Powell v. State, 51 Ala.App. 398, 286 So.2d 73 (1973); Jemison v. State, 40 Ala.App. 581, 120 So.2d 748 (1960).” Ex parte Yarber, 375 So.2d 1231, 1234 (Ala.1979).

Whetstone v. State, 407 So.2d 854, 857-60 (Ala.Cr.App.1981), cited by Gothard as controlling, involved a “missing link” in the chain of custody — someone who had the evidence failed to testify when and to whom he delivered that evidence. See also Mauldin v. State, 402 So.2d 1106, 1110 (Ala.Cr.App.1981).

We are convinced that the chain of custody was sufficiently established by the evidence. See Slaughter v. State, 411 So.2d 819, 822-23 (Ala.Cr.App.1981); Williams v. State, 375 So.2d 1257, 1266-67 (Ala.Cr.App.), cert. denied, Ex parte Williams, 375 So.2d 1271 (Ala.1979); Thomas v. State, 356 So.2d 210 (Ala.Cr.App.1977), cert. quashed, 356 So.2d 214 (Ala.1978). The evidence affords ample assurance of the integrity and authenticity of the samples and establishes the “reasonable certainty that there has been no substitution, alteration, or tampering with the specimen.” Scientific Evidence In Criminal Cases at 58. See also E. Imwinkelried, The Methods Of Attacking Scientific Evidence Section 3-2(A)-(D) (1982).

II

The second and the major issue argued on appeal concerns the failure of the trial judge to initiate inquiry into Gothard’s mental competence to stand trial.

With commendable candor, retained defense counsel (both of whom were appointed to represent Gothard on appeal) admit that the issue of Gothard’s competency was not raised at any time in the circuit court. Counsel also admit that they realized that Gothard “could not recall events surrounding the accident”, but recognized that the “(i)nability to recall the events constituting the crime charged because of amnesia does not constitute mental incapacity or incompetency to stand trial.” Beauregard v. State, 372 So.2d 37, 43 (Ala.Crim.App.), cert. denied, Ex parte Beauregard, 372 So.2d 44 (Ala.1979). (Appellant’s Brief, p. 12). Counsel state that “(i)t was not until the conclusion of the trial that Appellant’s attorneys became aware of the retardation or mental deficiencies of the appellant” when the trial judge stated that Gothard was “obviously retarded”. (Appellant’s Brief, pp. 12-13).

Counsel place a great deal of significance upon the judge’s comment. His comment was made before he imposed sentence. In order to place the remark in its proper context, we set out, in its entirety, the statement the trial judge made before sentencing Gothard.

“THE COURT: ... Do you have anything to say why sentence should not be pronounced against you?
“THE DEFENDANT: No, sir.
“THE COURT: All right, you say no. “Just want to make a statement about this. And not just for your benefit but for everybody’s, one purpose and important purpose of punishment is to deter others from committing similar crimes. That which I say, my bailiff has a copy if anyone wants it they can have it, this case is a most tragic example that this Court has ever tried. The facts are rarely equaled: A totally drunk driver, defendant, going north on a south bound expressway with ten to fifteen witnesses testifying to the defendant’s car running people off the road, a car turned over, car side-swiped and two-and-a-half miles of this climaxing in a horrible disaster when the defendant ran head-on into a car occupied by a father, mother and eleven month old child on the way to a wedding.
Result: The mother died with almost every bone in her body broken, the father hovered between life and death and still suffers from injuries. The defendant driver, regularly employed before this tragedy has been unable to work since this tragedy, he is, according to the testimony now blind in one eye and only partial sight in the other, obviously retarded by injuries to the head, scars over the face and crushed legs that impede his walking.
“This is the worst, but certainly not the first, case of this type this Judge has tried. It is the first for this Court, and perhaps this county, that a jury has found the defendant guilty of murder.
“Let no one who mixes drinking think it cannot happen to them, but a jury of this county has by its verdict sent notice to one who commits vehicular homicide while drunk can be guilty of murder. This Court and anyone seeing the defendant cannot help but feel compassion. Arguments for leniency by reason of his present pathetic condition and that he cannot last long in a penitentiary because of his obvious infirmities are moving, but the other side of the coin, without reputation (sic) (repudiation) is overwhelming. Added to it are six or seven arrests for DWI before this disastrous occurrence, and this Court needs no reminder that the defendant caused the terrible results both to others and to himself.
No probation will be granted and no split sentence will be granted,’ it is the judgment and sentence of this Court that this defendant shall be imprisoned in the penitentiary for ten years.”
(Emphasis added).

