text:
    Andrew PEARSON v. STATE.
    5 Div. 776.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Certiorari Denied Aug. 31, 1984 Alabama Supreme Court 83-1080.

      Robert L. Bowers, Sr. and Robert L. Bowers, Jr., Clanton, for appellant.
    Charles A. Graddick, Atty. Gen. and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   ON APPLICATION FOR REHEARING

TAYLOR, Judge.

This court’s opinion of November 29, 1983, is withdrawn and the following opinion is substituted in its place.

Appellant was sentenced to life without parole after being found guilty of robbery in the first degree by a Chilton County Circuit Court jury.

This case involves the armed robbery of the Clanton Holiday Inn in which the desk clerk, who was also a part-time police dispatcher, was shot. The robber pulled a small revolver on the clerk, Mr. Williams, and said, “Don’t make me kill you,” and started looking into the office safe. Williams pulled his .357 revolver from a desk top, the two struggled, and the clerk was shot in the lower abdomen. The perpetrator pushed Williams off of him, went back to the safe, got a bank money bag with $50 in quarters, took his and Williams’s gun and left in a “silvery-green” colored car with a dark top. Williams promptly called the police, described the appellant as well as the car, and asked for medical assistance.

That night, Deputies Payton and Doss of the Shelby County Sheriffs Department received the “BOLO” call and stopped a car fitting- the description given travelling north on 1-65 from the direction of Clan-ton. The passenger in the car fit Williams’s description of the robber. The deputies had the men get out of the car and Deputy Payton patted down the driver and arrested him on an outstanding traffic warrant. Then Deputy Doss patted down the passenger in the ear, who turned out to be Pearson, the appellant. A plastic bag of what appeared to be marijuana was found on him and he was arrested for violation of the Alabama Uniformed Controlled Substances Act. Around 6:00 a.m. the next morning, the deputies returned to the scene of the arrest, looked around and found the money bag with the .357 Magnum revolver and the $50 in quarters inside, about two feet from the guard rail at the side of the interstate. Williams later identified the revolver as his.

I

The first contention of the appellant is that his arrest was illegal. It is obvious that these alert deputies did have in mind the Holiday Inn robbery when they stopped this car. However, they also had good grounds to arrest the occupants of the car without regard to the Holiday Inn robbery.

Since the appellant and his car fit the description of the robber and the getaway car, there was sufficient evidence to establish the requisite probable cause that appellant had committed a felony. Douglas v. State, 366 So.2d 373 (Ala.Cr.App.1979), was a case in which the authorities arrested a robbery suspect after receiving a radio message with a description. That case cites an earlier case, Brown v. State, 55 Ala.App. 615, 318 So.2d 311 (1975), to the same effect. Therefore, the motion to suppress the evidence of the bank bag and the two guns and the money because of an illegal arrest was properly denied. Further, there is no evidence that the fruits of the crime and the weapon were thrown out incident to a search, lawful or otherwise. These items were admissible in evidence in any event under the doctrine spelled out in the Nikolic v. State, 384 So.2d 1141 (Ala.Cr.App.1979), pet. stricken, 384 So.2d 1151 (Ala.1980). In that case, packages of cocaine, discovered by police officers after a suspect had thrown them from his car, were held not to have been discovered incident to a search and were admitted under the “plain view”, doctrine. We agree with counsel for the appellee, who argues that there was not a sufficient causal relationship between the discovery of the evidence and the facts surrounding the appellant’s arrest to taint the evidence even if the arrest had been illegal.

II

The state did not call the arresting officer as a witness and appellant contends that this denied him his right to confront his accuser. Deputy Payton, who was present during the arrest, testified and Williams, the victim, was called. The purpose of the confrontation clause of the U.S. constitution, was stated by the United States Supreme Court in Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895), as follows:

“The primary object of the constitutional provision and question was to prevent depositions or ex parte affidavits ... being used against a prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Cited in Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).

Appellant was not denied the right of confrontation.

Ill

Appellant claims that the trial court erred in denying his motion to exclude the evidence since there was no probable cause for the initial arrest. This issue is treated in I above.

Second, it is contended that identification of the appellant as the perpetrator was insufficient. The identification procedure was certainly not so impermissibly suggestive to create a substantial likelihood of irreparable misidentification. See Donahoo v. State, 371 So.2d 68 (Ala.Cr.App.), cert. denied, 371 So.2d 74 (Ala.1979).

The U.S. Supreme Court in Neil v. Diggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), spells out the factors to be considered in evaluating the likelihood of misidentification. Those factors include (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description; (4) the level of certainty demonstrated by the witness at the confrontation (or identification); and (5) the length of time between the confrontation (or identification) and the crime.

Williams, whose conduct during the robbery was courageous, identified a Polaroid photograph of the appellant the very same night. The description he gave was reasonably accurate. Mr. Williams observed the appellant for 6 to 7 minutes during the course of the robbery. For the most part, this observation was made face-to-face. Every factor in this case weighs in favor of an accurate identification. If the evidence already recited were not absolutely conclusive, it should be noted that appellant’s fingerprint 'was lifted from the .357 Magnum pistol found with the money bag by the side of the road. We do not view it as significant that, in Williams’s work as a police radio dispatcher, he later saw the appellant around the jail.

IV(A)

Appellant finally contends that the Habitual Felony Offender Act was misapplied. It appears that the appellant had been convicted of five felonies in Illinois, for which he had received five separate sentences. Appellant argues that since these convictions arose from one criminal transaction, they would be treated as one conviction under Illinois law and should be so treated here. Rule 6(b)(3)(iv) states:

“Any conviction in any jurisdiction including Alabama, shall be considered and determined to be a felony conviction if the conduct made the basis of that conviction constitutes a felony under Act 607, Sec. 130(4), Acts of Alabama 1977, page 812 (§ 13A-l-2(4), Alabama Criminal Code), or would have constituted a felony under that section had the conduct taken place in Alabama on or after January 1, 1980.”

Consequently, the five convictions in Illinois, although they would be treated as one conviction under Illinois law, are to be treated as five separate convictions under Alabama law.

(B)

Appellant further contends that the statement of prior convictions of the appellant from the state of Illinois refer to one “Owen”. The parties in this case had obvious reference to the report of presen-tence investigation which was in their possession by the time of the sentencing hearing. Temp. Rules of Criminal Procedure, Rule 6(b)(2) states in part, “The presen-tence report, if submitted, shall be considered as part of the evidence.” While the presentence report was not formally offered into evidence, it is apparent that the report was available and considered both by the judge and by counsel for the appellant and for the state. We conclude that the presentence report was “submitted”, since copies of it were made available to the court and to both the prosecution and the defense. The presentence investigation report asserts that Andrew Pearson is also known as Garnett Lewis Owens. The appellant, while arguing at the sentence hearing that the five felonies should be treated as one, did not contradict or dispute any part of the presentence investigation report. Neither did they offer any evidence in derogation of the evidence as submitted as regards the various Illinois charges against the appellant.

By inference, therefore, we conclude that the state carried the burden of proof as regards these previous felonies, as contemplated by Rule 6, Temp. Rules of Crim. Procedure, specifically Rule 6(b)(3)(iii), both as to the identity of the perpetrator of the crimes in Illinois and as to the proper use of those prior felonies to enhance punishment. Accordingly, this case is due to be affirmed.

STATE’S PETITION FOR REHEARING GRANTED; APPELLANT’S PETITION FOR REHEARING OVERRULED; RULE 89(k), A.R.A.P., MOTION DENIED; ORIGINAL OPINION WITHDRAWN; AFFIRMED.

All the Judges concur except BOWEN, P.J., who concurs in result only.


source: Caselaw Access Project

author: BOWEN, Presiding Judge.

license: Public Domain

text:
    Homer Leonard RAINES v. STATE.
    3 Div. 923.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Rehearing Denied July 31, 1984.
    Certiorari Denied Sept. 21, 1984 Alabama Supreme Court 83-1283.

      William T. Chapman, Evergreen, for appellant.
    Charles A. Graddick, Atty. Gen., and Michael A. Bownes, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Homer Leonard Raines was indicted for the murder of Ricky Stinson. A jury convicted him of manslaughter. Sentence was ten years’ imprisonment.

I

Raines’ 1978 conviction for carnal knowledge was a crime involving moral turpitude. See William v. State, 55 Ala.App. 436, 316 So.2d 362 (1975). Evidence of this conviction was properly admitted to impeach his credibility. Alabama Code § 12-21-162 (1975). Whether the prior conviction is too remote in time to have any present probative value toward showing a witness’s lack of credibility is a matter within the sound discretion of the trial judge under the facts and circumstances of each particular case. McDaniel v. State, 365 So.2d 350, 351 (Ala.Cr.App.1978).

II

At the beginning of the trial, the judge read the indictment and gave the jury general instructions on the presumption of innocence, the meaning of intent, and the course the trial would follow. This is an approved and accepted practice. See Gaston v. State, 359 So.2d 1170, 1171-72 (Ala.Cr.App.1978). The judge did not make any comment on the facts of the case, and his failure to instruct on potential defenses was not error. See 23A C.J.S. Criminal Law § 1299 (1961).

III

Raines raises several allegations of error which involve the issue of whether or not there was any evidence of self-defense. The trial judge “took the position that as a matter of law in this case there had been no evidence that would permit the Defendant to invoke self-defense.” We agree.

The State’s evidence showed that James Neese had threatened to kill Raines. On the night of June 30, 1984, Ralph Robert Gomillion, unaware of Neese’s intentions, rode with Neese and directed him to Raines’ trailer. Gomillion testified that Neese drove past the trailer, turned around, and “(g)ot right below the trailer and ... fired some shots out the window.”

