text:
    ALATEX, INC., et al. v. Ruby COUCH.
    Civ. 4086.
    Court of Civil Appeals of Alabama.
    April 11, 1984.

      William Anthony Davis, III and J. Bentley Owens, III of Starnes & Atchison, Birmingham, and Albrittons & Givhan, Andalusia, for appellants.
    W. Sidney Fuller, Andalusia, for appel-lee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

Claimant Ruby Couch, age forty-four, was employed by Alatex, Inc., a textile manufacturer in Andalusia, Alabama, from 1967 to January 22, 1980. She was assigned to the laundry department where her primary responsibility was folding shirts. During the course of her employment with Alatex, she developed breathing problems, which eventually led to her leaving her job. Her breathing difficulties first became apparent sometime in 1970.

Employer, Alatex, first received notice of claimant’s respiratory problems on June 8, 1979. It was in 1979 when claimant was examined by Drs. Bradley and Mehta that exposure to the factory environment was first considered a possible cause of claimant’s condition. She was instructed to discontinue work at Alatex by Dr. Vyas.

Though employer’s insurance carrier sent claimant to New Orleans for medical testing in October 1982, she has received no other compensation or medical assistance from employer or its insurer.

In June 1980 claimant filed suit in the Circuit Court of Covington County against Alatex, claiming entitlement to benefits under Alabama’s Workmen’s Compensation Act. After trial in September 1983, the trial court entered judgment in favor of claimant, awarding her disability benefits. Finding that claimant’s average weekly wage on January 22, 1980, was $123.69, that her weekly compensable rate for total disability was $89.88 and that 190 weeks had elapsed since claimant’s injury, the court awarded her a total of $17,077.20, and further held that claimant was entitled to recover those weekly payments as long as her permanent disability continues.

Additionally, the court held that employer was liable to claimant for $1,358.72 for medical expenses arising from treatment of her infirmity while employed by Alatex. The trial court denied employer’s motion to set aside the judgment and grant a new trial. Employer appeals.

The issue on appeal is whether there is any legal evidence to support the trial court’s decision. Employer argues that the evidence of record fails to satisfy claimant’s burden to isolate and identify the occupational risk or hazard peculiar to her employer’s industry, which proximately .caused her respiratory problems within the requirements and meaning of an “occupational disease” under § 25-5-110, Code of Alabama 1975.

The trial court found that claimant, over a period of time, while employed by Alatex, developed industrial asthma, which is an occupational disease resulting from frequent contact with chemicals and materials in employer’s factory and which is a hazard exceeding that ordinarily incident to employment in general and is peculiar to the occupation in which claimant was engaged. Moreover, the court found that claimant’s asthma had progressed to the extent she could no longer remain employed, and from the medical evidence and the court’s observation of claimant’s condition at trial, that claimant was totally and permanently injured as a result of industrial asthma, contracted and arising out of and in the course of her employment.

In reviewing workmen’s compensation cases, appellate courts do not look to the weight or preponderance of the evidence on a material fact under the Workmen’s Compensation Act, Woodward Iron Co. v. Jones, 217 Ala. 361, 116 So. 425 (1928), but rather will look to see if there is any legal evidence or reasonable inference therefrom to support the trial court’s findings of fact, and if there is, such findings will not be disturbed on appeal. Dan River Mills, Inc. v. Foshee, 365 So.2d 1232 (Ala.Civ.App.1979).

As in all workmen’s compensation eases, the burden rests upon the employee-claimant to establish to the reasonable satisfaction of the trial court that her disease was peculiar to the industry and that it arose out of and in the course of her employment. Dan River Mills, Inc. v. Foshee, supra. The claimant must establish a definite causal connection between her employment and her alleged occupational disease. Slimfold Manufacturing Co. v. Martin, 417 So.2d 199 (Ala.Civ.App.1981), writ quashed, 417 So.2d 203 (Ala.1982).

To fall within the definitional parameters of § 25-5-110, Code of Alabama 1975, which deals with compensation for occupational disease, it must be shown that it was caused or aggravated by the nature of the employment. See, Chrysler Corporation v. Henley, 400 So.2d 412 (Ala.Civ. App.1981). To be deemed “occupational,” a disease must result from hazards recognized as peculiar to the normal working conditions of the employee’s particular occupation. City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975). “Peculiar to the occupation” means that: “ ‘[T]he conditions of [the] employment must result in a hazard which distinguishes it in character from the general run of occupations.’ ” Young v. City of Huntsville, 342 So.2d 918, 922 (Ala.Civ.App.), cert. denied, 342 So.2d 924 (Ala.1977).

