author: PATTERSON, Judge.

text:
    William BELCHER, Jr. v. STATE.
    6 Div. 186.
    Court of Criminal Appeals of Alabama.
    July 31, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-206.

      William Kent Upshaw of Holt & Cooper, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   PATTERSON, Judge.

Appellant William Belcher, Jr. was convicted of manslaughter in the shooting death of his brother-in-law. He was sentenced to ten years’ imprisonment.

' The facts as they are revealed by the State’s case show that on February 2, 1982, Belcher went to the home of his father-in-law, George Whatley, Sr., who was in the hospital at the time of appellant’s visit. The other individuals present in the house included George Whatley, Jr., Mary What-ley, Douglas Whatley, Roxanne Whatley Belcher, appellant’s estranged wife, and Wheatie Faye Shelby, all relatives of the deceased.

When the deceased, Alfred Whatley, arrived at the house, he requested that he be given the rifle of William Belcher, Sr. When asked what he planned to do with the rifle, he said he was going hunting. He then asked for a pistol, and Mary Whatley told him that there was no pistol in the house. When George Whatley, Jr. asked the deceased what he was going to do with the pistol, Alfred Whatley threatened to shoot him, and the two men “got to tussling”.

The argument was broken up by their sister, Mary Whatley. Mary then said she was going to leave, and Alfred told her to “get the hell on”. The appellant then stated to the deceased, “I guess you [sic] talking to me, too.” Alfred replied, “Yes”, at which time the appellant responded by calling the deceased a “bad motherfucker from California”. Belcher then pulled a gun from behind and shot Alfred Whatley in the back as the victim turned toward the direction of the kitchen.

The State’s evidence indicated that the deceased did not have a gun at the time the shooting occurred. Appellant contends he acted in self-defense and he stated that he shot the deceased only after he saw Alfred Whatley attempting to remove a pistol from his front pants pocket.

Belcher claims that the court committed reversible error when it refused to allow him to cross-examine a State witness concerning a previous conviction of George Whatley, Sr. for assault with intent to murder. The elder Whatley was in the hospital at the time of the killing. However, appellant maintains that evidence concerning the prior conviction of his father-in-law was relevant to show a possible motive the victim’s family might have in denying that the deceased was carrying a pistol owned by the elder Whatley at the time of the shooting. The possession of a pistol could make George Whatley, Sr. guilty of a felony in light of his prior conviction.

We must first begin by noting that the jury could not have been unaware of the bias present when family members are asked to testify about whether or not another family member is guilty of a wrongdoing. Thus the admission of George Whatley, Sr.’s earlier conviction could at most be said to be cumulative proof of the obvious possibility of bias and prejudice on the part of family members of the deceased.

Further, the transcript reveals that before the closing arguments, the following occurred:

“THE COURT: Correct me if I am wrong. This is a stipulation, Ladies and Gentlemen, and it is introduced as evidence for your consideration, that in 1974, Mr. George Whatley, Sr., was convicted of assault with intent to murder, in 1974. That’s the father of the deceased. Anything further?
“MR. UPSHAW: No, sir. I wanted to know exactly, was that for substantial purposes or impeachment?
“THE COURT: It’s in evidence.”

We find that since Whatley’s conviction was eventually made part of the evidence before the jury, appellant’s claim is moot. See Smith v. State, 393 So.2d 529 (Ala.Crim.App.1981). Clearly Belcher’s trial attorney was empowered to argue in his closing statement any legitimate inferences, including family bias, that might have resulted from the fact that George Whatley, Sr. had been convicted of assault with intent to murder. See Ala.Digest, Criminal Law, Key No. 720(6), and cases cited therein.

We can find no error on the part of the trial judge injurious to the rights of the appellant, and we must conclude that the decision of the lower court is due to be affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: TAYLOR, Judge. TAYLOR, Judge.

license: Public Domain

text:
    William Franklin McNABB v. STATE.
    6 Div. 949.
    Court of Criminal Appeals of Alabama.
    July 31, 1984.
    On Return to Remand Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-257.

      Virginia A. Vinson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.
   TAYLOR, Judge.

William Franklin McNabb was convicted of stabbing his wife to death outside of the Coal Line Bar in Birmingham, Alabama. The court, taking into consideration three alleged prior felony convictions, sentenced him to life imprisonment without parole. He now appeals.

I

Appellant contends that his statement given to the police was involuntary due to his intoxication. The facts in this respect indicate that when the police took McNabb into custody, his rights were read to him and officers proceeded to question him. He stated in effect that he had a mental problem and had no recollection of killing his wife. The officers, determining that he had been drinking, terminated the interview. Thirteen hours later, the officers came back, again apprised the appellant of his rights, and proceeded to question him. He waived his right against self-incrimination and again told the officers that he did not remember killing his wife.

The testimony of Officer Albert Wallace with respect to this was:

“Q: Did he ever tell you that he didn’t want to talk to you.
“A: No, sir.
“Q: You said that he was not cooperative.
“A: The night before, he had been drinking and he acted like he was just beside himself.
“Q: You talked to him anyway?
“A: I talked to him a few minutes and determined that he had been drinking, and then I left and came back the next day.
“Q: You asked him about the killing though, didn’t you?
“A: Yes, sir.
“Q: He said at that time that if you all say I did it I must have done it?
“A: Yes, sir.”

The following day the appellant stated to Officer Wallace that he had a mental problem and he had done some things in the past that he was not aware of. Further, Wallace testified before the jury as follows:

“Q: Did he make a statement to you?
“A: He made a short statement. Yes, sir.
“Q: Did you go into any detail with him at that time?
“A: No, sir.
“Q: Why?
“A: He appeared to be drinking and I decided not to talk to him while he was drinking.”

The contention is that because of the intoxication, the first statement was involuntary and that the second statement was tainted by the first. The officer also testified out of the presence of the jury that when he asked McNabb if he remembered talking with him the previous night, McNabb answered, “No.”

We recognize that the law is as the appellant states it is. However, we do not feel that the facts in this case justify an application of that law. We do not think that the appellant’s constitutional rights were violated by the conduct of the police in beginning to question him. Only by talking with him did they determine that he was intoxicated. Once they were satisfied that he had been drinking, they decided to come back another time. The statement on the first questioning was little more than a denial. He said he didn’t remember committing the crime. There appears to have been no violation of the constitutional rights of the appellant, William Franklin McNabb, upon this set of facts. Hence, the statement taken the next day was admissible against the appellant. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

II

Appellant next contends that the state, at sentence hearing, failed to comply with Alabama Rules of Criminal Procedure— Temp.Rules, Rule 6(b)(3)(h), which provides:

“(ii) At a reasonable time prior to the hearing the defendant shall be given notice of the prior conviction or convictions upon which the state intends to proceed.”

We are unable to find in the record that the appellant was ever given any notice of any kind of the convictions on which the state intended to proceed. We must therefore remand the case for sentencing. For this reason, we do not reach the appellant’s contention that the sentence received was cruel and unusual.

REMANDED FOR SENTENCING.

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

ON RETURN TO REMAND

TAYLOR, Judge.

On July 31, 1984, we remanded this cause for resentencing in McNabb v. State, 462 So.2d 970 (Ala.Crim.App.1984).

The appellant was convicted of stabbing his wife to death. His prior offenses consisted of assault with intent to murder and two robberies. His sentence to life imprisonment without parole seems to us appropriate, not disproportionate, and not cruel and unusual.

A return having been filed in this court wherein a resentencing hearing was held and the defendant was sentenced to a term of life without parole, this cause is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Paul F. LEVERETT v. STATE.
    1 Div. 649.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Rehearing Denied Oct. 9, 1984.
    Certiorari Denied Jan. 25, 1985 Alabama Supreme Court 84-95.

      Irvin J. Langford of Howell, Johnston & Langford, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   PATTERSON, Judge.

Under an indictment charging Leverett with the capital offense of the May 30, 1980, murder for hire of his wife in violation of § 13A-5-31(a)(7), Code of Alabama (1975) (Blue Paperback Pamphlet 1978) (repealed 1981), Leverett was convicted on May 2,1983, of the offense of murder. He was sentenced to imprisonment'for a term of life.