In contradiction of Gomillion’s testimony, State’s witness Sharon Quates, who was living with Raines, testified that around 9:30 that evening a white car drove by Raines’ trailer. When the car returned, “it stopped right in front of the trailer and it started shooting at the trailer.” The car was parked in the driveway and three shots were fired. No shots hit the trailer. Raines arrived home about 11:30 and Quates told him what had happened.

Ten minutes after Raines had returned to the trailer, Quates and Raines heard a car approaching. They went outside and Quates identified it as “the same ear.” Quates testified that Raines told her that “he’d just shoot the tire out and stop it and we'd go get the law and find out who it was.” Raines then shot five times with a Ruger “Mini 14” semiautomatic rifle.

In a voluntary statement Raines gave to the Deputy Sheriff after his arrest, Raines stated, “When the car came by Sharon said it was the same car. I told her that I could stop them and Leroy could come out and see who it was. Then I shot the car.” Raines admitted that when he fired the car was “just past the trailer .... at a power pole just up from the driveway.”

Neese fled from the car which had crashed in a ditch. A .45 semiautomatic pistol was found in the car. A .44 caliber revolver was found in the area where Neese fled.

Ricky Stinson was found dead on the passenger’s seat of the car. A bullet had entered his head just in front of his right ear and exited his left forehead.

There were a number of bullet holes in the front windshield. Two expended pistol cartridges were found in the dirt road. A third expended pistol cartridge was found in the car. Five expended rifle cartridges were found in Raines’ driveway in front of the trailer.

Raines testified in his own defense that when he heard the car coming he turned out the lights and went outside “so he couldn’t shoot at us again and see the lights.” As the car went past his house he “shot at the back of it. Pointed the gun at it and shot at the back of it.... Because I got kids and I can’t have nobody shooting towards my house and other people come there too.”

Raines stated that when he fired he was in fear of his own safety and that of others but admitted that the people in the car had not done anything or taken any action other than “riding by on that road.” Ms. Quates and Billy Kendrick had told him that Neese was going to try to kill him.

Raines lived on a public dirt road which connects County Road 29 with Highway 83 in Conecuh County. Raines’ father lived about two and one-half miles from Raines. Theirs were the only residences on the road. A deputy sheriff testified that on the night of the shooting the road became impassable about one-half mile past Raines’ trailer because “it was wet and the log trucks had been hauling logs and it had deep ruts in the road.”

Neese testified as a defense witness. He stated that he went past Raines’ trailer “just to see if her (Quates’) truck was there” because Quates had told him that Raines was “setting him up.” He admitted firing his pistol “down that dirt road below the house” but denied shooting at the trailer and stated that he had never threatened to kill Raines.

Stinson rode with Neese the second time he went to Raines’ trailer because Stinson knew where Raines lived and could identify Quates’ truck. Neese testified that they were past the trailer, riding down a public road when “somebody opened fire on us.”

A person may use physical force “to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force.” Alabama Code § 13A-3-23(a) (1975) (emphasis added). In the circumstances of this case, there is no evidence to show that Raines fired in response to the imminent use of deadly physical force.

“Imminent danger. In relation to homicide in self-defense, this term means immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law. Or, as otherwise defined, such an appearance of threatened and impending injury as would put a reasonable and prudent man to his instant defense.” Black’s Law Dictionary 676 (5th ed. 1979).

See also C. Gamble, McElroy’s Alabama Evidence § 457.02(1) (3rd ed. 1977), which states:

“(b) ‘Actual imminent peril’ means that the accused, at the time he did the homicidal act, was in danger of immediately being killed or seriously harmed in body by the deceased. This is true though the accused neither reasonably nor honestly believed himself to be in such danger. “(c) ‘Apparent imminent peril’ means that the circumstances and conditions perceived by the accused at the time he did the homicidal act were such as would have reasonably impressed a reasonable person that the accused was in danger of immediately being killed or seriously harmed in body by the deceased; and that the accused honestly believed himself to be in such danger though, in truth, he was not in such danger.”

“The danger, or apparent danger, must be present, not prospective, — not even in the near future.... Human life must not be sacrificed under the apprehension of a prospective probable danger even in the near future.” Dolan v. State, 81 Ala. 11, 1 So. 707, 712 (1887). A mere fear, though well-grounded, of personal violence about to be committed, is no' justification unless the danger appears to be imminent or threatening. See Dupree v. State, 33 Ala. 380 (1859). “[T]he defendant must entertain an honest belief that he is in actual danger at the time he strikes.” Owen v. State, 17 Ala.App. 29, 81 So. 365 (1919).

Threats of violence accompanied by an overt act may justify one assaulted in acting more promptly on the appearance of things under the doctrine of apparent imminent peril. Daniel v. State, 14 Ala. App. 63, 68-9, 71 So. 79, cert. denied, Ex parte Daniels, 196 Ala. 700, 72 So. 1019 (1916). Although the law recognizes the right of one who has received threats to “act more promptly and on slighter overt act or demonstration than it would in the absence of such proof”, this principle is confined exclusively to defensive measures. Langham v. State, 12 Ala.App. 46, 52, 68 So. 504, cert. denied, 192 Ala. 687, 68 So. 1019 (1915).

“It is also a well-established doctrine that when the deceased has made threats against the defendant, and which have been communicated to him, he is not thereby authorized to commence an attack or to act upon said communicated threats until the deceased has committed some overt act or made some hostile demonstration; but in such case the law allows the threatened party to act with greater dispatch and upon a perhaps slighter overt act than is required on the part of a defendant who was not threatened by the deceased, or between whom and the accused there was no bad blood or ill will. The mere fear of an attack will not justify action on the part of the defendant; and he cannot avail himself of communicated threats until he first shows some overt act or hostile demonstration on the part of the deceased which would be calculated to reasonably impress upon him the bona fide belief that he was in imminent peril. This does not mean that the supposed facts generating the belief must be real; for they may be appearances only, and yet justify as prompt action as if they were real. “But this principle is confined to defensive measures. It furnishes no excuse or palliation for aggressive action, nor when the difficulty is brought on or sought by the accused.” Beasley v. State, 181 Ala. 28, 61 So. 259, 260 (1913) (citations omitted).

The overt act or hostile demonstration need not have amounted to a felonious assault. George v. State, 145 Ala. 41, 40 So. 961 (1906). Yet, “however bad or desperate [the] character [of the deceased] may be, and however many threats such person may have made, he forfeits no right to his life, until by an actual attempt to execute his threats, or by some act or demonstration at the time of killing, taken in connection with such character or threats, he induces a reasonable belief on the part of the slayer that it is necessary to deprive him of life in order to save his own, or to prevent some felony upon his person.” Pritchett v. State, 22 Ala. 39, 42 (1853).

“No one has a right to kill another simply because he has made threats against him....
“Threats previously made do not justify taking the life of the person uttering them on the plea of self-defense, unless there was, at least apparently, such a demonstration of an immediate intention to execute them as would naturally induce a reasonable belief that the person threatened would lose his life or suffer serious bodily harm if he did not immediately take the life of the person making them.” F. Wharton, The Law of Homicide § 242 (3rd ed. 1907).

“There must be some demonstration, or apparent demonstration, of an intent, coupled with ability, to take life or inflict grievous bodily harm, before extreme measures become defensive, and can be resorted to.” Karr v. State, 100 Ala. 4, 14 So. 851, 852 (1894).

A hostile demonstration or overt act is defined as:

“any [act] which manifests] to the mind of a reasonable person a present intention to kill the person against whom they are directed, or to do him great bodily harm_ To be sufficient to justify killing the threatener in self-defense, they must be such as are reasonably calculated to induce the belief that the execution of the threatened act or attack has been actually commenced. Mere acts of preparation to execute the threat at some other time, immediate or remote, are not sufficient. They must show an immediate intention to act.” Wharton, § 251 (footnotes omitted).

Here, Neese and Stinson were only driving down the public road in front of Raines’ house when Raines fired five shots from a semiautomatic rifle. Raines admitted that when he fired, the car was already past his trailer.

Here, there is no evidence of a hostile demonstration or an overt action such as to induce a reasonable belief of real or apparent imminent peril. Consequently, there was no justification for shooting in self-defense.

“One assaulted in his house need not flee therefrom. But his house is his castle only for the purposes of defense. It cannot be turned into an arsenal for the purposes of offensive effort against the lives of others. It is a shelter, but not a sally-port.” Watkins v. State, 89 Ala. 82, 8 So. 134, 136 (1890). Here, there was simply no necessity for the killing or even the shooting. In the absence of the necessity of taking life, a plea of self-defense cannot stand. McGee v. State, 25 Ala.App. 232, 144 So. 112 (1932).

Although Raines may well have been in fear of danger when the white car approached, such fear alone did not justify his firing at the car as it drove down the public road past his trailer. “A mere fear or belief on the part of accused that he will suffer great bodily harm or loss of life in the future, as distinguished from the present, does not constitute a justification or excuse.” 40 C.J.S. Homicide § 123(b) (1944).

IV

Defense witness Richard Lynch testified that on the evening of the shooting, Neese made threats against Raines. The trial judge properly directed the jury to disregard this testimony.

“In a charge of homicide or assault, the accused may prove a threat by the victim against him as tending to show that the victim was the aggressor.... These threats are admissible even though the accused had no knowledge of them before the now-charged crime.” C. Gamble, McElroy’s Alabama Evidence § 44.-02(2) (3rd ed. 1977). However, threats by the victim against the accused “can only be proven after the accused has introduced evidence warranting a finding by the jury that he acted in self-defense. * * * A threat by the victim is not admissible if, at the time it is offered, the undisputed evidence shows that the accused was at fault in bringing on the difficulty or was not in imminent peril of losing his life or suffering serious bodily harm.” McElroy, § 44.-02(2) (footnotes omitted).