The record contains no other significant indication of Gothard’s mental capacity. There was no plea of not guilty by reason of insanity or mental disease or defect. Gothard testified in his own defense at trial. When asked about the injuries he sustained in the wreck, he responded: “All I know is when I came out of the hospital I had chest, face, hip, and leg injuries — * * * It crushed my face in.” Although Gothard testified that he could not recall “anything that happened on October the 10th, 1981”, he was not questioned about his present mental condition and gave no response which would indicate the state of his competency. From the transcript of his testimony, it appears that Gothard was able to comprehend and rationally respond to the questioning by the attorneys.

Gothard’s wife also testified at trial. She stated that since the wreck Gothard could not make “decisions in a reasonable manner” as well as he could before the wreck and that he “is much slower in his thinking.” She also testified that he had deteriorated mentally.

All the “evidence” that Gothard was incompetent to stand trial, other than the judge’s remark and what can be gleaned from the testimony of Gothard and his wife, is outside the record and has been placed before this Court in the form of an appendix to Gothard’s brief on appeal. The appendix contains a “psychological assessment” of Gothard performed by the Social Security Administration in order to determine whether he could manage any disability benefits which might be awarded.

The “impressions and recommendations” of the clinical neuropsychologist who tested Gothard were:

“1. The results from this assessment indicate that Mr. Gothard has sustained considerable neuropsychological impairment as a result of a closed head injury sustained in October of 1981. Intellectually, his current overall level of functioning is within the mild range of mental retardation.
“2. Considering number 1, plus the fact that his wife has been managing their finances since the accident, it is not likely that he could independently manage benefits if awarded.
“3. Therefore, a guardian (i.e., wife) should be appointed' to help him manage benefits if awarded.”

Gothard’s full scale I.Q. was reported as “65 (mild mental retardation).”

The substance of the argument of Gothard’s attorneys is that although they had no cause to question Gothard’s competency to stand trial until he was diagnosed by the Social Security Administration, the trial judge, by his observation that Gothard was “obviously retarded”, had sufficient cause to suspect his competency. The report and findings of the Social Security Administration are not properly before this Court and should not and cannot even be considered. Tyus v. State, 347 So.2d 1377 (Ala.Crim.App.), cert. denied, 347 So.2d 1384 (Ala.1977). The report itself is dated August 4, 1983 — more than four months after Gothard had been sentenced and given notice of appeal on March 31, 1983. There was no motion for a new trial.

The key question in this case is whether there were facts present before the trial judge which would create a sufficient or reasonable and bona fide doubt of Gothard’s mental capacity to stand trial. “(W)hen fact's are present before the trial judge which create a reasonable and bona fide doubt as to the mental competency of the accused to stand trial, there is no question but that the trial judge must take steps to assure a reasonable legal determination of such questions.” Atwell v. State, 354 So.2d 30, 35 (Ala.Crim.App.1977), cert. denied, Ex parte Atwell, 354 So.2d 39 (Ala.1978). Even where the issue of competency to stand trial has not been raised by defense counsel, “(t)he trial judge has an ongoing and continuing responsibility to prevent the trial of an accused unable to assist in his defense.” Miles v. State, 408 So.2d 158, 162 (Ala.Crim.App.1981), cert. denied, Ex parte Miles, 408 So.2d 163 (Ala. 1982). Most recently, our Supreme Court stated:

“It is equally clear that in view of Pate, supra, (Pate v. Robinson, 383 U.S. 375 [86 S.Ct. 836, 15 L.Ed.2d 815] (1966)), Pierce v. State, 52 Ala.App. 422, 293 So.2d 483 (1973), cert. quashed, 292 Ala. 745, 293 So.2d 489; and Edgerson v. State, 53 Ala.App. 581, 302 So.2d 556 (1974), a trial court has an independent duty to inquire into an accused’s state of mind when there are reasonable grounds to doubt the accused’s competency to stand trial. The standard upon which this determination is to be made is set out in Edgerson, supra.”
Ex parte LaFlore, 445 So.2d 932 (Ala.1983).

