text:
    James Clark PETERSON v. STATE.
    2 Div. 376.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Dec. 22, 1983 Alabama Supreme Court 83-97.

      Roy Pitts, Meridian, Miss., for appellant.
    Charles A. Graddick, Atty. Gen., and R. David Christy, Asst. Atty. Gen., for appel-lee.
   SAM W. TAYLOR, Judge.

James Clark Peterson was convicted of burglary in the second degree and was sentenced to twenty-five years’ imprisonment under the Habitual Felony Offender Act. He raises several issues on appeal.

I

Appellant first contends that the state failed to prove a prima facie case. Burglary in the second degree is defined in pertinent part as follows:

“... a person commits the crime of burglary in the second degree if he unlawfully enters a lawfully occupied dwelling-house with intent to commit a theft or a felony therein.” Ala.Code § 13A-7-6(b) (1975).

In this case, the undisputed evidence is that the appellant entered the residence of a family in Demopolis, Marengo County, Alabama, around 10:30 p.m. after the members of the household were in bed. The older daughter heard noises, got out of bed and went next door to her sister’s room to investigate. She turned on the light and saw the appellant standing beside the child’s bed with his pants down or completely off. She screamed and ran to get her parents. The sleeping girl awoke and saw the defendant leaving the room with his pants still down or off.. The father of the household then pursued the appellant by car from Demopolis to Thomasville where the Thomasville Police Department stopped both cars and arrested the appellant.

The evidence indicated that the appellant had been previously convicted of indecent exposure a number of times. In addition, he also admitted that he had been convicted of “forcing a seven year-old female to suck [his] private sexual organ,” and four years later he was convicted of “gratifying [his] lust by handling, touching or rubbing [his] hands on a child.” Appellant testified later, however, that the latter conviction had been reversed and remanded by the Mississippi Supreme Court.

The indictment, which alleges appellant entered the dwelling-house, states that he did so “with the intent to commit a felony therein, to wit: rape.” Appellant contends that the evidence was insufficient to prove that intent. We find that the cases which he cites in support of his theory are distinguishable on the facts. Factually similar cases have been adverse to appellant. In Hamilton v. State, 283 Ala. 540, 219 So.2d 369 (Ala.), cert. denied, 396 U.S. 868, 90 S.Ct. 134, 24 L.Ed.2d 121 (1969), a man and his wife heard a moaning yell come from the wife’s grandmother’s adjoining bedroom. The couple entered to see the defendant, “Standing near the door . .. with his trousers off and his privates exposed and wearing neither socks or shoes.” Obviously that fact situation is very similar to the fact situation in the case at bar. In Hamilton, the court found the jury was justified in finding an attempt to rape. In Simmons v. State, 40 Ala.App. 98, 108 So.2d 184 (1959), the evidence was that the defendant knocked on the front door and it was answered by a young woman. He forced his way in and the girl screamed and ran. The defendant was then frightened off by the lights of a car. The court held that the evidence was “amply” sufficient to support the verdict and judgment of an intent to ravish. There are a number of similar Alabama cases with the same result.

II

The appellant complains of remarks made by the district attorney during closing argument. None of those remarks appears of record. Where the objected-to remarks do not appear on record, there is nothing for this court to review. See Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971); Magouirck v. State, 49 Ala.App. 420, 272 So.2d 625 (1973), and other cases collected at Ala. Digest, Criminal Law Key No. 1128.-2.

Ill

Appellant finally contends that the court erred in failing to grant his oral request to instruct the jury on certain lesser included offenses. Failure to give a jury charge not requested in writing is not error. Further, there must be an objection made and grounds set out before the jury retires. Judge Tyson stated in Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), at page 991:

“We are not required to review the merits of appellant’s assertions on this appeal because in Alabama there is no longer an ‘automatic exception’ to the trial court’s refusal of a written requested jury charge and the appellant did not reserve any exceptions at the trial level.”

And further at page 992:

“The proper procedure for preserving the right to assert error on appeal is for the affected party to object and state his grounds before the jury retires, just as is done for alleged errors in the trial court’s oral charge.”

In light of the foregoing, we find no error. This case is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Donald Ray LAWRENCE v. STATE.
    8 Div. 777.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Dec. 16, 1983 Alabama Supreme Court 83-90.

      Joseph A. Lee and Robert S. Thomas, Scottsboro, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This appellant was convicted on a jury trial of rape in the first degree. The court sentenced him to imprisonment in the penitentiary for a term of ninety-nine years.

Appellant is represented by counsel appointed by the trial court, different counsel from those representing him on the trial. They have submitted a brief in which eight issues are presented. None of the issues challenges the sufficiency of the evidence to support the verdict and judgment. Therefore, an extraordinarily brief resume of the facts in general should suffice, which we will undertake to give before our consideration of the issues presented by appellant.

According to the testimony of the alleged victim, she had returned to her home about 1:15 P.M. on January 27, 1982, from a lengthy shopping trip by automobile, had entered her home, had put up some of her groceries, had laid other groceries on a table, had turned on the TV, and was “looking at a magazine,” when the following happened:

“It was — the wind wasn’t blowing much that day but a little bit and I heard the stormdoor click and I thought it was just the wind closing it — that it hadn’t closed when I came in, and I looked out and didn’t see a car and then I heard the wooden door open and close and I asked who it was. I thought it might be one of the neighbors that I didn’t hear anything and I started to get up and about that time a man came around the foyer with a ski mask on and a gun in his hand.
“Q. Okay; now, what part of the house were you in at that time?
“A. In the living room.”

Thereafter, a rather loquacious direct interrogation and answers ensued, in which the witness related that at the intruder’s insistence and assurance that he would not hurt her, the intruder, still with his ski mask on and his gun in his hand, pushed or guided her “straight up the stairs in my bedroom door and he took me into my bedroom and I kept pleading with him not to shoot me.” Without going into any further details, other than to state that she said he had sexual intercourse with her contrary to her desire, after she had stated to him:

“... I asked him ‘What he wanted?’ and I said, ‘Please don’t shoot me. If you will put the gun down I will do what you want.’ I said, ‘I’m very scared of guns’ and he said, ‘If you’ll promise that you won’t run if I put the gun down’ and I said ‘Yes.’ So, he laid the gun down.”

The alleged victim could not identify the assailant as the defendant.

Mr. Wesley Hardeman testified as a witness for the State. He was a school teacher who was at home that day on sick leave. He lived diagonally across the street from the alleged victim and her family. He testified that between 1:30 and 2:00 on January 27,1982, he saw a man, whom he identified as the defendant, in the yard of the alleged victim and her family. He said the man was “proceeding from the corner of the house — from the front of the house across the corner of the . .. yard [the omitted name is the possessive of the name of the alleged victim’s family], across the ditch to Newport Drive.” He further testified that the man had on “some type of covering on his head” and looked as if he “was concealing something under his coat.”

The defendant was arrested on August 16, 1982, and was confined, since that date to and through the trial of this case, in the Jackson County Jail. He testified generally as to his whereabouts on the day of the alleged crime and thereafter until the day of his arrest and emphatically denied that he had ever seen the alleged victim prior to his arrest and said he had never been in her house.

I.

We now consider the first issue presented by appellant and will thereafter consider the rest of the eight issues presented in the order of their presentation in the appellant’s brief. By the first issue, appellant contends that the “trial court erred in permitting the defendant’s testimony to be impeached by the State on an immaterial matter.” The contention pertains to some testimony of Mrs. Terry Cogburn, the last witness on the trial of the case, whose testimony was in part as follows:

“Q. Did you see the Defendant, Donald Lawrence, the night of August the 16th?
“A. Yes, sir, I did.
“Q. Was it there in the area of your house?
“A. Yes, sir, it was.
“Q. At approximately what time was this?
“A. It was about 10:15.
“Q. Okay; and where did you see the Defendant at that night?
“A. I saw him walking off my back porch.
“Q. Did you get a good look at the Defendant at that time?
“A. Yes, sir, it was lighted up very well.
“Q. Who else was at home?
“A. My son.
“Q. Are you married?
“A. Yes, sir.
“Q. Where was your husband?
“A. At work.
“Q. How close of a look did you get at the Defendant that night?
“A. Well, it was close. I would say ten or twelve feet.”