In excluding Lynch’s testimony from the jury’s consideration, the trial judge specifically found that there had been no evidence that Raines was acting in self-defense: “Its been no evidence that these people were shooting at the time he [Raines] went out there and shot and the mere fact somebody had ridden by there thirty minutes or fifteen minutes or an hour before when he wasn’t even at home wouldn’t make self-defense.” Since there was no evidence of self-defense as a matter of law, there was no error in the exclusion of Lynch’s testimony. For this same reason there was no error in the trial judge’s refusal to allow defense counsel to elicit Billy Kendrick’s testimony that Neese had threatened Raines.

There is no merit in the State’s argument that the exclusions of the threats were not error because the threats were made by Neese, not Stinson, the actual victim. The State contends that since Stinson, the victim, made no threats against Raines, threats made by Neese were not admissible to prove that Stinson was the aggressor.

“If the killing of a person intended to be killed would, under the circumstances, have been excusable or justifiable homicide for any reason, then the unintentional killing of a bystander or other third person is also excusable and justifiable.” Wharton, § 363.

If there had been evidence that Raines was acting in self-defense in shooting at Neese and that Stinson was accidentally killed, then the threats made by Neese would have been admissible.

V

Since the evidence shows that Raines was not forced to take the life of the deceased in order to save his own life or limb from serious peril, and had no reasonable cause to entertain a belief of the necessity to take life, the instructions on self-defense were properly refused. Taylor v. State, 48 Ala. 180 (1872).

Although the trial judge charged the jury on the justification of self-defense, he “took the position that as a matter of law in this case there had been no evidence that would permit the Defendant to invoke self-defense”, and “told the Defense Attorney that they could not argue self-defense because [he] hadn’t heard any of those ele-merits [of self-defense] and you only argue what the evidence is.”

In determining whether there was a danger so real or manifestly apparent as to create a reasonable belief on the part of a defendant of presently impending peril to his life or limb so as to justify a killing in self-defense, the “evidence most favorable to the defendant should be considered and if there is the slightest evidence tending to prove a hostile demonstration which can be reasonably interpreted as placing the accused, at the time of the killing, in apparent imminent danger to life or other grievous bodily harm then the matter of self-defense becomes a question of fact for the jury.” Byrd v. State, 257 Ala. 100, 104, 57 So.2d 388 (1952) (emphasis added). As stated in Issue III, we are of the opinion that the evidence, when viewed in the light most favorable to Raines, is not sufficient to warrant the conclusion as a matter of law, that at the time Raines intentionally fired the fatal shot, either he or others were in actual or apparent impending peril of losing their life or of suffering grievous bodily harm. Miles v. State, 257 Ala. 450, 455, 59 So.2d 676 (1952).

It is not an invasion of the province of the jury for the court to determine whether, under the facts proven, the defendant may set up self-defense. Consford v. State, 15 Ala.App. 627, 634, 74 So. 740, cert. denied, 200 Ala. 23, 75 So. 335 (1917). “The court does not invade the province of the jury in a criminal prosecution by stating that there is or is not evidence of particular facts when such is the case.” Cole v. State, 352 So.2d 17, 20 (Ala.Cr.App.), cert. denied, Ex parte Cole, 352 So.2d 20 (Ala.1977).

Raines testified that he shot at the back of the car. He was not in a position to invoke self-defense for the reason that he was not in imminent peril. For this reason, the trial judge properly refused to allow defense counsel to argue self-defense to the jury and properly refused the requested instructions on self-defense. McWilliams v. State, 178 Ala. 68, 60 So. 101 (1912); Angling v. State, 137 Ala. 17, 21, 34 So. 846 (1903) (“The evidence, without dispute, establishes that the defendant shot the deceased in the back while the latter was in the act of running from him- There, therefore, existed no necessity, real or apparent, which justified his conduct.”); Wright v. State, 22 Ala.App. 376, 377, 115 So. 852 (1928) (“The death wound admittedly being near the center of the back of deceased would of necessity tend to show that, at the time the fatal shot was fired, the defendant could not have been in imminent danger of suffering death or grievous bodily harm at the hands of deceased.”). See also Kizziah v. State, 32 Ala.App. 197, 198-99, 23 So.2d 19 (1945); Riddle v. State, 25 Ala.App. 142, 143, 142 So. 680, cert. denied, 225 Ala. 218, 142 So. 682 (1932).

A court should not instruct on self-defense when there is no evidence to sustain the plea, Tarver v. State, 137 Ala. 29, 34 So. 627 (1903), or when the defendant’s evidence showed that he did not act in self-defense. Johnson v. State, 221 Ala. 632, 130 So. 175 (1930). “As a general rule, the accused is not entitled to have his claim of self-defense submitted to the jury if the undisputed evidence shows clearly any of the following: that the accused was not in any actual or apparent imminent peril, ...” McElroy, § 457.02(5)(a).

VI

Although the trial judge did charge the jury on the law of self-defense, he also instructed them that there was no evidence of self-defense.

“I took the position that as a matter of law in this case there had been no evidence that would permit the Defendant to invoke self-defense. I defined self-defense to you so that you could determine for yourselves whether there had been any evidence....
“I told the Defense Attorneys they could not argue self-defense because I hadn’t heard any of those elements and you only argue what the evidence is. And I explained what self-defense was for you so that you could determine whether there had been any evidence of any of those elements.”

Any error in charging on the doctrine or elements of self-defense is harmless where the evidence shows without conflict that the defendant could not invoke that defense. Brewer v. State, 160 Ala. 66, 49 So. 336 (1909); Owen v. State, 418 So.2d 214, 223 (Ala.Cr.App.1982).

VII

In his oral charge to the jury, the trial judge inadvertently referred to Raines as “the prisoner at the bar” instead of the defendant. Defense counsel requested a mistrial. The judge denied this request and instructed the jury: “He is not a prisoner. I meant to say there the Defendant, Mr. Raines.”

Here, there is a presumption against error because the trial judge corrected his mistake and properly instructed the jury. Kelley v. State, 405 So.2d 728, 729 (Ala.Cr.App.), cert. denied, 405 So.2d 731 (Ala.1981).

VIII

The trial judge properly refused to charge the jury on the offense of criminally negligent homicide. A judge should not charge the jury on an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense. Alabama Code § 13A-l-9(b) (1975). Raines intentionally fired his weapon at a car passing his house. There was no negligent or inadvertent risk creation involved. Phelps v. State, 435 So.2d 158, 164-65 (Ala.Cr.App.1983). There was no rational basis for a verdict of criminally negligent homicide.

IX

The trial judge properly refused to charge the jury on the element of heat of passion. Under Alabama Code § 13A-6-2(b), “[a] person does not commit murder ... if he was moved to act by a sudden heat of passion caused by provocation recognized by law, and before there had been a reasonable time for the passion to cool and for reason to reassert itself.” Here, there was no evidence that Raines was acting in the heat of passion.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: SAM W. TAYLOR, Judge.

text:
    Arthur James JULIUS, alias v. STATE.
    3 Div. 583.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.
    Rehearing Denied Aug. 16, 1983.

      George Cameron, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Ed Carnes and Helen P. Nelson, Asst. Attys. Gen., for appellee.
   SAM W. TAYLOR, Judge.

Appellant was indicted by the August, 1978, term of the Montgomery Grand Jury for the capital murder of his cousin, Susie Bell Sanders. Ala.Code §§ 13-ll-2(a)(6), (13) (1975). He was tried, convicted, and sentenced to death, with such being affirmed by this court. Julius v. State, 407 So.2d 141 (AIa.Cr.App.1980). Pursuant to the holdings in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Beck v. State, 396 So.2d 645 (Ala.1980), this cause was remanded to the circuit court for a new trial. The instant appeal is a result of appellant’s retrial wherein he was again convicted of the capital crime and sentenced to death.

The instant facts are substantially the same as those previously recited by this court in our original disposition of Julius. Consequently, any further recitation of facts is unnecessary.

I

Appellant contends that the trial court committed reversible error during its oral charge to the jury.

After the jury had been given its instructions and instructed to deliberate, it sent a question to the trial court. The jury was reassembled in the courtroom where the trial court disclosed the nature of the jury’s question — redefinition of the elements of the crimes with which appellant was charged. The trial court repeated its lengthy charge on such and in conclusion stated:

“It’s only if you don’t find any aggravating circumstances that you then have to determine whether it’s murder in the first degree, murder in the second degree, manslaughter, or again, not guilty.” (R. 291)

In regard to the lesser included offenses of first and second degree murder, the trial court’s charge was correct. The subsections of the capital felony under which appellant was indicted, § 13 — 11— 2(a)(6) and (13), punish “any murder” capitally regardless of degree, § 13-1-70 Code of Alabama 1975, if it was committed with proof of its attendant aggravating circumstance. If the jury found either aggravating circumstance to exist, namely that appellant had been convicted of first or second degree murder within the twenty years preceding the instant offense or that he was under a sentence of life imprisonment at the time of commission of the instant offense, then it had to determine whether the killing of Sanders was murder in either degree or manslaughter. If the jury found the killing to have been murder, then appellant could only have been found guilty of either capital offense. Conversely, if the jury determined that the killing constituted one of the degrees of murder, then it must find the existence of an aggravating circumstance in order to convict the appellant of a capital offense. We note that both aggravating circumstances were proven without contradiction. A defendant whose offense meets the aggravating requirements of either § 13 — 11—2(a)(6) or (13) must be found guilty of a capital offense if his killing is found to be murder. Therefore, the trial court properly instructed the jury that only if it did not find either of the aggravating circumstances could it then consider if appellant had committed one of the lesser included offenses.