The standard set out in Edgerson, 53 Ala. App. at 588, 302 So.2d 556, is that “a criminal defendant must have an understanding of the proceedings against him and an ability to communicate with his attorney in preparing his defense before he may be proceeded against criminally.” See also Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

Although no general standard exists to determine the nature or amount of evidence necessary to require a competency hearing, Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 904, 43 L.Ed.2d 103 (1975), some further inquiry must be conducted when “sufficient doubt” exists about a defendant’s competence to stand trial. Drope, 420 U.S. at 180, 95 S.Ct. at 908; Atwell, 354 So.2d at 35-36.

Even if we consider the report and findings of the Social Security Administration, which were not and could not have been presented to the trial judge, we find no reasonable ground to doubt Gothard’s competency to stand trial. We do not equate the judge’s characterization of Gothard as “obviously retarded” as indicating some doubt in the judge’s mind as to competency. Considering that comment in the context of the judge’s entire statement, we view it as an indication of the trial judge’s condemnation of the crime Gothard committed and a comment on the fact that Gothard “caused the terrible results both to others and to himself.” The comment also explains a factor the trial judge considered in sentencing Gothard to ten years’ imprisonment — the minimum sentence he could receive upon a conviction for murder. Alabama Code Section 13A-6-2(c) and Section 13A-5-6(a)(l) (1975).

Apart from the judge’s finding that Gothard was “obviously retarded” and the neuropsychologist’s determination that he was functioning within the mild range of mental retardation, there is nothing to suggest that Gothard was incompetent to stand trial. It is not contended that Goth-ard was actually incompetent to stand trial but only that there should have been a hearing on whether or not he was competent. We have carefully searched the appellant’s brief and are unable to find a specific allegation that Gothard lacked the capacity to comprehend his position, to understand the nature and object of the.proceedings against him, to conduct his defense in a rational manner, or to cooperate and communicate with, and assist his counsel.

“(E)vidence of some degree of mental retardation is not conclusive as to creating a reasonable doubt of mental competency.” Robinson v. State, 428 So.2d 167, 170 (Ala. Crim.App.1982). “The fact that one is mentally retarded does not in and of itself require a finding by the trial court to the effect that it has reasonable doubt as to defendant’s competency to stand trial.” Persons v. State, 339 So.2d 1092, 1094 (Ala. Crim.App.1976). See also Lewis v. State, 380 So.2d 970 (Ala.Crim.App.1979); Cunningham v. State, 54 Ala.App. 514, 310 So.2d 235 (1975). In Buttram v. State, 338 So.2d 1062, 1065 (Ala.Crim.App.1976), this Court held that the trial court did not err in concluding that an I.Q. test report of 66, which placed the defendant in the “mild mentally retarded category of intellectual functioning”, was not in and of itself sufficient to create a reasonable doubt as to defendant’s competency to stand trial. See also Miles v. State, 408 So.2d 158 (Ala. Crim.App.1981), cert. denied, 408 So.2d 163 (Ala.1982); Posey v. State, 366 So.2d 369 (Ala.Crim.App.1979). The evidence in this case is not even comparable to the overwhelming quantity of testimony of the accused’s incompetency presented in Pierce v. State, 52 Ala.App. 422, 293 So.2d 483 (1973), cert. quashed, 292 Ala. 745, 293 So.2d 489 (1974).

There was no suggestion by anyone at trial that Gothard was incompetent or suffering from a mental illness or defect. Here, as in Crenshaw v. Wolff, 504 F.2d 377 (8th Cir.1974), cert. denied, 420 U.S. 966, 95 S.Ct. 1361, 43 L.Ed.2d 445 (1975), the fact that the defendant was diagnosed as being mildly mentally retarded after the trial is not, in and of itself, a rational basis for creating a genuine doubt of his competency to stand trial. An excellent annotation on retardation and competency to stand trial is found at 23 A.L.R. 4th 493 (1983).

Our review of the record convinces us that there were no facts or circumstances present before the trial judge which should have created a sufficient doubt of Goth-ard’s competency to stand trial so as to warrant inquiry into that issue. The record does show that both the trial judge and defense counsel performed their duties in a very responsible and conscientious manner.

