author: DeCARLO, Judge. DeCARLO, Judge.

text:
    Ervin EDWARDS, alias v. STATE.
    1 Div. 335.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    Rehearing Denied Aug. 24, 1982.

      Michael A. Figures and Mercería L. Lud-good, Mobile, for appellant.

      Charles A. Graddick, Atty. Gen. and Thomas R. Allison and Edward E. Carnes, Asst. Attys. Gen., for appellee.
   DeCARLO, Judge.

The appellant was indicted by the Mobile County Grand Jury in October 1979 for the capital murder of Mobile police officer, Henry Booth, in violation of Ala.Code § 13-ll-2(a)(5) (1975). A new trial pursuant to the decision of Beck v. State, 396 So.2d 645 (Ala.1981), was conducted and appellant was found guilty as charged.

After a separate hearing on aggravating and mitigating circumstances, the jury returned a verdict fixing appellant’s punishment at death. The trial court weighed the aggravating and mitigating circumstances pursuant to Code § 13-11-3 and sentenced appellant to death. Afterwards, the trial court issued both oral and written findings of fact which enumerated the aggravating circumstances the trial court found sufficient to support the sentence of death.

Mobile Police Officer William Noel testified that on August 14, 1979, he was patrolling the area adjoining Officer Booth’s beat. Around 7:20 P.M. on August 14, Noel saw Booth at a local business answering a complaint. Noel had been assigned as a backup for Booth. Booth was investigating a complaint concerning an individual wanted on an outstanding warrant of arrest for misdemeanor assault with a gun. Information was radio dispatched to Officers Noel and Booth stating the name and telephone number of an individual who could assist them in locating the suspect. Noel had previously attempted to locate the same suspect, who at that time had been armed with a .45 caliber automatic pistol. The individual was the appellant. Noel testified that Booth was privy to all the above information.

Officers Noel and Booth proceeded to a residence located in the Plateau community of Mobile where they had been informed that they would find appellant. Both officers had a description of appellant as being in his early thirties, of medium build, having a bushy moustache, and wearing dull green work clothes. Noel arrived at the house immediately after Booth and was told by Booth that he had seen the suspect run into the house. With the consent of the residents, the officers searched the house but did not find the appellant. Shortly thereafter, both officers were dispatched to another location to answer an unrelated complaint. Later, Noel told Booth that he was going into town and Booth replied that he was going to continue looking for appellant. They parted company around 7:45 P.M.

Approximately five minutes later, Noel was dispatched to back up Booth. He had overheard the conversation between Booth and the dispatcher on his police radio and stated that Booth’s transmission was hurried and rushed. It appeared to him that Booth was a little excited. About three to four minutes later, Noel arrived on the scene to find Officer Booth’s patrol car’s engine running, its headlights and blue lights on, and both left side doors open. He was directed to the body of Booth, lying in a pool of blood, in an alley between two houses. Noel testified that Officer Booth’s gun, flashlight, and nightstick were not in his belt. He found the nightstick on the front seat of Booth’s patrol car and the flashlight under it on the left side near the center post separating the doors. Noel stated that it was not yet dark when he arrived.

Noel testified that on August 14, neither he nor Booth had the outstanding warrant of arrest for appellant with them. However, the police dispatcher had informed them that it had been verified and was in the police records section. Noel testified that one cannot be arrested for a misdemeanor offense without having the arresting officer present the accused a warrant of arrest unless the crime is committed in the officer’s presence.

Noel testified that the type of holster worn by Officer Booth had more safety features than a conventional holster. He stated that to remove the service revolver one would have to use a “down-forward motion.”

Nolan Curtis Martin testified that on August 13, 1979, he and appellant had a fight during which appellant pulled a gun on him. On the morning of August 14, Martin had issued a warrant of arrest for appellant at Mobile City Court. Later that evening, Martin called the Mobile Police Department to lodge another complaint against appellant. Shortly thereafter, he received a telephone call from a Mobile police officer inquiring of the whereabouts of appellant. Subsequent to Officer Booth’s death, Martin received another telephone call from the Mobile police and afterwards, Officer Noel visited Martin and took a statement from him.

Michael Burrell testified that he was present during the altercation between Officer Booth and appellant which resulted in Booth’s death. He stated that he and Dan Prince were in Prince’s car leaving the home of Gwen James, who was Prince’s girlfriend, when appellant walked up and asked Prince for a “ride on the highway.” Appellant did not tell them where he wanted to go. Burrell left the front seat and entered the rear seat while appellant sat in the front. As Prince was exiting James’ driveway, a police car arrived and stopped the car. Both Prince and Officer Booth exited their vehicles and talked. Officer Booth asked Prince for his driver’s license and was placing him in the back seat of the patrol car when he and appellant got out of the car. He asked Prince who was with him and afterwards called to appellant and told him that he had a warrant for his arrest. Burrell stated that appellant asked to see the warrant but was never shown it. Officer Booth told appellant to come to him, stating, “Come here boy.” Appellant refused, telling Booth to come to him. Appellant opened his jacket apparently to let Booth see that he was not armed. Appellant had offered to move Prince’s car out of the street, but Officer Booth would not let him. Instead, Gwen James moved the car.

Subsequently, Officer Booth approached appellant, grabbed him, and took him to his patrol car. The two began to scuffle as Officer Booth attempted to put appellant in the car. It was only after appellant refused to get in the car that Officer Booth hit him with his flashlight. The scuffle continued and moved to the alley near James’ house. The two began to fight over control of Officer Booth’s service revolver, a .357 caliber Smith and Wesson, which the officer was attempting to remove from his holster. The two fell on the ground and Officer Booth told appellant to let go of the gun which appellant refused to do. Shortly thereafter the gun discharged. Burrell ran when the gun fired, and did not see anything further.

Gwendolyn James testified that she was visiting Stella Smith, a neighbor who lived across the street, when the patrol car stopped her boyfriend, Dan Prince. James stated that appellant resided about five houses away. She overheard the conversation concerning Prince’s failure to have a driver’s license. James said that when she began to move Prince’s car, Burrell and appellant got out of the car. Appellant began to walk toward his house and away from Officer Booth. Booth called twice for appellant to come to him. Appellant was asked his name to which he replied, “Tater Bow.” After James left Prince’s car, she saw appellant and Officer Booth begin to fight and saw Booth hit appellant with his flashlight. James stated that prior to the fight, she heard Officer Booth call for assistance. James saw Booth attempting to remove his service revolver and holding appellant against the car. She stated that appellant “put his hand on top of [Officer Booth’s] to try to ... hold it down in there.” James did not see the gun drawn or fired although she heard it discharge when she ran from the scene.

Dan Prince testified that he remembered being stopped by Officer Booth on August 14. He recounted in substance the events surrounding the stopping of his car as had been done by the other State’s witnesses. Prince stated that when appellant got out of his car, he did not walk away. He stated that Booth told appellant he had a warrant for his arrest and appellant walked toward him. Booth had unstrapped his revolver while calling him. Prince stated that the two began to struggle as Booth attempted to place appellant in the rear of the patrol car. He stated that Booth knocked appellant to his knees with his flashlight. During the struggle the appellant was attempting to prevent Booth from drawing his revolver. He testified that appellant asked Booth not to hit him. Appellant was holding Booth’s wrist as they struggled over the gun. Prince testified that Booth told appellant to “turn [the gun] loose.” He stated that Booth fell on top of appellant but appellant used his legs to prop against a house wall and turn Booth over. Prince stated that at one point the gun was pointed at appellant’s face, and when appellant shoved it out of his face it discharged. Afterwards, the appellant hesitated for a few moments, then fled. Prince stated he did not see appellant with the gun.

Mobile Police Officer Walter Pickett testified that around 8:00 A.M. on August 15, 1979, he received a telephone call from Officer Sammy Brown informing him that appellant was going to surrender. Subsequently he met Brown, two other police officers, and Virginia Bryant. Bryant had told the officers that appellant wanted to surrender and was to lead them to him. When the police arrived at the location where Bryant had said appellant would be found, appellant walked to Officer Pickett’s car, knocked on the window and entered the right side passenger door. He turned Officer Booth’s gun over to Pickett. After being handcuffed he was taken to the police station.

Due to the death of pathologist Dr. Edward Scott, his testimony given at appellant’s preliminary hearing was read into evidence. Dr. Scott’s testimony revealed that he performed an autopsy upon Officer Booth around 6:00 A.M. on August 15, 1979. He tracked the trajectory of the bullet noting that it entered Booth’s skull travelling downward at a five degree angle. He stated that the wound was made from a relatively close distance. He testified that Booth died from the gunshot wound which caused severe brain damage.

Firearm and toolmark examiner Richard Carter testified to the peculiar characteristics of Officer Booth’s service revolver, a Smith and Wesson .357 caliber pistol. He noted the many safety features of the gun and the two methods of firing it. One method was by cocking the hammer then squeezing the trigger, and the other was by simply squeezing the trigger. The former method requires three and one-quarter pounds of constant pressure exerted upon the trigger to fire the gun, while the latter requires nine pounds. It was Carter’s opinion that the muzzle distance from Booth’s head when the gun was fired was anywhere from nine inches to twenty-five to twenty-seven inches.

Department of Forensic Sciences pathologist Dr. Leroy Riddick was called as a witness to examine the findings of Mr. Carter in light of the information discovered by Dr. Scott. Dr. Riddick examined Officer Booth’s hospital records including several x-rays. His examination produced the following conclusions: (1) the muzzle of the gun was no closer than nine inches and up to fourteen inches away from Booth when it was fired; (2) the bullet travelled through the victim’s skull at a twenty degree downward trajectory; and (3) Booth could not have inflicted the wound upon himself. The latter opinion was based upon the physical measurements of Booth, the trajectory of the bullet, the closeness of the gun when fired, and the elasticity, flexibility, and structure of the skeleto-muscu-lar system in the arm, wrist, and hand. Dr. Riddick testified that his conclusions did not take into account any intervening circumstances which could affect them. His testimony concluded the presentation of the State’s case.

The defense called Alex Peoples, a resident of the neighborhood where the offense occurred. Peoples discussed the struggle between Booth and appellant. He added that when Booth was standing by his patrol car, it appeared as if he had a piece of paper in his hand. Peoples stated that after the shooting, he saw appellant pick something off the ground and walk slowly away. He felt that appellant was merely defending himself.