The same cannot be said about the charge as it applies to the lesser included offense of first degree manslaughter. Theoretically, the jury could have found aggravating circumstances existed at the time of Sanders’s death, and still have determined the killing was not a murder. This is because first degree manslaughter is not “any murder,” as that language is used in § 13 — 11—1(a)(6) and (13). Thus, the trial court’s oral charge created a condition precedent to consideration of the lesser included offense of first degree manslaughter, which was technically incorrect. However, the error does not result in reversible error unless it “has or probably has affected the substantial right of the appellant.” A.R.A.P. 45A.

Thus, resolution of the issue revolves around whether the evidence would support the giving of a charge on first degree manslaughter.

The trial court properly charged the jury that the difference between second degree murder and first degree manslaughter was the omission of the element of malice in manslaughter. Consequently, if the evidence supports a finding of malice, then the trial court had no duty to charge on first degree manslaughter.

In Lowery v. State, 294 Ala. 347, 348, 317 So.2d 360, 361 (1975), malice was defined as “a wrongful act purposefully done and without just cause or legal excuse.” This court, in Commander v. State, 374 So.2d 910, 918-19 (Ala.Cr.App.1978), cert. denied, 374 So.2d 921 (Ala.1979), in discussing the element of malice, stated:

“Malice aforethought cannot be given a literal interpretation and has acquired a strictly technical definition and comprehends a number of different conditions of mind. It is said to include all those states and conditions of mind which accompany a homicide committed without legal excuse or extenuation. Malice aforethought may be regarded as the mental state of a person voluntarily doing an act which ordinarily will cause serious injury or death to another without excuse or justification. While actual hatred or enmity may be present, malice is not limited in its meaning to hatred, ill will, or malevolence. Moreover, malice aforethought may exist although there is no particular enmity or ill will toward the victim and even though there is no specific intent to take human life.
“If the defendant had voluntarily committed an act which in the ordinary course of events would or might cause death or serious bodily harm, he is liable for murder although he did not actually intend that death should follow.
“Malice as an essential characteristic of the crime of murder may be either express or implied.
“Express malice is defined as an intent either to kill or do serious bodily harm or with reckless disregard of the consequence of the act, to do any cruel act which results in death.
“Generally, however, implied malice may be regarded as the equivalent of the phrase ‘constructive malice.’ That is, malice as such does not exist but the law regards the circumstances of the act as so harmful that the law punishes the act as though malice did in fact exist. R. Anderson, Wharton’s Criminal Law and Procedure, §§ 242, 244, 245 (10th ed. 1957).
“In this state, second degree murder embraces those homicides in which malice was implied at common law and also those attended with evidences of express malice. Fields [v. State], 52 Ala. [348] at 352.
“Because the condition of a man’s mind or heart is rarely the subject of direct and positive proof,
“ ‘Malice is said to be implied where there 'is no deliberate mind and formed design to take life, but where the killing, nevertheless, is done without justification or excuse, and without provocation, or without sufficient provocation to reduce the offense to manslaughter. It is sometimes said that malice is implied where no considerable provocation appears, or where all the circumstances show an abandoned or malignant heart. However, it is not necessary that this condition of mind or heart be characteristic of the slayer; malice, in its legal sense may exist without actual intention of any mischief, if the killing is the actual consequence of the commission of an act, capable of doing great bodily harm, so carelessly, recklessly, or wantonly as to evidence depravity of mind and disregard for human life, although there is no actual design or intention to encompass death. 40 Am.Jur.2d, Homicide § 51.’ ”

See also Clark v. State, 333 So.2d 885 (Ala.Cr.App.), cert. denied, 333 So.2d 890 (Ala.1976).

Malice is an essential ingredient of murder. As a general rule, it is an inferential fact not susceptible of positive or direct proof. It arises by inference from other facts proven, such as the character of the assault, the facts and circumstances surrounding the offense, and other attendant circumstances. Steele v. State, 389 So.2d 591 (Ala.Cr.App.1980); Strong v. State, 52 Ala.App. 237, 291 So.2d 325 (1974).

In Sanders v. State, 392 So.2d 1280, 1283 (Ala.Cr.App.1980), this court quoted with approval the following from P. Wharton, The Law of Homicide § 151 (3d ed. 1907):

“Where the intent to kill appears from the circumstances preceding or connected with the homicide there can be no question of implied malice. And it has been held that an act the natural consequence of which is death, when unexplained, is evidence in itself of the preconceived intention and deliberation necessary to constitute murder in the first degree.”

As stated in Diamond v. State, 219 Ala. 674, 676, 123 So. 55, 57 (1929):

“[W]hen a person enters into combat with another, intending no more serious injury than an ordinary battery, and no weapon is used, and death ensues, the person thus causing death, if his acts were wrongful or unlawful, and nothing more appears, would be guilty of no higher grade of homicide than manslaughter in the first degree. Still, if the force used is excessive and the assault is brutal, malice may be inferred which would raise the grade of the offense to murder. (Citations omitted; emphasis added).

See also Higdon v. State, 367 So.2d 991 (Ala.Cr. App.1979).

Once a prima facie case of murder is established, no burden of proof shifts to the defendant to establish that the killing was manslaughter, i.e., he does not have to prove an absence of malice. Mitchell v. State, 342 So.2d 927 (Ala.Cr.App.), cert. denied, 342 So.2d 933 (Ala.1977). Likewise, the state has no burden of proving the lack of an excuse for the commission of a homicide. Every killing is unlawful unless expressly excused or justified by law; once a homicide is shown, the defendant must prove circumstances in mitigation, excuse or justification unless shown by the evidence produced against him. Flint v. State, 370 So.2d 332, 336 (Ala.Cr. App.1979). See Taylor v. State, 405 So.2d 946 (Ala.Cr.App.), cert. denied, 405 So.2d 951 (Ala.1981). As this court has stated: “Where the fact of the killing is shown, unaccompanied by circumstances of legal justification, excuse or mitigation, the law presumes that the homicide was committed with malice, unless the contrary is shown.” Young v. State, 428 So.2d 155, 159 (Ala.Cr. App.1982).

As stated in Helton v. State, 372 So.2d 390, 393 (Ala.Cr.App.1979): “... malice raising the grade of a homicide from manslaughter to murder will not ordinarily be inferred from a blow with the fist. ... However if the defendant used excessive force or was guilty of extreme brutality, malice may be inferred.” Maness v. State, 57 Ala.App. 431, 329 So.2d 120, cert. denied, 295 Ala. 411, 329 So.2d 126 (1976). Malice has been found to exist in an assault with intent to murder case where the victim was strangled. Hayes v. State, 384 So.2d 623 (Ala.Cr.App.1979), cert. denied, 384 So.2d 627 (Ala.1980). In addition, one case used evidence, inter alia, of the defendant’s presence in the neighborhood close to the time of the victim’s disappearance, as well as trace evidence of carpet fibers found on the defendant’s clothing and a hair matching the same general characteristics of that of the defendant’s which was found in the victim’s home to establish malice. Dolvin v. State, 391 So.2d 133 (Ala.1980); Braggs v. State, 283 Ala. 570, 219 So.2d 396 (1969).

As stated in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367 (1982):

“Beck held that due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction. But due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction. The jury’s discretion is thus channelled so that it may convict a defendant of any crime fairly supported by the evidence. Under Alabama law, the rule in non-capital cases is that a lesser included offense instruction should be given if ‘there is any reasonable theory from the evidence which would support the position.’ Fulghum v. State, 291 Ala. 71, 75, 277 So.2d 886, 890 (1973). The federal rule is that a lesser included offense instruction should be given ‘if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater.’ Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973). The Alabama rule clearly does not offend federal constitutional standards and no reason has been advanced why it should not apply in capital cases.”

Thus, “a charge on a lesser, non-capital offense is required only when there is a basis in the evidence which provides a reasonable theory supportive of the charge.” Goldbolt v. State, 429 So.2d 1131, 1134 (Ala.Cr.App.1982). See also- Cook v. State, 431 So.2d 1322 (Ala.1983).

The evidence in the instant case paints a violent scene of a struggle for life by the victim, who was raped and subjected to acts of grotesque sexual abuse. Her home was made a shambles by her futile attempts to escape. Appellant attacked and abused the victim virtually throughout the house, as evidenced by fibers of the various carpets throughout the house being found on his clothing. The evidence of the numerous wounds on the victim as well as the gashes on her neck caused by appellant’s fingernails graphically depict the violence of the killing. There are no circumstances in the record, presented either by the state or appellant, establishing a legal justification or excuse for, or mitigation of, the brutal killing. Young, supra. We find, therefore, that the state sufficiently proved the element of malice and the trial court erred, albeit in appellant’s favor, by charging the jury on the lesser included offense of first degree manslaughter, as there was no factual basis to support such. Consequently, the latter portion of the above challenged charge to the jury, though technically erroneous, caused appellant no prejudice in any manner. Although the charge was abstract, it nevertheless was favorable to appellant and he has no cause to complain. See generally Strong, supra. Under the evidence, he was not entitled to a charge on first degree manslaughter and the jury should not have considered such. Thus we hold that the giving of this charge has not affected the substantial rights of the appellant.

II

Appellant contends that the overlap between the aggravating components of the capital offense definitions found in § 13-11-2 and the aggravating circumstances of § 13-11-6, which are to be considered by the jury at the sentencing phase of trial and by the trial court at its sentencing hearing, denies him a “separate trial on punishment.” He asserts that once the jury has found him guilty of the capital offense, it has, for all intents and purposes, sentenced him to death as it has, in most instances, already found that an aggravating circumstance exists.