I

Leverett contends, that the trial court erroneously instructed the jury on the offense of murder and, consequently, that the jury was not authorized to return a verdict of guilty of murder. He bases this contention on three grounds. He first argues that murder is not a lesser included offense of the capital offense of murder for hire which was charged in the indictment. This court has already suggested that murder is a lesser included offense of murder for hire. Eg. Williams v. State, 461 So.2d 834 (Ala.Crim.App.1983) (on rehearing), cert. granted, 461 So.2d 852 (Ala.1984); Busby v. State, 412 So.2d 837 (Ala.Crim.App.), cert. denied (Ala.1982). The rationale for this conclusion is as follows:

“Four of the capital offenses in the 1975 Act [one being murder for hire] are based on the crime of murder in the first degree, which was defined as the willful, deliberate, malicious, and premeditated killing of a human being. This component of the capital offense clearly encompasses the Criminal Code definitions of murder, manslaughter, and criminally negligent homicide as lesser included offenses. The Criminal Code provides that a person commits murder if, with the intent to cause the death of another person, he causes the death of that person or of another person. Since a willful, deliberate, and premeditated act is necessarily an intentional act, the crime of murder is a lesser included offense because it can be shown by proof of the same or fewer elements than the capital offense.” (footnotes omitted)

Colquitt, The Death Penalty Laws of Alabama, 33 Ala.L.Rev. 213, 262 (1982). See also Crosslin v. State, 446 So.2d 675 n. 1 (Ala.Crim.App.1983) (wherein murder was recognized as a lesser included offense of murder in the first degree wherein two or more human beings are intentionally killed by one or a series of acts in violation of § 13A-5-31(a)(10), Code of Alabama (1975) (Blue Paperback Pamphlet 1978).

Leverett further contends that, in the event murder is a lesser included offense, the trial court erroneously instructed the jury regarding this offense because of the preclusion clause of § 13A-5-31(a), Code of Alabama (1975) (Blue Paperback Pamphlet 1978); he argues that the application of Beck v. State, 396 So.2d 645 (Ala.1980), violated the constitutional prohibition against ex post facto application of laws. U.S. Const, art. I, § 9. This particular argument has been foreclosed by the case of Ex parte Potts, 426 So.2d 896, 900 (Ala.1983).

Finally, Leverett contends that the trial court’s charge was erroneous because there was no rational basis for a verdict convicting him of murder as required by § 13A-l-9(b), Code of Alabama (1975); he insists that he could have only been found guilty of capital murder or not guilty at all. The merit of Leverett’s assertion is determined by the following principles:

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

Crosslin v. State, 446 So.2d at 682 (1983).

After reviewing the evidence, we find that the trial court properly decided that the instruction on the lesser included offense of murder was appropriate under the facts. During presentation of its case, the prosecution introduced testimony in support of its theory that a conspiracy to kill Mrs. Leverett pursuant to a contract for hire existed between Leverett; Prew-itt, who admitted killing Mrs. Leverett for the approximate sum of $11,000 paid by Leverett; and McEvoy, who sought out and hired Prewitt at Leverett’s request. While this evidence alone, if credible, would have justified a verdict of guilty of the capital offense, further evidence was presented to support the theory that the murderer killed Mrs. Leverett during a robbery in which Mrs. Leverett’s diamond ring valued at approximately $17,000 was stolen. The evidence in its entirety could reasonably have supported the theory that Leverett procured, induced, or caused Prewitt to commit the murder or, in the alternative, the theory that Leverett aided or abetted Prewitt in committing the offense. See Busby v. State, supra; Ala. Code, § 13A-2-23 (1975). In fact, Lever-ett’s counsel himself emphasized facts pertinent to the lesser offense of murder when he objected to the trial court’s refusal to give the lesser-included offense instruction, as follows:

“MR. MARSAL: [T]he evidence is that a burglary was to be committed, and this evidence is borne out by the testimony of Steve Hart. Secondly, there is—
“THE COURT: Tie Mr. Leverett into that burglary.
“MR. MARSAL: All right. By the testimony of Prewitt and McEvoy it ties him in_ There’s evidence to that effect Prewitt — McEvoy says that Mr. Leverett gave the keys to the house. McEvoy says that he arranged with Prewitt. The act of McEvoy, if he’s connected as an accomplice with Prewitt, comes the acts — I mean with Leverett, comes the acts of Leverett. There’s unquestionably evidence that a robbery was to take the ring of Mrs. Leverett. I submit to the Court that there’s just a mountainous of evidence as to why a jury should be an included offense.”

Accordingly, we find that the lesser-included offense instruction was proper.

As a final comment, we note the difficulty in reconciling Leverett’s argument with the position adopted by Leverett during his trial for, at trial, Leverett clearly invited the procedure which he now asserts to be reversible error. In addition to submitting written jury instructions stating that murder is a lesser included offense, Leverett vigorously argued that the lesser-included offense instruction was “certainly appropriate under the evidence.” This assertion was in answer to the prosecution’s argument that only the capital murder charge was appropriate. Furthermore, Leverett entered no objection that the court’s charge was erroneous.

Hence, even if the given charge was improper, we would not regard Lever-ett’s complaint as meritorious for he has no cause to complain. A party cannot assume inconsistent positions m the trial and appellate courts and, as a general rule, will not be permitted to allege an error in the trial court proceedings which was invited by him or was a natural consequence of his own actions. 24A C.J.S. Criminal Law § 1842 (1962). See also Brannon v. State, 12 Ala.App. 189, 67 So. 634, 635 (1914), cert. denied, 191 Ala. 29, 67 So. 1007 (1915); Livingston v. State, 7 Ala.App. 43, 61 So. 54, 57 (1912) (on rehearing). As Presiding Judge Bowen noted in applying the invited error doctrine, “It would be a sad commentary upon the vitality of the judicial process if an accused could render it impotent by his own choice.” Murrell v. State, 377 So.2d 1102, 1105 (Ala.Crim.App.), cert. denied, 377 So.2d 1108 (Ala.1979), quoting Aldridge v. State, 278 Ala. 470, 179 So.2d 51, 54 (1965). The doctrine of invited error has been specifically applied to possible error resulting from the defendant’s request for a particular jury instruction. E.g. Jelks v. State, 411 So.2d 844, 848 (Ala.Crim.App.1981); Burke v. State, 18 Ala.App. 152, 89 So. 162, 164 (1912); People v. Clements, 316 Ill. 282, 147 N.E. 99 (1925); Partee v. State, 19 Ga.App. 752, 92 S.E. 306 (1917). In recognizing this doctrine as applicable to the case at bar, we hold that, because of Leverett’s actions at trial, Lev-erett is estopped from complaining of any possible resulting error.

II

Over various objections, the trial court allowed into evidence the following: (1) McLeod’s testimony concerning the instructions he received from McEvoy during their attempt to “rip-off” Leverett of the money he had offered for his wife’s murder; (2) the testimony of Prewitt that McEvoy had said that the extra $1,000 of payment for the murder “was for a job well done;” and (3) the testimony of the forensic pathologist that the body of Mrs. Leverett “had more injuries than most of the victims that [he had] known or examined in which there was evidence that they had been robbed and then murdered.” These matters were elicited by the prosecution in furtherance of proof of its theory that Mrs. Leverett had been killed pursuant to a contract for hire which was effectuated by a conspiracy between Leverett, McEvoy, and Prewitt. Leverett contends that (1) McLeod’s testimony was hearsay because, at the time the instructions were given, no conspiracy existed; (2) the testimony of Prewitt was also hearsay since the statement was made after the conspiracy had terminated; and (3) the pathologist’s testimony was elicited without a proper predicate and contained an opinion of an ultimate fact in issue.

It is not necessary for this court to determine the propriety of the trial court’s rulings on Leverett’s objections or the merit of Leverett’s contentions on appeal. If the questioned evidence had been accepted by the jury, the jury would have been authorized to find Leverett guilty of the capital offense. The jury, in determining its verdict, and acquitting Leverett of capital murder, disregarded this evidence; the verdict clearly indicates that the jury was not in any manner inflamed or influenced by these bits of evidence. See Morgan v. State, 35 Ala.App. 269, 45 So.2d 802 (1950). Error in the admission of evidence which is shown by the verdict to have had no effect on it or to have caused the defendant no prejudice is not reversible. 24B C.J.S. Criminal Law § 1915(13) (1962). Thus, there is no reversible error where the defendant was acquitted of the offense with respect to which the improper evidence was admitted, although he was convicted of another offense. Id. See also Middleton v. State, 27 Ala.App. 564, 176 So. 613, 614 (1937); Hanson v. State, 27 Ala.App. 147, 168 So. 698, 700, cert. denied, 232 Ala. 585, 168 So. 700 (1936); Lee v. State, 16 Ala.App. 53, 75 So. 282, 283 (1917). Because the evidence in question went solely to the proof of the element of aggravation distinguishing the capital offense, which the jury deemed unsubstantiated by the evidence presented, any error, if any, in the introduction of this evidence was not injurious to Leverett; the verdict of the jury cured any possible injury.