Employer Alatex contends that the evidence does not support a finding that claimant met her requisite burden of proof. Employer argues that the only evidence or inference that could possibly support claimant’s allegation was testimony of Dr. Meh-ta. Alatex claims that the medical file of Dr. Bradley was incorporated and attached to Dr. Mehta’s deposition as an exhibit thereto and that such conclusions of Dr. Bradley were not admissible merely by attachment to Dr. Mehta’s deposition.

Even assuming arguendo that Alatex is correct and the conclusions of Dr. Bradley were improperly admitted, other properly admitted evidence is present to support the trial court’s decision. Dr. Meh-ta testified in deposition that in addition to Dr. Bradley’s tests his impression was based “on the history [of claimant], the way I have followed her and the things that I have done to her and the testing by me.” He further testified that his opinion was based on his own treatment and evaluation of claimant as well as Dr. Bradley’s. Dr. Mehta, a specialist in pediatrics with a special interest in allergies, who has worked with allergists and continues to practice in this area, testified that he had seen and treated claimant on many occasions from June 1980 to March 1982, when he moved away. In his opinion, claimant was suffering from industrial asthma, developed over a period of several years from direct exposure to fibers and plant dust in the department where she worked at Ala-tex. Moreover, Dr. Salvaggio of Tulane Medical Center, in a written report, opined that claimant “probably has occupational asthma and at this time the best bet is that it is due to some type of dust or dust mite directly connected with her job as a shirt-folder, caser and cardboard box assembler.”

Thus, even conceding, without actually so ruling, that the exhibits pertaining to Dr. Bradley’s treatment of claimant were not properly admissible, there was other legal evidence in Dr. Mehta’s own examination, treatment and evaluation, and in Dr. Salvaggio’s testimony, to support the trial court’s decision. Where there is other legal evidence to support the court’s finding, technical questions regarding the admissibility of evidence will not be considered on appeal. West Point Manufacturing Company v. Bennett, 263 Ala. 571, 83 So.2d 303 (1955).

In addition to such medical testimony, the trial court had an opportunity to observe and evaluate claimant’s demeanor and physical condition firsthand. We find that there was legal evidence to support the court’s verdict and therefore we must affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Judgment was later amended to reflect that claimant’s weekly compensable rate for total disability was $82.45 rather than $89.88.


source: Caselaw Access Project

author: JOSEPH J. JASPER, Circuit Judge.

license: Public Domain

text:
    David WILLIS v. STATE.
    3 Div. 509.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied May 11, 1984 Alabama Supreme Court 88-646.

      Raymond Johnson, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   JOSEPH J. JASPER, Circuit Judge.

The appellant was convicted of assault in the first degree and sentenced to life in the penitentiary as a habitual felony offender with one prior felony conviction.

I

The state’s case in chief consisted of the testimony of the victim, Robert Lee Franklin, and three nurses who were on duty August 23,1981, at the time of the offense. The victim was a patient in a hospital recovering from gun shot wounds inflicted by the appellant on August 3, 1981. About 1:00 a.m. the appellant came into the victim’s hospital room with a stocking over his face and stabbed him in the chest and back with a knife. The victim had known the appellant eight to ten years and recognized him by his physical characteristics. The appellant also had a stocking over his face on August 3 when he shot Franklin. The victim recognized the appellant by his physical characteristics at the time of the shooting and at the time of the stabbing although the appellant did not say anything on either occasion.

Sherrill Koontz and Yvonne McCreary were nurses at the hospital. Two men with stockings over their faces got off the elevator around 1:00 a.m. and told them to lie on the floor. One man stayed with them and the other went in the direction of Franklin’s room. After the two men left, Franklin walked up to the nurses station and asked for help because he had been stabbed. One of the two men had the same physical characteristics as the appellant, according to Koontz.

Barbara Eadman was also a nurse on duty. She encountered the appellant and two other men in the elevator about 1:15 a.m. She later identified the appellant from a photograph in a “mug book” at the police department.

The appellant testified he was at the “Shell Club” when the incident occurred. He denied committing the crime and denied being at the hospital. Further, he denied shooting the victim.

Donald G. Shaner of the Montgomery Police Department, was called as a rebuttal witness by the state. He confirmed that Eadman had' selected the defendant’s photograph from a large number of photographs shown to her in the “mug books.”

II

The appellant contends the trial judge erred by letting in evidence that he shot the victim several times on August 3, 1981.

The issue is whether the evidence of the prior offense is relevant to an issue in this case. Generally, collateral offenses cannot be used as substantive evidence to establish guilt of the accused as to the crime for which he stands charged in the indictment.