Stella Smith testified that she witnessed the struggle between appellant and Officer Booth, and her testimony was in substance the same as other State’s witnesses. She saw appellant in possession of a pistol after the shooting when he fled the scene. Smith was of the opinion that appellant was never the aggressor and that Booth shot himself after appellant had forced the gun toward him.

James Smith, husband of Stella Smith, testified that after Officer Booth had twice called appellant and gained his attention, Booth told appellant, “I got a warrant for your arrest.” Smith testified that appellant said, “Show me the warrant,” to which Booth replied, “I ain’t got to show you no damn warrant, you are going to get in the car anyway.” He stated that it was after appellant had pushed Booth’s arm down that the gun fired.

Appellant offered two witnesses who testified to Booth’s bad reputation in the community for violence and bloodthirstiness. One witness characterized him as a “police bully,” stating that in June, 1976, Officer Booth had been fired from the police force.

I

Appellant contends that his jury was improperly selected. He asserts that Ala.Code § 12-16-120 (1975) (repealed by Act of May 27, 1981, No. 788, § 8, 1981 Ala. Acts. 1381 [effective January 1, 1982]), was violated in that his jury was not selected from a special venire and a copy of the indictment was not served upon him.

Section 12-16-120 is not applicable to appellant. Rather Ala.Code T. 14, § 543(11) (Appendix 1965) applies to a jury venire in capital cases in Mobile County. Title 14, § 543(11) was not repealed by the enactment of the 1975 Alabama Code recompilation. See Ala.Code § 1-1-10 (1975). Consequently, the selection of a special ve-nire in a capital case is unnecessary in Mobile County. Title 14, § 543(5), supra.

Additionally, appellant was not entitled to have a copy of the indictment served upon him pursuant to § 12-16-120. Furthermore, at arraignment, appellant, represented by counsel, waived the reading of the indictment, pleaded not guilty, and was served- with a copy of the indictment. Therefore, there is no violation of Article 1, § 7 of the 1901 Alabama Constitution.

II

It is proper for the trial court to qualify the jury veniremen as to whether “... they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or ... that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.” Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21, 88 S.Ct. 1770, 1777 n. 21, 30 L.Ed.2d 776 (1968). This qualification does not deny appellant a jury representing a cross section of the community.

In the instant case, the trial court painstakingly questioned those veniremen who responded in the affirmative. Its procedure was very similar to that which transpired in Berard v. State, 402 So.2d 1044 (Ala.Cr.App.1980), reversed on other grounds on return to remand, 402 So.2d 1051 (Ala.Cr.App.1981).

It is clear that questions following the guidelines of Witherspoon propounded to the jury venire are proper in post-Beck capital cases. The jury has the option to fix the punishment of a defendant at something less than death. In fact, Beck makes it clear that the jury participates in the sentencing scheme. Id. at 660-64. See also Ala.Code § 12-16-152.

Thus we find that the trial court properly questioned the jury venire pursuant to the guidelines in Witherspoon.

III

Appellant contends that the trial court erred in refusing to qualify the jury concerning racial prejudice.

The contention is based on one statement made by counsel while counsel was moving the trial court for individual voir dire of the venire. From the record:

“MR. FIGURES: Judge, we would like to have individual voir dire of the jury venire. We think it is a capital case, which received over the last couple years, an awful lot of publicity. Emotions run high in this community, and there’s been some other incidents involving white policemen and black citizens, and we think we should have an opportunity subsequént to this that are unrelated, but which put in the general community, an atmosphere of which we think should be examined relative to racial prejudices and general feelings about police and defendants. And we think we should have an opportunity to examine jurors individually, or at the very least, in very small groups of three.”

The trial court explained that it had never conducted individual voir dire and considered it “time-consuming.” Further, the trial court made it clear that it “would receive any questions that would be propounded to the Court, and ... would take just about any question ...” which it would address to the jury venire. It also stated that after generally qualifying the jury venire, it would divide it into smaller panels for more selective questioning and, “... if we get into certain areas where we would want to have a more smaller group which we could proceed into, then I do that.” The trial court also stated that, “Where we get into the area of where an individual is not sure of what the nature of the question is, or what the substance of the area is that he is being examined on, or if ... it is questionable with the Court whether or not he understands what he is saying, the, of course, I go into an individual colloquy with that particular prospective juror.”

During the above colloquy appellant’s counsel again asked the trial court to allow “individual voir dire” and intimated that “group voir dire” might be sufficient. Twice the trial court denied appellant’s request for individual voir dire exmination of the jury venire.

The record indicates that the primary point of appellant’s motion was to secure a favorable ruling allowing individual voir dire. It is unclear whether the questioning would have been conducted by appellant or the trial court. Nevertheless, that was the trial court’s understanding of appellant’s motion, because it did not rule on whether to qualify the jury venire as to racial prejudice. However, the trial court made absolutely clear that it would ask “just about any question” submitted to it.

It is well settled that the trial court has the discretion regarding how the voir dire examination of the jury venire will be conducted, and reversal can only be predicated upon an abuse of that discretion. Ervin v. State, 399 So.2d 894 (Ala.Cr.App.), cert. denied, 399 So.2d 899 (Ala.1981); Peoples v. State, 375 So.2d 561 (Ala.Cr.App.1979); Radford v. State, 348 So.2d 880 (Ala.Cr.App.1977); Johnson v. State, 335 So.2d 663 (Ala.Cr.App.), cert. denied, 335 So.2d 678 (Ala.1976). Appellant has the right to have questions formulated by him propounded to the jury venire, either by the trial court or his counsel as the trial court may determine. Griffin v. State, 383 So.2d 873 (Ala.Cr.App.), cert. denied, 383 So.2d 880 (Ala.1980); Witherspoon v. State, 356 So.2d 743 (Ala.Cr.App.1978); Holmes, supra; Johnson, supra. There is no requirement that the trial court put the question framed by counsel to the jury venire. This.is a matter addressed to the trial court’s discretion. Griffin, supra; Powell v. State, 53 Ala.App. 30, 297 So.2d 163 (1974). See also Calloway v. Lemley, 382 So.2d 540 (Ala.1980); Clark v. State, 294 Ala. 493, 318 So.2d 822 (1975).

Moreover, it is within the trial court’s discretion to allow individual voir dire. Seals v. State, 282 Ala. 586, 213 So.2d 645 (1968); Aaron v. State, 273 Ala. 337, 139 So.2d 309 (1961); Witherspoon, supra; Johnson, supra; Johnson v. State, 43 Ala.App. 613, 197 So.2d 466 (1967). We find no abuse here.

IV

Appellant argues that “the trial court erred in empaneling thirteen jurors and then excusing one after the trial began.”

After the jury had been struck, the trial court retained the last prospective juror struck by appellant for use in selecting an alternate under Ala.Code T. 14, § 543(13) (Appendix 1965). Appellant objected to the trial court’s allowing the struck juror to remain on the jury. The court administered the oath to the jurors and told them that one of their members would be chosen as an alternate pursuant to Ala.Code T. 14, § 543(14) (Appendix 1965). Afterwards the jury was dismissed for lunch. The record indicates that appellant’s counsel understood the trial court’s previous ruling to mean that the juror he had struck would be the alternate rather than any of the remaining thirteen. The trial court clarified its position stating that the alternate would be selected pursuant to § 543(14), supra.

After the jury returned, a conference was held outside their presence and the trial court removed the juror appellant struck earlier. Appellant objected to his removal. Afterwards testimony was taken.

On one hand, appellant objected to the juror’s placement on the jury and then, on the other, he objected to his discharge. Apparently, the trial court altered its previous ruling adverse to appellant and agreed with appellant’s position that the juror could not sit as a juror or alternate. Thus, the trial court ultimately ruled in favor of appellant’s initial position.

The use of an alternate juror under § 543(13), supra, is a discretionary matter left to the trial court. Apparently the judge ruled in appellant’s favor in an attempt to protect his substantial rights. We find nothing in the trial court’s rulings prejudicial to the appellant.

V.

Appellant claims that the trial court erred by granting the State’s motion in limine. The motion sought to prevent appellant from inquiring into facts surrounding a disciplinary action taken against Officer Booth by the Mobile Police Department.

In our judgment, there was no error in granting the motion. While a murder victim’s bad character for violence or like trait is relevant to the issue of self-defense, his character is provable only by evidence of reputation for the trait, Headley v. State, 51 Ala.App. 148, 283 So.2d 458 (1973), and not by specific acts. Huffman v. State, 360 So.2d 1038 (Ala.Cr.App.1977), affirmed, 360 So.2d 1045 (Ala.1978).

Officer Booth’s general reputation for violence was, therefore, properly presented to the jury, but further inquiry into specific occurrences was correctly foreclosed by the trial court. We note, however, that the fact of Officer Booth’s termination from the police force in June, 1976 was before the jury through the testimony of appellant’s witness.

VI

The statute under which appellant was convicted, as construed by our Supreme Court in Beck v. State, supra, is constitutional. Daniel v. State, [Ms. 4 Div. 987, April 20, 1982] (Ala.Cr.App.1982); Clisby v. State, 456 So.2d 86 (Ala.Cr.App.1982); Potts v. State, 426 So.2d 886 (Ala.Cr.App.1982). We find no error in appellant’s prosecution under § 13-ll-2(a)(5) as modified by Beck, supra. The trial court adhered to the trial and sentencing procedures outlined in Beck. Therefore, appellant’s motions to dismiss and quash the indictment were properly denied.

VII

Appellant contends that the trial court erred in receiving a note from the jury during its deliberation requesting additional instructions.