In affirming Gothard’s conviction, this Court is cognizant that no one has “won” this case for we have all lost. Even in Gothard’s punishment little justice will be rendered. A young wife and mother has been senselessly slaughtered by an act which chills the most hardened sensibilities. An infant, who inexplicably escaped death, has been deprived of his mother forever. Gothard himself has been reduced to a pathetic figure for whom no mercy or compassion is evoked. The horror of his actions will haunt him until his dying day. His family too will suffer for his conduct. And still, driving under the influence of alcohol continues to represent one of the major factors contributing to serious traffic accidents across this nation. We have all lost.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: TAYLOR, Judge.

text:
    Armand Joseph JACKSON v. STATE.
    2 Div. 382.
    Court of Criminal Appeals of .Alabama.
    April 24, 1984.
    Rehearing Denied June 12, 1984.
    J.L. Chestnut, Jr., of Chestnut, Sanders, Sanders & Turner, Selma, for appellant.
    Charles A. Graddick, Atty. Gen. and Ri-vard D. Melson, Asst. Atty. Gen., for appel-lee.
   TAYLOR, Judge.

Appellant Armand Joseph Jackson was indicted by a Dallas County grand jury for the capital murder of Debra Ann Jones and Scott Bradley Jones. At arraignment he pleaded not guilty and not guilty by reason of insanity. Pretrial motions included a motion to quash jury venire, a motion to suppress evidence and a motion for change of venue. These motions were denied by the trial court.

I

Appellant entered a plea of guilty to the charge of capital murder. At that time the court, outside the hearing of the jury, asked the appellant if the plea had been coerced and the appellant replied that the plea was voluntary. An Ireland form was signed by the appellant and his counsel. The trial court told the appellant of the maximum and minimum range of sentence and informed him that by pleading guilty he was waiving his right to appeal all non-jurisdictional defects in the proceeding with the exception of sufficiency of the evidence.

The trial court reconvened and a jury was struck for the prosecution to present its case in compliance with Ala. Code § 13A-5-42 (1975). The appellant reaffirmed in chambers his plea of guilty on advice of counsel. The prosecution presented its prima facie case against the appellant and the jury found sufficient evidence to convict the appellant of capital murder. After a sentencing hearing, the appellant was sentenced to life imprisonment without parole.

On appeal Jackson raises five issues: (1) whether his confession was coerced; (2) whether the judge abused his discretion by not granting appellant’s motion for change of venue; (3) whether the venire was constitutionally drawn; (4) whether the court committed reversible error by not granting the motion to suppress the evidence; and (5) whether the statute under which the appellant was convicted is constitutional.

Section 13A-5-42, Code of Alabama 1975, states:

“A defendant who is indicted for a capital offense may plead guilty to it, but the state must in any event prove the defendant’s guilt of the capital offense beyond a reasonable doubt to a jury. The guilty plea may be considered in determining whether the state has met that burden of proof. The guilty plea shall have the effect of waiving all non-jurisdictional defects in the proceedings resulting in the conviction except the sufficiency of the evidence. A defendant convicted of a capital offense after pleading guilty to it shall be sentenced according to the provisions of Section 13A-5-43(d).” (Emphasis added)

By his guilty plea, the appellant has waived the first four issues he now seeks to present. Graham v. State, 403 So.2d 275 (Ala.Cr.App.1980), cert. denied, 403 So.2d 286 (Ala.1981), cert. denied, 454 U.S. 1152, 102 S.Ct. 1020, 71 L.Ed.2d 307; Lane v. State, 412 So.2d 292 (Ala.1982); Morrow v. State, 426 So.2d 481 (Ala.Cr.App.1982); Cornelius v. State, 429 So.2d 660 (Ala.Cr. App.1983); Cashin v. State, 428 So.2d 179 (Ala.Cr.App.1983); Isbell v. State, 428 So.2d 215 (Ala.Cr.App.1983).