However, this well-established principle is subject to several equally well-established exceptions. Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953), Scott v. State, 353 So.2d 36 (Ala.Cr.App.1977). These recognized exceptions as cited in Scott, supra, include: (1) relevancy to prove identity, (2) relevancy to prove res gestae, (3) relevancy to prove scienter, (4) relevancy to prove intent, (5) relevancy to show motive, (6) relevancy to prove system, (7) relevancy to prove malice, (8) relevancy to rebut special defenses, (9) relevancy in various particular crimes.

The victim’s testimony as to the August 3rd shooting was relevant to show the appellant’s intent to inflict serious bodily harm on Franklin and his motive to keep Franklin from pressing charges against him. Therefore, the court’s rulings were correct.

III

Counsel for appellant maintains the trial judge erred in allowing the state to question Eadman on redirect examination about matters not brought out during the defendant’s cross-examination of her.

Eadman was called by the state for the purpose, among other things, of identifying the appellant as the man she saw in the hospital elevator on August 23rd, about 1:20 a.m. During cross-examination, she was strenuously examined concerning her identification of the appellant based upon their brief encounter as she entered the elevator and he got off. On redirect examination, Eadman was questioned about going to the police station and identifying the appellant from his picture in a mug book.

The party who calls a witness generally must elicit on direct examination all that he wishes to prove by that witness. The object of redirect examination is to answer matters brought out on the cross-examination of the witness. It is within the discretion of the court, however, to allow on redirect examination matters which may have properly been brought out on direct examination. C. Gamble, McElroy’s Alabama Evidence, 3rd ed., § 439.01. Gautney v. State, 284 Ala. 82, 222 So.2d 175 (1969); Gulf Refining Co. v. First Nat’l Bank of Mobile, 270 Ala. 351, 119 So.2d 1 (1960). Further, once the identification of the accused by a witness has been impeached, the witness may be allowed to testify he formerly identified the accused in a police line-up or “photo-spread” and his testimony rehabilitated by the state. C. Gamble, McElroy’s Alabama Evidence, 3rd ed., § 177.01(6)(a). The court did not abuse its discretion in this matter.

IV

It is maintained by appellant that the court erred in allowing the state to question him about a prior misdemeanor conviction. On direct examination appellant denied trying to shoot or shooting the victim. Upon questioning, without objection, during cross-examination, the appellant denied ever having carried a gun or failing to register a gun. During further questioning by the state the following then occurred:

“Q: Isn’t it a fact, David, that in 1977 you were carrying a gun and you were caught and were charged with carrying a pistol without having had it registered?
“A: I was charged ...
“MR. WALDEN: Now Judge, we’re going to object to that.
“THE COURT: Overruled.
“Q: Go ahead.
“A: I was charged with firing a firearm. I wasn’t caught with a gun.
“Q: Oh, they didn’t catch you with a gun?
“A: Yes.”

C. Gamble, McElroy’s Alabama Evidence, 3rd ed., § 155.02(3), states “An act of a witness which is inconsistent with his present testimony about a material matter is self-contradiction and, as such, is provable for purposes of impeachment.” Whether or not the appellant carried a gun had probative value and was relevant, since there was testimony that he was the victim’s assailant in a shooting on August 3.

Appellant allowed to be put in evidence the claim that he was not involved in the earlier shooting of the victim and that he never carried a gun. The state was then properly allowed to question the appellant concerning his prior involvement with a firearm. Bickerstaff v. State, 369 So.2d 315 (Ala.Cr.App.1979). Further, appellant only admitted to having been charged with “firing a firearm.” Without an objection to the question, he admitted that when he was charged with this offense he was not caught with a gun. This implies that he had a gun but was not caught with it. Therefore, even if there was error, it was rendered harmless by the admission without objection of substantially the same evidence. Smith v. State, 393 So.2d 529 (Ala.Cr.App.1981).

V

The appellant has filed two pro se briefs. His contentions of error in each of these are numerous. Synopsized they are: (1) the arrest warrant was defective in that the victim made no statement against the appellant until trial and it was not signed by anyone other than “police”; (2) the state improperly instructed the grand jury about the law in order to obtain an indictment; (3) the state in opening statement by “insinuation that was cleverly presented” required the appellant to testify to negate the state’s charges; (4) the state presented insufficient evidence to support the conviction in that there were conflicts in witnesses’ testimony, improper identification procedures used by the police, and improper identifications or weak identifications; (5) that counsel for appellant persuaded him not to testify and failed to subpoena the appellant’s only alibi witness; (6) the state made improper arguments; (7) the trial judge’s instructions were improper; and (8) that he was denied effective assistance of counsel.