He raised this objection at his sentencing hearing held before the trial court through a “motion to set aside the verdict returned by the jury.” We quote from the record:

“[0]n the basis that the jury, according to our understanding, and according to the information we had, according to a conference we had with the Judge in chambers, sent a handwritten note to the Court, to which the Court responded with a handwritten note, we presume, or we were not made privy to that note. All this took presence in the Judge’s chambers, outside, not in open court. We have never seen that note, although, we asked your Honor to produce that note in chambers, and he has not done so. We would like to have that note produced and made a part of the record. The District Attorney was present at the time this took place, and I am sure his understanding, of course, is mine about the note that was written, because, as I recall, it was he who asked your Honor to see the note, which we still have not seen, and we think that that is very improper for the Court to be in communication of any form with the jury, outside the presence, not in open court, particularly with the note that we have never seen, and we would like to have the note produced and made part of the record.
“So, on those bases, we would move the Court to set aside the verdict.
“THE COURT: I want to correct your statement, that the Court refused ... that you be allowed to see the note. And I want for the record, to reflect that you, at no time, were refused to see a note from a jury.
“MR. FIGURES: No, sir. If I said refused, then I misspoke myself.
“THE COURT: I want you to correct yourself now, then.
“MR. FIGURES: I don’t think made that (unintelligible), I said we asked to see the note.
“THE COURT: And you said, the Court denied that request.
“MR. FIGURES: The Court did not produce the note, and still has not produced the note.
“THE COURT: The Court did not refuse to produce the note. The Court advised you, counsel, Senator Figures, that the note was returned to the jury, to be stated more clearly so that the Court could be apprised as to what the note was about.
“MR. FIGURES: Yes, sir.
“THE COURT: You were advised of that, and told in those same identical type words, that the note was confusing to the Court?
“MR. FIGURES: Yes, sir.
“THE COURT: And you didn’t state that in your statement to the Court just now, and I want this for the record.
“MR. FIGURES: Yes, sir. We are aware of that, your Honor. We just think that note ...
“THE COURT: I am making my ruling, Senator.
“MR. FIGURES: Yes, sir.
“THE COURT: The note that was received by the Court was unintelligible. The note was sent back to the jury for the purpose of restating what they wanted to do in different words, or in a more clear fashion. They did that. That note was returned to the Court, and read to the jury in your presence.
“Each question was gone through word by word. And you heard the reading of the entire note before this Court. So, that aspect of your motion is erroneous and incorrect, now.
“MR. FIGURES: ... If your Honor will read him the note at the time he was talking to the jury, I was not aware of that. I don’t recall your Honor mentioning the note in open Court at that time. And we would request that the note be produced and made a part of the record so that it might be reviewed on appeal.
“THE COURT: The note is a part of record, counsel, which is available to you,
“MR. FIGURES: Yes, sir. Thank you.
“THE COURT: ... and has been in the file since the note was received by the Court.” (R. 605-608)
The trial court denied appellant’s motion.

During the course of the jury’s deliberation the record reveals the following:

“THE COURT: Mr. Galanos and members of the defense counsel, the jury has requested that I answer questions relating to certain aspects of the Court’s charge. I am going to bring the jury out, and answer these four areas of which they have requested, a recovering of the law relating to certain aspects of my charge.
“MR. FIGURES: No, problem, your Honor, we would request that the defendant be brought in.
“THE COURT: All right. Bring in the jury.
(Defendant present.)
(Jury returned to jury box.)
“THE COURT: You may be seated, ladies. I have before me, a request by you, which is allowed by law for to, again, give you the charge as to the law relating to certain aspects. Now, in your request of me, you asked me to define, again, the terms, intentional and malice aforethought....
“You wanted to know the differences between Capital Murder, Second Degree Murder, First Degree Manslaughter and Second Degree Manslaughter. I will repeat those elements of each of those particular homicide offenses.
“The elements of self-defense was the third aspect of your question.
“Now, you have asked about the procedures relating to the law of the State of Alabama as it concerns the procedures where a defendant is charged with a Capital Felony.
“Have I answered your four questions?
“JURORS: Yes.
“THE COURT: You will now adjourn back to the jury room to commence your deliberation.
“(Jury dismissed back to the jury room to commence their deliberations. Jury not present.)
“THE COURT: Any exceptions by the State of Alabama?
“MR. GALANOS: Yes, sir. May we have one moment, please, sir?
“THE COURT: All right, let’s go to the defense, and then we will come back to the State. Any exceptions by the defense?
“MR. FIGURES: No, sir, we don’t have any exceptions.” (Emphasis added)

It is clear that the trial court received a note from the jury requesting additional instructions. The note was unintelligible and the court returned it for clarification. At this point the jury clarified it either by correcting the original note or by drafting a new one. In any event, a note was again sent to the trial court who read the questions in open court and answered each. The note was made part of this record on appeal by appellant’s motion to supplement the record. A.R.A.P. 10(f).

Although no communications should take place between the trial judge and jury after submission of the case to the jury, unless in open court with all parties and their attorneys present, all conversations between jurors and officers of the court do not amount to misconduct per se. A mere showing of such a communication does not raise the presumption that it improperly prejudiced the jury against the defendant. Donahoo v. State, 371 So.2d 75 (Ala.Cr.App.), cert. denied, 371 So.2d 79 (Ala.1979).

In the instant case, the only communication that occurred between the trial court and the jury was the trial court’s receipt of the original note requesting additional instructions and its return indicating its unintelligible nature. The trial court did nothing more than what it would have done in the presence of appellant. Its additional instructions were given in open court with appellant present, and without objection. Appellant suffered no prejudice to his substantial rights.

VIII

Appellant contends that the trial court erred in overruling his motion to exclude the evidence because the State did not establish a prima facie case.

We have carefully reviewed the State’s evidence and find that the State sufficiently established a prima facie violation of § 13-ll-2(a)(5). At the same time, we find that appellant established evidence of self-defense. Consequently, whether appellant committed the crime was in dispute, and the trial court properly submitted the evidence to the jury for its consideration. Where the evidence presented raises questions of fact, and such evidence, if believed, is sufficient to sustain the conviction, the denial of a motion to exclude the State’s evidence is not error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Miles v. State, 257 Ala. 450, 59 So.2d 676 (1952).

• IX

Appellant insists that the trial court erred in refusing to give several of his written requested charges. Appellant took no exception to the trial court’s oral charge, but took exception to the refusal of his written requested charges.

Appellant specifically takes exception to refused charges 11, 12, 13, and 14. We have reviewed the remaining refused charges and find that they were either substantially covered by the trial court’s oral charge, not predicated on the evidence, ungrammatical, confusing, abstract, erroneous or incomplete statements of law. Davis v. State, 401 So.2d 187 (Ala.Cr.App.), cert. denied, 401 So.2d 190 (Ala.1981); Travis v. State, 397 So.2d 256 (Ala.Cr.App.), cert. denied, 397 So.2d 265 (Ala.1981); Brown v. State, 392 So.2d 1248 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1266 (Ala.1981); Ala.Code § 12-16-13 (1975).

Charges 11 and 13 were not properly predicated upon the evidence and were therefore, correctly refused. Shields v. State, 397 So.2d 184 (Ala.Cr.App.), cert. denied, 397 So.2d 189 (Ala.1981); Guy v. State, 395 So.2d 161 (Ala.Cr.App.1981).

Charges 12 and 14 are quoted below:

“CHARGE NO. 12
“If you believe from the evidence that Officer Henry Booth did not have a warrant with him at the time he met Ervin Edwards on August 14, 1979 and that he attempted to arrest Ervin Edwards for assault upon Nolan Martin with a gun then the court charges you that Officer Booth was attempting to put an illegal restraint on the liberty of Ervin Edwards and was attempting to make an illegal arrest.
“CHARGE NO. 14
“The court charges you that if you believe from the evidence that Ervin Edwards, the defendant in this case, requested Officer Henry Booth to show him a warrant and that Officer Booth did not do so, but tried to arrest Ervin Edwards, then Officer Booth was attempting to make an illegal arrest of Ervin Edwards.”

Although the charges requested by appellant are correct statements of the law, see Ala.Code §§ 15-10-2, -3, -4 (1975), it was not error for the trial court to refuse them when they merely stated abstract principles of law without containing instructions as to their effect upon or application to the issues involved in the case. Craig v. State, 389 So.2d 177 (Ala.Cr.App.1980); Bullard v. State, 369 So.2d 877 (Ala.Cr.App.1979); Simmons v. State, 368 So.2d 315 (Ala.Cr.App.1979). Such charges are abstract, Hudson v. State, 335 So.2d 208 (Ala.Cr.App.), cert. denied, 335 So.2d 211 (Ala.1976); Mitchell v. State, 38 Ala.App. 546, 89 So.2d 238 (1956); Noah v. State, 38 Ala.App. 531, 89 So.2d 231 (1956), and thus properly refused. Without more, the above charges, if given, would not have negated appellant’s culpability.

X

The Supreme Court in Beck, supra, indicated the standards and procedures for appellate review of capital felony cases. We have examined this case in light of those standards, and find that the crime was properly punishable by death, and that the sentence was appropriate in both its relation to the crime and to appellant. There were no accomplices with which to compare appellant’s punishment. We have searched the record for error prejudicial to the substantial rights of appellant and have found none. The judgment of the Mobile Circuit Court is hereby affirmed.

AFFIRMED.

All the Judges concur.

APPENDIX “A”

STATE OF ALABAMA,

Plaintiff,

vs.

ERVIN EDWARDS,

Defendant.

IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA

CRIMINAL DIVISION

CASE NO. CC79 1782

CAPITAL FELONY

The Court, heretofore on the 21st day of September, 1981, having impaneled a jury of 12, for the trial of the above named Defendant under an indictment charging commission of a capital felony, to-wit: capital murder, wherein the victim, while acting in his official capacity as a law enforcement officer was intentionally killed; and,

Heretofore on to-wit: the 25th day of September, 1981, the jury having returned a verdict, “WE, THE JURY, FIND THE DEFENDANT GUILTY OF THE CAPITAL FELONY SET OUT IN THE INDICTMENT.” LINDA K. PATTERSON, FOREWOMAN; and,

The Court having set the date for the Jury Sentencing hearing for September 26, 1981, and the jury having returned a verdict fixing the punishment for the Defendant at death by electrocution on the 26th day of September, 1981, and the Court having set, pursuant to law, the MITIGATION HEARING to be heard before the Court without a jury, to determine whether or not the Court should sentence the Defendant to death by electrocution, pursuant to the verdict of the jury, or to life imprisonment without parole;

And the Court having understood and considered the evidence presented at the trial of the Defendant on the indictment, and at the hearing before the Jury to determine the punishment, wherein the Jury fixed the punishment at death by electrocution, and having considered all of the matters presented in the MITIGATION HEARING on the 28th day of September, 1981, including the Pre-Sentence Report as amended, the Court makes the following Findings of Facts as required by law: 13-11-6 AGGRAVATING CIRCUMSTANCES

Aggravating circumstances shall be the following:

(1) The capital felony was committed by a person under sentence of imprisonment; RULING: NOT APPLICABLE.