Prior to such testimony, defendant had interposed an objection on the ground that it was an effort to impeach defendant on an immaterial matter. After the testimony, defendant moved the court to exclude such testimony on the ground that it constituted impeachment of the defendant as a witness on an immaterial matter. He had testified that he was in Scottsboro, where Mrs. Cog-burn then lived, on the night of this appellant’s arrest, but that until his arrest he was not out of his car but one time and that was to change a tire. He denied knowing Mrs. Cogburn and specifically denied having been at her house or in her yard on the night of his arrest. We agree with appellant’s general proposition that a witness should not be allowed to impeach another witness as to an immaterial matter, but we disagree with appellant’s contention that the evidence was inadmissible by reason of its constituting an impeachment of the defendant as a witness to an immaterial matter. We can understand that the introduction of the testimony of Mrs. Cogburn had the appearance of testimony for the purpose of impeaching the testimony of defendant. It may well be that the State should have offered the testimony of Mrs. Cogburn during its case in chief and not have waited until after defendant had rested his case in order to do so, and it may well be that it was objectionable on the ground that it was not properly evidence in rebuttal. However, this is not the issue for us to decide. The evidence was relevant, competent and material, irrespective of the fact that it was inconsistent with what the defendant had testified as to his whereabouts and actions on the night of his arrest in the instant case. The evidence shows without dispute that while defendant was in Albert-ville on a night about a month before the incident referred to by Mrs. Cogburn, there was either on his person, or near him, or in the automobile he was driving that night, a pistol, a pistol holster, and a ski mask. These circumstances, when connected with the testimony of Mrs. Cogburn to the effect that he on another night was in her backyard and on her porch at approximately 10:15 o’clock, were relevant, competent and material evidence as to the identity of defendant as the intruder equipped with a pistol and disguised with a ski mask that committed the crime of rape for which defendant was tried and convicted. This particular evidence does not come within the general exclusionary rule as to the commission of crimes not charged within the indictment under which the defendant is being tried. The evidence meets the test of what is stated by Judge McElroy in the first paragraph of Gamble, McElroy’s Alabama Evidence, § 69.01(8) (1977), as follows:

“All evidence tending to prove a person’s guilt of the now-charged crime may be said to identify him as the guilty person. However, the identity exception to the general exclusionary rule is much more specific in that it contemplates the situation where the now-charged crime was committed in a novel and peculiar manner and the State is allowed to show that the accused has committed other similar offenses, in the same novel and peculiar manner, in order to show him the perpetrator of the now-charged crime.”

Also pertinent and persuasive is the following from Gamble, McElroy’s Alabama Evidence, § 70.01(22)(b) (1977):

“One of the primary exceptions for allowing evidence. for prior and subsequent crimes is when such other crimes go to show the identity of the perpetrator of the now charged offense. In other portions of this text we have seen that this exception conditionally has been applied only when the person who committed the now-charged crime did so in a novel or peculiar manner. It is reasoned that this should permit the prosecution to show that the accused committed other similar offenses in the same novel or peculiar manner. However, the identity exception seems to have taken on a more liberal definition when the defendant is charged with a sex crime such as rape. In such cases the courts seem to allow proof of other similar crimes by the accused if they, in any way, go to identify him as the person who committed the now-charged crime.”

II.

Appellant contends that the trial court erred “in permitting the State in this rape prosecution to introduce evidence of this defendant’s commission of other crimes, towit, possession of a pistol and trespassing, in another city with third persons some five or six months subsequent to the time when the rape took place.” The contention is directed at testimony of Officer Darrell Childress, of the Albertville Police Department, who testified that while answering “a prowler call at a housing complex” at approximately “12:55 a.m.” about a month before defendant’s arrest for rape, he observed defendant as he was near “the rear of an apartment, went up to the door and tried to open the door,” that a light went on in the apartment and at that time the defendant “stepped back in the shadow and behind a fence — behind a fence next to the apartment.” Promptly thereafter the officer apprehended the defendant and placed him under arrest. Officer Childress testified that the defendant had on his person at the time a pistol holster, that the officer located a pistol on the ground near where defendant was while prowling behind the apartment building and that in the defendant’s automobile was a ski mask. We disagree with the contention of appellant that such evidence constituted evidence of distinct and independent offenses. The facts distinguish the instant case from Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953) and Bridges v. State, 284 Ala. 412, 225 So.2d 821 (1969), relied upon by appellant. The evidence had a tendency to prove that defendant was the person who committed the rape involved in the instant case, even though such rape was committed “some five or six months” before the incidents for which defendant was apprehended in Albertville, about forty miles from where the rape occurred in Scottsboro.

III.

Appellant asserts in his brief that the trial court erred in permitting the State “to introduce evidence of other subsequent crimes committed by this defendant after the State had introduced evidence showing commission of the rape offense charged and the defendant’s guilty connection therewith by the direct, positive testimony of several witnesses.” However, appellant does not contend that there was no factual issue between the parties as to the identity of defendant as the man who had committed the crime as to which the alleged victim testified. The defendant, himself, testified that he was not the man, and evidence was presented by defendant by other witnesses that tended to show that defendant was not present at the time of the alleged crime. This is definitely not a ease in which there was any contention whatever upon the part of the defense that the intercourse between the two was consensual. If such were the issue between the parties on the trial, we would agree that the evidence complained of in appellant’s Issue III would have been inadmissible. The mere fact that there was other strong evidence as to the identity of the defendant as the one committing the alleged crime is no good reason why other evidence as to such identity should not have been admitted.

IV AND V.

In his argument as to Issues IV and V, appellant asserts in his brief, “Issues No. IV and No. V involve the manner in which the State was allowed to cross examine the defendant’s character witnesses.” Appellant states Issue No. VI thus: “Whether the trial court erred in allowing the State to offer proof of defendant’s bad character by specific acts of misconduct.” As appellant limits his argument as to Issues No. IV and No. V to a consideration of the cross-examination of defendant’s character witnesses, we will confine our consideration of Issues No. IV and No. V to matters arising during the cross-examination of defendant’s character witnesses. As to such cross-examination, appellant says: “First, the manner and form in which the questions were asked represented attempts by the State to prove defendant’s bad character by specific acts of misconduct.” The cases cited by appellant of Williams v. State, 250 Ala. 549, 35 So.2d 567 (1948), and Embrey v. State, 283 Ala. 110, 214 So.2d 567 (1968), involved questions asked by defendant of defendant’s own character witnesses and are inap-posite as to appellant’s fourth issue.

We agree with the proposition advanced by appellant’s fifth issue to the effect that proper cross examination of defendant’s character witness would not encompass questioning them as “to acts of misconduct .. after the commission of the offense for which the defendant was charged and convicted in this case,” as held in Williams v. State, supra, and in Ragland v. State, 178 Ala. 59, 59 So. 637 (1912) and Mitchell v. State, 14 Ala.App. 46, 70 So. 991 (1916), cited by appellant. Whether such cross-examination occurred in the instant case requires a consideration of the cross-examination of character witnesses for the defendant.

Four witnesses testified on call of the defendant to the effect that his character and general reputation were good. They were Judith Neely, Glennice Sims, Troy Williams and Kermit Hall. The following constitutes a pertinent part of the cross-examination of Judith Neely:

“Q. Did you know about him [defendant] getting arrested up here—
“MR. DRUMMOND [Defendant’s attorney]: We object to that, Your Honor.
“THE COURT: Overruled.
“Q. Did you know in that community, that he was arrested up here in Scotts-boro with assault with intent to ravish?
“MR. DRUMMOND: Judge, this is evidence of another offense and I don’t see that it has any connection with this.
“MR. DUKE: Judge, it’s to his character.
“MR. DRUMMOND: It’s highly prejudicial.
“THE COURT: Well, they’re entitled to cross-examine her to test her as to the scope of her knowledge of this Defendant. Overruled.
“Q. Were you aware of that?
“A. Yes, sir.
“Q. And you still maintain that he has this reputation?
“A. I still maintain that he has a good reputation as far as I know it.
“Q. Do you also know in regard to his reputation that he was arrested in Al-bertville in July of this year?
“MR. DRUMMOND: Same objection, same grounds.
“THE COURT: Overruled.
“A. No, sir.
“Q. You were not aware of that?
“A. No, sir.
“Q. Were you aware that he was arrested in August here in Seottsboro?
“MR. DRUMMOND: Same objection.
“THE COURT: I sustain objection to that.
“Q. The fact that if these things were true, would it change you opinion as to his reputation?
“A. In what way do you mean — What do you mean?
“Q. Well, if you were aware that these things happened involving Donald Ray Lawrence, would that change you opinion of his reputation?
“A. The charge in Albertville?
“Q. Yes, ma’am, and the charge here?
“A. I don’t know what the charge was for in Albertville.
“Q. Okay; it was for possession of a pistol and trespassing.
“MR. DRUMMOND: Judge, I believe that you sustained objection to that and we would ask that the Court exclude that.
“THE COURT: The one that I sustained was the one that occurred here in August of 1982.
“THE WITNESS: Would you repeat your question.
“Q. I had asked you whether or not knowing these facts involving Donald Lawrence would change your opinion of him?
“A. In the arrest in Albertville, no.
“Q. Then you already testified that you knew about the charge here in 1979?
“A. Yes, sir.”