As to appellant’s contentions in his briefs synopsized above as (1), (2), (3), (6), and (7), there were no objections at trial to preserve any error for appeal. Bonner v. State, 389 So.2d 174 (Ala.Cr.App.1980).

As to contention (5), the appellant did testify at trial and did state that he had an alibi witness who had to leave because of the death of a family member in New York. The record reflects no motion for a continuance. Thus, there is no error preserved for appeal.

Eadman was the only witness who identified the appellant, other than the victim, who had previously known him. Koontz testified that the defendant was of the same general physical size as the person she saw. Sufficient evidence was presented as to the defendant’s presence in the hospital and as to his committing the offense to present a question for the jury.

Eadman was shown two books containing between fifty and seventy five photographs. The officer who showed her the photographs asked her to look at them and see if any were of the man she saw on the elevator. The photographs had no inscriptions on them other than numbers. She picked the photograph of the appellant. It was not shown that the identification procedure was improper or that it in any way tainted Eadman’s identification. Lewis v. State, 410 So.2d 474 (Ala.Cr.App.1982); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Appellant’s fourth synopsized contention is without merit.

A search of the record shows appellant’s attorney thoroughly cross-examined the witnesses and made numerous objections. In no way did he allow the trial to be or become a mockery. Williams v. Beto, 354 F.2d 698 (5th Cir.1965); Bonner v. State, supra. In Mains v. State, 375 So.2d 1299 (Ala.Cr.App.1979), it was stated:

“In reviewing claims of ineffective assistance of counsel, Alabama appellate courts leave much to the discretion of defense counsel regarding matters of trial strategy. Robinson v. State, Ala.Cr. App., 361 So.2d 1172 (1978); Huff v. State, 267 Ala. 282, 100 So.2d 769 (1958). This is so because defense counsel are obviously in the best position to analyze the many objective and subjective components making up the case for and against their clients.
“Moreover, even assuming counsel should have objected to Larry Hall’s testimony, an adequate defense in the context of the Sixth Amendment right to counsel does not mean that defense counsel must be error free in his handling of trial tactics. Summers v. State, Ala. Crim.App., 366 So.2d 336 (1978); Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974).”

The record shows he thoroughly represented the rights of the defendant. Appellant’s contention concerning ineffective assistance of counsel is without merit. As stated in Trammel v. State, 420 So.2d 855 (Ala.Cr.App.1982),

“Not only has the appellant failed to establish that the conduct of his counsel reduced the original trial proceeding to a farce, sham or mockery, Robinson v. State, 361 So.2d 1172 (Ala.Cr.App.1978) but also the appellant has fallen far short of establishing that he was denied the ‘reasonably effective’ assistance of counsel standard set forth in Harris v. Oliver, 645 F.2d 327 (5th Cir.1981). See also Mitchum v. State, 414 So.2d 168 (Ala.Cr.App.1982).”

Appellant’s eighth synopsized contention is therefore without merit.

Appellant filed a petition for a writ of mandamus in which he maintains the trial court erred in denying his motion for new trial. The grounds for appellant’s motion for new trial and its amendments are basically the same as those raised on appeal in the briefs of the appellant and his attorney. A petition for a writ of mandamus is not a substitute for an appeal. Further, it is not to be granted unless the actions complained of were arbitrary and capricious. For the reasons noted above, this is not the case. Further, the same contentions have been raised on appeal. The petition is therefore due to be denied. Ex Parte Nice, 407 So.2d 874 (Ala.1981); In re State of Alabama v. Cannon, 369 So.2d 32 (Ala.1979).

From the examination of the issues raised on appeal we conclude there was no error. The petition for writ of mandamus is due to be denied and the case affirmed.

The foregoing opinion was prepared by Hon. JOSEPH J. JASPER, Circuit Judge, temporarily on duty on the court pursuant to the authority contained in the provisions of § 12-2-30(b)(6), Code of Alabama 1975; the court has adopted his opinion as its own.

AFFIRMED; PETITION FOR WRIT OF MANDAMUS DENIED.

All the Judges concur.


author: SAM TAYLOR, Judge.

text:
    Jeffrey Howard COFFIN v. STATE.
    3 Div. 738.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    As Corrected on Denial of Rehearing April 24, 1984.
    Jeffery C. Duffey of Duffey & Wallace, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for ap-pellee.
   SAM TAYLOR, Judge.

From his conviction for possession of dia-zepam and misdemeanor possession of marijuana, for which he received concurrent sentences, Jeffrey Howard Coffin brings this appeal.