(2) The Defendant was previously convicted of another capital felony or a felony involving the use or threat of violence to the person. The pre-sentence investigation report of June 10, 1980 and as amended September 26, 1981, reflects three felony convictions and thirteen misdemeanor convictions. The defendant was convicted of the felony crime of “Assault with a Deadly Weapon” upon a prison officer while in the performance of his official duties, and sentenced to five years in the State Penitentiary. This offense was committed in the State Penitentiary upon a prison guard while the Defendant was serving a ten year sentence for Burglary in the Second Degree.

(3) The Defendant knowingly created a great risk of death to many persons; RULING: NOT APPLICABLE.

(4) The capital felony was committed while the Defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit, Rape, Robbery, Burglary or Kidnapping for ransom; RULING: NOT APPLICABLE.

(5) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. The evidence at trial of the Defendant reflected that a warrant had been sworn out against the Defendant for Assault with a Gun, wherein the deceased officer was attempting to execute said warrant by arresting the Defendant, at which time, the Defendant forcefully obtained the officer’s revolver and killed him by shooting him in the head.

(6) The capital felony was committed for pecuniary gain; RULING: NOT APPLICABLE.

(7) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws. The police officer was killed while attempting to serve a warrant on the Defendant in the exercise of his official duty.

(8) The capital felony was especially heinous, attrocious or cruel. (Acts 1975, No. 213, 6.) RULING: NOT APPLICABLE. 13-11-7 MITIGATING CIRCUMSTANCES

Mitigating circumstances shall be the following:

(1) The Defendant has no significant history of prior criminal activity; RULING: NOT APPLICABLE

CRIMINAL HISTORY - FBI NO. 719 630 B

ADULT RECORD:

PD Mobile, AL 9/10/54 Grand Larceny Circuit Court #17,759 - Withdrawn and filed on 6/29/60

PD Milford, DE 8/2/56 Disorderly Conduct Fined $13.50

State Board of Corrections Wilmington, DE 10/23/56 Fugitive from Justice 10/16/56 - Released on bail

SO Everglades, FL 1/13/58 Investigation of Being Escaped Prisoner Released 1/23/58

State Board of Corrections Wilmington, DE 8/4/58 Disorderly Conduct Sentenced 30 days Mandatory and 30 days Indefinite. $25 fine and $4.50 cost. Released 8/29/58

State Board of Corrections Wilmington, DE 9/11/58 1) Assault & Battery Sentenced 30 Days Mandatory and 50 Days Indefinite. $50 fine and $4 cost.

2) Escape Sentenced 3 months - Released 1/30/59

State Board of Corrections Wilmington, DE 7/8/59 Disorderly Conduct Sentenced 30 Days Mandatory and 30 Days Indefinite. $25 fine and $4 cost. Paid fine and cost. Released 8/4/59

SO Fort Pierce, FL 12/25/59 Fugitive Warrant Released to U.S. Marshal

USM Miami, FL 12/28/59 U.F. A.P. (Burglary) Marshal Office could not locate record of arrest and disposition.

Department of Public Safety Miami, FL 1/22/60 Fugitive, State of Delaware 3/17/60 - Released to Delaware Authorities

PD Harrington, DE 3/18/60 Burglary, 4th Held indefinitely on $25 bail. Transferred to NCCI on 6/24/60 (Intersystem - transfer)

State Board of Corrections Wilmington, DE 6/24/60 Breaking and Entering 2 years on 12/24/60 - Released on 8/1/61

State Board of Corrections Wilmington, DE 11/1/61 1) Operating Motor Vehicle Without Owner’s Consent Sentenced 30 Days Indefinite. $50 fine and $3.50 cost.

2) Operating Motor Vehicle Without License Sentenced 30 Days Indefinite. $25 fine and $3.50 cost.

3) Failure to Report Accident Sentenced 20 Days Indefinite. $20 fine and $3.50 cost.

4) Leaving Scene of Accident Sentenced 20 Days Indefinite. $20 fine and $3.50 cost.

5) Speeding Sentenced 45 Days Indefinite. $50 fine and $3.50 cost. Released 3/8/62.

State Board of Corrections Wilmington, DE 4/30/62 1) Drunk and Disorderly Sentenced 10 Days Indefinite. $10 fine and $4 cost.

2) Resisting Arrest Sentenced 30 Days Indefinite. $50 fine and $4 cost.

3) Assault & Battery on Police Officer Sentenced 30 days definite. Fine $50 and $4 cost. Released 6/26/62

PD Lakewood, NJ 12/16/62 Assault 12/17/62 Complaint Withdrawn

PD Fort Pierce, FL 5/18/63 Failure to Register as a Convicted Felon Nolle Prossed

SO Bay Minette, AL 6/20/64 Burglary, 2nd 10 Yrs. Penitentiary on 10/21/64 (Case #4031) Completed sentence 12/22/72

State Board of Corrections Montgomery, AL 5/7/73 Assault with Deadly Weapon Upon Police Officer in Performance of his Duties 5 Yrs. Penitentiary on 5/4/71 (Case #33) Completed Sentence on 7/13/77

PD Ocean Springs, MS 11/12/75 Investigation of Burglary Released - No charge

PD Montgomery, AL 2/4/76 Burglary and Grand Larceny Nolle Prossed 5/25/77

PD Mobile, AL 7/23/78 Possession of Pistol After Conviction of Crime of Violence Circuit Court #CC78 1883 - Nolle Prossed 5/8/79

PD Mobile, AL 9/27/78 Attempt Burglary Circuit Court #CC78 1707 - on 1/19/79 sentenced to 2 months County Jail. Credit for 33 days served

(2) The victim was a participant in the Defendant’s conduct or consented to the act; RULING: NOT APPLICABLE.

(3) The capital felony was committed while the Defendant was under the influence of extreme mental or emotional disturbance; RULING: NOT APPLICABLE.

(4) The Defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor; RULING: NOT APPLICABLE.

(5) The Defendant acted under extreme duress or under the substantial domination of another person; RULING: NOT APPLICABLE.

(6) The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; RULING: NOT APPLICABLE.

(7) The age of the Defendant at the time of the crime. (Acts 1975, No. 213, 7.) RULING: NOT APPLICABLE.

The Defendant was not limited to presenting only those potential mitigating factors enumerated in the relevant statute. The Court heard and duly considered defense testimony to the effect that the Defendant was (a) a model prisoner at Holman Prison and (b) a long-time acquaintance of and “good worker” for a former employer.

The Court, having thoroughly considered the aggravating circumstances and mitigating circumstances and having carefully weighed both, is convinced beyond a reasonable doubt and to a moral certainty that the aggravating circumstances far outweigh the mitigating circumstances and the jury having fixed the penalty of death by electrocution;

It is hereby ORDERED, ADJUDGED and DECREED that Ervin Edwards is guilty of the capital felony charged in the indictment. It is further ORDERED, ADJUDGED and DECREED that Ervin Edwards, suffer death by electrocution at any time before the hour of sunrise on the 28th day of December, 1981, inside the walls of the William C. Holman Unit of the State Prison System at Atmore, Alabama, in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution.

It is further ORDERED, ADJUDGED and DECREED by the Court that the Warden of the William C. Holman Unit of the State Prison System at Atmore, Alabama, or in ease of his death, disability or absence, the Deputy, or in the event of the death, disability or absence of both the Warden and his Deputy, the person appointed by the Commissioner of Corrections at any time before the hour of sunrise on the 28th day of December, 1981, inside the walls of the William C. Holman Unit of the State Prison System at Atmore, Alabama in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution, cause to pass through the body of Ervin Edwards, a current of electricity of such intensity to cause his death, and the continuance and application of such current through the body of the said Ervin Edwards, until the said Er-vin Edwards be dead. May God have mercy on your soul.

It is further ORDERED, ADJUDGED and DECREED, that this sentence is hereby stayed, pending the appeal to the Appellate Courts of the State of Alabama, and the Court hereby directs the Court Reporter and the Clerk of the Court to prepare the transcript in accordance with law, and the Court hereby appoints Mr. Michael Figures, Mr. Walter Davis and Mr. Sam Irby, members of the Mobile Bar, to represent the said Ervin Edwards on the automatic appeal provided for in this cause.

It is further ORDERED, ADJUDGED and DECREED by the Court that the said Ervin Edwards be immediately transported to the William C. Holman Unit of the State Prison System at Atmore, Alabama, there to be held pending the determination of the appeal in this case.

ORDERED THIS THE 28TH DAY OF SEPTEMBER, 1981.

/s/ Elwood L. Hogan

ELWOOD L. HOGAN

CIRCUIT JUDGE

13TH JUDICIAL CIRCUIT

ON REHEARING

DeCARLO, Judge.

There is no need to determine whether Officer Booth’s attempt to arrest appellant was legal. The alleged illegality of the arrest would not, as appellant seems to suggest, excuse the killing of Officer Booth. It is not an element of the capital crime that the officer be effectuating a legal arrest. The officer need only be “on duty” when killed. Section 13-ll-2(a)(5), Code 1975. Count I of the indictment alleges that appellant killed Booth “while the said Henry Booth was on duty as a member of the Mobile Police Department....” It is undisputed that Booth was on duty when he was killed. The general verdict returned by the jury goes to this count. Worrell v. State, 357 So.2d 373 (Ala.Cr.App.), cert. denied, 357 So.2d 378 (Ala.1978).

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.

      . The trial judge’s order setting the penalty is attached as Appendix A.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte: Ervin EDWARDS. (In re: Ervin Edwards v. State of Alabama).
    82-119.
    Supreme Court of Alabama.
    June 10, 1983.
    Rehearing Denied July 8, 1983.

      Mercería L. Ludgood and Michael A. Figures, Walter Davis and Samuel F. Irby, Jr., Mobile, for petitioner.
    Charles A. Graddick, Atty. Gen. and Edward E. Carnes and Thomas R. Allison, Asst. Attys. Gen., for respondent.
   PER CURIAM.

On August 14, 1979, Henry Booth, a Mobile police officer, was killed while attempting to arrest the petitioner, Ervin Edwards. Edwards was indicted by the Mobile County Grand Jury for the capital murder of a police officer and found guilty under Code 1975, § 13-ll-2(a)(5). The jury recommended the death penalty and the trial court sentenced Edwards to death.