III

During his direct examination, Leverett testified that, although petitions for separate maintenance were filed by his wife during their marriage, no divorce proceedings were initiated. Before Leverett’s cross-examination, the prosecution offered State’s exhibits 86 and 87, which were the court proceedings of two cases instigated in the Mobile Circuit Court by Mrs. Lever-ett. Both parties considered these exhibits as evidence of divorce proceedings. While admitting that this evidence was proper impeachment of his testimony, Leverett objected to the admission of the exhibits because they specified the grounds for divorce. Over this objection, the court ruled that the exhibits were admissible with the restrictions that they were not to go to the jury and that their sole purpose was for impeachment.

During Leverett’s cross-examination, much confusion arose about the true nature and legal import of these two exhibits. After a lengthy discussion and further cross-examination on unrelated matters, Leverett moved for a mistrial upon the grounds that the prosecution attempted to deceive the trial court and attempted to improperly impeach the defendant by knowingly asserting that State’s exhibits 86 and 87 were petitions for divorce when they were, in fact, pleadings for separate maintenance. After reviewing the documents, the court determined that the complaints merely sought separate maintenance. The court then denied Leverett’s motion for a mistrial; instructed the jury that the exhibits were petitions for separate maintenance rather than for divorce and that any contrary reference previously made was to be disregarded; and finally polled the jury, all jurors acknowledging that they could follow the court’s instructions.

Leverett contends that the trial court’s denial of his mistrial motion was reversible error. We disagree. A high degree of “manifest necessity” for the granting of a mistrial must be demonstrated before a mistrial should be granted. Woods v. State, 367 So.2d 982 (Ala.1978); Ala.Code § 12-16-233 (1975). “The entry of a mistrial is not lightly to be undertaken.... [T]he entry should be only a last resort, as in cases of otherwise ineradicable prejudice.” Thomas v. Ware, 44 Ala.App. 157, 161, 204 So.2d 501, 504 (1967) (emphasis in original). A mistrial signifies such fundamental errors as to vitiate the result. Id.

Here, we are of the opinion that, not only was any prejudice eradicable, but it was, in fact, eradicated by the trial court’s actions. When the trial court acts promptly to impress upon the jury that improper statements and questions are not to be considered, the prejudicial effect of the prosecutor’s attempt at improper impeachment is removed. Walker v. State, 428 So.2d 139 (Ala.Crim.App.1982). We find no abuse of discretion in the action of the court in denying Leverett’s motion.

IV

During cross-examination of a character witness for Leverett, the following improper question was asked: “Did you know that on May the 2nd of 1975, excuse me — that on or about April 28, 1975, the FBI investigated Paul Leverett for threatening to blow up an airplane upon which Elizabeth Leverett was supposed to be a passenger?” Leverett waives argument on appeal of the impropriety of this question because no timely objection was interposed. To counter the effect of this question, Leverett, during his direct examination, rendered his account of the alleged incident. In addition, he denied attempting to blow up any plane or being contacted or questioned by a FBI agent.

The testimony claimed to have been erroneously allowed into evidence is that of the prosecution’s rebuttal witness Roy Eve-land, a retired FBI agent, who testified that, in 1975, he had investigated an alleged bomb threat involving Elizabeth Lev-erett. Leverett contends that Mr. Eve-land’s testimony was improper because the prosecution should not be allowed to prove by a rebuttal witness a specific instance of the defendant’s bad character about which a character witness has been cross-examined. See e.g. Helms v. State, 254 Ala. 14, 47 So.2d 276 (1950).

Leverett’s contention need not be addressed, for this issue was not properly presented to the trial court and consequently is not before us for review. It was after the allegedly improper testimony that counsel objected to a specific question on the grounds that it called for hearsay and that it was “highly improper.” These objections were overruled and the remainder of Mr. Eveland’s testimony was merely a reiteration of his prior testimony which was in evidence without objection. To be timely, an objection to admission of certain evidence must be made as soon as the ground for the objection becomes apparent. Watson v. State, 439 So.2d 762 (Ala.Crim.App.1983). By allowing the prosecution to elicit the allegedly erroneous testimony without objection and subsequently entering no motion to exclude this testimony, Leverett waived any alleged error committed by the trial court in overruling his objections. E.g. Thomas v. State, 440 So.2d 1216 (Ala.Crim.App.1983); Capps v. State, 424 So.2d 681 (Ala.Crim.App.1982); Howard v. State, 417 So.2d 599 (Ala.Crim.App.1982); Etheridge v. State, 414 So.2d 157 (Ala.Crim.App.1982).

V

In arguing the prejudicial impact of the alleged errors of Issues II, III, and IV, Leverett raises the alleged impropriety of certain remarks of the prosecuting attorney in his closing argument to the jury. However, the prosecution’s closing argument was not interrupted once with objection by defense counsel. Claimed error based upon alleged improper remarks by the prosecution presents nothing for our review where no specific objection was timely interposed and none of the remarks were so grossly improper and prejudicial that neither retraction nor rebuke by the trial court would have destroyed their effect. See Trawick v. State, 431 So.2d 574 (Ala.Crim.App.1983); James v. State, 246 Ala. 617, 21 So.2d 847 (1945). After determining that none of the particular remarks were so improper that their prejudicial quality could not have been eradicated, we find that we have nothing further to review.

VI

In his final argument, Leverett contends that the trial court erred in denying his motion for new trial, in which he alleged that the prosecuting attorney, through his persistent improper conduct, deprived Lev-erett of a fair trial. As support for this assertion, Leverett specified the following comments or actions of the State’s attorney as improper: (1) in attempting to impeach Leverett, the prosecutor knowingly tried to mislead the trial court and the jury into believing that Mrs. Leverett had commenced divorce proceedings against her husband; (2) he insinuated that Leverett had been investigated for threatening to blow up an airplane, upon which his wife was a passenger, when the prosecutor knew the charge had no factual basis; and (3) he introduced State’s exhibit 47, a “mug shot” of Leverett’s present wife, and repeatedly referred to the present Mrs. Lev-erett as “State’s Exhibit 47.”

In regard to the first incident of prosecutorial misconduct alleged by Lever-ett, we have already determined in part III that any improper effect of the prosecutor’s erroneous assertions was eradicated by the trial court’s instructions. Because of the quick, curative actions by the trial judge, any prejudicial effect was removed and the motion for new trial was properly denied in regard to this specific ground. Blake v. City of Montgomery, 386 So.2d 503 (Ala.Crim.App.1980).

In recognizing the well-established rules of appellate procedure, we hold that the latter two instances of allegedly improper conduct were not cognizable under Lever-ett’s motion by the following general rule:

“Although courts have sometimes departed from this rule, generally, in analogy to the rule limiting the scope of review on appeal to questions raised below, a new trial will not be granted for matters pertaining to rulings, evidence, or occurrences at a trial, including erroneous conduct on the part of the court, counsel, or jury, unless timely and sufficient objections, requests, motions, or exceptions have been made and taken. Any grounds which might have been afforded by such matters are presumed to have been waived, except where such matters were unknown to applicant until after verdict and could not have been discovered by the exercise of reasonable diligence, and except in instances of fundamental errors which of themselves invalidate the trial.”

McMullin v. State, 442 So.2d 155, 161 (Ala.Crim.App.1983), quoting 24 C.J.S. Criminal Law § 1428 (1961). See also 24 C.J.S. Criminal Law § 1442 (1961). “Where no ruling of the court is invoked at nisi prius, there is nothing for the court to review and objection cannot be first made on motion for new trial in order to bring the matter before this court.” Lucky v. State, 50 Ala.App. 324, 278 So.2d 772, 775 (1973). See also Trawick v. State, supra; Smith v. State, 393 So.2d 529 (Ala.Crim.App.1981); Pierce v. State, 52 Ala.App. 422, 293 So.2d 483 (1973), writ quashed, 292 Ala. 745, 293 So.2d 489 (1974).

We are of the opinion that Lev-erett’s failure to adequately object to the prosecutor’s initial question to Leverett’s character witness about an FBI investigation of Leverett served as a failure to preserve this instance of alleged prosecutorial misconduct for review, either on the motion for new trial or on appeal. Leverett should have interposed a proper objection, requested curative instructions, or moved for a mistrial when the defense’s character witness was questioned. His mistrial motion made some time later was untimely as well as inadequate in failing to raise the specific ground now asserted. Likewise, Leverett failed to object to the introduction of the “mug shot” of the present Mrs. Leverett or to any reference to her as “State’s Exhibit 47.”

Leverett’s first objection to these alleged instances, which is made by his motion for new trial, comes too late. This method of making an objection is little short of an effort to entrap the trial court into error and we will not use such objection as a basis for error. Jackson v. State, 260 Ala. 641, 71 So.2d 825, 828 (1954); Lee v. State, 50 Ala.App. 713, 282 So.2d 333, 336 (1973).