The state’s evidence tended to show that officers of the Montgomery Police Department had suspected the appellant of drug violations for some 18 months, and had watched him from time to time. While securing information in order to obtain a warrant, the officers observed the appellant’s residence one evening. They observed the appellant going in and out of the house, and to and from his car. That night, they saw other people enter and leave the house. They then made plans for a “controlled buy under police regulations.” Under this arrangement, the prospective purchaser was searched and it was ascertained that he had no drugs. He was then given money and sent to the house. He returned without the payment money, but with some illegal drugs in the form of pills. As a result of this, the police officers obtained a search warrant for the house and the automobile, and they executed the warrant the next day. They found marijuana in the bedroom of the residence where the appellant had been observed the previous night. In a car registered to appellant they found 279 pills, marijuana rolling paper and a roach clip. The previous night appellant had been seen making trips to and from the same vehicle while it was parked. The pills discovered in the search were diazepam, a controlled substance.

I

Appellant first contends that the court erred to reversal in overruling an objection to testimony relating to a statement made by a police informant. The question was whether or not the appellant was present in the house from which the controlled buy was made.

The officers had observed appellant Coffin leaving and reentering the house as well as the automobile and they had personal knowledge that he was in the house. The informant’s information about appellant's presence was merely cumulative. There is no contention that the appellant was not in the house that evening. We do not see that this portion of the testimony prejudiced appellant’s case, and so find no merit to this issue.

II

Appellant asserts that the evi1 dence was insufficient to prove his possession of the drugs. The testimony of the officers executing the search warrant was that marijuana was found in the front bedroom of the house, where the appellant had been observed to be for quite some time. In this room the officers found the appellant’s birth certificate, an insurance statement with appellant’s name on it, a motor vehicle registration tag and a tax receipt in appellant’s name. As previously mentioned, the officers had observed the appellant going from the house out to his car at least three or four times the previous night. As we noted, they found a quantity of contraband in the vehicle. There was evidence from which the jury could find appellant to have been in actual possession of the vehicle and of the drugs contained therein. There was further evidence from which the jury could find that the appellant was in constructive possession of the contraband. The use of direct proof to show constructive possession is not necessary; the elements of such possession may be proven through a sufficient showing of the surrounding facts and circumstances, Franklin v. State, 437 So.2d 609 (Ala.Cr.App.1983), and such a showing was made in this case. The only evidence to contradict the possession by the appellant was that his mother and sisters also lived at the house searched. We are convinced that there was sufficient evidence of both actual and constructive possession to present a jury question in this case, including evidence on the issue of knowledge of the existence and specific whereabouts of the contraband. Consequently, the conviction is due to be affirmed.

AFFIRMED.

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


author: HARRIS, Judge.

text:
    David BLACKMON v. STATE.
    4 Div. 125.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied May 8, 1984.

      J. Earl Smith, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   HARRIS, Judge.

The Houston County Grand Jury, in its February, 1982 term, indicted appellant, David Blackmon, for intentionally receiving, retaining or disposing of stolen property, in violation of § 13A-8-17, Code of Alabama (1975). On November 29, 1982, he was found guilty as charged, and on January 7, 1983, he was sentenced to eight years’ imprisonment.

Captain David Shipley, a security contractor for Great Southern Paper Company in Cedar Springs, Georgia, testified at trial that a two-way Motorola radio, marked with an identifying serial number, was assigned to an employee of the company who reported that it was missing in October of 1981. The radio was tuned to a frequency that had been assigned to the company and an announcement of the assignment was broadcast over the radio frequency at regular intervals. Shipley surmised that the radio had been taken by some employee, since the radios were not to be taken outside the mill without a material pass.

Frank Meadows, a sergeant with the Houston County Sheriffs Department, testified that he took his van to appellant’s place of business to have it painted, and that while he was there appellant asked him if he knew anyone who could put a county frequency crystal in a radio. Meadows said that he did and appellant asked, “Well, can you keep your mouth shut?” Meadows replied, “Yeah.” Appellant went to his truck,, reached under the seat, brought out a two-way radio and handed it to Meadows. Appellant said, “Now, keep your mouth shut and whatever you do, don’t key this mike.” (I.e., key the radio in to talk on it.)

Meadows took the radio to Charlie Childs, operator of the Sound Shop, and the two men inscribed “FC” on the radio for further identification.

Meadows had a conversation with appellant the following day, during which Larry LaGrone was present. Appellant stated that if they got caught with the radio that he would blame it on Houston Davis, because Davis was suing him for work he claimed was not properly performed. Appellant also stated that Larry LaGrone could get more radios.

Charlie Childs testified that he was an employee of the Sound Shop in Dothan. He identified the Motorola radio as the one he and Frank Meadows had inscribed. He reported that appellant came into his shop, identified himself as the owner of the radio, and asked that the frequency and identification plate be changed to correspond to the frequency and identification of the Houston County Sheriffs Department. Appellant stated that he would be getting more radios and would want their frequencies changed also.