The foregoing excerpt from the testimony of Mrs. Neely demonstrates that the State’s cross-examination was commenced by an inquiry as to an arrest of defendant “in Seottsboro” for an “assault with intent to ravish.” There is nothing to indicate that such incident occurred after the date of the alleged crime in the instant case. The inquiry then diverted as to some incident in Albertville “in July” of 1982, which would have been subsequent to the alleged crime in the instant case, and would not have been admissible over an objection on the ground that it called for testimony bearing on defendant’s reputation subsequent to the commission of the offense for which he was being tried. Instead of bringing this point to the attention of the court by an adequate objection, counsel for defendant said, “Same objection, same grounds,” which objection was overruled by the court. The inquiry immediately following was as to the incident “in August here in Seottsboro.” The court sustained defendant’s objection to such inquiry. It appears from the quoted excerpt from the cross-examination of the particular character witness, that the court would probably have sustained defendant’s objection as to the incident in Albertville in July 1982, if its attention had been directed to the fact that the inquiry was as to a matter occurring subsequent to the crime charged in this case. At any rate, we are convinced that the trial court is not properly charged with error in not observing the legally anachronistic nature of the particular inquiry pertaining to the reputation of the defendant, in the absence of its having been called to the attention of the court. Furthermore, we are convinced that the ruling of the court was not harmful to defendant, as the transcript shows that the jury was informed by other evidence as to the arrest in Albertville in July 1982, of which the witness said she was not aware prior to her testimony and that knowledge thereof by the witness would not change her opinion of the defendant.

What we have stated as to the cross-examination of Mrs. Neely is largely applicable to the cross-examination of another character witness, Glennice Sims. He was also asked as to whether he had ever heard of defendant’s arrest “in Scottsboro in 1979 on a charge with assault with an intent to ravish?” Defendant’s counsel said, “Judge, we would again object,” and the court responded, “Overruled.” Promptly thereafter, counsel for the State asked the witness if he was aware that defendant “was arrested in July of this year in Albertville on a charge of trespassing and carrying a concealed weapon?” Defendant’s attorney then said, “We object,” and the court responded, “Overruled.”

On cross-examination of the other two character witnesses for the defendant, no reference was made to any conduct of the defendant subsequent to the date of the crime involved in the instant case.

VI.

Appellant’s next contention for reversal is that “the trial court erred in its holding, after a pre-trial hearing, that an alleged oral confession made by the defendant while he was held in the City Jail in police custody and in the presence of a police officer who was only 4 or 5 feet away and in plain view, was voluntary and admissible in the absence of a showing by the State that the same was voluntarily made and that the defendant was advised of his Miranda rights.” The contention pertains to the action of the trial court in overruling an oral motion of defendant to suppress the testimony of police officer Clarence Bolte as to an oral confession of defendant made to defendant’s wife while she was visiting the defendant at 1:30 P.M. on August 18, 1982, at which time defendant was confined to a cell in the Scottsboro jail on the charge of rape in the instant case, about two days after he was arrested therefor. Officer Bolte’s testimony was in pertinent part as follows:

“Q. Where was he being held?
“A. In the City Jail in a single-unit cell.
“Q. Okay; is that there adjacent to where ya’ll have your offices?
“A. No, sir, it’s around away from where our offices are.
“Q. Okay; now, did you accompany Mrs. Lawrence back there to allow her to visit with him?
“A. Yes, sir.
“Q. Did you have any particular reason for doing that, Officer Bolte?
“A. Yes, sir.
“Q. And what was that?
“A. This is a standard procedure that when someone is in custody and they have a visitor that someone goes back to the cell and stays with this person. This is for the protection of that person and the person in custody and for the protection of the personnel in the Police Department.
“Q. In other words, to keep something from being smuggled in or smuggled out or whatever, is that correct?
“A. Yes, sir.
“Q. And did you on that occasion overhear a conversation between Mr. Lawrence and his wife?
“A. Yes, sir, I did. .
“Q. Approximately how far from them were you?
“A. About four (4) to five (5) feet.
“Q. Were you in plain view or were you hiding behind the door or anything?
“A. I was right in plain view; right in front of both of them.
“Q. Okay; if you would, relate to the Court that conversation.
“A. Okay, on 8-18-82—
“Q. Let me ask you this. You have a piece of paper in your hand. Now, after you overheard this, did you reduce this to a memorandum?
“A. Yes, sir, I did.
“Q. Okay; and do you have that memorandum before you now, is that correct? “A. Yes, sir.
“Q. Okay; now, if you would then, tell us what you overheard?
“A. On 8-18-82 at 1:30 p.m., Donald Ray Lawrence’s wife came to the Police Station to talk to her husband. She was escorted back to the jail by Detective Clarence Bolte—
“Q. And that is you?
“A. That is me.
“Q. Okay; go ahead?
“A. She was shown to his cell and she started talking to him and Sgt. Bolte stood in the doorway during the visit and this is customary for someone to stay with the visitor when visiting someone in custody. This is for safety purposes. While standing in the doorway, Sgt. Bolte was only four (4) to five (5) feet from the person, Donald Ray Lawrence, and his wife and overheard their conversation. She asked him how he was doing and he replied ‘Baby, I am in a lot of trouble.’ And she replied, ‘what do you mean?’ and he stated to her ‘I signed a statement about raping that woman.’ She said ‘You couldn’t have done that’. And Donald said T done it. I done what they said I done.’ She said ‘there’s no way you could have done that because we were staying with Mother and you weren’t here that day, remember?’ And he said ‘No, I did it. I did what they said I did. I came home that night and was going to talk to you about it and you were gone. You had left and was gone a few days and I just never told you about it and I started to tell you several times but never did.’
“Q. Was there anything else during that conversation said in regard to the guilt or innocence or the evidence involved in this case?
“A. No, sir.”

It should be stated, out of fairness to all concerned, that immediately after the testimony of Officer Bolte, as quoted above, Mrs. Sheila Lawrence, defendant’s wife, testified to the effect that Officer Bolte’s testimony as to what defendant said to her on said occasion, was not correct, that defendant made no statement to her in the nature of a confession or an incriminating statement, and further that she was confident that her husband was not guilty.

As to appellant’s contention that defendant’s confession to his wife as overheard and testified to by Officer Bolte was not voluntary, reference is made to Guenther v. State, infra, in which was involved the testimony of two officers as to inculpatory remarks they heard from the front seat of an automobile in which they were riding, made by Guenther to another person whom the officers had taken into custody and who were riding in the back seat of the automobile. The following excerpt from Guenther is applicable here:

“None of the statements overheard and testified to by the officers were made to them or in answer to any questioning by them. But they were inculpatory admissions. We have held that inculpatory admissions as well as direct confessions are prima facie involuntary and inadmissible and before they can be admitted in evidence it must be shown that they were voluntarily made. Reeves v. State, 260 Ala. 66, 68 So.2d 14; Tillison v. State, 248 Ala. 199, 27 So.2d 43. A predicate was laid to Captain Duke.
“Confessions voluntarily made by the defendant of his own free will are admissible although made while the accused is in the custody of law officers. Johnson v. State, 272 Ala. 633, 133 So.2d 53; Goldin v. State, 271 Ala. 678, 127 So.2d 375.
“The true test of voluntariness of extrajudicial confessions is whether, under all the surrounding circumstances, they have been induced by a threat or a promise, express or implied, operating to produce in the mind of the prisoner apprehension of harm or hope of favor; and if so, whether true or false, such confession must be excluded from the consideration of the jury as having been procured by undue influence. Womack v. State, 281 Ala. 499, 205 So.2d 579. Applying this test to the inculpatory admissions heard by the officers as appellant and Stalker talked with each other, we conclude that the trial- court did not err in admitting the evidence.” Guenther v. State, per Justice Merrill, 282 Ala. 620, 623, 213 So.2d 679, 681 (1968), cert. denied, 393 U.S. 1107, 89 S.Ct. 916, 21 L.Ed.2d 803 (1969).

We are cognizant of some suspicion perhaps of impropriety of prison authorities under circumstances somewhat similar to those existing in the instant case, in permitting themselves to be in a position to listen to conversations between a prisoner and his or her spouse, and it is unfortunate that the same cannot be always prevented. However, there is no contention by appellant that the officer testifying intentionally placed himself in a position that he could listen to what the two said to each other, and no contention that there was “any trickery, deception, artifice, subterfuge, or underhanded or unfair law enforcement practices” of officers or anyone acting on behalf of officers as to the conversation between appellant and his wife. The language just quoted is from Eakes v. State, per Judge Bowen, now Presiding Judge Bowen, Ala.Cr.App., 387 So.2d 855, 859 (1978), in distinguishing such case from Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

The court was not in error in overruling defendant’s motion to suppress testimony of Officer Bolte that he heard defendant tell his wife that he had committed the rape that formed the basis of the prosecution in the instant case.