In Dobard v. State, 435 So.2d 1338 (Ala. Cr.App.1982), the defendant was charged, under § 13A-5-31(a)(5) Code of Alabama 1975, with murder of a police officer on duty. After he was found guilty and a death sentence was recommended by the jury, the trial court reviewed the jury’s sentence recommendation and found, inter alia, that, “The capital felony was committed for the purpose of avoiding or preventing a lawful arrest.”

On appeal, Dobard argued that the above aggravating circumstance “essentially duplicates the offense charged in the indictment and, therefore, may not be considered an aggravating circumstance in this case.” In support thereof Dobard cited Keller v. State, 380 So.2d 926 (Ala.Cr.App.1979), cert. denied, 380 So.2d 938 (Ala.1980).

In response, we held that “the rule in Keller, to the effect that the aggravating circumstance charged in the indictment cannot be used as both the criminal charge and the circumstance aggravating that charge, has been tacitly overruled in Kyzer v. State, 399 So.2d 330 (Ala.1981), and Beck, supra.” Dobard, supra; see also Ala.Code § 13A-5-50 (1975).

Under Beck, the sentence determining phase is entirely separate from the guilt phase of the capital trial. The sentencing procedure outlined in Beck applies only if the defendant is first found guilty of the substantive offense. The state must prove beyond a reasonable doubt the aggravating circumstances averred in the indictment. However, as we have previously observed:

“... the fact that due process protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged is not relevant under Beck as to weighing aggravating and mitigating circumstances at the sentence determining phase.
“The. separate acts of proving facts at the guilt phase and weighing facts against each other at the penalty phase are not to be confused.
“ ‘While the existence of an aggravating or mitigating circumstance is a fact susceptible to proof under a reasonable doubt or preponderance standard, see State v. Dixon, 283 So.2d 1, 9 (Fla.1973), and State v. Johnson, 298 N.C. 47, 257 S.E.2d 597, 617-18 (1979), the relative weight is not. The process of weighing circumstances is a matter for judge and jury, and, unlike facts, is not susceptible to proof by either party. Petitioner’s contrary suggestion is based on a misunderstanding of the weighing process, the statute and the guiding and channeling function identified in Proffitt v. Florida, 428 U.S. [242] at 258, 96 S.Ct. [2960] at 2969 [49 L.Ed.2d 913], Indeed, it appears no case has applied In re Winship in the manner Ford urges. The North Carolina and Utah cases cited by him which imposed a reasonable doubt standard in this situation turned on construction of state statutes rather than the due process rationale of In re Winship. See State v. Johnson, 257 S.E.2d [597] at 617, and State v. Woods, 648 P.2d 71 (1981) [No. 16486, Sept. 21, 1981].’ Ford v. Strickland, 676 F.2d 434, 442 (11th Cir.1982).
“As well, at the sentencing phase the State is permitted to offer any other statutorily listed aggravating circumstance which was not averred in the indictment, but which was proved beyond a reasonable doubt at the guilt phase at the sentencing hearing. Beck at 663. Thus while the aggravating circumstances must be proven beyond a reasonable doubt, the jury may return the death penalty if it simply does not find the aggravating circumstances are outweighed by the mitigating circumstances. We find this to be in accord with sentencing procedures previously upheld as meeting constitutional standards. Gray v. Lucas, 677 F.2d 1086 (5th Cir. 1982). See also People v. Frierson, 25 Cal.3d 142, 158 Cal.R. 281, 599 P.2d 587 (1979).”
Whisenhant v. State, [Ms. 1 Div. 333, Nov. 23, 1982] (Ala.Cr.App.1982).

We find appellant’s contention to be without merit.

Ill

In accordance with the mandate of Beck, 396 So.2d 645, 664, supra, we find the instant offense one properly punishable by death. We also find similar crimes throughout the state being punished capitally. See Hubbard v. State, 382 So.2d 577 (Ala.Cr.App.1979), aff'd, 382 So.2d 597 (Ala. 1980), vacated, 405 So.2d 695 (Ala. 1981). Lastly, we find the sentence of death appropriate in relation to appellant. We note that there were no accomplices to the instant crime. We have searched the record for error prejudicial to the substantial right of appellant and have found none. This cause is hereby affirmed.

AFFIRMED.

All the Judges concur.

APPENDIX A

CIRCUIT COURT

FIFTEENTH JUDICIAL CIRCUIT

CC-78-861-G

STATE OF ALABAMA, Plaintiff, v. ARTHUR JAMES JULIUS, Defendant.

SENTENCING ORDER

On August 15, 1978, defendant was indicted for the capital murder of Susie Bell Sanders. The aggravating circumstances alleged in the indictment were that the defendant had previously been convicted of murder in the first degree in the twenty years preceding the offense and was serving a sentence of life imprisonment in the penitentiary at the time of the offense. (Code of Ala. 13-ll-2(a)(6) & (13).

On April 20, 1982!, the ease was tried before the undersigned by jury of defendant’s peers which returned a verdict of guilty of the capital offense as charged in the indictment and in a separate hearing returned a verdict recommending the defendant’s punishment be fixed at death.

Pursuant to § 13-11-3, supra, a sentencing hearing was held before the undersigned on May 7, 1982. Prior thereto, a pre-sentence report was ordered and made a part of the record in this case. Counsel for defendant and the defendant were given ample opportunity to examine the report for inaccuracies and no part of the pre-sen-tence report has been, or shall be, kept confidential. Neither counsel for the defendant nor the defendant suggested any corrections in the pre-sentence report.

The State and the defendant were given the right to present evidence to the court concerning any part of the report. No further evidence was presented and neither counsel nor the defendant had any further remarks to make to the court at the hearing. The court has considered the pre-sen-tence report as to the background of defendant and as to other information in the report which is prescribed by law or court rule for felony cases generally. The court, however, has made its own independent analysis of the existence or non-existence of aggravating and mitigating circumstances. The court has made its own special application of the facts which the court has heard and carefully reviewed to the enumerated aggravating circumstances and to mitigating circumstances whether enumerated or not.

SUMMARY OF THE CRIME AND THE DEFENDANT’S PARTICIPATION

On January 29, 1978, the defendant was in custody of the Department of Corrections and was assigned to the Draper Work Release Center. The defendant was given an eight-hour pass that date commencing at 11:00 a.m.

The defendant was picked up at the Draper Work Release Center by Willie Clayton (a cousin). At approximately 3:30 p.m., Clayton loaned the defendant his car which the defendant returned to him at 6:25. Defendant went to the victim’s house and while at the house, it is clear from the evidence that numerous deviant sexual acts were perpetrated on the victim and that a struggle occurred.

Clayton took the defendant back to the Work Release Center and it is noted that the defendant at this time had money which he did not have when he was picked up at the Center, (the victim’s boyfriend testified that some money he had given the victim that morning was missing). When defendant arrived at the Center, he made statements to Clayton which infer the guilty mind of the defendant, and when he entered the Center he informed one of the Corrections officers that he was expecting an emergency phone call.

The victim was killed by strangulation. Numerous fibers from the carpet in the victim’s home were found on the clothes of the defendant and other circumstantial evidence was present which fully supports the jury’s verdict of guilt.

AGGRAVATING AND MITIGATING CIRCUMSTANCES

From the court’s independent consideration of the evidence, the court is convinced beyond a reasonable doubt that the following aggravating circumstances are present.

1) The capital felony was committed by the defendant while under a sentence of imprisonment,

2) The defendant was previously convicted of another felony involving the use or threat of violence to the person; and

3) The capital felony was especially heinous, atrocious or cruel.

From the court’s consideration of the evidence and all other factors as well as a pre-sentence report, the court finds the following mitigating circumstances present:

1) The defendant was 32 years old at the time of the offense.

CONCLUSION

All of the proper evidence having been received and the arguments given, the court has weighed each individual aggravating circumstance as it applies to the defendant and the court has weighed the aggravating circumstances collectively. The court has weighed the mitigating circumstance and has weighed the aggravating circumstances against the mitigating circumstance.

It is the conclusion of this court that the aggravating circumstances overwhelmingly outweigh the mitigating circumstance. Accordingly, the court accepts the recommendation of the jury that the death penalty be imposed against Arthur James Julius.

Formal sentencing is hereby set for May 14, 1982 at 8:45 a.m.

DONE and ORDERED in chambers this 10th day of May, 1982.

/s/ William R. Gordon WILLIAM R. GORDON Circuit Judge

      . See trial court’s findings of fact attached to this opinion as Appendix A.

      . Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).

      . Defendant was tried for this offense in 1978, found guilty and sentenced to death. The cort-viction was overturned pursuant to Beck v. State, 396 So.2d 645 (AIa.1980).


author: ALMON, Justice.

text:
    Ex parte Arthur James JULIUS. (In re Arthur James Julius v. State of Alabama).
    82-1146.
    Supreme Court of Alabama.
    July 13, 1984.
    Rehearing Denied Aug. 24, 1984.

      George W. Cameron, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., and Ed Carnes, Asst. Atty. Gen., for respondent.
   ALMON, Justice.

This is a death penalty case. Certiorari was granted to determine whether the Court of Criminal Appeals erred in upholding a capital murder conviction and sentence of death based upon the court’s denomination of an incorrect statement within the oral charge as harmless error.

Arthur James Julius was indicted under Alabama’s 1975 death penalty statute, Code 1975, §§ 13-11-1 through-9, for the January 29, 1978, capital murder of his cousin, Susie Bell Sanders, who was strangled to death after being raped and subjected to acts of grotesque sexual abuse.