Childs testified that, before he turned the radio over to the Sheriff's Department, he heard the hourly identification of the radio station as the Great Southern Paper Company of Cedar Springs, Georgia.

Appellant testified that he got the radio from Houston Davis, who offered it as partial payment for work done on his truck, and that he did not know that it had been stolen.

Appellant contends that the testimony of Charlie Childs regarding the broadcast of the station identification, which he heard while in possession of the radio, was improperly admitted into evidence, requiring a reversal of his conviction. Appellant objected to this testimony at trial, assigning as grounds for the objection that anything Childs heard would have been hearsay and thus inadmissible. On appeal, he argues that by listening to the broadcast Childs committed a criminal violation of § 13A-11-31, Code of Alabama (1975), which provides the following: “(a) A person commits the crime of criminal eavesdropping if he intentionally uses any device to eavesdrop, whether or not he is present at the time.”

Appellant failed to preserve this issue for review, since his specific objection at trial was based on hearsay grounds. It is well settled that all grounds of objection not specified are waived, and that the trial court will not be placed in error on grounds not raised at trial. Hughes v. State, 412 So.2d 296 (Ala.Cr.App.1982); Beasley v. State, 408 So.2d 173 (Ala.Cr.App.1981), cert. denied, 408 So.2d 180 (Ala.1982); Knight v. State, 381 So.2d 680 (Ala.Cr.App.1980).

In addition, it is abundantly clear from the official commentary to § 13A-11-31, Code of Alabama (1975), that the type of communication overheard by Childs was not the type of communication protected by this statutory provision. The commentary quotes United States v. Carroll, 337 F.Supp. 1260 (D.D.C.1971), where the court set out three elements of an unlawful interception of communication: (1) “a willful interception” (2) of “oral communications uttered by a person exhibiting an expectation that the communication would be in private,” and (3) that such “communication must have been under circumstances justifying an expectation of privacy.”

Appellant next contends that the trial court improperly restricted his right to cross-examine State’s witnesses.

It is axiomatic that the latitude and extent of cross-examination is within the sound discretion of the trial judge and is not to be disturbed on appeal unless there is an abuse of discretion. Weaver v. State, 407 So.2d 568 (Ala.Cr.App.1981); Renfroe v. State, 382 So.2d 627 (Ala.Cr.App.1980), cert. denied, 382 So.2d 632 (Ala.1980).

A review of the record fails to support appellant’s allegations of abuse of discretion by the trial judge. On the contrary, his rulings on cross-examination of State’s witnesses were in all instances proper.

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

AFFIRMED.

All the Judges concur.


text:
    Billy Joe MAGWOOD v. STATE.
    4 Div. 209.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    J.L. Chestnut, Jr. of Chestnut, Sanders, Sanders & Turner, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Ed Carnes, Asst. Atty. Gen., for appellee.
   SAM TAYLOR, Judge.

This is an appeal by Billy Joe Magwood from denial of his petition for a writ of error coram nobis including an attempt to invoke § 15-16-23, Code of Alabama 1975, suspending the execution of the death sentence of insane convicts.

Magwood was convicted of the March 1, 1979, murder of Coffee County Sheriff Neal Grantham, while Sheriff Grantham was acting in his official capacity. Our court affirmed his conviction and death sentence in Magwood v. State, 426 So.2d 918 (Ala.Cr.App.1982). This affirmance was in turn affirmed by the Alabama Supreme Court in Ex Parte Magwood, 426 So.2d 929 (Ala.1983). The United States Supreme Court denied certiorari in Magwood v. Alabama, — U.S.-, 103 S.Ct. 3097, 77 L.Ed.2d 1355 (1983).

Magwood’s execution was set for July 22, 1983. On July 13, 1983, appellant filed this petition and a full hearing was had on July 18, 1983. The circuit court denied the petition and the application for stay of execution in a comprehensive opinion. Meanwhile, appellant petitioned the federal court for a writ of habeas corpus and applied for a stay of execution, which secured him a stay of execution pending consideration of his petition. The federal court then decided to delay the federal habeas corpus proceeding to wait for the outcome of this appeal.