VII.

Appellant’s Issue VII raises the same point as to the admissibility of the testimony of Officer Bolte as to what defendant said to his wife while she was visiting him at the jail. The only difference to be found between Issue VI and Issue VII is that Issue VI pertains to the ruling of the trial court on the motion to suppress while Issue VII pertains to the ruling of the trial court as to the same evidence on the trial of the case. The basic sameness is clearly shown by the statement of counsel for defendant in making the objection, “We would object to the conversation and assign the same grounds that we assigned on our Motions previously ...” and the court’s ruling on the objection, “All right, on the same grounds that were assigned at the Motion and the objection is overruled.” This particular issue calls for no consideration on our part other than that which we have given it in VI above.

VIII.

As to this issue, appellant says:

“The eighth and final issue is directed to the court’s denial of the defendant’s motion for new trial. Most if not all the issues hereinbefore covered in this argument were included in the motion for a new trial. Accordingly, the denial of the defendant’s motion for a new trial is also assigned as reversible error in this case. Authorities, supra.”

We follow as to Issue VIII what we have already said as to the other issues presented by appellant.

We conclude that all issues presented by appellant must be resolved in favor of ap-pellee. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    N.B. WILLIS, Jr. v. STATE of Alabama.
    1 Div. 531.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Dec. 2, 1983 Alabama Supreme Court 83-64.
    See also, 421 So.2d 1363.

      S.J. Laurie, Chatom, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

N.B. Willis, Jr., was indicted for burglary in the third degree in violation of § 13A-7-7, Code of Alabama 1975. The jury found the appellant guilty as charged in the indictment. Following a habitual offender hearing, the trial judge sentenced the appellant to life imprisonment in the penitentiary.

At approximately 7:00 p.m. on October 1, 1981, Linda McCulley closed the grocery store that she and her husband, J. Henry McCulley, owned in Wagarville, Alabama. When she opened the store the following morning, the store was a mess. The telephone lines had been cut, and there was a hole in the storeroom where someone had removed some boards to gain entry.

J. Henry McCulley went to the store after he learned of the burglary. He discovered that 600 cartons of cigarettes, 140 knives, two knife display cases, thirty Timex watches and a watch display were missing. The approximate value of the missing items was $8,000.00.

Michael Barnett, an investigator with the Department of Public Safety went to the McCulleys’ store the morning after the burglary was discovered to gather evidence. He found car tire tracks and shoe prints around the store. The shoe prints were distinctive so Barnett photographed them.

Later that day, approximately four miles from the McCulleys’ store, Barnett found some of the stolen items. There were also several empty Miller beer cans in the same area. They appeared to have been recently deposited there. Barnett also found car tire tracks and shoe prints at this site, which were similar to the ones he observed at the McCulleys’ store.

Barnett then took the stolen items along with the beer cans back to the McCulleys’ store and dusted them for fingerprints. Sixteen latent prints were lifted off the items but Barnett was not able to recall which prints were obtained from which of these items. He then sent the latent prints to the Latent Fingerprint Section of the Department of Forensic Science. Barnett also obtained the appellant’s shoes and sent them and the photographs of the shoe prints he found at the McCulleys’ store to Dr. James L. Small of the Department of Forensic Science.

Carol Curlee, a latent fingerprint examiner with the Alabama Bureau of Investigation, examined the latent prints Barnett sent to her. Only six of the sixteen prints could be used for identification. One of the six prints matched the print of the appellant’s left ringfinger. The other five prints were those of the appellant’s two sons.

Dr. James L. Small compared the photograph of the shoe print with the sole pattern of the appellant’s shoe. In his opinion, the appellant’s shoe sole design was the same as or similar to the one depicted in the photograph taken at the McCulleys’ store.

Dennis Earl Sullivan testified he saw the appellant and his two sons drinking Miller beer on the night of October 1, 1981.

I

The appellant contends he was denied his Sixth Amendment right to a speedy trial. To ascertain whether an accused has been deprived of his right to a speedy trial, we must examine the four factors set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) and weigh them in light of the surrounding circumstances. The four factors are: (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right, and (4) prejudice to the defendant.

The length of delay from the appellant’s arrest on November 24, 1981, to his trial on November 29, 1982, was approximately one year. In light of the following discussion, we do not find this to be an excessive period of delay which deprived the appellant of his right to a speedy trial.

Initially, the appellant’s trial was to begin on May 17, 1982. On that day, defense counsel claimed that the prosecutor had not fully complied with the appellant’s motion to produce and, therefore, he could not adequately and properly represent the appellant at this time. The prosecutor told the trial judge that defense counsel had been supplied with the State’s files. Undoubtedly, some of the information to which the appellant was entitled was not contained in those files and the prosecutor said the State would be more than willing to provide the appellant with the rest of the information if he asked for a continuance.

At this point, the appellant demanded a speedy trial. Since the trial judge realized that a retrial was likely if this case went to trial without the State’s compliance with the appellant’s motion to produce, he granted a motion for continuance to the State so they could comply with the appellant’s motion to produce.

On June 19, 1982, the trial judge held a hearing on the appellant’s habeas corpus petition. The appellant stated the one reason he had been prejudiced by the continuance was he • was able to find one of his witnesses, his own son, James Larry Willis, in May but he did not know how to locate him now.

The trial court held another hearing on the appellant’s habeas corpus petition on November 30, 1982, immediately after the conclusion of the appellant’s trial. At this hearing, the appellant stated he had been denied a speedy trial due to the prejudice which resulted from the continuance be- ' cause of his inability to locate a witness, Bobby Edwards, not his son as he had earlier alleged.

The appellant has not demonstrated how he was prejudiced by this one year delay. The reason for the continuance was legitimate. We do not believe the State acted deliberately in withholding the information and the trial judge granted the continuance rather than risk a mistrial or retrial. From our examination of the circumstances of this case, we do not find that the length of delay in the case at bar was unfair or denied the appellant his right to a speedy trial, or that any of his other rights were denied under Barker v. Wingo, supra.

II

The appellant contends the testimony of three of the State’s witnesses, Linda McCul-ley, Dr. James L. Small and Jack Rivers should have been excluded because the names of these witnesses were not furnished to him until just prior to trial.

From our examination of the record, it seems clear to this court that the appellant had notice that these witnesses might testify at his trial. A witness list, containing the names of Small and McCulley was placed in the State’s file which was furnished to the appellant long before the trial began. This was certainly sufficient notice that these people were prospective witnesses.

Furthermore, the appellant has no absolute right to compel pretrial discovery of the identity of a State’s witness. Evans v. State, 338 So.2d 1033 (Ala.Cr.App.1976); Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666 (1972).

Moreover, the appellant not only had the opportunity to but actually questioned the prospective jurors on voir dire about Small and McCulley.

Therefore, we hold the trial judge properly allowed the testimony of these three witnesses.

III

The appellant argues the latent prints Investigator Barnett lifted off of the stolen items and beer cans should not have been admitted into evidence because the State failed to establish a proper chain of custody.

Barnett testified he lifted the prints off the items and sent them to the Latent Print section of the Department of Forensic Science. Curlee, an examiner in the Latent Print section, testified she received the prints and examined them.

The appellant produced no evidence that the prints were not authentic or had been tampered with. Therefore, we find the State established a sufficient chain of custody. See Whitson v. State, 377 So.2d 1108 (Ala.Cr.App.1979), cert. denied 377 So.2d 1111 (Ala.1979) and authorities therein cited.

IV

The appellant also objects to the admission of the latent prints because Barnett could not testify as to which fingerprints came from which items.

Barnett testified all of the items were found in the same place and that he lifted prints off the stolen items and the beer cans. The trial judge properly admitted the prints and was correct in allowing the jury to decide what weight to be given to the latent prints in light of Barnett’s testimony. James v. State, 381 So.2d 672 (Ala.Cr.App.1980).

V

The appellant contends the known prints of the appellant were improperly admitted into evidence because defense counsel was supplied with a known print card of the appellant which was not the one used for comparison.

There is no merit to this contention. Due to the appellant’s numerous previous arrests, there were several known print cards on file. Curlee testified she used the latest print card (made in 1982) for comparison purposes but sent the best print card (made in 1967) to defense counsel in case he wanted to make a comparison for himself.

Furthermore, since no two persons have ever been found to have the same set of fingerprints, both print cards would depict the same prints of the same individual. We fail to see how the appellant was prejudiced by the admission of the known print card and therefore, the trial judge was correct in admitting this print card into evidence.

VI

The appellant claims he was prejudiced by the trial judge’s denial of his motion to hire an expert witness.