II

Appellant argues that the provisions of § 13A-5-40(a)(4) and § 13A-5-40(a)(10), Code of Alabama 1975, are unconstitutional because they were conceived through judicial legislation. He refers to the Alabama Supreme Court opinion in Beck v. State, 396 So.2d 645 (Ala.1981). This judicial interpretation has been upheld numerous times, specifically in Potts v. State, 426 So.2d 886 (Ala.Cr.App.1982), aff'd, 426 So.2d 896 (Ala.1983), Raines v. State, 429 So.2d 1104 (Ala.Cr.App.1982), aff'd, 429 So.2d 1111 (Ala.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1804, 76 L.Ed.2d 368 (1983) and Young v. State, 428 So.2d 155 (Ala.Cr.App.1982).

III

Appellant contends that the statute does not allow the jury to consider aggravating and mitigating circumstances. However, § 13A-5-46, Code of Alabama 1975, specifically provides for a sentencing hearing in which the jury weighs the aggravating and mitigating circumstances and then gives the trial court an advisory verdict.

IV

Appellant, relying on Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), contends that the potential sentence of death provided by § 13A-5-40(a)(4) and (10) is cruel and unusual punishment because it is not a deterrent to homicide. Appellant has based his argument on the dissent in Gregg v. Georgia, supra. The judgment of that court written by Justice Stewart held “that the punishment of death does not invariably violate the constitution.” Gregg, 428 U.S. at 169, 96 S.Ct. at 2923.

V

Finally, the appellant asserts that the statute is unconstitutional because as applied it can result in the arbitrary and discriminatory application of the death penalty. He offers no authorities in support of this contention, with which we disagree.

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Michael P. LOWERY v. STATE.
    3 Div. 949.
    Court of Criminal Appeals of Alabama.
    May 8, 1984.
    Rehearing Denied June 12, 1984.
    Michael P. Lowery, pro se.

      Charles A. Graddick, Atty. Gen. and Michael A. Bownes, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Michael Paul Lowery, the appellant, was an inmate at Fountain Correctional Center. He was indicted and convicted for the unlawful possession of Valium, marijuana, and Tranxene in violation of Alabama Code § 20-2-70 (1975). He was sentenced as an habitual offender to thirty years’ imprisonment. Lowery, who is representing himself on this appeal, raises three issues.

I

Lowery argues that when the State failed to bring him to trial within ninety days of his request, the circuit court lost jurisdiction to try him at all. His argument is grounded on Alabama’s Mandatory Disposition of Detainers Act found in Alabama Code § 15-9-80 through § 15-9-88 (1975). This Act relates exclusively to problems pertaining to interstate extradition. Morning v. State, 416 So.2d 780 (Ala. Cr.App.1982); McAlpin v. State, 397 So.2d 209 (Ala.Cr.App.), cert. denied, 397 So.2d 211 (Ala.1981). There is not even the contention that a detainer has ever been lodged against Lowery.

II

Lowery contends that the controlled substances found on his person were improperly admitted into evidence because the chain of custody was broken and “the evidence is not the same.”

On September 25, 1982, Correctional Officer Larry Weaver confiscated a small hand rolled marijuana cigarette and a plastic bag containing assorted pills from Lowery at Fountain Correctional Center. He placed the contraband in an envelope, labeled it, sealed it, and deposited it in an evidence locker in the warden’s office.

Investigator MacArthur Davis had the only key to this evidence locker. On September 27th Davis retrieved the sealed envelope from the locker. Davis opened the envelope Weaver had sealed and “examined and verified the contents.” He then placed this envelope and its contents inside another envelope and sealed it.

Davis delivered the envelope to the Toxicologist’s Office in Mobile. He testified that he gave the envelope to “James Small, the best I can make — No. W.D. Sennett. Mrs. W.D. Sennett is the one that signed the receipt.”

James Small testified that he received a sealed envelope from Davis on October 19, 1982. He “receipted for Mrs. Sennett” because she was the analyst on duty that day. Mrs. Sennett “got sick after this evidence came in” and Small turned it over to crimi-nalist Taylor Noggle.

Noggle testified that he received a sealed envelope from Small on November 19, 1982. He retained custody until trial.

Lowery contends that the chain of custody was broken because Sennett never testified. See Mauldin v. State, 402 So.2d 1106 (Ala.Cr.App.1981). The record does not support this contention.