I

Section 15-16-23, Code of Alabama 1975, provides that:

“If after conviction and sentence to death, but at any time before the execution of the sentence, it is made to appear to the satisfaction of the trial court that the convict is then insane, such trial court shall forthwith enter an order in the trial court suspending the execution of the sentence to the time fixed in the order; and, if it subsequently is made to appear to the court that such convict, the execution of the sentence of whom has thus been suspended, is restored to sanity, the trial court shall forthwith have another order entered ordering and commanding the execution of the judgment and sentence originally awarded in said court at a time fixed in such order. This mode of suspending the execution of sentence after conviction on account of the insanity of the convict shall be exclusive and final and shall not be reviewed or revised by or renewed before any other court or judge. No court or judge in this state shall have the power or right to suspend the execution of sentence of any other court of record on account of the insanity of the convict. This section shall not prevent the judge or court from impaneling a jury to try the question of insanity or from examining such witnesses as he may deem proper for guidance.”

It is interesting to note that the legislature provided that the order of the trial court "... shall not be reviewed or revised by or renewed before any court or judge. No court or judge in this state shall have the power or the right to suspend the execution of sentence of any other court of record on account of the insanity of the convict.” This provision was obviously necessary if any sentence of execution is ever to be carried out. Otherwise, a person awaiting execution could simply file an application every time the last one was denied, ad infinitum, thereby defeating the intent of the law and the will of the legislature. Our laws are now choking in red tape. We will not add to the problem by creating a right of appellate review contrary to the explicit language of the statute.

The trial court's entered order was conclusive. Neither our court nor the Supreme Court has jurisdiction over this matter.

II

Appellant contends that he was denied effective assistance of counsel. A full hearing was had on this issue at the trial level resulting in a determination that appellant was not denied effective assistance of counsel. At the hearing both the attorneys for the appellant, skilled and experienced practitioners, testified. A careful review persuades us that the trial court was correct in its decision.

III

Appellant next contends that § 15-16-23, is unconstitutional on its face and as applied. Much less elaborate procedural requirements governing the stay of execution for an insane person have received approval of the United States Supreme Court in Solesbee v. Balkcom, 339 U.S. 9, 70 S.Ct. 457, 94 L.Ed. 604 (1950). Section 15-16-23 is constitutional.

IV

The issue of actual prejudice resulting to the appellant as a result of pretrial publicity is an issue properly considered on appeal. Since the issue could have been raised on appeal, appellant is barred from presenting it in this coram nobis proceeding. Summers v. State, 366 So.2d 336 (Ala.Cr.App.1978), cert. denied, 366 So.2d 346 (Ala.1979).

There appears to be no merit in any of the issues raised by the appellant in this petition for writ of error coram nobis and effort to stay execution. Accordingly, the action of the trial court denying the petition is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    John Frazier HOSKINS v. STATE.
    4 Div. 221.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied May 8, 1984.
    Julius H. Hunter, Jr., Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen. and Richard L. Owens, Asst. Atty. Gen., and T.A. Harding Fendley, Montgomery, for appellee.
   HARRIS, Judge.

Appellant, John F. Hoskins, was indicted by the Russell County Grand Jury, in its spring 1983 term, for the offense of owning a pistol or having it in his possession, or under his control after having been convicted of assault on a peace officer, in violation of § 13A-ll-72(a), Code of Alabama (1975). On June 22, 1983, appellant was tried and convicted of the offense charged and was sentenced to three years’ imprisonment in the state penitentiary.

At 1:47 a.m., on March 12, 1983, Deputy Sheriff Sollie Pate stopped appellant for speeding. When he shined a light into appellant’s car he saw a .22 revolver lying in the front floorboard on the driver’s side. When he retrieved the gun, he saw that it was fully loaded and that the hammer was pulled back. Deputy Pate confiscated the gun.

Pate placed appellant under arrest for Driving Under the Influence and for Reckless Driving. He discovered during his investigation that appellant’s possession of the gun was not merely possession without a license, but was a felony possession because of his previous conviction for assaulting a peace officer.

Appellant argues on appeal that § 13A-ll-72(a), Code of Alabama (1975), is unconstitutional because it denies him, as one who has been convicted of a crime of violence, his right to keep and bear arms as guaranteed under the Second Amendment to the United States Constitution.

Appellant’s arguments in this regard have been fully addressed, most recently in Bristow v. State, 418 So.2d 927 (Ala.Cr. App.1982). See also Mason v. State, 39 Ala.App. 1, 103 So.2d 337 (1956), aff’d, 267 Ala. 507, 103 So.2d 341 (1958), cert. denied, 358 U.S. 934, 79 S.Ct. 323, 3 L.Ed.2d 306 (1959); Jackson v. State, 37 Ala.App. 335, 68 So.2d 850, cert. denied, 260 Ala. 698, 68 So.2d 853 (1953). The court in these cases held that the constitutional guarantee of the right of a citizen to bear arms is subject to reasonable regulation by the state under its police power, and that the classification created under the statute is warranted and is clearly a reasonable exercise of the State’s police power.