“A denial of funds to procure an expert witness does not deprive a defendant of his constitutional rights. Thigpen v. State, 372 So.2d 385 (Ala.Cr.App.1979). However,
‘Alabama Code 1975, Section 15-12-21(d) provides that “(c)ounsel (appointed to defend an indigent defendant) shall also be entitled to be reimbursed for any expenses reasonably incurred in such defense to be approved in advance :by the trial court, but in no individual case shall such expenses exceed one-half of the allowable attorney fees provided in this section. (Emphasis added.)”
‘Section 15-12-21 clearly authorizes reimbursement for any expense reasonably incurred in the defense of an indigent by a court appointed attorney if such expense is approved in advance by the trial court.... However, such expenses must be approved by the trial court. (Emphasis added).’
Bailey v. State, 421 So.2d 1364, 1367 (Ala.Cr.App.1982).”

Wiggins v. State, 440 So.2d 1164 (Ala.Cr.App.1983).

We cannot ascertain the reason the trial judge did not feel it was necessary to authorize defense counsel to hire an expert witness. We can only surmise that he did not feel there was a reasonable basis for the expenditure of State funds to hire such expert witness.

Since we do not find any evidence of the abuse of the trial judge’s discretion, we affirm his decision of the denial of funds to hire an expert witness.

VII

The appellant argues that he was improperly sentenced under the habitual offender act and that his sentence of life imprisonment constitutes cruel and unusual punishment.

From our review of the record, we find the State followed proper procedures in establishing the appellant’s prior convictions and that the appellant was properly sentenced to life imprisonment.

Furthermore, this court has held that sentencing under the habitual offender act does not constitute cruel and unusual punishment. Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981). Seritt v. State, 401 So.2d 248 (Ala.Cr.App.1981) cert. denied, 401 So.2d 251 (Ala.1981).

VIII

The appellant’s contention that the jury was improperly allowed to separate during trial is without merit.

Section 12 — 16—9(d) states;

“In the prosecution of any noncapital felony the trial court in its discretion may permit the jury trying the case to separate during the pendency of the trial, provided that the court may at any time on its own initiative or on motion of any party, require that the jury be sequestered under the charge of a proper officer whenever they leave the jury box or the court may allow them to separate. A motion to separate or sequester shall not be made within the hearing of the jury, and the jury shall not be informed which party, if any, requested separation or sequestration. (Acts 1943, No. 384, p. 358; Acts 1982, No. 82-566.)”

There is a rebuttable presumption that an accused is not prejudiced by allowing the jury to separate. Wright v. State, 57 Ala.App. 401, 328 So.2d 650 (1976). The appellant has failed to demonstrate to this court that he was prejudiced by reason of the separation of the jury. Therefore, we can find no error in this contention.

IX

The appellant urges that his motion for new trial should have been granted because the State’s evidence was insufficient to support a conviction.

We agree with the appellant that his conviction was based on circumstantial evidence. However,

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. (Citations omitted).”

Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied 368 So.2d 877 (Ala.1979).

From our examination of the record, we believe that there was sufficient evidence contained therein from which the jury could, by fair inference, have found the appellant guilty of burglary in the third degree. Cumbo, supra.

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

AFFIRMED.

All the Judges concur.


text:
    Jerry D. HAMILTON v. STATE of Alabama.
    3 Div. 804.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Dec. 2, 1983 Alabama Supreme Court 83-39.
    William E. Skinner of Skinner & Go-brecht, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

On October 30, 1981, the appellant was convicted of burglary in the third degree and theft of property in the second degree. The trial judge then sentenced the appellant to one year and one day, suspended sentence. The appellant was placed on probation and the conditions of that probation were as follows: (1) that the appellant serve 60 days in the county jail; (2) that the appellant pay restitution in the amount of $300.00 to Roper’s Jewelry; (3) that the appellant enter an alcohol abuse program and (4) that the appellant not engage in injurious habits.

I

The appellant claims that his period of probation had expired prior to the time the State filed its motion to revoke probation on April 13, 1983.

However, it seems clear that the appellant’s probation period had not expired under State law. Section 15-22-54(a) and (b) provides:

(a) The period of probation or suspension of execution of sentence shall be determined by the court, and such period may be continued, extended or terminated; provided, that in no case shall the maximum probation period of a defendant guilty of a misdemeanor exceed two years, nor shall the maximum probation period of a defendant guilty of a felony exceed five years. Upon the satisfactory fulfillment of the conditions of probation or suspension of sentence, the court shall by order duly entered on its minutes, discharge the defendant.
(b) The court granting probation may, upon the recommendation of the officer supervising the probationer, terminate all authority and supervision over said probationer prior to the declared date of completion of probation upon a showing of continued satisfactory compliance with the conditions of probation over a sufficient portion of the period of said probation. (Emphasis added).

The appellant did not satisfactorily fulfill the conditions of his probation nor was there ever a formal discharge of the appellant from probation by order of the court under the above Code section.

Furthermore, there was not a showing of continued satisfactory compliance with the conditions of his probation over a period of time.

The only condition of probation that the appellant fulfilled was that he did attend an alcohol abuse program.

However, he did not serve his sixty (60) days in the county jail (he served only five [5] days), and he did not make restitution in the amount of $300.00 (he only paid $40.00). Further, at the hearing to revoke his probation the record below establishes that appellant engaged in these injurious habits: (1) Appellant was charged with DUI and arson in Autauga County, Alabama. (2) Appellant was charged in U.S. District Court (Middle District Alabama) with kidnapping. (3) Appellant also has a pending capital murder charge in the Circuit Court of Montgomery County, Alabama.

In view of the matters outlined above, the appellant has been accorded full due process at the probation revocation hearing in circuit court.

This cause is therefore affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    James Herbert TAYLOR, Jr. v. STATE.
    3 Div. 800.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 29, 1983.

      Harold L. Wilson, Hayneville, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

The appellant, James Herbert Taylor, Jr., was indicted by the Spring 1982 term of the Butler County Grand Jury for the offense of second degree forgery, in violation of § 13A-9-8, Code of Alabama 1975.

Appellant was found to be indigent, whereupon on March 31, 1982, Harold L. Wilson was appointed to represent appellant. On May 3, 1982, appellant was arraigned where he entered a plea of not guilty.

On June 30, 1982, appellant withdrew his plea of not guilty and entered a plea of guilty. At that time, appellant and his attorney executed an “explanation of rights and plea of guilty form,” which contained the rights outlined in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Before accepting appellant’s guilty plea, the trial court conducted a thorough examination of appellant to determine that the plea was voluntarily and understanding^ made.

Subsequent to accepting appellant’s guilty plea, the trial court was informed that appellant had previously pleaded guilty to unrelated forgery charges against him in federal court. The federal court had not yet sentenced appellant, since he was cooperating with the United States Justice Department in an attempt to break a forgery ring. Consequently, the trial court delayed appellant’s imposition of sentence until appellant’s federal charges had been disposed of. Appellant was allowed to remain free on bond until sentencing.

On March 9, 1983, appellant filed a motion to withdraw his guilty plea and a motion for change of venue. The following day at appellant’s sentencing hearing, said motions were denied. Appellant was thereupon sentenced under the Habitual Felony Offender Act to fifteen years’ imprisonment.

The appellant contends that the trial court erred when it denied his request to withdraw his guilty plea. He maintains that the plea was the result of coercion since the only reason he pleaded guilty was so that he could cooperate with the federal authorities in an effort to prove his innocence.

Whether or not a defendant should be allowed to withdraw his guilty plea is a matter within the sound discretion of the trial judge. A refusal to allow such a request will not be disturbed unless an abuse of discretion is clearly shown, finer v. State, 421 So.2d 1369 (Ala.Cr.App.1982).

The record reveals that at the time appellant entered his plea of guilty, appellant made no mention of the fact that he was only pleading guilty so that he could help the federal authorities in an effort to prove his innocence. When asked by the trial judge if he was guilty of the offense, appellant replied, “Yes, sir.” The record also reveals that appellant had pleaded guilty to unrelated forgery -charges in federal court prior to his guilty plea in the trial court. Furthermore, at appellant’s sentencing hearing where his motion to withdraw his guilty plea was considered, no evidence was presented pointing to the innocence of appellant.

We also note that approximately nine months elapsed after the guilty plea before the appellant claimed his guilty plea was the result of coercion. As stated in Sanders v. State, 414 So.2d 482 (Ala.Cr.App.1982), “the tardiness of the appellant’s claim reflects upon its good faith, sincerity and credibility.” Based on the foregoing, it is our judgment that the trial court properly denied appellant’s motion to withdraw his plea of guilty.

Appellant further contends that the trial court erred when it refused to allow him to discuss his court-appointed attorney at his sentencing hearing on March 10,1983. However, after careful review of the record we find this contention to be without merit.

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

AFFIRMED.