Because we consider any grounds which might have been afforded by these allegedly improper remarks and actions to have been waived, we must determine if these instances fall within the two exceptions to the general rule that a new trial will not be granted absent timely and sufficient objections. These two exceptions arise (1) in instances of newly discovered evidence, or (2) in instances of fundamental errors which invalidate the trial. Certainly the allegedly prejudicial behavior of the prosecuting attorney was known to Lever-ett prior to the jury’s verdict. In addition, we find that the attorney’s remarks and actions are not fundamental errors which invalidate the trial.

While this court has condemned the practice of a prosecuting attorney’s asking a question which implies the existence of a factual predicate which the examiner knows he can not support by any evidence, e.g. Miller v. State, 439 So.2d 800 (Ala.Crim.App.1983); Bezotte v. State, 358 So.2d 521 (Ala.Crim.App.1978), we find that the prosecutor’s questions in the instant case were not so grossly prejudicial as to require a new trial. “In reviewing allegedly improper prosecutorial comments, conduct, and questioning of witnesses ‘(o)ur task is to consider their impact in the context of this particular trial’ and ‘not view the group of allegedly improper questions and comments in the abstract.’ United States v. Davis, 546 F.2d 583, 593 (5th Cir.1977).” Wysinger v. State, 448 So.2d 435, 438 (Ala.Crim.App.1983). We have no doubt that any prejudice resulting from the prosecutor’s improper reference to an FBI investigation of Leverett was eradicated by the FBI agent’s testimony that, after only Mrs. Leverett and airport authorities were interviewed, the United States Attorney concluded that Mrs. Leverett’s complaint was totally unsubstantiated and that no action was taken against Leverett. While it is probable that the prosecuting attorney knew that his insinuations were lacking in evidentiary proof, and while we strongly denounce such a tactic, we can not say that this conduct resulted in ineradicable prejudicial error that invalidated Leverett’s trial.

Likewise, the introduction of a “mug shot” of the present Mrs. Leverett was not a fundamental error invalidating Leverett’s trial. As stated by Presiding Judge Bowen in McMillian v. State, 448 So.2d 463, 465 (Ala.Crim.App.1984): “[T]he admission of a mug shot into evidence does not constitute plain error. We do not find that this alleged error ‘seriously threaten(s) the fairness or integrity of the judicial proceeding.’ ” (Citations omitted) Furthermore, we find that any prejudicial character of the prosecutor’s references to Mrs. Leverett as “State’s Exhibit 47” could have been eradicated by exclusion and rebuke by the trial court.

Accordingly, we find no clear abuse of the trial court’s exercise of his discretion in his denial of Leverett’s motion. In reviewing the denial of a motion for new trial, this court will indulge every presumption in favor of the correctness of the ruling of the trial judge. Smith, supra.

Our consideration of the issues raised on appeal convinces us that the judgment of the circuit court is due to be, and it is hereby, affirmed.

AFFIRMED.

TYSON, HARRIS and TAYLOR, JJ., concur.

BOWEN, J., concurs in result only.

      . This section as it appeared in the Blue Paperback Pamphlet (adopted 1977, published 1978) is a recodification of § 13-11-2(7), Code of Alabama (1975).

      . Prewitt v. State, 460 So.2d 296 (Ala.Crim.App. 1984).


author: BOWEN, Presiding Judge. BOWEN, Presiding Judge.

text:
    Charles Thomas PHILLIPS v. STATE.
    6 Div. 96.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    On Return to Remand Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Jan. 25, 1985 Alabama Supreme Court 84-216.

      George W. Andrews III and Carl J. West, Jr., Birmingham, for appellant.

      Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Charles Thomas Phillips was indicted for the murder of Henry Bearden, and the attempted murder of Walter Sharp. The cases were consolidated for trial. After a guilty verdict on each charge and a showing of three prior felony convictions, Phillips was sentenced to life imprisonment without parole as an habitual offender.

The State’s evidence established that in the early morning hours of February 21, 1982, the defendant and his brother, Donald, approached the door of the Touchdown Cafe in Birmingham, and asked Mr. Douglas Huguley, the proprietor, if they could play pool. Huguley told them all the tables were in use, and they responded that they would come back later. After a few minutes, Huguley saw the defendant run in front of the building with a gun as two patrons of the Touchdown Cafe, Mr. Walter Sharp and Mr. Henry Bearden, walked out the front door.

Sharp testified that when he opened the door he saw someone crawling under a car in the parking lot saying “Don’t shoot.” Sharp then saw two black men, one of whom said, “If you move I’ll shoot your damn brains out.” Sharp stated that Bear-den told the black men, “We ain’t got nothing to do with what’s going on out here; we came out to go home.” One of the assailants replied, “If you move out of your tracks I’ll blow your brains out.” Bearden stepped off the curb and was shot. Sharp then turned around to go back inside the cafe and was shot in the back. He identified the defendant as the man who shot him.

Mr. Robert Ellisor and Mr. Jesse Drake, who were also at the Touchdown Cafe at the time of the shooting, identified the defendant and his brother as the two black men outside. Ellisor, stated that he saw the defendant with a gun. Drake testified that he did not see the gunman who shot Bearden, but he did see the defendant’s brother shoot Sharp.

Birmingham Police Officer Michael Curry and his partner, Officer Paul Rhodes, responded to the call of a shooting at the Touchdown Cafe. Several blocks from the cafe, they noticed two black males walking down the street. They saw one drop a gun and keep walking. The two officers approached the pair, told them to halt, and when they failed to do so, forced them to the ground and subdued them. Curry and Rhodes retrieved a revolver from Donald and three live .22 caliber bullets from the defendant. They took the brothers to the North Birmingham Precinct and then back to the Touchdown Cafe for a “show-up” identification, where at least seven witnesses identified the defendant as one of the two black males seen outside the cafe during the shooting.

Birmingham Police Sergeant James E. Gay testified that, after the defendant was arrested, he saw him at the Birmingham City Jail, advised him of his Miranda rights and took his statement. After presenting expert testimony establishing the cause of Henry Bearden’s death, and linking the projectiles removed from the victims’ bodies to the revolver discarded near the scene, the State rested.

I

The defendant contends that the trial judge admitted improper evidence of four prior felony convictions for purposes of sentencing under the Habitual Felony Offender Act.

At the sentencing hearing, the State introduced four exhibits to prove prior felony convictions. State’s exhibit one was a “Judge’s Statement” dated September 17, 1984, ordering “Charles Phillips” committed to a Michigan State penal institution for a minimum period of fifteen months and a maximum period of fifteen years. The defendant objects because the document does not show that he was represented by counsel and contains no attestation and is, therefore, not properly authenticated as required by Alabama Code 1975, § 12-21-70.

State’s exhibit two is a trial docket sheet from the Circuit Court of Jefferson County, Bessemer Division, showing that “Charles T. Phillips” pled guilty to burglary II on April 30, 1963. The defendant contends that this conviction does not constitute a felony under § 13A-l-2(4), because at the time of this conviction he was sixteen years old. He argues that his conduct “would be a juvenile offense and not admissible under § 13A-5-9, without proper transfer proceedings to the Circuit Court, which was not done in this case.” The defendant also argues that the docket sheet is insufficient to show that he was represented by counsel at the time of the plea, arguing that “[w]hile the document reflects the name ‘J.H. McEniry’ in the upper left-hand corner, it does not reflect at what point Mr. McEniry became involved, and to what extent in the case.” He further notes that the guilty plea was the same year the United States Supreme Court decided Gideon v. Wainwright, 372 U.S. 335, 336, 83 S.Ct. 792, 792, 9 L.Ed.2d 799 (1963), recognizing the accused’s Sixth Amendment right to counsel.

State’s exhibit three is a trial docket sheet of the Circuit Court of Jefferson County showing that “Charles Thomas Phillips, alias Charles Phillips”, pled guilty to grand larceny on June 1, 1969. This exhibit shows that the defendant was represented by appointed counsel.

State’s exhibit four is a trial docket sheet from the Circuit Court of Jefferson County showing that “Charles Thomas Phillips, alias Larry Alexander”, pled guilty on May 3, 1972, to the offense of robbery, and was sentenced to ten years’ imprisonment. Although the defendant objected to the admission of State’s exhibits three and four at the sentencing hearing, he does not pursue those objections on appeal, but limits his argument to State’s exhibits one and two.

At the sentencing hearing, the State also introduced the statement the defendant gave Sergeant Gay on November 15, 1982. Therein, the defendant admits that he had been to prison for grand larceny, robbery and car theft.