“To establish a sufficient predicate for admission into evidence' it must be shown that there was no break in the chain of custody_ Identification and continuity of possession must be sufficiently established to afford ample assurance of the authenticity of the item.” Ex parte Yarber, 375 So.2d 1231, 1234 (Ala.1979). Here, the integrity of the envelope and its contents were proven and an accounting was made of each successive step in the handling of the evidence. Goodrum v. State, 418 So.2d 942 (Ala.Cr.App. 1982); Slaughter v. State, 411 So.2d 819 (Ala.Cr.App. 1981). “The requirement of proper proof of custody finds its origin in the opportunities for tampering, contamination, and error, which arise when possession of a specimen cannot be accounted for at all times.” A. Moenssens & F. Inbau, Scientific Evidence In Criminal Cases, 342 (2d ed. 1978). “The purpose in establishing a chain of custody is to show a reasonable probability that the [evidence] was not tampered with.” Bell v. State, 339 So.2d 96, 98 (Ala.Cr.App.1976). “To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain.” Sexton v. State, 346 So.2d 1177, 1180 (Ala. Cr.App.), cert. denied, Ex parte Sexton, 346 So.2d 1180 (Ala.1977).

Here, each witness accounted for the integrity of the envelope he had received. There is no contention that the controlled substances were contaminated or altered in any way. Under these circumstances, we find no error in the admission of the controlled substances. Congo v. State, 409 So.2d 475 (Ala.Cr.App.1981), cert. denied, Ex parte Congo, 412 So.2d 276 (Ala.1982).

Moreover, the trial record contains no specific objection raising the ground asserted on appeal. In fact, the public defender who represented Lowery was willing to stipulate to the chain of custody but Lowery objected. After the State had almost completely established the chain the following occurred:

“MR. LOVELACE (Public Defender): Your Honor, to save them time, we will stipulate that this was given to Mr. Mac-
Arthur Davis. It was given—
“MR. HENDERSON (District Attorney): You will stipulate that this evidence here was taken from the defendant, dropped in the box and so forth?
“MR. LOVELACE: That’s right.
“MR. HENDERSON: Well, the state—
“THE DEFENDANT: I’m objecting to this whole proceeding. I’m objecting. Go ahead and bring your witnesses on out here.”

Ill

Lowery argues that in invoking the Habitual Felony Offender Act, the State did not prove that he was represented by counsel in his six prior convictions. Certified copies of court documents were introduced to prove the prior convictions. In each case, they reflect that Lowery was represented by counsel.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Cedric THOMAS, Alias Cedric D. Thomas, Alias Cedric Devon Thomas v. STATE.
    7 Div. 215.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.

      Howard B. Warren of Pruett, Hudson, Turnbach & Warren, Gadsden, for appellant.

      Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Cedric Thomas, the appellant, was charged in a two-count indictment with noncapital murder and robbery. After a jury verdict of guilt on each count, the trial court sentenced him to life imprisonment for each offense. The State’s evidence tended to show that Thomas was an accomplice, along with one Calvin Turner and others, in the robbery and murder of eighty-two year old Mrs. Mae Bell Wright of Gadsden. Aside from independent testimony that Thomas pawned some of Mrs. Wright’s jewelry shortly after her murder, the primary evidence linking him to the robbery and murder consisted of the following statement he gave to the Gadsden police:

“I am making this statement in regards to the death of Mrs. Wright on Ewing Ave. Gadsden, Alabama. I am making this statement in the presence of Lt. O’Bryant and Sgt. C.D. Hopper after having my rights explained to me. I understand each and every one of my rights as they were explained. On Thursday March 31, 1983, I was at home in the 6th Street project. I came out at approximately 6:30 P.M. I looked across the street and saw Crump and Fish tank outside Peggy Patterson’s apartment. Crump had a big stick in his hand. Crump and Peggy was arguing and were cursing each other. Crump and Fishtank turned and walked out to the basketball court and stayed for a few minutes. They came back in a few minutes and Fishtank told me that he knew where we could make a lick. I asked him where and he said in North Ga. I asked him if there was any money and he said Yes, a bunch. I told him that we would go and check it out. I looked and saw that Davey Moore was parked in the parking bay in a Blue 65 Chev. Davey was driving and Fish Tank got in the front. Me and Crump got in the back seat. We left there and drove up Ewing Ave. We drove up to Crest Ave. (Dirt Road). It had already been decided that Crump and Fish tank was going in the house. On Crest we let Fish Tank and Crump out of the car and me and Davey went to Cleaners Hangers and Parked. Davey said we would wait on them there. It was some where between 10:00 — 11:00 P.M. when they went inside the house. It seemed as if they was in the house about 25-30 minutes. Fish Tank and Crump came running back to the car and they were give out. They both jumped in the back seat and Fish tank said We may be in trouble. When he said this it scared me because I knew he had done something. We left there and went back to the projects. Fish tank and Crump had some purses with them. When we got back to the projects, I jumped him about my money and Fish tank gave me a $20.00 bill and three rings. I got out of the car and Fish tank, Davey and Crump left. The next day I took two of the rings and pawned them in my own name at Jakes. I got $15.00 for the two rings. About a week later I ran into Fish tank and cracked him about what he done to the old lady. He said he hadn’t killed any Damn body and didn’t know what he was talking about. Fish tank hit me with a iron pipe. He has been going around in the projects saying he was going to kill me. I have not talked to Crump or Da-vey since the killing. This statement is true and correct to the best of my knowledge and no threats or promises have been made to get me to make this statement. It is being typed for me by Lt. O’Bryant.”

I

Thomas first contends that the indictment did not adequately inform him of the offense he was called to defend because (1) it did not track the language of the murder statute, (2) it did not refer to the felony-murder subsection, and (3) it did not incorporate the complicity statute by reference.

The indictment follows the language of § 13A-6-2(a)(l), Code of Alabama 1975, and is identical to the pattern indictment form for intentional murder approved by the Alabama Law Institute. See State of Alabama Criminal Code Indictment and Warrant Manual at 6-1 (A.L.I.1979).

The State was not required to indict Thomas for felony-murder pursuant to § 13A-6-2(a)(3), Code of Alabama 1975. For practical purposes, Thomas had notice from the two-count indictment that the murder and robbery of Mrs. Wright were “based on the same conduct or ... otherwise connected in their commission; or ... alleged to have been part of a common scheme or plan.” See Rule 15.3(a)(ii) and (iii), A.R.Crim.P.Temp. It was also unnecessary for the charging instrument to incorporate the principles of the complicity statute by reference. See Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950). “[All] persons concerned in the commission of the crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, must be indicted, tried and punished as principals.” Johnson v. State, 405 So.2d 149, 153 (Ala.Crim.App. 1981) (emphasis in original).

II

The trial court did not abuse its discretion by denying Thomas’ motion for a change of venue based on pretrial publicity. At the hearing on this issue, Thomas called two witnesses: the editor of the local newspaper and the news director of a local radio station. They testified about the media coverage given Thomas’ alleged participation in the robbery-murder of Mrs. Wright. The record does not reveal, however, that Thomas questioned the prospective jurors on voir dire regarding the effect of the publicity.

Widespread publicity, without more, does not entitle the accused to a change of venue. McCray v. State, 395 So.2d 1057 (Ala.Crim.App.1980), cert. denied, 395 So.2d 1062 (Ala.1981). Thomas had the burden of demonstrating a link between the publicity and actual jury prejudice, Dolvin v. State, 391 So.2d 666, 674 (Ala.Crim.App.1979), affirmed, 391 So.2d 677 (Ala.1980). The proper way to ascertain whether adverse publicity may have biased the prospective jury is through the voir dire examination. Lopez v. State, 415 So.2d 1204, 1208 (Ala.Crim.App.1982). In the absence of voir dire questions and answers on this issue, we cannot presume that Thomas was unable to receive a fair trial in Etowah County.

III

Thomas claims the trial court erred by refusing to admit a statement made to the police by Thomas’ accomplice, Calvin Turner, in which Turner purportedly assumed sole responsibility for the murder and exonerated Thomas. Turner was not called to testify on Thomas’ behalf. The court’s ruling here was proper since the statement was inadmissible hearsay. See McBryar v. State, 368 So.2d 568, 574 (Ala. Crim.App.), cert. denied, 368 So.2d 575 (Ala.1979); Prince v. State, 356 So.2d 750, 751 (Ala.Crim.App.1978).