All the Judges concur.


author: P.B. McLAUCHLIN, Jr., Circuit Judge.

text:
    Reginald MILLER v. STATE.
    6 Div. 772.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 29, 1983.
    James Stevens, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for the State.
   P.B. McLAUCHLIN, Jr., Circuit Judge.

The grand jury of Jefferson County indicted the appellant, Reginald Miller, for the murder of Cheryl E. Smith in violation of § 13A-6-2, Code of Alabama 1975.

The jury found the appellant guilty of murder as charged in the indictment and the trial judge fixed punishment at 25 years’ imprisonment.

The record reveals the following facts:

The appellant and the deceased, Cheryl Smith, had been dating or going steady since 1975. In February or March of 1980, they were having difficulties and Cheryl Smith was avoiding the appellant. On April 4, 1980, in the early morning, the appellant called the deceased. After he had talked with her, he got a pistol from under his grandmother’s couch, put it in his inside coat pocket and began walking in the direction of the Smith house. After he had walked five or six blocks, he met a car in which Miss Smith and three friends were riding to school together. He stopped the car and ordered the girl out. She refused, and he forced himself into the car. At the deceased’s request, they returned to her house where she again refused to get out of the car. The appellant then fired two fatal shots at her and fled from the scene.

In the early part of the afternoon of the same day, the appellant turned himself in to the Birmingham Police Department. At 2:10 p.m. of the same day, the appellant gave a statement to Sergeant Knight, an investigating officer with the department.

At trial the State called Sergeant Knight but did not attempt to introduce the statement of the defendant.

On cross-examination, Sgt. Knight testified'that he had taken a statement from the appellant on April 4, 1980, at 2:10 p.m. A copy of the transcribed statement was properly identified by Sgt. Knight and the defendant offered the statement into evidence. At this time, the State objected on the grounds of hearsay. To this the court replied, “Unless it’s a statement against interest, it’s hearsay.”

Thereafter, in a discussion outside the presence of the jury, prior to the defendant taking the stand, the following occurred:

“DEFENDANT’S COUNSEL: So that the record will be clear Your Honor, we would offer the statement through Morgan Knight in lieu of the defendant testifying. I understand that the Court would refuse that request if we put Morgan Knight back on the stand or could we do that if necessary?
“THE COURT: I just don’t believe you can put in a statement in lieu of testimony. That’s hearsay. I will sustain the objection.”

The Appellant contends that the trial court erred in sustaining the State’s objection to the appellant’s attempt to introduce his own statement made to Sgt. Knight at police headquarters some five or six hours after the shooting.

The statement was offered while the state was presenting its case-in-chief, during the cross-examination of Sgt. Knight by the defendant.

This was an apparent attempt on the part of the appellant to present his statement in lieu of testimony and thus in effect introduce his side of the case without subjecting himself to cross examination.

In Jarrell v. State, 35 Ala.App. 256, 50 So.2d 767 (1950), it was stated:

“A ‘self-serving declaration’ is a statement made out of Court which is favorable to the interest of the declarant. Unless, for some recognized reason, it comes within the exception to the general rule, such a declaration is not admissible in evidence when tendered by the favored party, if not a part of the res gestae. The prime objection to this character of proof is that it does violence to the hearsay rule. Further, it opens the door to the introduction of untrustworthy declarations and permits a party to manufacture his own evidence.” Quoted in Powell v. State, 51 Ala.App. 398, 286 So.2d 73 (1973).

And in Chisolm v. State, 409 So.2d 930 (Ala.Cr.App.1981), this court stated:

“The law is well settled in this state that such self-serving declarations of an accused, made before or after the offense are not admissible for him (or by him) unless they are part of the res gestae.”

The statement in question was not a part of the res gestae. It was not a part of other conversations or statements proven by the state and there was no showing that the defendant was offering a statement against his interest.

Thus, the trial court’s ruling was correct and this case is due to be and is hereby affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Larry Wayne McKINLEY v. STATE.
    6 Div. 854.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 1, 1983.
    Certiorari Denied Dec. 22, 1983 Alabama Supreme Court 83-195.
    Roger C. Appell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This appellant was convicted of murder, infanticide, the alleged victim being a four-month-old child, Carrie Joann McKinley, who, according to the undisputed evidence, was the daughter of defendant’s wife, who during their marriage had previously given birth to defendant’s son, who was eighteen months old at the time of the alleged murder. Any doubt as to the paternity of the alleged victim is dissolved by the sworn admission of the defendant’s wife and the fact the child was conceived during a considerable period of time while the defendant was confined in a prison. Since their marriage, the defendant and his wife had lived in states other than Alabama. In June 1981 they were traveling as paid passengers in a bus and had brought the two children with them. Some time between the last previous stop of the bus and the stop it made in Birmingham, Alabama, the older child sustained a fall on the bus. Upon arrival in Birmingham and consultation with the bus station attendants, all four were transported by a taxi to a hospital, from which they went to the Children’s Hospital. Some time before midnight that night, after defendant and his wife had counselled with one another as to where all but the hospitalized child should spend the night, the defendant and Carrie Joann McKinley went to a downtown motel, the “Holiday Inn, Civic Center.” According to the testimony of the defendant, the following then occurred:

“Q. Okay. Now, Larry, tell me what happened, what really happened when you went to the motel?
“A. Okay. When I went to the motel I had my hands with the baby in the carrier [the not unusual type of device used for the carrying of a baby] there and also I had some other stuff, her clothes and her milk and some sacks with some stuff for us to change. And as I was trying to unlock the door [the door of the room they were to occupy] she had pushed out of the carrier on me and had fell.
“Q. And where did she fall?
“A. She fell on the concrete by the building and the molding there beside the building.
“Q. Okay. What time of the day was this, now?
“A. This here was at night. I would say approximately five or ten minutes of twelve or somewhere in there.
“Q. Okay. What time had you left— What time had you started this journey?
“A. I would imagine somewhere around 11:45 going over to the motel.
“Q. About how far did she fall?
“A. I’m not really sure. It was probably anywhere from two and a half to four feet, three and a half. I’m not sure on that height.
“Then she was crying a little bit. So, I went ahead and throwed my stuff down right there at the door. And I took her in and lay her on the bed.
“Q. Okay. Tell us what happened next.
“A. Well then, in the process I had hit the baby twice.
“Q. Okay. How did you hit the baby?
“A. Open handed.
“Q. Okay. Did you close your fist and hit the baby?
“A. No, sir. I did not.
“Q. How hard did you hit the baby? “A. It wasn’t very hard at all.
“Q. Okay. Now, what else did you do?
“A. Then right after that I noticed she was catching her breath. And then I couldn’t get her straightened out. That’s when I really got nervous and upset about the whole situation. And I picked her up, and I had laid her against me, my body.
“Q. Okay.
“A. And as far as shaking her, I had shaken her but not violently, because I didn’t have her that far from my body.
“Q. Okay. After that happened what happened to the baby?
“A. Well, she was limp. I was trying to — Then I had called my wife about trying to get — Asked her what to do in a situation like this. And she said get a cold wet cloth and wipe her face with it. And that’s what I done. And I couldn’t—
“Q. And then what happened:
“A. I couldn’t get no response from the baby. And that’s when I called the Paramedics for some help.”

Thereafter, according to the undisputed evidence, paramedics came to the motel; officers also came; it was determined that the child was in critical condition; she was removed to a hospital and soon thereafter was pronounced dead. There was no eyewitness, other than the defendant, to what happened to the child while defendant and the child were in the process of entering the room at the motel.

The first witness called by the State on the trial of the case was the wife of defendant. Her testimony revealed mixed emotions on her part as to whether defendant was guilty of the murder of her four-month-old child. Defendant’s attorney on cross-examination of her attempted to get her to admit that she herself had been guilty of an abuse of the deceased child. Some of her testimony formed some basis for the contention of defense that the death of the infant was partly attributable to physical mistreatment by the infant’s mother.

By far the strongest evidence against the defendant was that of Dr. Linda Norton, an Associate Professor of Pathology at the University of Alabama in Birmingham and an Associate Chief Medical Examiner for Jefferson County, who performed an autopsy on the alleged victim and who had “examined the child either a day or two days prior to death at Children’s Medical Center.” She testified at length and in detail to the effect that the child was intentionally killed while it was admittedly in the possession of the defendant. She said:

“Barring the history of the child falling from three or four stories out of the window, and barring the history of the child being thrown from a moving motor vehicle and coming to rest outside the car. The only other instance where this type or this magnitude of damage occurs is when an adult individual or someone of adult statute [which we construe as stature] takes a child, picks him up by the feet, the legs, waist, and uses this child’s head as the end of a whip with their own shoulders as the fulcrum and slams them into either a hard surface or onto the floor, or slings them across the room

There is no contention by appellant that the evidence was not sufficient to present a jury issue as to the guilt of defendant, and we see no reasonable basis for such a contention. However, Dr. Carl R. Robinson, who testified that he practices “medicine, among other things, in Bessemer, Alabama,” testified as a witness for the defendant and expressed disagreement with the conclusion of Dr. Norton as to the cause of the child’s death. In Dr. Robinson’s testimony he said, inter alia, that in his opinion the child “could ... have sustained those injuries falling two and a half to three feet ... onto a concrete surface, say, in a hotel room.”