Although the State presented four prior felony convictions, the trial judge sentenced the defendant to life imprisonment without parole as a habitual offender based on three prior convictions.

At the motion for new trial, attorney J.H. McEniry testified that he checked his old files and “found nothing in there to indicate anything under Charles T. Phillips.” The defendant introduced trial docket sheets to show that, at the time of his guilty plea in April of 1963, the Circuit Court in Bessemer had a “court appointed stamp”, even though the stamp was not used on the defendant’s 1963 guilty plea.

The trial judge found that State’s exhibit two adequately showed that the defendant was represented by counsel: “I think the representation shown is as clear as you can get it. I’m satisfied with it. I think representation is shown as clear as the Courts require at the moment. What they do later on is something else.”

At a sentencing hearing on the determination of a habitual felony offender, “The burden of proof shall be on the State to show that the defendant has been convicted of a previous felony or previous felonies. Disputed facts shall be determined by the court by a preponderance of the evidence.” Rule 6(b)(3)(iii), A.R.Crim.P.Temp.

State’s exhibits two, three and four were certified copies of trial docket sheets and constitute proper proof of those prior convictions from Jefferson County. Kemp v. State, 434 So.2d 298, 303 (Ala.Cr.App.1983). Under Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), a prior conviction cannot be used to support guilt or enhance punishment unless the accused was represented by counsel or properly waived counsel in the prior proceeding. Seritt v. State, 401 So.2d 248, 251 (Ala.Cr.App.1981).

In State’s exhibit two, an attorney’s name was written on the docket sheet by the circuit court judge in the space labeled “attorneys”. We think this constitutes prima facie evidence that the defendant was represented by counsel at the time he pled guilty. “There does not appear to be any law which requires that the name of the attorney appear at any particular place in the record so long as it properly appears that the defendant on trial was represented by an attorney.” Minor v. State, 437 So.2d 651, 656-57 (Ala.Cr.App.1983).

Although the defendant was a juvenile at the time of his 1963 conviction of burglary in the second degree, that offense under both the pre-existing Alabama criminal law and the new criminal code is a felony. Commentary to Alabama Code 1975, § 13A-7-7 (under the present Criminal Code, second degree burglary, § 13A-7-6, encompasses former second degree burglary, § 13-2-41). The defendant was not treated as a juvenile and the prior felony conviction may be used to enhance punishment. This does not violate the rule that a prior juvenile or youthful offender adjudication may not be considered a prior felony conviction for purposes of the Habitual Felony Offender Act. Ex parte Thomas, 435 So.2d 1324, 1326 (Ala.1982).

Since the Michigan “Judge’s Statement” was not properly authenticated pursuant to Alabama Code 1975, § 12-21-70, this fourth felony conviction should not have been considered in enhancing punishment. However, since only three prior convictions were necessary to sustain the sentence imposed, there was only harmless error in its introduction. Watson v. State, 392 So.2d 1274, 1279 (Ala.Cr.App.1980), cert. denied, Ex parte Watson, 392 So.2d 1280 (Ala.1981). We also note that in his statement to Sergeant Gay, the defendant admitted having served three prior terms of imprisonment arising out of convictions for grand larceny, robbery and car theft. “[T]he admission ... contained in that confession ... removed the State’s burden of proving a prior conviction....” Moseley v. State, 398 So.2d 357, 359 (Ala.Cr.App.), cert. denied, 398 So.2d 359 (Ala.1981).

II

The defendant claims that the State failed to establish a proper chain of custody for a bullet allegedly extracted from Walter Sharp. The State’s evidence showed that in the early morning hours of February 21, 1981, nurse Rhonda Edwards received a bullet from the operating physician, labeled it, and took it to the hospital laboratory. The lab was unmanned when nurse Edwards arrived and she left the bullet on a specimen table outside the lab. Later that morning, Deputy Coroner Charles Robey saw the specimen cup containing the bullet and asked medical technologist William Jeff, who had by then come on duty, to sign for it. The remainder of the chain of custody was proved without objection by the defense. The defendant contends only that the time lapse in which the specimen cup containing the bullet was left unattended in the hall outside the hospital lab constitutes a break in the chain of- custody.

Initially, we note that “[t]he evidence need not negate the most remote possibility of substitution, alteration, or tampering with the evidence, but rather must prove to a reasonable probability that the item is the same as, and not substantially different from, the object as it existed at the beginning of the chain.” Slaughter v. State, 411 So.2d 819, 822 (Ala.Cr.App.1981). Even taking into account the period during which the evidence remained on the specimen table outside the lab, the State’s proof established a “reasonable certainty that there ha[d] been no substitution, alteration, or tampering with the specimen.” Gothard v. State, 452 So.2d 889 (Ala.Cr.App.1984) (Quoting A. Moenssens & F. Inbau, Scientific Evidence in Criminal Cases § 1.18 at 58 (2d ed. 1978). Compare Sims v. State, 428 So.2d 162 (Ala.Cr.App.1982) (No testimony from firearms expert as to person from whom he received alleged murder weapon).

Nurse Edwards testified that “we have guards throughout the hospital. I don’t think any outsiders would get in.” Since Edwards stated that she left the specimen unchanged in the exact place where Deputy Coroner Robey found it, the time during which it was unattended presents, at most, a weak link rather than a missing link in the chain of custody. Compare Whetstone v. State, 407 So.2d 854, 859-60 (Ala.Cr.App.1981) (No evidence as to who withdrew defendant’s blood presents a “missing” rather than a “weak” link in chain). “Where a weak link in the chain of custody is said to exist, it presents a question of the credit and weight to be accorded rather than ... the admissibility of the item.” Williams v. State, 375 So.2d 1257, 1267 (Ala.Cr.App.), cert. denied, 375 So.2d 1271 (Ala.1979).

Ill

Officer Rhodes testified that, upon being returned to the scene for a “show-up” identification, the defendant yelled at least twice, “Yeah, I killed the M_ F_” The defense moved to exclude the exclamation because it was the result of a beating by the police and because the defendant had not been warned of his constitutional rights.

The defendant presented no evidence at the hearing on motion to exclude his exclamation of having been beaten by the police, although defense counsel referred to a photograph of the defendant taken by the police after his arrest and introduced into evidence by the State, which allegedly showed some swelling on the side of his face. Later in the trial, Donald Phillips, the defendant’s brother, testified that the two of them were beaten by patrons of the Touchdown Cafe before the shooting, and by the police after the shooting. In the defendant’s statement to Sergeant Gay, he does mention having been beaten by the police. Officers Gay, Curry and Rhodes denied beating the defendant or seeing anyone else beat him. Curry did testify that in order to apprehend the defendant he had to push him down forcibly, and that he had to drag the defendant to the patrol car when he refused to walk.

The trial judge was in the best position to determine the credibility of the witnesses on this issue. His ruling is supported by substantial evidence and will not be overturned on appeal. See Womack v. State, 435 So.2d 754, 761 (Ala.Cr.App.), affirmed, 435 So.2d 766, 767 (Ala.1983).

Likewise, the trial court’s ruling regarding the admissibility of the defendant’s exclamation in the absence of Miranda warnings is also correct. All three officers testified, and the defendant does not claim otherwise, that they did not question the defendant prior to his exclamation. “Spontaneous or volunteered statements fall outside the mandate of Miranda.” Terry v. State, 397 So.2d 217, 221 (Ala.Cr.App.), cert. denied, 397 So.2d 223 (Ala.1981). The atmosphere surrounding the “show-up” identification was not coercive, likely to produce an incriminating response, or the “functional equivalent” of interrogation. See Stahl v. State, 426 So.2d 909, 913-14 (Ala.Cr.App.1982), cert. quashed, 426 So.2d 917 (Ala.1983), and authorities cited therein.

“When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding.... The fundamental import of the privilege [against self incrimination] while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated_ Volunteered statements of any kind are not barred by the Fifth Amendment....” Miranda v. Arizona, 384 U.S. 436, 477-78, 86 S.Ct. 1602, 1629-30, 16 L.Ed.2d 694 (1966).

IV

After the defendant was taken to the city jail, Sergeant Gay advised him of his constitutional rights, obtained a signed waiver, and interrogated him.

The defendant first maintains that none of the statement should have been admitted because, as he argued previously, he had been physically abused. In part III of this opinion, we have answered his contention regarding the alleged beatings.

The defendant also argues that certain portions of the statement, specifically several of Sergeant Gay’s questions alluding to the defendant’s “meanness” or his commission of other crimes, should have been excluded. Although the trial judge ruled these portions admissible after the voluntariness hearing, the prosecutor did not read the questioned segments to the jury and they were, in fact, excluded. No error appears in the record. A.R.A.P. 45.