The indictment alleged the following aggravated offenses, which by statute warrant imposition of the death penalty should the jury find Julius guilty:

1) “[a]ny murder committed while the defendant is under sentence of life imprisonment;” Code 1975, § 13-11-2(a)(6); and
2) “[a]ny murder committed by a defendant who has been convicted of murder in the first or second degree in the 20 years preceding the crime.... ” Code 1975, § 13-ll-2(a)(13).

Julius was tried, convicted, and sentenced to death under this statute, and the Court of Criminal Appeals affirmed the judgment of conviction. Julius v. State, 407 So.2d 141 (Ala.Crim.App.1980). The facts surrounding Julius’s conviction are set forth in detail in that opinion and need not be restated here.

Pursuant to the holdings in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Beck v. State, 396 So.2d 645 (Ala.1980), this case was remanded to the circuit court for a new trial. Julius v. State, 407 So.2d 152 (Ala.1981). At a bifurcated retrial, Julius was again convicted of the capital offense and again sentenced to death.

The Court of Criminal Appeals affirmed the judgment of conviction and the sentence and overruled Julius’s motion for rehearing. Julius v. State, 455 So.2d 975 (Ala.Crim.App.1983).

On petition for certiorari, Julius argues that the Court of Criminal Appeals erred in affirming his conviction and sentence of death, based upon the following grounds: 1) that the Court of Criminal Appeals erred in its determination that the error in charging the jury was harmless; 2) that the overlap of aggravating circumstances considered in sentencing with the elements of “aggravation” charged in the indictment is unconstitutional; and 3) that the sentence of death was inappropriate because the offense was not “especially heinous, atrocious or cruel,” Code 1975, § 13-11-6(8).

After the trial court had delivered a lengthy charge to the jury and the jury had begun to deliberate, the jury asked the trial court to redefine the elements of the crimes with which Julius was charged. The trial court repeated its lengthy charge on these definitions and in conclusion stated:

“It’s only if you don’t find any aggravating circumstances that you then have to determine whether it’s murder in the first degree, murder in the second degree, manslaughter, or again, not guilty.”

When this isolated statement is placed in the context of the overall charge, it is clear that the term “aggravating circumstances” refers to the Code 1975, § 13-ll-2(a)(6) and (13) “aggravation” charged in the indictment, and that the term “manslaughter” refers solely to first degree manslaughter.

Neither side disputes the fact that this isolated statement was correct with regard to the lesser included offenses of first and second degree murder. Code 1975, § 13-ll-2(a), imposes capital punishment for any murder, regardless of degree, if the murder was committed with proof of its attendant “aggravation.” Because both elements of “aggravation” charged in the indictment were proven without contradiction, Julius must be found guilty of a capital offense should the jury find that the homicide constituted a “murder” as defined in Code 1975, § 13-1-70.

Julius argues, however, that because the jury could have conceivably either convicted him of manslaughter in the first degree or acquitted him despite proof of these elements of “aggravation,” the charge was clearly erroneous and should not have been upheld on appeal.

Although the State concedes that this isolated portion of the jury charge is technically incorrect in regard to the lesser included offense of first degree manslaughter and acquittal, the State contends that the Court of Criminal Appeals was correct in denominating this error “harmless,” because 1) there was absolutely no evidentia-ry basis for a first degree manslaughter charge; and 2) this isolated sentence was corrected in other portions of the charge. We agree.

In Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the United States Supreme Court held that the sentence of death could not be imposed after a jury verdict of guilt of a capital offense when the jury was precluded from considering a verdict of guilt of a lesser included noncapital offense, provided that the evidence would have supported such a verdict. Subsequently, in Hopper v. Evans, 456 U.S. 605,102 S.Ct. 2049, 72 L.Ed.2d 367 (1981), the Supreme Court clarified its decision in Beck, supra, to require that only when the evidence warrants such an instruction must a lesser included offense instruction be given. In so holding, the Court upheld the constitutionality of the following Alabama standard as applied in capital cases: “a lesser included offense instruction should be given if ‘there is any reasonable theory from the evidence which would support the position.’ ” Hopper, 456 U.S. at 611, 102 S.Ct. at 2053 (quoting Fulghum v. State, 291 Ala. 71, 75, 277 So.2d 886, 890 (1973)).

Applying this doctrine, we find no possible evidence which would support a charge on the lesser included offense of first degree manslaughter.

Julius’s sole defense was alibi. During the trial, Julius’s testimony from a prior hearing was read into the record. At this hearing, Julius testified that he was not present at the scene of the crime but that he was in another part of the city in the presence of the victim’s mother, Fannie Sanders, while the crime was occurring. Mrs. Sanders, however, directly contradicted this testimony during the trial.

In Cook v. State, 431 So.2d 1322 (Ala.1983), this Court held that

“when a defendant takes the witness stand and testifies that, because he was in a distant location when the crime took place, he could not possibly have committed it, he has directly contradicted any evidence which he might later produce to show that he was guilty of a lesser included offense.”

431 So.2d at 1325.

Julius’s reliance solely upon the defense of alibi resulted in his failure to produce any evidence warranting a charge on the lesser included offense of manslaughter in the first degree. Any possible error in charging on the doctrine or elements of first degree manslaughter is harmless where the evidence shows without conflict that Julius could not rely upon that lesser included offense. See Raines v. State, 455 So.2d 967 (Ala.Crim.App.1984).

Although the jury charge that an acquittal requires the complete absence of the § 13-ll-2(a)(6) and (13) elements of “aggravation” is also technically incorrect, Julius’s assertion of reversible error nevertheless contravenes the rule that “a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). See also Harris v. State, 412 So.2d 1278 (Ala.Crim. App.1982). Because this objectionable portion of the charge was corrected in other portions of the charge where the court repeatedly instructed the jury on the State’s burden of proof, the presumption of innocence, and the admonition, “always concern yourself with not guilty in this whole thing ...,” the technical error was clearly harmless.

Although the remaining issues were properly decided below, we note that the decision of this Court in Ex parte Kyzer, 399 So.2d 330 (Ala.1981), controls the disposition of both issues.

In Kyzer, supra, we held that the trial judge may consider the “aggravation” charged in the indictment under § 13-11-2 as “aggravating circumstances” to be weighed against mitigating circumstances during the sentencing phase.

We also held in Kyzer, supra, that the aggravating circumstance listed in § 13-11-6(8) — “the capital felony was especially heinous, atrocious or cruel” — applies only to those “conscienceless or pitiless homicides which are unnecessarily torturous to the victim.” 399 So.2d at 334. Because the torturous death of Susie Bell Sanders clearly qualifies as such a homicide, the trial court properly included this aggravating circumstance in justification of the sentence of death.

Having searched the record for any plain error or defect in the proceeding below, Rule 39(k), A.R.A.P., and having found none, we affirm the judgment of conviction and the sentence.

The judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

All the Justices concur, except TOR-BERT, C.J., who recuses.

      .The 1975 capital punishment statute, as contained in §§ 13-11-1 through 13-11-9, was, upon adoption of the new criminal code, effective January 1, 1980, recodified in identical language as §§ 13A-5-30 through 13A-5-38. These sections of the new criminal code were repealed effective July 1, 1981, by the 1981 capital offense statute, which applies only to conduct occurring on or after July 1, 1981; the repeal of §§ 13A-5-30 through -38 did not affect the applicability of those sections to conduct that occurred before July 1, 1981.

      . The elements of "aggravation” found within the Code 1975, § 13-11-2, guilt-finding phase are not to be confused with the § 13-11-6 "aggravating circumstances” considered in the sentence-determining phase of a case.

      . Because the second trial of Julius clearly complied with the bifurcation mandate of Beck v. State, 396 So.2d 645 (Ala. 1980), we need not address the problem stated in Ritter v. Smith, 726 F.2d 1505 (11th Cir.1984).


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Johnny Lee DOZIER v. STATE.
    4 Div. 262.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Rehearing Denied July 17, 1984.
    Certiorari Denied Sept. 21, 1984 Alabama Supreme Court 83-1208.

      Michael Crespi, Headland, for appellant. Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant-appellant guilty under an indictment for theft of property in the second degree that alleged:

“Johnny Lee Dozier ... did knowingly obtain or exert unauthorized control over one camera, the property of James Bol-den, of the value of, to-wit: $300.00, with the intent to deprive the owner of said property, in violation of 13A-8-4 of the Code of Alabama.”

James David Bolden testified that when he went to work about 7:00 A.M. on November 27,1982, he left his camera described in the indictment, valued at “around $250.00,” in the right front seat of his automobile and locked his automobile. He put the car keys on his desk. As he returned to his automobile at about 11:30, the car was still locked but the camera was missing. The defendant was a coworker of Bolden, whom Bolden testified he saw at their place of work on November 27, 1982.

Rhonda Hoover testified that she worked at the same place as James David Bolden and Johny Lee Dozier on November 27, 1982, that about 10:00 that morning she drove into the parking area, where she saw Bolden’s automobile. She testified that at that time she saw the defendant “at the car” and that he “had a car door open and he was standing between the car door and the front seat of the car,” that “the car door was open and his back was to the car door.”