Appellant presents two principal contentions for a reversal. The first is thus captioned:

“The denial of funds for an indigent defendant for expert witnesses denies the defendant of due process, equal protection, and effective assistance of counsel.”

Contrary to appellant’s contention is the following:

“... It has been repeatedly held that a denial of funds to pay defense experts for investigators and the assistance of experts does not amount to a deprivation of Constitutional rights. Harris v. State, Ala.Cr.App., 352 So.2d 460, affirmed, Ala., 352 So.2d 479 (1977); Johnson v. State, Ala.Cr.App., 335 So.2d 663, cert. denied, Ala., 335 So.2d 678, cert. denied, 429 U.S. 1026, 97 S.Ct. 649, 50 L.Ed.2d 629 (1976); Tillis v. State, 292 Ala. [521] 526, 296 So.2d 892 (1974).” Thigpen v. State, Ala.Cr.App., 372 So.2d 385, 386 (1979), writ denied, 372 So.2d 387.

That the law on the subject is not uniform throughout the United States is to be readily observed from 34 A.L.R.3d, 1256-1297 (1982 Supp.). The contrariety of opinions is largely attributable to the variety of statutory provisions on the subject in the various jurisdictions, including particularly the jurisdiction of Courts of the United States. The federal cases cited by appellant in support of his contention are readily distinguishable, for that a provision for funds for the hiring of expert help in criminal cases against indigents is mandated by 18 U.S.C. § 3006A(e). Somewhat analogous statutes have been enacted in several of the constituent states of the United States. The only Alabama statute that could be considered to be on the subject is Code of Alabama 1975, § 15-12-21(d), as follows:

“Counsel appointed in cases described in subsections (a), (b), and (c) above, including such cases tried de novo in circuit court on appeal from a judgment proceeding, shall be entitled to receive for their services a fee to be approved by the trial court. The amount of such fee shall be based on the number of hours spent by the attorney in working on such case and shall be computed at the rate of $40.00 per hour for time expended in court and $20.00 per hour for time reasonably expended out of court in the preparation of such case. The total fees to any one attorney in any one case, from the time of appointment through the trial of the case, including motions for new trial, shall not, however, exceed $1,000.00. Counsel shall also be entitled to be reimbursed for any expenses reasonably incurred in such defense to be approved in advance by the trial court, but in no individual case shall such expenses exceed one-half of the allowable attorney’s fees provided in this section.” (Emphasis supplied).

The effort of defendant to obtain funds from the State for hiring of experts was commenced by a “Motion for Funds for Experts,” which motion was heard by Circuit Judge Joseph J. Jasper, who was not the judge presiding over the trial of the case. In the brief of counsel for appellant, it is stated, “It is Appellant’s position that the reason said motion was denied was because of an erroneous belief by the Circuit Judge that he had no authority based on Alabama case law to authorize such funds.” Whether such was the trial court’s reason for its denial of the motion, we do not know, but we are unwilling to assume that such was the reason. We think of a good reason, viz., that the trial court probably determined that appellant’s motion, as well as his position on the hearing of the motion, was so vague, indefinite and incomprehensible as to its objective that it could not with propriety have been granted. The first paragraph of the motion is as follows:

“Comes now the indigent defendant, Larry W. McKinley, and moves this Honorable Court for an order allowing him to expend State funds in order to hire either a psychiatrist or psychologist, a hypnotist and a pathologist. As grounds for said motion the following is submitted.”

The motion was filed on December 10,1981, by defendant’s appointed attorney, who continues to represent him on appeal. Defendant was arraigned on July 31, 1981, at which time an attorney was appointed for him by reason of his indigency and the case was set for trial on February 8, 1982. The attorney appointed at the time of arraignment requested that he be allowed to withdraw as counsel, which request was granted, and his present attorney was appointed on November 6, 1981. The motion contains an allegation that “defendant has been unable to remember all of the details of the alleged incident and a hypnotist would be helpful to the undersigned counsel in order to prepare a proper defense.” There is also an allegation that his counsel “cannot determine whether or not to plead the defendant not guilty by reason of insanity without first having an evaluation of the defendant by a trained psychologist or psychiatrist.” In addition, it is alleged in the motion that medical reports concerning the death of the victim “are not within the knowledge and expertise of the appointed counsel” and “it is necessary to obtain the services of a qualified pathologist or similarly trained expert to aid in the interpretation of said medical reports.”

On the hearing of defendant’s motion for funds for experts, defendant called “a clinical psychologist and hypnotherapist” with the Motivation and Hypnosis Center in Birmingham, who testified, inter alia, that their “regularly hourly rate is $50 for each consultation hour” and that some others of the same profession “charge as much as $100 an hour.” The attorney for defendant, his present attorney, also testified on the motion for funds for experts. His testimony was to the effect that he had had considerable difficulty in communicating with defendant and that he needed the services of the experts designated in his motion for funds as guidance for the attorney in either advising a plea of not guilty by reason of insanity or in attempting to disprove the claim of the State as to the cause of the alleged victim’s death. The hearing on defendant’s motion for funds for experts was conducted on January 29, 1982, barely one week before the case was set for trial on February 8, 1982, which trial was commenced about 2:30 P.M. on that day.

Although the position taken by defendant’s attorney on the hearing of the motion for funds for experts was commendably self-effacing and manifestly taken in a dedicated effort to do all that could be done for the client, it lacked specific objectivity as to anything that could have been within the power of the trial court to grant the defendant. Furthermore, it is to be observed that between the date of the hearing of the motion and the time of the trial of the case, defendant’s counsel achieved extraordinary proficiency in defending his client, in communicating with him and in the presentation of expert testimony by Dr. Robinson in an effort to counteract the testimony of Dr. Norton. We doubt not that the fact that Dr. Robinson was not a pathologist had a tendency to cause the jury to give less credence to Dr. Robinson’s testimony than to Dr. Norton’s testimony, but there is nothing to show that defendant would have been benefited by the testimony of a pathologist or by funds with which to employ a pathologist.

It is also to be noted that at the time of the trial, the defendant had no difficulty in remembering and reciting all of that to which he testified. His testimony was clear and comprehensible as to material events preceding the incident, as to the details of the occurrence when the alleged victim was injured while defendant was in the process of opening the door to the room at the motel, and as to all material facts done and observed by him thereafter. There is no semblance of any basis for a plea of not guilty by reason of insanity, or the like, other than that which is contained in the motion for funds for experts and what defendant’s attorney said on the hearing of said motion.

Although, as noted above, the hypnotherapist expressed an opinion on the hearing of a motion for funds for experts as to the charge per hour for services in that field, no explanation was ever given as to the overall funds requested or needed by defendant for the payment of experts in the three separate fields embraced in defendant’s motion. As to any pathologist who would have testified on call of the defendant as to the cause of the alleged victim’s death, the trial court was not presented with any evidence or showing that the testimony of any pathologist would have been favorable to the defendant on the point.

Neither in the motion for funds for experts nor on the hearing of the motion did the defendant specifically request funds pursuant to the last sentence of Code of Alabama 1975, § 15-12-21(d), which we have quoted and emphasized hereinabove and which constitutes the only statutory authority for the State’s payment of funds for experts.

The trial court was not in error in denying defendant’s “Motion for Funds for Experts.”

The other principal contention advanced by appellant is as follows:

“A defendant has an absolute right to a preliminary hearing and the denial violates the separation of powers clause of the Alabama Constitution and equal protection of laws.”

This contention also is nebulous. It did not surface until the date of the hearing of defendant’s motion for funds for experts, January 29, 1982, more than six months after the return of the indictment and defendant’s arrest thereon. The transcript shows that after Judge Jasper’s denial of defendant’s motion for funds for experts, the following occurred:

“MR. APPELL: And we would ask you to rule on Richard Jaffe’s [defendant’s former appointed attorney], now mine by taking it over, motion for a preliminary hearing, which he timely filed in this case.
“THE COURT: I don’t have a motion for a preliminary hearing in here.
“MR. APPELL: I have a copy of it, a stamped copy of it, Judge, that Richard gave me. Do you have any objection to us going to Judge Nice when we get through?
“MR. CAHILL [State’s attorney]: No. Your Honor, I don’t think Mr. Jaffe ever filed that motion demanding a preliminary hearing in the Circuit Court because I have a letter from him after we had had the session in our office that since the case, as far as witnesses will be very-short, with Dr. Norton and Sergeant Milton, that we will give him everything we had and let him talk to those two witnesses.
“THE COURT: It shows filed, July 24. But that’s in the District Court. It was never filed with the Circuit Court. It shows up there in the corner.
“MR. CAHILL: And the indictment makes a preliminary hearing a moot matter.
“MR. APPELL: But Statute 15-11-1 [Code of Alabama 1975 § 15-11-1], I think, says on timely demand a preliminary hearing shall be given.
“THE COURT: Well, I’m going to deny the motion for a preliminary hearing. So, at least you will preserve it in the record.”