V

The defendant argues that the in-court identification of him by witnesses Huguley and Ellisor should have been excluded because they were tainted by the prior “show-up” identification at the Touchdown Cafe. He also insists that victim Walter Sharp’s identification of him in the courtroom was improper because Sharp had been previously subjected to a suggestive photographic array during his hospitalization for the wound he received during the shooting. In our judgment, both in-court identifications were admissible.

Although a one-man “show-up” is by its nature suggestive, it is “not inherently unfair, and it is settled law that prompt, on-the-scene confrontations are not constitutionally impermissible, but are consistent with good police work.” Hobbs v. State, 401 So.2d 276, 279 (Ala.Cr.App.1981); Denson v. State, 348 So.2d 1139 (Ala.Cr.App.), cert. denied, 348 So.2d 1142 (Ala.1977). If, under the totality of the circumstances, an identification is reliable then the in-eourt naming of the defendant is proper notwithstanding a prior suggestive confrontation. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Reliability depends upon “the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation.” Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253; Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-383, 34 L.Ed.2d 401 (1972).

In the present case, both Huguley and Ellisor had ample opportunity to view the defendant prior' to and during the shooting. Huguley talked with the defendant and his brother face-to-face for several minutes at the door of the Touchdown Cafe. Ellisor encountered and spoke with the Phillips brothers in the parking lot outside the cafe, watched them during the shooting, and ■ then saw them flee. Although there was no specific testimony regarding their degree of attention, it can be fairly presumed that once a pistol was drawn their attention was riveted on the occurrences that followed. Both men gave an accurate description of defendant’s clothing, and both made a positive identification during the “show-up”, which was conducted between thirty minutes and one hour after the shooting. In short, the record contains nothing which would undermine the reliability of their prior identifications, or lead to the conclusion that they may have mistaken the defendant for someone else.

The defendant claims that the identification by Sharp was suspect because, at the time he viewed the photographic array, Sharp knew someone had been arrested and was pictured in the array. While this knowledge is suggestive, it is not unnecessarily so, and does not contaminate the identification procedure. Phillips v. State, 409 So.2d 918, 919 (Ala.Cr.App.1981). “[I]t is perfectly natural for a person called to make an identification from photographs to understand that a suspect's picture is among those photographs.” 409 So.2d at 919.

The defendant also contends, and we are inclined to agree, that the array shown to Sharp was unduly suggestive because the defendant’s picture was the only one, of a set of some twelve photographs, Which was marked “2-21-82”, the date of the shooting. Nevertheless, in our judgment, Sharp’s identification of the defendant in court was admissible because it was reliable under the foregoing “totality of the circumstances” test. Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253.

Sharp testified that he looked directly at the defendant and saw him shoot Bearden before Sharp ever turned his back to walk back inside the cafe. Sharp also gave an accurate description of the defendant’s clothing to the police. Without hesitation, he picked the defendant’s photograph from the twelve snapshots shown him in the hospital approximately a week after the shooting. Applying the Biggers test to the identification procedure used here, we find that notwithstanding the suggestiveness of dating the defendant’s picture, Sharp’s identification at trial was reliable under the circumstances because it had a basis independent of the photograph. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

VI

There is no error in the State’s using its peremptory strikes to remove all black jurors from the venire. Robinson v. State, 428 So.2d 167 (Ala.Cr.App.1982).

VII

The defendant insists that the court erred in overruling his motion for mistrial because spectators in the courtroom tried to influence the jury. At 11:13 A.M. on the third day of trial, following a defense motion for judgment of acquittal based on failure of the State to present a prima facie case, the following occurred:

“MR. JOHNSON [Defense Counsel]: We would further move for a mistrial and as grounds state that on several occasions, and Your Honor is aware of it, that there have been instances where spectators have — as late as yesterday evening when the jurors were leaving there were a number of people that left out front of the jurors and were stationed out in the hall. There have been some speaking to the jurors on one occasion when the jurors left the courtroom to go back by the spectators from the deceased family. We feel that there’s no way that that can be eradicated, that it's highly prejudicial. We would move for a mistrial.
“THE COURT: All right. I don’t understand anyone spoke to a juror. I know you mentioned when the jury went back there was the nodding out there.
“MR. JOHNSON: Yes, sir, that’s what I meant. There was nodding of the head to each juror in a way of speaking without saying words. There was a nodding to each juror.
“THE COURT: I have warned them and warned them. They’re going to keep it up and there’s going to be a problem. Yesterday afternoon I had a bailiff escort the jury to the elevators just for that purpose, to guard the jury from that. It apparently worked. Let’s hope it will work the rest of this time.
“I’m going to overrule the motions.
“MR. JOHNSON: We respectfully except.” (Emphasis added).

The defendant argues that the intensity of emotion on the part of members of the victims’ families, and the attempts by spectators to influence the outcome of the trial are illustrated by the following warning issued by the court earlier in the trial:

“(Side-bar conference, off the record.) (All witnesses present.)
“THE COURT: To all the witnesses, all the spectators, all the would be witnesses, all the message takers, a lawyer, an out of town lawyer that isn’t even connected with this case was in here yesterday. After listening a while then went outside in the hall and some of the spectators out here were out telling the witnesses what the witnesses were testifying to, particularly when Sharp was testifying. This lawyer I’m talking about hasn’t got any ax to grind, doesn’t give a hoot one way or the other. She’s not even from around here. She just happened to be here and happened to be interested in this case. So she listens to this case. So she passes it on. I can’t impress upon ya’ll if we mistrial this case and have to try this case again I’m going to hold everyone here until it gets cold. You’ve got to be careful what you say and what you do. No one seems to recognize the fact that this thing can mistrial any minute. Somebody has got to be careful what they say and what they do. There’s no reason not to believe that this lawyer that comes and tells me this stuff. She has no reason not to tell the truth. She could care less. I’m just telling you when you go out and start talking to witnesses and when I tell you the rule is invoked, I mean the rule is invoked and you’re not supposed to talk about the case. I know you must do it. I’m going to have to declare a mistrial just like the last time. I’m just warning everybody again be careful. Let’s not have it happen. Everybody go.”

In our judgment, the fact that defense counsel waited from Tuesday evening (when the alleged nodding by the spectators to the jury occurred) until late Wednesday morning (following further progress of the trial and a routine motion for judgment of acquittal), to move for a mistrial based on vitiating jury influence undermines his claim that the spectators’ conduct was so improper as to call for drastic measures by the trial judge. From aught that appears in the record, counsel never requested to have the jury questioned or instructed regarding the alleged influence on them, and only moved for a mistrial later the following day.

Nevertheless, a trial judge should make a reasonable investigation of irregularities claimed to have been committed. The trial judge has a duty to “investigate the circumstances under which the remark [or gesture] was made, its substance, and determine [whether] the rights of the appellant were ... prejudiced_” Bascom v. State, 344 So.2d at 222. The court should determine whether a mistrial is “necessary to preserve the impartiality or even the appearance of impartiality of the jury.” Woods v. State, 367 So.2d 974, 979 (Ala.Cr.App.), reversed, 367 So.2d 982 (Ala.1978).

The test in cases of unauthorized jury confrontation with outsiders is not whether the communication actually influenced the jury, but whether it might have affected their verdict. Bascom v. State, 344 So.2d 218 (Ala.Cr.App.1977); Roan v. State, 225 Ala. 428, 143 So. 454 (1932).

Because the record contains no indication of any investigation by the court into the circumstances of the confrontation with the victims’ families, or the possible influence upon the jury, we remand this cause with directions that the trial court investigate these matters and make a finding regarding prejudice to the defendant. Dean v. State, 54 Ala.App. 270, 278, 307 So.2d 77 (1975) (Trial judge heard “considerable testimony” on allegation that juror communicated by hand signals with grandfather of accused). We recognize that the record shows that the trial judge was aware of the spectators nodding to the jurors. The judge may have investigated this matter and determined that the defendant was not prejudiced. If that is the situation, the trial judge on remand may merely make a finding of what actually occurred without holding a hearing on this issue.

In remanding this cause, we are attempting to frustrate the defendant’s collateral attack upon his conviction. The record before us contains five petitions for writ of error coram nobis filed by the defendant after his conviction. In the first petition, he alleges that “said family of the deceased did talk and converse with jury members between breaks in trial.... In no way did Judge, D.A. or my lawyer try at any time to stop said family from conversing with Jury members.” Thus, a remand is also in the interests of judicial economy.

REMANDED WITH DIRECTIONS.

All Judges concur.

ON RETURN TO REMAND

BOWEN, Presiding Judge.