Most of the other evidence as to who took the camera from the automobile and as to where it was taken is thereafter not as definite as it should have been and as it probably would have been if questions and answers had been more carefully worded, particularly as to the identity of the antecedents of some personal pronouns. However, it is reasonably clear from the testimony of Bolden that on the afternoon of the date of the disappearance of his camera from his automobile there was a telephone conversation between him and the defendant, that on the following day there was another telephone conversation between them and that in one of said telephone conversations defendant told Bolden that one Greg Floyd had the camera. A part of Bolden’s testimony as to the telephone conversation was as follows:

“Q. Do you know Greg Floyd?
“A. I have seen him. I don’t know him personally, no, sir. But, he told me he had the camera and that it was going to take seventy dollars to get the camera back.
“Q. All right.
“A. And, he said I have fifty dollars of my own money and said I have talked to my mother and as soon as the bank opens Monday morning, I will get the other twenty dollars and we will go get your camera back. And, I told him okay, that is fine. You know, as long as I have the camera back Monday morning, I won’t press charges.
“Q. Did you have a conversation with him later?
“A. Yes, sir. I had another conversation. Basically the same kind conversation on the following day. He called me again and wanted to know would I take him to the pawn shop in Dothan to get the camera Monday morning. And, I told him no, I wouldn’t. It wasn’t my responsibility, you know, to take him to the pawn shop. And, he said that is where it is, the camera is at the pawn shop in Dothan.
“Q. But, he offered his own money, fifty dollars of it, to go get it?
“A. Right. And, I also asked him if he didn’t have anything to do with it, why was he going to pay for it. And, he said to keep from going to jail. Then I stated that I wouldn’t press charges against him, if he didn’t have anything to do with it.”

Officer Neal Forrester of the Police Department of Headland, testified that in investigating the reported theft, he talked with the defendant, and after explaining to him his rights, he learned from the defendant the following:

“I talked with Johnny Lee Dozier on the 29th of November of 1982, and asked him about a camera that was supposedly taken out of a vehicle belonging to James David Bolden that works at Wex Tex. Mr. Dozier advised me he did not take the camera. That he thought that Greg Floyd took the camera. And, that Johny was trying to raise seventy dollars to buy the camera from Greg to give it back to Mr. Bolden.
“Q. Who is Greg Floyd? Do you know him?
“A. Yes, sir. He is a colored, Black male, colored male approximately in his 20s. He is mentally incompetent.
“Q. Did you discuss this with Greg Floyd?
“A. Yes, sir. I talked with Greg.”

At the conclusion of the evidence for the State, defendant moved for a judgment of acquittal on the ground that the State had not presented a prima facie case against defendant, which motion was overruled by the court, and the defendant then rested without calling any witnesses, other than his recall of James David Bolden and questioning him as to the value of the camera.

We agree with the trial court in its denial of defendant’s motion for an acquittal on the ground that “the State has failed to make a prima facie case against the Defendant.” Although the evidence of defendant’s guilt was entirely circumstantial, it constituted strong, substantial evidence of defendant’s guilt either as a principal or as an aider and abettor. Therefore, we disagree with appellant’s contention that the “verdict was contrary to the great weight of the evidence” and his contention that the “State failed to prove a prima facie case of theft in the second degree.”

Another contention of appellant for a reversal is predicated upon a ruling of the trial court overruling defendant’s objection to the testimony of Officer Neal For-rester, as quoted above, as to what Johnny Lee Dozier told Officer Forrester with reference to the disappearance of the camera from the vehicle belonging to Bolden. The ruling complained of was over an objection by defendant’s attorney as follows:

“MR. CRESPI: May it please the Court, I would like to renew my objection on the further ground that there is a pending Discovery Motion in this case for a discovery of statements. And, I don’t have one in my records, Your Honor. And, I object to its admissibility on that ground.
“THE COURT: Okay. I overrule you.”

Appellant asserts that he was not furnished with a copy of the statement made by defendant to Officer Forrester or any information as to the substance of such statement, and relies upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to bolster his contention. The essence of that which was held in Brady v. Maryland to which appellant refers is the following at 373 U.S. 87, 83 S.Ct. 1196, 10 L.Ed.2d 218:

“We now hold that the suppression by the prosecution of evidence favorable to an accused [favorable to and upon request by an accused] violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. [Emphasis supplied].”

In the instant case, the evidence presented by the State was not favorable to defendant in its entirety. It was largely unfavorable and most certainly more unfavorable than favorable to defendant. It is obvious that the prosecution desired to use the evidence as evidence favorable to the prosecution and not favorable to the defendant. Brady v. Maryland is inapposite to such a situation. Furthermore, as shown by the objection by defendant’s attorney to the proffered evidence as to what defendant had told Officer Forrester, the “Discovery Motion” was still pending and evidently had not been brought to the attention of the court by the movant at such a time or in such a way as to then and there invoke a ruling of the court on the motion. In our opinion, the trial court committed no error prejudicial to defendant in overruling defendant’s objection to the testimony of Officer Forrester in relating what defendant had told him as to what he knew about the disappearance of the camera from the vehicle of Bolden.

By the only other contention for a reversal, appellant argues that he was denied his constitutional right to a speedy trial. It is clear that defendant through his attorney gave definite written notice on April 21, 1983, of his desire for a speedy trial by a “Motion for Speedy Trial or to Dismiss.” This motion was filed one day after the case had been continued on motion of the State from its setting on April 18, 1983. The setting of the case for trial on April 18, 1983, was only ten days after the arraignment, at which defendant entered a plea of not guilty. On May 20, 1983, the court denied defendant’s motion to dismiss and set the case “for trial at next term.” The case came on for trial on November 8, 1983. Four days before November 8, defendant filed another motion to dismiss, contending that he had been denied his constitutional right to a speedy trial, which motion to dismiss was denied by the trial court.

There is no insistence by appellant that the trial court did not have a valid basis for continuing the case at the instance of the State on April 20, 1983. He makes no claim to the effect that taking all the circumstances into consideration, the case should have been set for trial before November 8,1983. He makes no argument to the effect that the intervening time between the first setting and the second setting of the case was inordinate.

Our consideration of the four factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), leads to the conclusion that in one of them only, namely, defendant’s assertion of his right, did appellant tend to show his right to a speedy trial had been violated. As to another factor, namely, the reasons for the delay, we are not aided by the record proper, the court reporter’s transcript, or otherwise. As to another factor, to-wit, prejudice to the defendant, there is an utter absence of any showing of any prejudice whatever to defendant by his not having been tried sooner. As to the remaining factor, the length of the delay, we are convinced that the length of the delay was not unreasonable. It fell short of being so long as to be “presumptively prejudicial or patently offensive.” In that circumstance, the contention that there was a violation of defendant’s constitutional right to a speedy trial is refuted, even if all of the other three factors were favorable to appellant’s contention. Byrd v. State, AIa.Cr.App., 421 So.2d 1344, 1346 (1982), by Judge Bowen, now Presiding Judge, cert. denied, Ala., 421 So.2d 1344. It necessarily follows that the claim of a denial of defendant’s constitutional right to a speedy trial is overcome when only one factor, the assertion of the right, is favorable to appellant.

Our consideration of all of the issues raised by appellant leads to the conclusion that the judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Charles Edward WOOTEN, Jr., alias Chuck Wooten, alias Charles Wooten v. STATE.
    5 Div. 849.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Rehearing Denied July 31, 1984.
    E. Paul Jones, Alexander City, for appellant.
    Charles A. Graddick, Atty. Gen., and T.A. Harding Fendley, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Charles Edward Wooten was indicted and convicted for trafficking in cannabis. Sentence was three years’ imprisonment and a $25,000 fine. On appeal, Wooten contends that the search warrant was based on information obtained in a previous illegal and warrantless search.

Prior to the obtaining and execution of the search warrant, A.B.C. Agent Harvey Turner had personally observed a large number of marijuana plants growing behind Wooten’s residence.

Turner testified that he received information that there was marijuana growing “up there”. He went out to the area and observed the marijuana. He stated that “(a)ctually, I never did get on Mr. Wooten’s property. I don’t believe. You can stand across the fence and observe the marijuana. I’m not, I’m not even sure I was on his property. I don't think I was.” Turner never did “get in” the plants, he “just observed them from a distance.”

In Oliver v. United States, — U.S.—, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), the Supreme Court of the United States reaffirmed the rule of Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. No expectation of privacy legitimately attaches to open fields. “We conclude, from the text of the Fourth Amendment and from the historical and contemporary understanding of its purposes, that an individual has no legitimate expectation that open fields will remain free from warrant-less intrusion by government officers.” — U.S. — at—, 104 S.Ct. at 1742.

Here, the six different plots of marijuana were not in an area immediately surrounding Wooten’s mobile home and could not be seen from his trailer.

Wooten pled guilty to the indictment charging trafficking after the trial judge denied his motion to suppress. The plea was entered with “the understanding we are not waiving any rights to an appeal concerning the Court’s ruling on the search and seizure.” See Bailey v. State, 375 So.2d 519 (Ala.Cr.App.1979).

A voluntary and intelligent plea of guilty is conclusive as to the defendant’s guilt, constitutes an admission of all facts sufficiently charged in the indictment, and obviates the necessity of proof by the State. Dingler v. State, 408 So.2d 530 (Ala.1981); Ex parte Sankey, 364 So.2d 362 (Ala.1978), cert. denied, 440 U.S. 964, 99 S.Ct. 1513, 59 L.Ed.2d 779 (1979). The plea admits all the elements of the offense. Carr v. State, 406 So.2d 440 (Ala.Cr.App. 1981).

The record shows that the guilty plea was intelligently, knowingly, and voluntarily entered. Wooten does not contend otherwise. He cannot now complain that the State failed to prove that he was in possession of more than 2.2 pounds of marijuana.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Jerry Lee JONES v. STATE.
    6 Div. 849.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Rehearing Denied July 17, 1984.
    Certiorari Denied Sept. 21, 1984 Alabama Supreme Court 83-1193.

      C. Burton Dunn, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Jerry Lee Jones was indicted for the capital offense of robbery wherein the victim is intentionally killed. Alabama Code § 13-ll-2(a)(2) (1975). The jury found him guilty of the lesser included offense of murder in the first degree and fixed his punishment at life imprisonment.