On the day of the killing, Officer Booth was attempting to locate Edwards, who was wanted on an outstanding warrant of arrest for misdemeanor assault with a gun. Booth did not have the arrest warrant in his possession. At approximately 7:45 p.m., Officer Booth stopped a car in which Edwards was riding.

Edwards got out of the car after it was stopped. Officer Booth told Edwards to come to him and that he had a warrant for Edwards’s arrest. Edwards asked to see the warrant, but Booth did not produce it; Edwards refused to come to Booth. As Booth approached Edwards, Edwards opened his jacket to show Booth he was unarmed.

Booth attempted to force Edwards into his patrol car. Edwards refused to get into the car and a scuffle broke out between them. There was evidence to show that Booth hit Edwards with a flashlight during the struggle. The two then began to fight over control of Officer Booth’s service revolver, which Booth was attempting to remove from its holster. Booth and Edwards fell on the ground and continued to fight over the gun. During the scuffle, the gun discharged and Booth was killed.

Edwards was found guilty of capital murder under Code 1975, § 13 — 11—2(a)(5). That section provides for the death penalty for the following offense:

“(5) The murder of any police officer, sheriff, deputy, state trooper or peace officer of any kind, or prison or jail guard while such prison or jail guard is on duty or because of some official or job-related act or performance of such officer or guard.”

Under this Code section the state must prove more than a killing of a police officer while on duty. It must also prove that the killing was murder.

The killing took place in 1979, before the effective date of the new Criminal Code. Thus, in defining the elements of the crime necessary to prove a prima facie case of murder, we must consider Code 1975, § 13-1-70 (formerly Code 1940, Tit. 14, § 314), which provides:

“Every homicide perpetrated by poison, lying in wait or any other kind of wilful, deliberate, malicious and premeditated killing; or committed in the perpetration of, or the attempt to perpetrate, any arson, rape, robbery or burglary, or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, is murder in the first degree; and every other homicide committed under such circumstances as would have constituted murder at common law is murder in the second degree.”

The indictment indicates that the prosecution intended to use second degree murder as the basis for the capital murder charge.

We note at the outset that the attempted arrest of petitioner by Officer Booth was an illegal arrest. A warrantless arrest may be made under any of the following circumstances:

“An officer may arrest any person without a warrant, on any day and at any time, for:
“(1) Any public offense committed or a breach of the peace threatened in his presence;
“(2) When a felony has been committed, though not in his presence, by the person arrested;
“(3) When a felony has been committed and he has reasonable cause to believe that the person arrested committed ⅛
“(4) When he has reasonable cause to believe that the person arrested has committed a felony, although it may after-wards appear that a felony had not in fact been committed; or
“(5) On a charge made, upon reasonable cause that the person arrested had committed a felony.

Code 1975, § 15-10-3. None of these provisions covers the circumstances in the case before us. Booth was attempting to arrest Edwards for a misdemeanor that was not committed in his presence. There was considerable evidence that Edwards asked Booth to show him the warrant. The Alabama statutes require that the defendant be shown the warrant when he asks to see it:

“An officer may execute a warrant of arrest on any day and at any time; but in doing so, he must inform the defendant of his authority and, if required, must show the warrant. If an officer executing an arrest warrant is refused admittance after notice of his authority and purpose, he may break an outer or inner door or window of a dwelling house in order to make the arrest.”

Code 1975, § 15-10-2. Thus, Officer Booth’s attempted arrest of Edwards was illegal under these circumstances.

Alabama law is clear that, to a limited degree, a party is justified in attempting to resist an unlawful arrest.

“The citizen may resist an attempt to arrest him which is simply illegal, to a limited extent, not involving any serious injury to the officer. He is not authorized to slay the officer, except in self-defense; that is, when the force used against him is felonious, as distinguished from forcible. It is better to submit to an unlawful arrest, though made with force, but not with such force as to endanger the life or limb, than to slay the officer.”

Adams v. State, 175 Ala. 8, 12, 57 So. 591, 592 (1912). Clearly, the actions of Edwards went beyond the lawful bounds of resistance to an illegal arrest.

We agree with the Court of Criminal Appeals that the legality or illegality of the attempted arrest is not determinative of this case. We also agree that “[i]t is not an element of the capital crime that the officer be effectuating a legal arrest.” Edwards v. State, 452 So.2d 487 (Ala.Cr.App.1982). Nonetheless, we are convinced that the circumstances surrounding this killing, including the attempted illegal arrest, are crucial to the outcome of this case.

Edwards argues that the trial court erred in denying his motion to exclude the state’s evidence for failure to prove a pri-ma facie case of capital murder. Under the circumstances presented here, we agree.

An essential element of the prima facie case for second degree murder is malice aforethought. This rather elusive concept is central to this case.

Our courts have defined malice aforethought on a number of different occasions. In Harris v. State, the Court of Criminal Appeals stated:

“ ‘Legal Malice’ as an ingredient of murder is an intent to take human life without legal excuse, justification or mitigation, and it may be presumed from the use of a deadly weapon, unless the evidence which proves the killing rebuts the presumption. Coates v. State, 1 Ala. App. 35, 56 So. 6; Warren v. State, [34 Ala.App. 447, 41 So.2d 201 (1949)], supra.”

Harris v. State, 56 Ala.App. 301, 306, 321 So.2d 267, 272 (Ala.Cr.App.1975).

The state apparently relied upon the presumption which arises from the use of a deadly weapon to prove malice aforethought. Reviewing the entire record, we can find no other evidence of this element of the offense.

We are convinced, however, that the facts presented at trial effectively rebut the presumption of malice that arises from the use of a deadly weapon. First, this was not the defendant’s gun, and, in fact, the gun only came into the incident when the officer attempted to draw the gun on the defendant. This is significantly different from a situation where a party brings a weapon to the scene of a crime, where malice is more readily inferable. Secondly, the parties were struggling over control of the weapon, rather than the defendant being in exclusive control of it. Finally, the defendant was attempting to resist an unlawful arrest. We are convinced that these facts, taken together, rebut the presumption of malice described in <Harris, supra.

Our examination of the record reveals that no other evidence was presented on this element of the prima facie case. Therefore, there was insufficient evidence of second degree murder to sustain the conviction. Further, we are of the opinion that the state offered sufficient evidence on the lesser included offense of first degree manslaughter, which requires only a voluntary killing rather than a killing with malice aforethought. The statutory element of voluntariness is satisfied where defendant does “an act greatly dangerous to the lives of others, whereby death ensues.” Rainey v. State, 245 Ala. 458, 461, 17 So.2d 687, 689 (1944). Nonetheless, because the state failed to produce sufficient evidence of malice, we are required to reverse and remand.

REVERSED AND REMANDED.

All the Justices concur.


author: HUBERT TAYLOR, Judge.

text:
    Ervin EDWARDS, alias v. STATE.
    1 Div. 335.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.
    On Rehearing Nov. 29, 1983.
   AFTER REMANDMENT

HUBERT TAYLOR, Judge.

Reversed and remanded on authority of the Supreme Court of Alabama, Ex parte Edwards, 452 So.2d 503 (Ala.1983).

REVERSED AND REMANDED.

All the Judges concur.

ON REHEARING

After appellant’s conviction of capital murder, the Supreme Court of Alabama reversed and remanded the case on the ground that the evidence was insufficient to sustain the conviction. Ex parte Edwards, 452 So.2d 503 (Ala.1983). The court found, however, that the State had proved all the elements of the lesser included offense of first degree manslaughter.

The Court of Criminal Appeals, on the authority of the supreme court’s opinion, reversed and remanded the case. The issue on rehearing is whether the case should be remanded or rendered.

Appellant contends the court must reverse and render rather than remand. This contention is based on the rulings of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Watkins v. State, 389 So.2d 186 (Ala.Cr.App.1980); and Coleman v. State, 373 So.2d 1254 (Ala.Cr.App.1979), all of which held that, after a finding of insufficient evidence, the case must be rendered since remanding for a new trial would violate the double jeopardy clause. The State argues that if there is sufficient evidence to support a conviction on a lesser included offense, the court has inherent authority to remand with orders that a judgment of guilty be entered for the lesser included offense and for proper resen-tencing.

In the case of Burks, supra, the Supreme Court state, “Since we hold today that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only ‘just’ remedy available for that court is the direction of a judgment of acquittal.” 437 U.S. at 18, 98 S.Ct. at 2150.

The State relies on Dickenson v. Israel, 644 F.2d 308 (7th Cir.1981), which is the Seventh Circuit’s interpretation of Burks. In Dickenson, the court found the evidence presented to be insufficient to support a conviction for armed robbery but sufficient for a lesser degree of robbery. The court remanded the case to the trial court with orders to enter a judgment on the lesser included offense and to resentence the accused accordingly.

On habeas corpus appeal, the Seventh Circuit Court distinguished the circumstances of Dickenson from those of Burks. In Burks, because the reversal was based on an insufficient showing of the defendant’s sanity, it was impossible to convict him on any lesser included charge. The Burks’s court held that allowing the State another trial “would create a purely arbitrary distinction between those in petitioner’s position and others who would enjoy the benefit of a correct decision by the District Court.” 437 U.S. at 11, 98 S.Ct. at 2147. The federal appellate court, referring to Burks, said that since the trial court would have had no choice but to acquit if it had ruled correctly on the issue of defendant’s sanity, the Supreme Court ruling merely put defendant in the position he would have been in absent the trial court’s error.

The Seventh Circuit, following this same logic as applied to the case before it, reasoned that since the jury returned a verdict on the higher degree, it found the existence of every element of the lesser included offense. The Seventh Circuit then held that state and federal appellate courts have inherent authority to reverse a conviction while at the same time ordering an entry of judgment on a lesser included offense.

The same type of procedure approved by the Seventh Circuit is followed by most state courts that have faced the issue. See Searcy v. State, 163 Ga.App. 528, 295 S.E.2d 227 (1982); Beasley v. State, 394 So.2d 201 (Fla.App.1981); State v. Byrd, 385 So.2d 248 (La.1980) (wherein the Supreme Court noted that ordering entry of judgment of guilty on lesser included offense accords with overwhelming treatment of problem by other jurisdictions); State v. Coston, 182 Conn. 430, 438 A.2d 701 (1980); State v. Plakke, 31 Wash.App. 262, 639 P.2d 796 (1982).