On remand, the trial judge issued a written order in which he found that “[njodding is not a ‘way of speaking without saying words’ in this court’s judgment.” The order concludes: “It is this court’s finding of facts and law that defendant received a fair and impartial trial; that the jury was not in any manner prejudiced, were not confronted by the victim’s families or spectators; that their verdict was not influenced or affected by outsiders. The verdicts were arrived at by an impartial and just jury.”

There being no evidence to contradict these findings, the judgment of the circuit court is affirmed.

OPINION EXTENDED; AFFIRMED.

All Judges concur.


author: BOWEN, Presiding Judge.

text:
    Chester SHERER v. STATE.
    6 Div. 440.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    Rehearing Denied Oct. 9, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-104.
    Hugh D. Farris, Jasper, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Chester A. Sherer, the appellant, was indicted and convicted for receiving stolen property in the first degree in violation of Alabama Code 1975, § 13A-8-17. Sentence was eight years’ imprisonment. Four issues are raised on appeal.

I

Sherer argues that his motion for judgment of acquittal should have been granted because the State did not prove the ownership of the stolen pickup truck as it was alleged in the indictment.

The indictment described the stolen property as “one (1) 1981 Ford F-100 pick-up truck, of , the value of more than $1,000.00, the property of Terry Selman.”

Mr. Selman could only testify that his keys fit the truck and that “part of that truck” was his. Despite this, the State presented prima facie proof that Selman owned the stolen truck. Records from Atkins Ford showed that Selman purchased a truck with a vehicle identification number matching that of the stolen truck. A tag receipt from the Walker County Probate Judge corroborated this. Here, we do not face the hearsay testimony admitted in Parker v. State, 386 So.2d 495 (Ala.Cr.App.1980). This evidence raised a presumption that the truck belonged to Selman. Eddy v. State, 353 So.2d 67, 72 (Ala.Cr.App.1977).

“A bill of sale or a license tag are two methods of proving ownership and the right to possession of a motor vehicle. Scott v. Parker, 216 Ala. 321, 113 So. 495. An official tag receipt is, therefore, original and primary evidence denoting title to a motor vehicle and is admissible evidence without further proof. This proof of registration raises a presumption that the car belonged to the registered owner but this presumption may be entirely overcome by countervailing testimony. Ala.Dig. ‘Automobiles’, Key No. 242(5). The license tag receipt was properly admitted in evidence.” Whistenant v. State, 50 Ala.App. 182, 194, 278 So.2d 183, cert. denied, 291 Ala. 802, 278 So.2d 198 (1973).

The motion for judgment of acquittal was properly denied.

II

Although Sherer argues that the trial judge erred in admitting the search warrant, the record does not establish that the warrant was, in fact, introduced into evidence. Also, there is no objection to the introduction of the search warrant. Consequently, there is nothing for this Court to review. Although, defense counsel objected “to the introduction of all the exhibits”, the prosecutor never attempted to introduce the search warrant into evidence.

III

Sherer operated a “little shop”: “A mechanic shop, welding and some paint work on vehicles and such as that.”

Evidence that other stolen vehicles had been found at Sherer’s shop was properly admitted on the issues of guilty knowledge, criminal intent, and to show a plan, design, scheme or system. C. Gamble, McElroy’s Alabama Evidence § 69.01 et seq. and § 70.01(23) (3rd ed. 1977).

IV

Since this evidence of other offenses was properly admitted, its cumulative result was not error.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Jackie Sue NICHOLS v. STATE.
    6 Div. 988.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    Rehearing Denied Oct. 9, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-123.

      Hiram Dodd, Jr. and Virginia A. Vinson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.
   PATTERSON, Judge.

Appellant Jackie Sue Nichols was convicted of murder in the shooting death of a pharmacist. She was sentenced to life imprisonment.

Three issues are raised on appeal.

I

Appellant first contends that the evidence presented by the State was insufficient to support the verdict. We cannot agree. The facts as they were presented by the State’s case in chief showed that on July 14, 1980, at 6:51 p.m., an alarm went off on the Gardendale Police Department’s alarm board indicating that an alarm switch had been pulled at J & J Drugs, a local pharmacy.

A patrol car was sent to the scene, and arrived at 6:59 p.m. Officers found that both the front and the back doors to the pharmacy were locked. Eventually they pried the back door open, and found the victim, Joe Paige, dead from gunshot wounds, lying face down in a walkway behind the store’s counter. The under-the-counter silent alarm that was used to signal the police department had been pulled loose from the counter. A number of “bait drugs” were missing from underneath the counter.

State witness Gloria Conn testified that she worked for a real estate company called Chambers Realty, located near J & J Drugs. She said she went to her office on the night of July 14, 1980, sometime between 6:45 p.m. and 6:55 p.m. At that time she saw a vehicle coming out of the gravel alley that led behind the drug store and Chambers Realty. She described the vehicle as medium in size, and dark colored. Ms. Conn said the car was travelling faster than it should have been, and she was afraid it might hit a parked car. The witness stated that the speeding car came very close to her, and she could see two people, one of whom she identified as the appellant, Jackie Sue Nichols, and another individual who was eventually identified as Phillip Sapp. Ms. Conn said that Nichols had “a grin, a smirk” on her face, and was wearing light-colored clothing.

Other State’s evidence linking Nichols to the crime showed that a fingerprint of appellant was lifted from the inside face of the rear door of the pharmacy. In addition, Nichols’s palm print was also found on the back door.

Evidence given by the victim's business partner, Steve Hill, indicates that no customer in the drug store ever had access to the rear door, which was used only by employees of the store and for deliveries of merchandise. The witness said he knew the appellant and had never seen her inside the drug store except years previous when the store had been at a different location.

It is our duty to view the evidence in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Crim.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). The State’s case clearly shows that appellant’s prints were found in an area of the store to which she should not have had access. Fingerprints are strong physical evidence, and they frequently form the basis used to identify those present at the scene of a crime. See Gratton v. State, 455 So.2d 189 (Ala.Crim.App.1984); James v. State, 381 So.2d 672 (Ala.Crim.App.1980); Cox v. State, 373 So.2d 342 (Ala.Crim.App.1979), 30 Am.Jur.2d, Evidence, § 1144 (1977).

Although it is recognized that fingerprint and palm print evidence is circumstantial or opinion in nature, the basic reason for the universal recognition of its admissibility to establish identity is its great reliability. 1 Wharton’s Criminal Evidence, § 192 (C. Torcia 13th ed. 1972). It is the strongest kind of evidence. Stoppellie v. United States, 183 F.2d 391, 394 (9th Cir.1950), cert. denied, 340 U.S. 864, 71 S.Ct. 88, 95 L.Ed. 631 (1950), reh. denied, 340 U.S. 898, 71 S.Ct. 237, 95 L.Ed. 651 (1950).

The weight to be given evidence of the correspondence of fingerprints and palm prints, where offered to prove the identity of the accused as the person committing a crime, is for the determination of the jury in the light of all the surrounding facts and circumstances. James v. State, 381 So.2d 672 (Ala.Crim.App.1980).

The rear door faced an alley which was not ordinarily traversed by the public, and the door where the finger print and palm print were found was not accessible to the general public. The appellant was seen in an automobile coming from the alley behind the pharmacy at an excessive rate of speed around the time of the shooting. There was no evidence presenting any other reasonable explanation as to how appellant’s fingerprint and palm print came to be on the door. The jury was authorized to conclude that the fingerprint and palm print were those of appellant and that they were impressed on the door at the time of the commission of the crime.

Reviewing sufficiency of the evidence under the tests we must apply, we conclude that the jury in this case might have reasonably found that the evidence excluded every reasonable hypothesis except that of guilt. Cumbo, supra. We find the evidence sufficient as a matter of law to support the verdict.

Thus, we conclude appellant’s first issue is without merit.

II

The next issue raised by appellant is whether the trial court committed reversible error when it allowed evidence to be presented concerning the fact that appellant and two others, including Phillip Sapp, were being watched by Officer Jimmy Wesson of the Birmingham Police Department, who was accompanied by agents of the F.B.I. Specifically, appellant claims that such evidence pointed to other crimes, and thus was inadmissible.

We cannot agree. The trial court sustained appellant’s objection to the word “surveillance” being used to describe the activities of Officer Wesson and his associates. Wesson’s testimony about his observation of Jackie Sue Nichols was relevant for several purposes. First, it helped corroborate the testimony of Ms. Conn by placing appellant in the company of Phillip Sapp on the day of the crime. In addition, the pictures taken of appellant by Wesson that day showed she was wearing light-colored clothing, a fact noted by Ms. Conn when she saw the suspect’s car leaving the alley behind the drug store the night of the crime. Lastly, the testimony of Officer Wesson showed that Jackie Sue Nichols was in the company of Walter Griffith on the day of the crime.