This case arises out of the December, 1976, abduction, robbery, and murder of Quenette Shehane. The facts of this brutal crime have been recounted several times, see e.g. Thomas v. State (Ala.Cr.App. 1983); Neal v. State, 372 So.2d 1331 (Ala.Cr.App. 1979), and need not be repeated here for the issues on appeal concerned only the admissibility of Jones’ statement.

Jones gave an oral statement to Birmingham police officers on Sunday, February 13, 1977. In this statement, which was tape recorded and later transcribed, Jones admitted that he was present when Ms. Shehane was killed and that he helped remove a television and calculator from her car. He denied any involvement in the actual murder, stating that Wallace Norrell Thomas shot Ms. Shehane. This statement was introduced at trial after proof of the proper voluntariness predicate.

Jones argues that the statement should have been excluded because it was tainted by an earlier statement which was illegally obtained. The earlier statement was given on Saturday, February 12th, and was “essentially the same thing” as the statement Jones gave on Sunday. Since the prosecutor did not attempt to introduce the Saturday statement at trial, the trial judge made no specific ruling as to its voluntariness. However, there was sufficient evidence presented for this Court to make that determination.

I

Jones initially contends that the Saturday statement was illegally obtained because he was not given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Jones was arrested in his hometown of Brandon, Mississippi, on Friday, February 11, 1977. On Saturday, February 12th, three Birmingham police officers traveled by car to Brandon to pick up Jones. Before leaving Brandon to return to Birmingham, Jones stated “that he was going to make a statement, he wanted to tell [the officers] all about it, but he wanted to wait until after he got to Birmingham.”

The return trip to Birmingham took some ten to twelve hours due to the fact that several stops were made in an effort to locate Jones’ car which had been wrecked and sold to a shredder. Captain Carl Garrett, one of the Birmingham police officers, gave the following account of this trip:

“After we were in the car and we had ridden several miles and we had stopped to eat snacks and we were looking for his car, several times he started to go ahead and tell us the whole thing, but he would stop and ask me if I thought he should make a statement; did I think in my opinion should he make a statement. I told him that I couldn’t answer that for him. Then one time after we had stopped to get some crackers and cokes he said, ‘I’m going to go ahead and tell you everything that happened’, and he said, ‘What do [you] think about it? Do you think I should?’ So, I told him then if he is not guilty if he didn’t do it, then it couldn’t do anything but help him.”

Jones then gave the statement which he claims was illegally obtained.

It is true that none of the Birmingham police officers advised Jones of his constitutional rights at any time during the trip from Brandon to Birmingham. However, the record shows that, prior to leaving Brandon, Captain Garrett was given a printed waiver of rights form bearing what he was told was Jones’ signature. The waiver was given to Garrett by the arresting officer, Deputy Sheriff Ken Dickerson, and was witnessed by Dickerson and three other persons. The contents of this form were read into the record by Garrett:

“It’s a sheet of paper with the letter headed ‘Charles Clark, Sheriff, Rankin County, Brandon, Mississippi.’ Place is indicated ‘Rankin Sheriff’s Office. Date 2/11/77. Time 2255.’
“And says ‘Your Rights’ and under that it says ‘Before we ask you any questions —’ and Jerry Lee Jones’ name is written in — ‘You must understand your rights. You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to a lawyer for advice before we ask you any questions and to have him with you during questioning. If you cannot afford a lawyer one will be appointed for you before any questioning, if you wish. If you decide to answer questions now without a lawyer present you will still have the right to stop answering at any time until you talk to a lawyer.’
“Then there’s a waiver and release under that. T have read this statement of my rights and I understand what my rights are. I’m willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I’m doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me. I have been explained and fully understand the above rights and release.’ ”

We are fully cognizant of the fact that this is hearsay evidence. There was, however, no objection on that ground at trial. “Hearsay evidence is not inherently inadmissible and must be challenged by a specific objection.” Carpenter v. State, 408 So.2d 559, 561 (Ala.Cr.App.1981), cert. denied, 408 So.2d 561 (Ala.1982).

Moreover, Garrett testified that Dickerson had told him that Jones, after his arrest, had conferred with two different attorneys on separate occasions. Although Garrett was present at the courthouse when Jones talked with the second attorney, neither attorney approached Garrett or the other officers concerning Jones’ transfer to Birmingham. Compare Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), where law enforcement officers had agreed with the accused’s attorney not to question the accused during the trip. At no time during the trip from Brandon to Birmingham did Jones say that he wanted to talk to an attorney before making a statement or even ask about obtaining an attorney in Birmingham. These facts, added to the fact that, before leaving Brandon, Jones stated that he wanted to tell the officers “all about it”, lead us to conclude that Jones was adequately advised of his constitutional rights and that he voluntarily waived those rights.

II

• Jones also asserts that the Saturday statement was illegally obtained because it was the product of improper inducement.

The general rules concerning induced confessions and statements were set out by this Court in Eakes v. State, 387 So.2d 855, 858-59 (Ala.Cr.App.1978):

“A confession is presumed to be involuntary. Before its admission into evidence there must be evidence addressed to the trial judge sufficient to rebut that presumption and a showing that the confession was made without influence of either hope or of fear, unless the attending circumstances affirmatively disclose the voluntariness of the confession. Wallace v. State, 290 Ala. 201, 275 So.2d 634 (1973); Bush v. State, 282 Ala. 134, 209 So.2d 416 (1968). In order to be admissible a confession must be free and voluntary and cannot be the result of any direct or implied promises, however slight. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963); Bell v. Alabama, 5 Cir., 367 F.2d .243, cert. denied, 386 U.S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788 (1966); Wallace, supra. The question of whether a confession was obtained by coercion or improper inducement can. be determined only by examination of all the attendant circumstances. Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); Wallace, supra. Each case must stand or fall on its own merits for the constitutional inquiry into the issue of voluntariness requires more than a mere ‘color-matching of cases’. Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 191, 19 L.Ed.2d 35 (1967). The true test of determining whether extrajudicial confessions are voluntary is whether the defendant’s will was overborne at the time he confessed and therefore not the product of a rational intellect and a free will. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Elliott v. State, 338 So.2d 483 (Ala.Cr.App.1976).”

Garrett testified that the officers did not question Jones during the trip to Birmingham or suggest that he make a statement. “[Jones] just started talking and wanted to tell us all about it. Said he wasn’t guilty. Said he didn’t kill the girl Shehane.... [He] was denying that he killed the girl from the start .... He saw it happen, but he didn’t do it and that Thomas did.” Several times Jones started to tell the officers about the night Ms. Shehane was murdered, but would stop and ask for the officers’ advice. Garrett readily admitted that he eventually told Jones something to the effect “that if what he was telling me was the truth, that he didn’t kill the girl, then whatever he told us about Thomas and how Thomas did it and what he did couldn’t do anything but to help him.”

It is well settled in this state that a mere adjuration to tell the truth or a statement that it would be better to tell the truth is not an inducement which will render a defendant’s statement or confession involuntary. Edwardson v. State, 255 Ala. 246, 251, 51 So.2d 233 (1951); Ellis v. State, 398 So.2d 402, 403 (Ala.Cr.App.1981); Eakes, supra, at 859. In Harvey v. State, 272 Ark. 19, 611 S.W.2d 762, 764 (1981), a police officer told the defendant that “it would probably help [him] if he went ahead and talked to them and told the truth.” The Arkansas Supreme Court held that “[t]his amounted to ‘merely an expression of opinion, and ... was not coupled with innuendo or subtleties calculated to deceive the prisoner.’ ” Id. Similarly, in State v. Urhahn, 621 S.W.2d 928, 932 (Mo.App. 1981), the Missouri Court of Appeals held that a police officer’s statement “that the only way [the defendant] could help [herself] to get out of trouble was to speak to him then” appeared to be “a mere expression of opinion” and therefore did not render the defendant’s statement involuntary.

We find that Garrett’s statement to Jones was, like the officers’ statements in Harvey and Urhahn, a mere expression of opinion and did not operate as an inducement. This view is strengthened by the fact that Jones had stated that he did not kill Ms. Shehane and repeatedly asked the officers if he should make a statement. In addition, as we noted in Part I, Jones stated before leaving Brandon that he wanted to tell the officers “all about it” once he reached Birmingham. He obviously intended to make a statement from the start. The only question was when.

Jones points out that when asked if anyone told “this defendant that it would be better or worse for him if he did or didn’t talk to you”, Garrett replied, “Not like that, no, sir.” He argues that this equivocal answer indicates that Garrett knew an inducement had been offered. Garrett’s answer is explained by his testimony from the supplemental record:

“Q. [Assistant District Attorney]: Did you or anybody else in the car there say anything to him to the effect that it would be better for him if he went ahead and told you about it?
“A. No, sir.
“Q. Did anybody tell him it would be worse on him if he didn’t talk about it? “A. No, sir. I did tell him that if what he was telling me was the truth, that he didn’t kill the girl, then whatever he told us about Thomas and how Thomas did it and what he did couldn’t do anything but to help him. But, no, I didn’t tell him if he was guilty that whatever he said would be better, would help him or go against him or either way.”

Garrett unequivocally stated that Jones was not threatened or forced to make the statement, nor was he offered “any reward or hopes of reward or inducement or favors or anything.”

Reviewing all of the attendant circumstances, we conclude that Jones’ first statement was not the produce of improper inducement. The State presented sufficient evidence to show that the statement was voluntarily given. Having found that there was no inducement which would render Jones’ Saturday statement involuntary, it follows that the Sunday statement was not tainted and therefore was properly admitted.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.

      . No objection was made to this testimony on hearsay or any other ground.