There are two Alabama cases that deal with this general issue. The first is Coleman v. State, 373 So.2d 1254 (Ala.Cr.App.1979). This court in Coleman held that a defendant cannot be retried on any charge which grows out of the crime for which he was indicted. The court added, however, that the case should have been submitted to the jury on the lesser included charge, but since that was not done, the defendant must go unpunished and the case must be rendered. The other Alabama case is Watkins v. State, 389 So.2d 186 (Ala.Cr.App.1980). That case says, “By mandate of the United States Supreme Court, a conviction based upon insufficient evidence must be reversed and rendered.... Neither may appellant be retried for a lesser included offense_” 389 So.2d at 189. (Emphasis ours.) These two Alabama cases deal with whether a defendant may be retried after a finding of insufficient evidence; they do not specifically address the issue of remanding the case for proper sentencing and are not, therefore, controlling. Also, there is statutory authority that would allow Alabama appellate courts to enter an order of conviction on lesser included offenses if the conviction of the crime in the higher degree is reversed because of insufficient evidence. Section 12-22-242, Code of Alabama 1975, reads in part that, “If the judgment is reversed, the appellate court may order a new trial or that the defendant be discharged or that he be held in custody until discharge by due course of law or make such other order as the case may require. ” (Emphasis ours.) Based on what is currently considered the correct interpretation of Burks, we hold that remanding for an entry of judgment of guilty on the lesser included charge and for resen-tencing is the correct course to fulfill the demands of justice.

For the foregoing reasons, we reverse and remand this case with instructions that the trial court enter a judgment of guilty on the charge of first degree manslaughter- and sentence the appellant accordingly.

APPLICATION FOR REHEARING GRANTED; REVERSED AND REMANDED WITH INSTRUCTIONS.

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

HARRIS, J., concurs in result only.


author: BEATTY, Justice. JONES, Justice. ADAMS, Justice

text:
    Ex parte Ervin EDWARDS. (Re: Ervin EDWARDS v. STATE).
    83-351.
    Supreme Court of Alabama.
    June 1, 1984.

      Mercería L. Ludgood of Figures & Lud-good, Mobile, for petitioner.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for respondent.
   BEATTY, Justice.

This case is before us for a second time. The petitioner, Ervin Edwards, was convicted of capital murder in the Circuit Court of Mobile County. This Court reversed and remanded the case to the Court of Criminal Appeals on the ground that the evidence was insufficient to sustain the conviction. We concluded, however, that there was sufficient evidence to support a conviction of first degree manslaughter. Ex parte Ervin Edwards, 452 So.2d 503 (Ala.1983). The Court of Criminal Appeals reversed and remanded with instructions to the trial court for entry of judgment on the lesser included offense and for proper sentencing. Edwards v. State, 452 So.2d 506 (Ala.Cr.App.1983). On December 12, 1983, Ervin Edwards was sentenced to 10 years’ imprisonment for manslaughter in the first degree, and it was ordered that he be given credit for 4 years, 3 months, and 27 days spent in jail.

Petitioner seeks review, claiming that his Fifth Amendment right to be free from double jeopardy was violated when the Court of Criminal Appeals remanded his case following the reversal of his capital murder conviction. He bases this claim on the fact that the ground cited for the reversal was insufficient evidence to support the verdict. We hold that the double jeopardy clause was not violated and affirm.

The petitioner first contends that his case should have been reversed and rendered by the Court of Criminal Appeals, citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Coleman v. State, 373 So.2d 1254 (Ala.Crim.App.1979); and Watkins v. State, 389 So.2d 186 (Ala.Crim.App.1980). He argues that these cases stand for the proposition that, after a finding of insufficient evidence to sustain a conviction, remanding the case for a new trial would violate the double jeopardy clause. Applying this rule to the present facts, petitioner contends that because the case was sent back he was exposed to successive prosecutions for the same criminal conduct. Further, he says, when the trial court was allowed to resen-tence him, the State was given, in effect, a “second bite at the apple.”

After carefully considering petitioner’s arguments, we conclude that the Court of Criminal Appeals correctly relied on the Seventh Circuit’s interpretation of Burks in Dickenson v. Israel, 644 F.2d 308 (7th Cir.1981). The circumstances in Dickenson are similar to those in the present case. There was insufficient evidence to support a conviction for armed robbery. The court found, however, that there was sufficient evidence to support a conviction for a lesser degree of robbery. The case was remanded to the trial court, judgment was entered on the lesser included offense, and the defendant was resentenced accordingly. In Dickenson, the jury had been instructed on the elements of armed robbery and the lesser included charge of robbery. In the present case, the jury was properly charged on the lesser included offense of manslaughter.

The trial court’s opinion, reported as Dickenson v. Israel, 482 F.Supp. 1223 (E.D.Wis.1980), was adopted as the opinion of the Seventh Circuit, and the following authority was cited in support of its decision:

“State and federal appellate courts have long exercised the power to reverse a conviction while at the same time ordering the entry of judgment on a lesser-included offense. See, e.g., United States v. Cobb, 558 F.2d 486, 489 (8th Cir.1977); Austin v. United States, 127 U.S.App.D.C. 180, 191-192, 382 F.2d 129, 140-142 (D.C.Cir.1967); Luitze v. State, 204 Wis. 78, 234 N.W. 382 (1931). The usual situation in which this occurs is when there is insufficient evidence to support one of the elements of an offense. A court may be reluctant to overturn an entire conviction when there is ample evidence to support a lesser-included charge which does not contain the insufficiently proven element. The authority to order the entry of judgment on the lesser-included offense is both statutory, see, e.g. 28 U.S.C. § 2016, and based on the common law. The constitutionality of the practice has never seriously been questioned.” 482 F.Supp. at 1225.

The trial court in Dickenson went on to distinguish the Burks case, and the Seventh Circuit, in affirming, reasoned that the jury had found the existence of every element of the lesser-included offense by returning a verdict on the higher degree.

In the present case, the Court of Criminal Appeals found further support for its decision in finding that:

“The same type of procedure approved by the Seventh Circuit is followed by most state courts that have faced the issue. See Searcy v. State, 163 Ga.App. 528, 295 S.E.2d 227 (1982) [Evidence was insufficient to support a conviction on two felony counts of theft by receiving stolen property, but sufficient to sustain a misdemeanor charge — the proper remedy was to remand to the trial court for proper sentencing under the lesser-included offense.]; Beasley v. State, 394 So.2d 201 (Fla.App.1981) [Evidence was insufficient to support a conviction of grand theft, but sufficient to sustain the lesser-included offense of petty theft— the case was remanded for proper sentencing on the lesser-included offense.]; State v. Byrd, 385 So.2d 248 (La.1980) (wherein the Supreme Court noted that ordering entry of judgment of guilty on lesser-included offense accords with overwhelming treatment of problem by other jurisdictions); State v. Coston [182 Conn. 430] 438 A.2d 701 (1980); State v. Plakke [31 Wash.App. 262] 639 P.2d 796 (1982).”

We further conclude that the Court of Criminal Appeals was correct in finding that Coleman, supra, and Watkins, supra, are not controlling in this case. That court stated that “[t]hese two Alabama cases deal with whether a defendant may be retried after a finding of insufficient evidence; they do not specifically address the issue of remanding the case for proper sentencing.”

For the reasons stated, the judgment of the Court of Criminal Appeals is due to be, and it hereby is, affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, FAULKNER and EMBRY, JJ., concur.

JONES, ALMON, SHORES and ADAMS, JJ., dissent.

JONES, Justice.

I respectfully dissent. I do not disagree with the majority’s holding that Petitioner is not entitled to go free on a double jeopardy plea. I also agree that Coleman, Watkins, and Burks, cited in the majority opinion, are not applicable. My disagreement is with the Court of Criminal Appeals’ instruction on remand to the trial court for entry of a judgment of guilty on the lesser included offense of manslaughter.

In my opinion, it is faulty reasoning to conclude, as a matter of law, that, because the jury found the Defendant guilty of the greater offense, it necessarily would have found him guilty of the lesser offense if the trial court had not erroneously submitted the greater offense to the jury. Such reasoning overlooks the dynamics of the factfinding process. The jury has been instructed that the evidence is sufficient to support a conviction for capital murder; i.e., that the State has met its burden as to all of the elements of the higher crime. On appeal, the judgment of conviction for capital murder is reversed on the grounds of insufficient evidence, but the Court opines that the evidence is sufficient as to the lesser crime of manslaughter. Therefore, reasons the Court, the trial court, without a retrial on the lesser offense, can accept the revised judgment as a conviction of the Defendant for the lesser crime and sentence him accordingly.

While this may make some kind of sense on paper, and it may accord with judicial economy, its application is as faulty as a $3 bill. This Defendant has never been found guilty of manslaughter. No jury has even considered an indictment charging the Defendant only with the offense of first degree manslaughter or its lesser included offenses. The Defendant’s right to a fair trial — a right guaranteed under our State Constitution — has been judicially determined to have been denied under the capital murder indictment; yet, he is now about to be sentenced for manslaughter without having had a fair trial, or, in a real sense, without a trial at all. In order to sentence this Defendant, the trial judge must enter a judgment of conviction — a judgment in the absence of a jury verdict.

Perhaps the strongest practical reason for rejecting those cases relied upon by the majority for not giving the Defendant a new trial on the lesser charge relates to the Defendant’s right to a defense. Defendant’s counsel was forced to represent the Defendant under the law of the case as determined by the trial court. The trial court determined, erroneously, that the evidence was sufficient to warrant the jury’s finding the Defendant guilty of capital murder. Defendant’s counsel was defending his client against capital murder — not against manslaughter. Surely, the most critical observer would agree that good sound trial strategy may well have included an admission of the lesser offense as a defense against the greater offense (How very few defendants so charged are so lucky?). So, in a real sense, he has not been afforded a defense as to the only crime supported by the evidence.

In conclusion, there comes to mind a complete analogy on the civil law side: Plaintiff, claiming a stipulated amount of compensatory damages and a contested amount of punitive damages, charges the defendant with negligence and wantonness, with the defense of contributory negligence being neither pleaded nor proved. The jury returns a special verdict based on wantonness. On appeal, the judgment is set aside for insufficient evidence, but the reviewing court finds ample evidence of negligence. The defendant gets a new trial on the issue of negligence, not a mandate on remand for the entry of a money judgment for the lesser stipulated amount. Why? Because this jury returned a verdict without supporting evidence; and no jury has yet returned a verdict supported by evidence. Should not policy considerations dictate even a stronger case for the criminally accused?