At trial, Griffith testified that he rented a dark-colored car for Jackie Sue Nichols on that same day. We must conclude that any prejudice that might have arisen from testimony that appellant was being observed by police on the day of the crime was far outweighed by the probative value of that testimony.

Ill

Appellant’s last issue on appeal is whether or not the trial court committed reversible error when it admitted evidence concerning a lineup held in which Ms. Conn identified Phillip Sapp as one of the occupants in the car she saw leaving the vicinity of the drug store on the night of the murder. Nichols argues that the evidence was “highly prejudicial”. Once again, we find appellant’s argument is without merit. Since Ms. Conn’s credibility had been attacked, her swift, positive identification of Phillip Sapp was highly relevant.

Appellant also argues that testimony of Officer Lynn Moore about what Ms. Conn said at the time of the lineup was inadmissible hearsay. However, we must agree with the State that the hearsay rule is not applicable in a situation such as this where the challenged testimony concerns an out-of-court identification made by a witness who was present at trial and subject to defense’s cross-examination. See Williams v. State, 389 So.2d 151 (Ala.Crim.App.), cert. denied, 389 So.2d 154 (Ala.1980).

After careful consideration of those issues raised by appellant, we must conclude that the judgment of the lower court is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Tommy GRUBBS v. STATE.
    6 Div. 951.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    Rehearing Denied Oct. 9, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-118.

      J. Wilson Dinsmore, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Susan McKinney, Asst. Atty. Gen., for appel-lee.
   HARRIS, Judge.

Appellant, Tommy Grubbs, was indicted and convicted for the unlawful possession of various controlled substances in violation of the Alabama Uniform Controlled Substances Act. Sentence was set at three years’ imprisonment, suspended, with four years’ probation.

In February 1980, the Jefferson County Sheriff’s Department began surveillance of James Bunton’s residence at 212 84th Street South, Birmingham, Alabama. Appellant was an occasional visitor at Bun-ton’s home, with his own residence being in Irondale, Alabama. Sergeant Jim Phillips testified that, during his surveillance, appellant was at Bunton’s residence a “majority of the time” and some mornings appellant’s automobile was still parked at Bun-ton’s residence. On April 30, 1980, a search warrant was obtained based on the surveillance and information from an informant.

The search warrant was executed at 7:25 p.m., on May 1, 1980. Sergeant Phillips and Deputy Rick Thrasher knocked on the front door and were admitted by Bunton. As they entered from the front, Deputy J.E. Brooks was at the back door looking inside at the kitchen area. Appellant was standing in the doorway between the living room and kitchen, facing away from the kitchen. As the officers entered the living room they found two more visitor’s seated .in. the living room. Appellant stayed in the living room during the search and Bunton accompanied the officers as they went through his residence.

No controlled substances were found in the living room. Most of the contraband was in the bedroom, except for a four pound brick of marijuana found in a plastic bag on the kitchen table.

At trial, Mary A. Rhodes, an analytical chemist with the Alabama Department of Forensic Sciences, testified as to the amount and quality of the drugs. After the officers testified, the evidence showed that one butabarbital capsule, three darvon capsules, and two valium tablets were found in what was identified as Bunton’s bedroom.

The issue on appeal is whether the trial court erred in denying appellant’s motion for dismissal. Appellant asserts that the motion should have been granted because the State’s evidence was insufficient to prove constructive possession.

Clearly, appellant was not in actual possession of the drugs or marijuana. There was no evidence of any controlled substance found on his person. Possession may be proven by showing “(1) actual or potential physical control, (2) intention to exercise dominion, and (3) external manifestations of intent and control.” Radke v. State, 52 Ala.App. 397, 293 So.2d 312 (Ala.Crim.App.), aff’d, 292 Ala. 290, 293 So.2d 314 (Ala.1974). Constructive possession arises only where the illegal substance is found on premises owned or controlled by the accused. Williams v. State, 340 So.2d 1144 (Ala.Crim.App.1976), cert. denied, 340 So.2d 1149 (Ala.1977).

Recently, in Sturdivant v. State, 439 So.2d 184 (Ala.Crim.App.1983), similar facts were presented; upon executing a search warrant, police found a male and a female occupant of an apartment and they were arrested for possession of illegal substances. The male appellant was in a back bedroom where the contraband was found. Items of clothing for men and women were found in the bedroom and the television was playing. This court stated:

“The circumstances as a whole were sufficient to convince a jury that the defendant was not just a momentary visitor in the particular apartment where the marijuana was found and that he, either singly or jointly with the other occupant, had constructive possession of the drug. Appellant’s present position would be stronger, if at the time of the search by the officers, there had been evidence that the apartment was owned or rented by the other occupant, rather than appellant, but the evidence was silent on this point.”

439 So.2d at 186. Looking at the “circumstances as a whole,” the evidence in the present case is not enough to convince a jury that appellant was more than a visitor. There was no evidence that any of appellant’s clothing or belongings were in Bun-ton’s residence. It was undisputed that Bunton owned the house and there was no evidence that appellant lived at the residence at 212 84th Street.

While non-exclusive possession may raise a suspicion that all the occupants had knowledge of the contraband found, a mere suspicion is not enough. Some evidence that connects a defendant with the contraband is required. Generally, the circumstances that provide that connection include:

“(1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (3) evidence that the defendant had substantial control over the particular place where the contraband was found; (4) admissions of the defendant that provide the necessary connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the defendant is confronted with the possibility that an illicit drug will be found; (5) evidence that debris of the contraband was found on defendant’s person or with his personal effects; (6) evidence which shows that the defendant, at the time of the arrest, had either used the contraband very shortly before, or was under its influence.”

Temple v. State, 366 So.2d 740 (Ala.Crim.App.1978). Of these circumstances, all fail to connect appellant with the contraband. The only possible circumstance that could connect appellant would be a showing that appellant had substantial control over the place where the contraband was located.

The State argues that appellant’s access to Bunton’s residence showed appellant’s control over the premises. Sergeant Phillips testified that, during his surveillance, he observed appellant arriving at Bunton’s residence and letting himself in the front door. On cross-examination, Phillips qualified his statement that he made on direct examination that appellant appeared to have a key to the residence:

“Q [Mr. Smith]: But what I’m asking you, Sergeant, before you were very careful to make a statement that he appeared to have a key?
“A Yes, sir.
“Q And you said it for one reason? “A Yes, sir.
“Q Because you didn't know that he had a key and that’s the reason you said it, wasn’t it?
“A Well, I based it on a judgment type call.
“Q It was a judgment call but you didn’t see it?
“A Well, I saw keys in his hands when he got out of his car and I saw keys stay in his hand and never saw him go to his pocket. I never saw him put the keys in his pocket so I made a judgment call so therefore he never put the keys in his pocket. He made motions at the door. However, it could have been just turning the door knob.”

Phillips later stated that he never saw appellant insert a key into the lock on the door. He also admitted that he was not in a position to tell if someone inside the residence could have told appellant to enter in response to his knock on the door. This access, alone, is not enough to show substantial control over the residence of someone else.

Further, the record indicates, that while appellant was between the kitchen and the living room when Deputy Brooks saw him through the rear door, appellant made no move that would show conduct on his part to evidence a consciousness of guilt when confronted with the possibility that an illicit drug would be found. Appellant made no admission, verbally or through his conduct, that would connect him with the contraband.

The State points out that evidence of appellant’s physical proximity to the contraband is relevant. But this evidence alone does not “add the necessary connection” between appellant and the contraband and, thus, does not give rise to an inference that appellant knew of the presence of any controlled substance. Temple, supra, at 743. When constructive possession is relied upon, the State must prove knowledge of the prohibited substance beyond a reasonable doubt. Yarbrough v. State, 405 So.2d 721 (Ala.1981), Hancock v. State, 368 So.2d 581 (Ala.Crim.App.), cert. denied, 368 So.2d 587 (Ala.1979). Where the accused is not in exclusive possession, however, this knowledge may not be inferred unless there are other circumstances tending to buttress this inference. Temple, supra. There was insufficient evidence presented at trial to show any of the circumstances required to establish a connection between appellant and the marijuana on the kitchen table. The State failed to show any evidence connecting appellant with the contraband found in Bunton’s bedroom.

Because the evidence presented by the State could not support a rational inference by the jury that appellant had knowledge of the contraband, the State failed to prove beyond a reasonable doubt that the appellant had constructive possession of the controlled substances. Ex parte Campbell, 439 So.2d 723 (Ala.1983), Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).

REVERSED AND RENDERED.

All the Judges concur.