IV

We have repeatedly held that an accused need not be informed of the precise criminal charges against him before he can effectively waive his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and make a voluntary statement. See Hale v. State, 420 So.2d 821, 823 (Ala.Crim.App.1982); Myers v. State, 401 So.2d 288, 291 (Ala. Crim.App.1981); Crawford v. State, 377 So.2d 145, 154 (Ala.Crim.App.), affirmed, 377 So.2d 159 (Ala.1979); Jemison v. State, 49 Ala.App. 289, 292, 270 So.2d 836 (1972).

V

Thomas argues that the court’s oral instructions referring to the felony-murder doctrine were erroneous because the indictment did not charge him with felony-murder. We agree.

Thomas was charged specifically with intentionally causing the death of Mrs. Wright. The section under which Thomas was indicted provides that a person commits the crime of murder if “[w]ith intent to cause the death of another person, he causes the death of that person or of another person.” § 13A-6-2(a)(l).

The trial judge charged:

“A person commits the crime of murder if he causes the death of another person and in performing the act or acts which cause the death of the person he intends to kill that person or if he commits or attempts to commit robbery in any degree and in the course — And in the furtherance of that — Of the crime that he is committing or attempting to commit or in immediate flight therefrom he or another participant causes the death of any person.
“To sustain the charge.of murder in this case the State by the evidence must prove beyond a reasonable doubt each of the following elements of the offense: That Cedric Thomas — No, that Mae Bell Wright, the deceased is dead, and, second, that the Defendant, Cedric Devon Thomas or another participant caused the death of Mae Bell Wright and that is, that she died as a result of strangulation as charged in the indictment, which was caused by the Defendant or another participant at the time of her death.”

This was blatant error. The trial judge instructed the jury that they could find Thomas guilty of the intentional murder charged in the indictment if they found that he either intentionally killed Mrs. Wright or that he or another caused her death in the commission of the robbery.

A comparison of the above portion of the judge’s charge with Alabama’s felony-murder doctrine codified at § 13A-6-2(a)(3) reveals that the trial judge did in fact charge the jury on felony-murder. Section 13A-6-2(a)(3) provides that a person commits the crime of murder if “[h]e commits or attempts to commit ... robbery in any degree, ... and, in the course of and in furtherance of the crime that he is committing or attempting to commit, or in immediate flight therefrom, he, or another participant if there be any, causes the death of any person.”

An oral instruction on subsection (3) felony-murder constitutes a fatal variance from an indictment charging subsection (1) intentional murder unless felony-murder can be deemed a lesser-included offense of intentional murder. See Ex parte Washington, 448 So.2d 404 (Ala.1984). See also Ex parte Hightower, 443 So.2d 1272 (Ala.1983). In Washington, our Supreme Court held that in a trial on an indictment charging intentional murder, an instruction on universal malice murder constitutes error and a fatal variance.

It is clear that murder during the course of a robbery as specified in § 13A-6-2(a)(3) cannot be a lesser-included offense of § 13A-6-2(a)(l) intentional murder because one may be convicted of the subsection (1) intentional murder offense without proof of the robbery required for the subsection (3) felony murder offense. See Alabama Code § 13A-l-9(a)(l) (1975).

The Court’s references to felony-murder were not harmless here because liability under § 13A-6-2(a)(l) (intentional murder) and § 13A-2-23 (complicity) hinges on intentional conduct, see Washington v. State, supra; Watson v. State, 439 So.2d 762, 768 (Ala.Crim.App.1983), whereas intent is not an element of the felony-murder doctrine, Ex parte Ritter, 375 So.2d 270, 273-74 (Ala.1979). Under the felony-murder doctrine “it is not necessary that the individual accused of murder should have contemplated, intended, or willed the death of the victim.” Ritter, 375 So.2d at 273.

Thus, the jury may have convicted Thomas of murder without finding that he had the intent to kill Mrs. Wright.. Relying on the court’s charge that they could find Thomas guilty of murder if they determined that he or another participant killed the victim in the course of robbing her, the jury would have been authorized to convict Thomas of a crime not charged in the indictment. In finding error we have applied the same analysis and reasoning as did our Supreme Court in Washington, supra.

The judgment of conviction is reversed and the cause remanded to the Etowah Circuit Court.

REVERSED AND REMANDED.

All Judges concur.