ADAMS, J., concurs.

ADAMS, Justice

(dissenting).

I dissent. Petitioner, in his brief to this court, made only one argument — that he should be released because we decided on the original hearing of this case that the defendant had been convicted and sentenced to death on insufficient evidence. In support of this argument, petitioner cited the Supreme Court case of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and two Alabama cases following Burks, namely, Coleman v. State, 373 So.2d 1254 (Ala.Crim.App.1979), and Watkins v. State, 389 So.2d 186 (Ala.Crim.App.1980). After reading petitioner’s brief and the state’s brief, I was reasonably convinced that the principle set forth in Burks, namely, that the United States constitutional prohibition against double jeopardy attaches where the appellate court reverses because of a total insufficiency of the evidence, was not applicable to the facts in this case. I am still of that opinion. However, on oral argument, petitioner did not make that precise double jeopardy argument, but argued a corollary to that argument, namely, that fairness and justice dictated under the facts in this case that petitioner was, in the very least, entitled to have his case retried on the charge of manslaughter. After all, we had said in our per curiam opinion that although the evidence was insufficient to sustain a conviction under the charge in the indictment, it was sufficient to sustain a conviction of the lesser included crime of manslaughter. Petitioner posits the argument that although the trial court instructed the jury on the lesser included offense of manslaughter, in conformity with Beck v. State, 396 So.2d 645 (Ala.1980), he has not really had a jury to pass on the sufficiency of the facts to sustain a conviction of manslaughter.

It is petitioner’s argument that he should have a retrial before a new jury on an indictment charging manslaughter that I find persuasive and which provokes my dissent. In taking the position that I do, I recognize that the federal decisions in this area are substantially in accord with the view that in a case such as this, the proper procedure to be followed by the appellate court is to remand the case to the trial court for resentencing under an indictment compatible with the evidence that was adduced in the trial. Dickenson v. Israel, 482 F.Supp. 1223, 1225 (E.D.Wis.1980); United States v. Cobb, 558 F.2d 486, 489 (8th Cir.1977); Austin v. United States, 127 U.S.App.D.C. 180, 191-192, 382 F.2d 129, 140-142 (D.C.Cir.1967). Some states, likewise, have taken a similar position. However, Alabama has not before spoken on this subject. We are not bound by federal decisions, and certainly not other state court decisions, if we desire to give greater rights to our citizens.

The federal decisions rationalize the appellate court’s reversal of a lower court’s decision for insufficiency of evidence and the direction to enter judgment on the lesser included offense without a new jury trial on the premise that the first jury, by convicting defendant of the higher offense, must, of necessity, have convicted him of the lower offense. Such reasoning simply ignores the real world of litigation. The defendant in this case was charged with a violation of Code 1975, § 13 — 11—2(a)(5). This section provides for the death penalty for the following offense:

(5) The murder of any police officer, sheriff, deputy, state trooper or police officer of any kind, or prison or jail guard while such prison or jail guard is on duty or because of some official or job related act or performance of such officer or guard.

Under the facts in this case, the police officer sought to arrest defendant without a warrant for a misdemeanor that was not committed in his presence. The defendant asked the police officer for his warrant, which he had a right to do, but the police officer could not produce it. He then attempted to incarcerate the defendant, and the defendant resisted. Under our laws, the police officer was making an illegal , arrest. He should have had a warrant to arrest the defendant for a misdemeanor not committed in his presence. Under the facts in this case, the defendant had a limited right to resist the arrest.

When the officer attempted to incarcerate defendant, a scuffle ensued and in a scramble of the two to get the officer’s gun, the officer was killed. We held that the evidence was insufficient in this case because not only did the state have to prove that the police officer was on duty (a point made much of by the Court of Criminal Appeals), but it also had to prove at least that the actions of the defendant amounted to murder in the second degree. Because there was no evidence showing malice, the conviction of the above-stated crime had to be overturned because of insufficient evidence.

Now my long years of experience as a trial lawyer lead me to conclude that the jury trying the defendant in this case simply did not consider the lesser included offense of manslaughter on which we said there was sufficient evidence to sustain a conviction. Once they had determined that there was sufficient evidence to sustain a conviction of the higher offense, there was no need for them to consider going to the lower offense. Although we said that there was sufficient evidence to convict the defendant of manslaughter, in my opinion, there was also evidence upon which a jury could have acquitted the defendant of manslaughter. But here, we have a case where the jury, in my opinion, only considered the greater offense, and yet, the lower court is allowed to enter, without a trial, a judgment for the maximum sentence for a crime which the jury did not consider.

Although such a procedure obviously provides for judicial economy, it does not accord to our citizens the fairness which our constitution and laws require. Nothing can be more sacred in our jurisprudence than the right to a trial by one’s peers. Since the passage of the Jury Selection Act, 1978 Ala.Acts (codified at Code 1975, § 12-16-65, et seq.), we have made great progress toward making our juries representative. Although there is authority for an. appellate court’s reversing with directions to enter a specific judgment, the usual order in a reversal case is “reversed and remanded for a new trial not inconsistent with this opinion.” Furthermore, what harm, other than the expense of a new trial, would be wrought if the defendant is indicted on manslaughter and retried? Certainly, if he is truly guilty of manslaughter, as the state contends he is, a new jury would have no difficulty in coming to this conclusion. On the other hand, if there is not an open and shut case of manslaughter, and if there is some doubt about his culpability, fairness dictates that he should be entitled to be heard by a jury of his peers. Such a procedure would be more in line with our usual concept of justice.

JONES and SHORES, JJ., concur.

      . § 12-22-242 "Reversal of judgment. If the judgment is reversed, the appellate court may order a new trial or that the defendant be discharged or that he be held in custody until discharged by due course of law or make such other order as the case may require." (Emphasis added.)


author: McDonald, justice. SHAW, Justice,

text:
    FLORIDA PHYSICIAN’S INSURANCE RECIPROCAL, et al., Petitioners, v. Thomas Miacle STANLEY, etc., et al., Respondents.
    No. 63327.
    Supreme Court of Florida.
    April 12, 1984.
    Rehearing Denied July 24, 1984.
    James C. Rinaman, Jr. and Nick V. Pulig-nano, Jr. of Marks, Gray, Conroy & Gibbs, Jacksonville, for James Eugene Glenn, J. Eugene Glenn, M.D., P.A., and Florida Physician’s Ins. Reciprocal.
    L. Haldane Taylor, Jacksonville, for Florida Patient’s Compensation Fund.
    James H. McCarty, Jr. of Boyd, Jener-ette, Staas, Joos, .Williams & Felton, Jacksonville, for St. Vincent’s Medical Center and United States Fidelity & Guaranty Co.
    James T. Terrell and Wayne Hogan of Brown, Terrell & Hogan, Jacksonville, for respondents.
   McDonald, justice.

This case is before us to review a district court decision, Stanley v. U.S. Fidelity & Guaranty Co., 425 So.2d 608 (Fla. 1st DCA 1982), which reversed a judgment for the defendants in a medical malpractice action and remanded for a new trial. The district court held that the jury verdict had been tainted by improperly adduced evidence as to the charitable and governmental sources for the special therapy and education needed by the injured minor plaintiff and available to his family at little or no cost regardless of who caused the injury. Id. at 609. In an unpublished order denying the defendants’ motion for rehearing the district court certified to us that this decision passes on the following question of great public importance:

Should Florida courts exclude from jury consideration evidence of the availability of free public schools, and free or low-cost public or private non-profit therapy services to all members of the public because of the common law collateral source rule?

We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution. We answer the certified question in the negative and quash the decision under review.

Tommy Stanley and his parents brought a medical malpractice action against the petitioners to recover damages for the retardation and cerebral palsy Tommy has suffered since birth. The Stanleys alleged that Tommy’s injuries resulted from the negligent failure to diagnose and properly treat an oxygen deprivation which began shortly before Tommy’s birth. Petitioners denied that theory of injury and asserted that congenital defects caused Tommy’s debilitated condition. Both sides produced expert witnesses to support their respective theories of causation.

In order to prove specific damages the Stanleys presented expert testimony as to the expected cost of physical therapy, speech therapy, and special education Tommy would need. The trial court permitted the petitioners, over the Stanleys’ objection, to cross-examine these expert witnesses about the availability and effectiveness of free or low-cost charitable and governmental programs available in the community to meet Tommy’s needs. Petitioners’ counsel used this information in summation to argue that Tommy could be taken care of in the community if the jury did not find the petitioners liable for Tommy’s injuries. The jury found no liability, and the Stan-leys appealed. The district court reversed and remanded for a new trial, holding that the admission of evidence concerning the available charitably and governmentally funded care violated the common-law collateral source rule.

Petitioners claim that evidence of free or low cost services from governmental or charitable agencies available to anyone with specific disabilities is admissible on the issue of future damages. We agree. Such evidence violates neither the statutory nor the common-law collateral source rule and does not, therefore, require a new trial.

The district court correctly found section 768.50, Florida Statutes (1981), inapplicable to the unliquidated future damages at issue here. Section 768.50, which requires the trial court to reduce the jury verdict award in medical malpractice cases by the amount of all collateral source payments available to the plaintiff, only addresses liquidated collateral source payments which have been paid. However, the district court should also have found that the admission in this case of evidence concerning future governmental and charitable services did not violate the common-law collateral source rule.