Appellant concedes that the position taken by him has been decided adversely to him in Nobis v. State, Ala.Cr.App., 401 So.2d 191 (1981), writ denied, 401 So.2d 204, and Duncan v. State, Ala.Cr.App., 369 So.2d 885 (1979). However, he urges that this “Court re-evaluate its position and adopt the reasons as set forth by Judge Bowen in his dissenting opinions” in the cited cases. Neither the record proper nor the court reporter’s transcript affords a sufficient basis for appellant’s request in this particular, for the reason that it appears that no written demand or motion for a preliminary hearing was ever filed in the Circuit Court, the only court that ever had jurisdiction of the case against the defendant. The indictment was returned on July 13, 1981. According to appellant’s brief, “The Appellant was arrested on July 13, 1981, for the offense of murder with bond set in the amount of Fifty Thousand Dollars.” Although there is no copy of any motion or demand for a preliminary hearing included in the record proper or the court reporter’s transcript of the proceedings, the transcript indicates that such a motion was filed on July 24, 1981, but that it was filed in the District Court and never filed with the Circuit Court. We take it that when the trial court stated in the hearing on January 29, 1982, “Well, I’m going to deny the motion for a preliminary hearing” it was referring to the oral motion just presented by defendant’s counsel on January 29, 1982. As to this ruling, the only ruling on the subject, the trial court was not in error.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: JOHN D. SNODGRASS, Circuit Judge.

text:
    Clarence Elijah ROBINSON v. STATE.
    1 Div. 419.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.

      T. Jefferson Deen, III, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Jane Lecroy Brannan, Asst. Atty. Gen., for ap-pellee.
   JOHN D. SNODGRASS, Circuit Judge.

The defendant was convicted of manslaughter and sentenced to ten years’ imprisonment.

I

On December 6, 1981, appellant went to the home of Rosie Lee James, Mary Cashew and Eddie Moss in Mobile. The house is called “Eddie’s Place” and is commonly referred to as a “shot house,” a place where alcoholic beverages are served. The back room of the house was set up as a lounge. Chairs and tables were aligned along the walls of the room, and a Rockola, a coin-operated record machine, was against the wall in one corner. The middle of the room was open so that people could dance or talk. Approximately ten people were present when appellant came in. Appellant danced with his cousin, Vera White, and then sat down in a chair next to the Rockola.

The evidence adduced at trial indicated that shortly after appellant sat down, the deceased, Willie Barney, and Hurrise “Pe-tey” Timmons, came over to the Rockola to play music. The deceased and Timmons began arguing with one another in front of the Rockola. The Rockola, which was on wheels, moved when the two of them jostled against it, causing appellant’s leg to be jammed between the Rockola and the wall. Appellant told the deceased and Timmons to “cut it out,” whereupon Timmons approached appellant, who was still seated. According to Vera White, a state witness, Timmons acted as though he were going for something inside his shirt. Gloria Wiggins and Pam Cleveland, defense witnesses, also saw Timmons approach appellant with his hand under his shirt.

As Timmons approached appellant, it appeared to appellant that Timmons had a gun or knife tucked in his pants. Appellant pushed Timmons away with his hand and stood up. After Timmons was pushed away, the deceased came toward appellant. Appellant pushed him back and pulled out his gun. Appellant testified that the deceased grabbed the gun and it went off. The deceased tried to get the gun out of appellant’s hand and it went off again. Appellant jerked the gun, trying to get it out from between the two of them, and it went off a third time, whereupon the deceased slid off appellant onto the floor.

The record shows that the trial judge charged the jury on murder and on the two lesser included crimes of “manslaughter” and “criminally negligent homicide.” The jury began deliberations and broke for lunch before reaching a verdict. After lunch, the jury asked the court to clarify the charges. The court again instructed the jury on murder, manslaughter, and criminally negligent homicide. Still being unable to reach a verdict, the jury recessed at the end of the day. After lunch on the second day of deliberations, the jury again requested the court to define the varying degrees of homicide. Again, the trial judge instructed the jury on murder, manslaughter, and criminally negligent homicide.

After receiving its instructions, the jury resumed its deliberations. After deliberating for a while, the jury approached the bench for a third time with a question concerning the court’s instructions. At that time, the trial judge instructed the jury to disregard the charge on criminally negligent homicide. The instruction to the jury to disregard any consideration of criminally negligent homicide was duly excepted to by defense counsel. Shortly after withdrawal by the court of the charge the jury found appellant guilty of manslaughter.

II

Appellant contends that the trial judge committed reversible error by instructing the jury to disregard the charge on criminally negligent homicide. Appellant cites Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (1973), for the proposition that an individual accused of the greater offense has a right to have the court charge on the lesser offenses included in the indictment when there is a reasonable theory from the evidence supporting his position.

According to Lami v. State, 43 Ala.App. 108, 180 So.2d 279 (1965), a court may properly refuse to charge on lesser included offenses only (1) when it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) when the requested charge would have a tendency to mislead or confuse the jury.

The question we must decide, then, is whether or not the evidence adduced at trial supports the theory that appellant could have been found guilty of criminally negligent homicide. We hold that it does not.

The commentary to § 13A-2-2, Code of Alabama 1975, guides us in clarifying the distinction between behavior which is either “reckless” or constitutes “criminal negligence:”

“A common denominator in both is that in each instance the underlying conduct must involve a ‘substantial and unjustifiable risk’ that a result or circumstance described in the penal statute will occur or exists. The reckless offender is aware of the risk and ‘consciously disregards’ it. On the other hand, the criminally negligent offender is not aware of the risk created (‘fails to perceive’) and, therefore, cannot be guilty of consciously disregarding it.”

Appellant testified that he drew his gun because he had been in an argument with both the deceased and Timmons and he saw what he believed to be a knife in Timmons’ shirt. One who intentionally draws a gun in response to or in anticipation of a confrontation with another is certainly aware of the risk that the gun might discharge; therefore, he cannot be guilty of mere criminal negligence. Appellant was guilty of either murder or manslaughter or he was guilty of nothing at all.

Ill •

The only other issue to be decided in this case is whether or not the trial court’s failure to require production of a statement given to the police by a prosecution witness constitutes reversible error. An eyewitness to the initial affray (but not to the fatal encounter) was asked on cross-examination if she had made a statement to the police and if she had signed it. After the witness answered both questions in the affirmative, defense counsel requested that he be allowed to review her statement. We quote from the record:

“Q Did you make a statement to the police?
“A Yes.
“Q Did you sign the statement?
“A Yes.
“MR. DEEN: Judge, could I have a copy of the statement? I believe I’m entitled to it.
“MR. HARGETT: Your Honor, he’s not entitled to it under Baynes. I’ll more than willingly give it to him in connection with this.
“MR. DEEN: I believe Herman [sic] Lee Pate says I’m entitled.
“THE COURT: Let’s proceed, Mr. Deen.”

Appellant relies on Ex parte Pate, 415 So.2d 1140 (Ala.1981), in support of his argument that where a prosecution witness has testified on direct examination in the trial of a case, the defendant, upon proper predicate, is entitled to have the court conduct an in camera inspection to determine initially: (1) whether the statement made by the witness before trial differed in any respects from statements made to the jury during trial, and (2) whether the statement requested was of such a nature that without it the defendant’s trial would be fundamentally unfair.

We can distinguish Pate, however, from the case now before us. In Pate, the prosecuting attorney refused to supply defense counsel with the witness’s statement and the trial court denied defense counsel’s motion to produce. In the case at bar, the prosecuting attorney expressed a willingness to supply the requested statement. The court made no ruling adverse to the defendant. Defense counsel made no pretrial motion to produce nor did he make an objection or a request for a ruling at trial.

A party seeking reversal on appeal must not only argue valid grounds of reversible error committed below, but he must also have preserved error for review by proper procedural mechanisms. Ex parte O’Leary, 417 So.2d 232 (Ala.1982). Review on appeal is limited to matters on which rulings are invoked at the trial level. In the absence of a ruling, a request for a ruling, or an objection to the court’s failure to rule, this court has nothing to review. Whorton v. State, 422 So.2d 812 (Ala.Cr.App.1982).

There being no error in this record, the cause is affirmed.

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

AFFIRMED.

All the Judges concur.