We believe that the common-law collateral source rule should be limited to those benefits earned in some way by the plaintiff. Governmental or charitable benefits available to all citizens, regardless of wealth or status, should be admissible for the jury to consider in determining the reasonable cost of necessary future care. Keeping such evidence from the jury may provide an undeserved and unnecessary windfall to the plaintiff. We find persuasive the following reasoning advanced by the Supreme Court of Illinois in refusing to allow a plaintiff a windfall recovery for the value of free medical services received in a charitable hospital:

[T]he policy behind the collateral-source rule simply is not applicable if the plaintiff has incurred no expense, obligation, or liability in obtaining the services for which he seeks compensation. This is further made apparent upon comparison of the present case with a situation in which the collateral-source rule is frequently applied, that of the defendant who seeks a reduction in damages because the plaintiff has received insurance benefits. “It is a well-settled rule of damages that the amount recoverable for tortious personal injuries is not decreased by the fact that the injured party has been wholly or partly indemnified for the loss by proceeds from accident insurance where the tortfeasor did not contribute to the payment of the premiums of such insurance. This rule is usually justified on the basis that the wrongdoer should not benefit from the expenditures made by the injured party in procuring the insurance coverage.” (Emphasis added.) (22 Am.Jur.2d Damages sec. 210, at 293-94 (1965).) In a situation in which the injured party incurs no expense, obligation, or liability, we see no justification for applying the rule. We refuse to join those courts which, without consideration of the facts of each case, blindly adhere to “the collateral source rule,' permitting the plaintiff to exceed compensatory limits in the interest of insuring an impact upon the defendant.” (Note, Unreason in the Law of Damages: The Collateral Source Rule, 77 Harv.L.Rev. 741, 742 (1964) (hereafter Unreason).) The purpose of compensatory tort damages is to compensate (Restatement (Second) of Torts sec. 903, comment a (1979)); it is not the purpose of such damages to punish defendants or bestow a windfall upon plaintiffs. The view that a windfall, if any is to be enjoyed, should go to the plaintiff (Grayson v. Williams (10th Cir.1958), 256 F.2d 61, 65) borders too closely on approval of unwarranted punitive damages, and it is a view not espoused by our cases.

Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill.2d 353, 362-63, 29 Ill.Dec. 444, 448, 392 N.E.2d 1, 5 (1979).

The reasons set forth in Peterson are just as valid in the present case. The jury properly heard all the relevant evidence on future damages. We cannot agree with the district court that such evidence tainted the jury verdict for the defendants on liability.

This opinion should not be interpreted as limiting a plaintiff suffering from a particular continuing disability to recover only the future cost of the free or low cost governmental or charitable care available to all persons with that disability. Evidence of availability, cost, and quality of such care is relevant to assist the jury in determining the reasonable cost of the plaintiffs future care. The jury remains free to find that the publicly available services do not meet the plaintiffs future needs. The jury may find private care at higher cost more appropriate in some circumstances, but the jury should consider those future services available to all, regardless of wealth or status, when deciding on the proper award of future damages. The trial court did not err by allowing such consideration by the jury in this case.

We need not reach petitioners’ harmless error issue because we have determined that the evidence objected to does not violate the collateral source rule. Accordingly, we quash the decision under review and remand for proceedings consistent with this opinion.

It is so ordered.

ALDERMAN, C.J., and OVERTON and EHRLICH, JJ., concur.

SHAW, J., dissents with an opinion, in which ADKINS and BOYD, JJ., concur.

SHAW, Justice,

dissenting.

In adopting the reasoning of the Illinois Supreme Court in Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill.2d 353, 392 N.E.2d 1 (1979), the majority fails to appreciate the factual dissimilarity to the present case. A critical distinction between the two cases is that in Peterson the plaintiff voluntarily applied for, received, and completed charitable surgical services from the Shriners’ Hospital prior to seeking compensation for the same services from the tort-feasor. The Illinois Supreme Court held that the collateral source rule simply does not apply if the plaintiff has incurred no expense, obligation, or liability in obtaining the services for which he seeks compensation. I read this as simply stating that an individual is not entitled to recover for the value of previously rendered free services he has voluntarily obtained.

The Peterson court was not called upon to, nor did it, decide the issue of reducing tortfeasor liability for future care because of the current availability of charitable and public welfare programs. In Peterson the charitable assistance had already been received. Here the availability and level of future charitable assistance is a matter of speculation. The majority’s extended quote from Peterson, therefore, is inapplicable to the case under consideration. As the majority opinion points out, the trial court permitted the petitioners, over the Stanleys’ objections, to cross examine expert witnesses about the current availability and effectiveness of free or low cost charitable and governmental programs available in the community to meet Tommy’s needs, and to use this information in summation to argue that Tommy would be taken care of in the community even if the tortfeasor were not held fully liable for Tommy’s injuries.

For the reasons articulated, I feel that Peterson is factually dissimilar and the reasoning therein is inapposite. Even were I inclined to follow the Peterson rationale, I would not be inclined to extrapolate by taking the rationale a second step and applying it to the speculative value of future public assistance. There is simply no assurance that public assistance will continue, that the injured victim will continue to be eligible for such assistance if it continues, or that the assistance, if it continues, will continue at the same level. By denying the victim full compensation for the cost of future care, the majority opinion transfers the responsibility for the tort from the tortfeasor, where it legally and morally belongs, to the victim and the community. I cannot agree that an injured victim should be required to seek charity or public aid, or that the compassion of charitable contributors and taxpayers should become a device for reducing the legal liability of a tortfeasor.

In my opinion the decision below is a well-reasoned and correct statement of the law. I would answer the certified question in the affirmative and approve the decision of the district court in Stanley v. U.S. Fidelity & Guaranty Co., 425 So.2d 608 (Fla. 1st DCA 1982).

ADKINS and BOYD, JJ„ concur.


author: McDonald, justice.

text:
    PUBLIC EMPLOYEES RELATIONS COMMISSION, Petitioner, v. CITY OF ORLANDO, Respondent.
    No. 63876.
    Supreme Court of Florida.
    June 7, 1984.
    Phillip P. Quaschnick, General Counsel and Vernon Townes Grizzard and Thomas W. Young III, Asst. General Counsels, Public Employees Relations Commission, Tallahassee, for petitioner.

      Christopher A. Detzel of Subin, Shams, Rosenbluth & Moran, Orlando, for respondent.
   McDonald, justice.

We have for review an unpublished order of the Fifth District Court of Appeal denying a motion by the Public Employees Relations Commission (PERC) to be designated a party appellee in a proceeding to review an unfair labor practice order issued by PERC against the City of Orlando. The district court denied party-appellee status to PERC because PERC “is the forum from which the appeal is taken and, as such, is not a proper party in this court.” We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

This Court has not previously been called upon to determine what party-appellee status, if any, an administrative agency should be accorded when an adversely affected party seeks review of final agency action. Neither the judicial review section of the Florida Administrative Procedure Act, section 120.68, Florida Statutes (1981), nor the specific judicial review statute governing PERC, section 447.504, Florida Statutes (1981), requires PERC to be designated as a party appellee in review proceedings. The Florida Rules of Appellate Procedure do not specifically address this issue either. Rule 9.020(f)(2) defines a party appellee as “every party in the proceeding in the lower tribunal other than an appellant.” The committee notes to rule 9.020 state that the definition of appellee includes “the parties against whom relief is sought and all others necessary to the cause.” Arguably, the administrative agency could be considered an appellee as either a party “against whom relief is sought” or “necessary to the case” in a judicial review proceeding. This interpretation of rule 9.020(f)(2) alone is an insufficient basis for us to authorize party status for PERC where PERC is the lower tribunal. We must examine how other jurisdictions deal with the party status issue.

The National Labor Relations Board (NLRB) is comparable to PERC in acting as a tribunal for deciding unfair labor practice charges. The NLRB has been given the power to prevent any labor practice affecting commerce. The NLRB may file a complaint based upon an unfair labor practice charge, hold hearings on that charge, and either take action to end the unfair labor practice or dismiss the complaint. As with PERC, the party status of the NLRB on review of its own quasi-judicial determination is not set out by statute. 29 U.S. C.A. § 160(a), (b), (c), and (f) (1976). The Federal Rules of Appellate Procedure, unlike the Florida rules, require that “the agency shall be named respondent in a petition to review agency action.” F.R. A.P. 15(a). Because the NLRB is by rule a party to any judicial review of its own orders, its status on review proceedings is not persuasive in deciding whether PERC should be a party in review proceedings.

One other jurisdiction has considered the precise issue raised by the district court in this case. In State v. Maine Labor Relations Board, 413 A.2d 510 (Me.1980), the court raised the propriety of the Maine Labor Relations Board (board) appearing and actively participating as a party in an appeal from the board’s own decision. The court compared the functions of the board to those of a municipal zoning board of appeals, the latter administrative body previously having been held not to be a proper party in an appeal from its own decision. The municipal zoning board of appeals merely heard zoning appeals and was not involved in enforcement of those quasi-judicial decisions. In addition to making quasi-judicial decisions when ruling on unfair labor practice complaints, the board has the statutory power to enforce its decisions on unfair labor practices complaints by seeking a court order to compel compliance with those decisions. The court concluded that, because any review proceeding must be consolidated with any pending enforcement action brought by the board, it would be reasonable for the board to have party status in review proceedings. The public interest may make party status for the board appropriate because the adversaries which were before the board may represent only their own interests in review proceedings. Id. at 512-13. See also Barrington School Committee v. Rhode Island State Labor Relations Board, 120 R.I. 470, 388 A.2d 1369 (1978) (state labor relations board represents the public and may petition for a writ of certiorari to review a court order reversing a board unfair labor practice decision).

We find the Maine Labor Relations Board decision persuasive in our determination that PERC should have party status in review proceedings. PERC has the statutory power to seek enforcement of its orders in circuit court. If an appeal from the same order is pending in a district court of appeal, then the district court of appeal must transfer and consolidate the appeal and the enforcement action. § 447.5035, Fla.Stat. (1981). We believe it is more reasonable to grant PERC party status in review proceedings directly rather than to require PERC to acquire such status indirectly by bringing an enforcement action every time PERC believes the public interest requires its participation. The district court order in the present case will lead to such unnecessary roundabout procedure, thereby wasting judicial resources. We quash the order under review and hold that PERC is a proper party to review proceedings from its own orders.

We would suggest to PERC that it restrain its active participation in review proceedings to those cases where it has a direct interest or where the order under review has resolved a public labor law issue that has an impact upon other public employees, public employers, and taxpayers. PERC should not participate merely to add another voice in support of its own orders. While we hold PERC to be a proper party, we also hold that it is neither a necessary nor indispensable party.

Accordingly, we quash the order under review. PERC should be made a party appellee in any future review proceedings upon request or upon the designation of the party seeking review.

It is so ordered.

ALDERMAN, C.J., and BOYD, OYER-TON, EHRLICH and SHAW, JJ., concur.

ADKINS, J., concurs in result only.

       On the merits of the appeal the district court reversed the PERC order and remanded with directions to dismiss the unfair labor practice charge arising out of the city’s failure to bargain over standards for promotion to captain in the city fire department. City of Orlando v. Orlando Professional Fire Fighters Local 1365, 442 So.2d 238 (Fla. 5th DCA 1983), review denied, 450 So.2d 487, No. 64,524 (Fla. Apr. 23, 1984).