Appellant also contends that the trial court did not give proper consideration to an inconsistent statement made by Deputy Pate prior to the suppression hearing regarding the revolver confiscated by Pate. A written report prepared by Deputy Pate stated that the revolver was found “under the front seat.” At the suppression hearing Deputy Pate testified that the pistol was lying in plain view on the floorboard.

It is well established that conflicting evidence presented at a suppression hearing raises a question for the trial judge, and that the weight and credibility of a witness’s testimony is also to be determined by the judge. Myers v. State, 431 So.2d 1342 (Ala.Cr.App.1982); Brumback v. State, 371 So.2d 999 (Ala.Cr.App.1979); Smith v. State, 351 So.2d 668 (Ala.Cr.App.), cert. denied, 351 So.2d 675 (Ala.1977). The phrase “under the front seat” is ambiguous, and the degree of conflict with the later statement made by Deputy Pate, as well as the credibility of Deputy Pate as a witness, was a question for the trial judge. We find that the evidence presented at the suppression hearing was sufficient to warrant a finding by the judge that the seizure of the revolver was permissible under the plain view exception to the warrant requirement. Myers, supra.

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

AFFIRMED. '

All the Judges concur.


text:
    James Douglas WATKINS v. STATE.
    6 Div. 67.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.

      Michael Blalock, Birmingham, for appellant.
    Charles A. Graddiek, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   SAM TAYLOR, Judge.

Appellant, James Watkins, was indicted and convicted for robbery in the first degree and attempted murder in Jefferson County. He was sentenced to twenty years’ imprisonment for the robbery conviction and ten years’ imprisonment for attempted murder.

Mr. Baker, the alleged victim in this ease, was working with his wife at the all-night Ride Service Station in Birmingham, at approximately 3:00 a.m., when two black males robbed them and shot Mr. Baker. The projectile entered under Baker’s right arm, proceeded through his body and exited under his left arm. He remained in intensive care at the hospital for about three weeks.

Shortly after the shooting, on his first visit to see Mr. Baker, Sergeant John Bare-field, the investigating officer, received a description of the perpetrator of the crime. Mr. Baker described his assailant as a black man of average height, about 140 pounds, with a round face and oriental eyes. Sergeant Barefield testified that after leaving Mr. Baker, he went to the scene of the crime and from the interviews he conducted at that time, discovered a name of a person who was rumored to haye committed the crime. He ran the name through the police computer, but due to the lack of an accurate name, he received no information. He testified that in order to receive information from the computer, a proper name, or a similar name and a birth-date must be fed into the computer. In order to obtain a birthdate on the person who allegedly committed the crime, he went to the high school located about three blocks from the Ride Service Station. Sergeant Barefield obtained the full name of James Douglas Watkins, the appellant, and a birthdate. From a file the school kept on dropouts, he obtained the junior high school picture of the appellant and four other junior high school pictures of teenagers of similar appearance.

From the school, Sergeant Barefield brought the pictures to Mr. Baker, who was then listed as in critical condition in the intensive care unit at the hospital. Sergeant Barefield testified that he was afraid Mr. Baker would not live long. From the five junior high school pictures, Mr. Baker picked out the appellant, but stated that it was hard to identify him from pictures of children.

Sergeant Barefield then returned to the police station and ran the proper name and birthdate through the police computer. He received a more recent photograph of the appellant, which he brought to the hospital along with five other photographs of men of similar appearance and age, for Mr. Baker to view. Mr. Baker quickly selected the appellant from this photographic line-up. . At this time, a warrant was issued for the arrest of Watkins.

After the appellant had been arrested the following day, Sergeant Barefield brought Mr. Baker the third photographic line-up. It was a single picture of five men, one of whom was the appellant. The appellant was the only man who was standing straight in that picture; the four other men had their knees bent. Baker once again identified Watkins as the man who shot him.

The only issue we will address in this case is whether the appellant’s due process rights were violated by the failure of the trial court to grant appellant’s motion to suppress the in-court identification of the appellant by Mr. Baker.

The standard was established by the United States Supreme Court in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968): “[E]aeh case must be considered on its own facts, and ... convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so im-permissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Factors listed by the Supreme Court to be considered in determining the likelihood of misidentification include “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972).

We must first consider whether the identifications were impermissibly suggestive, and then whether a substantial risk of mis-identification was created. Jackson v. State, 361 So.2d 1152 (Ala.Cr.App.1977). The fact that a photograph was made in which all the participants except the appellant had their knees bent is revealing. The law enforcement officers obviously sought to have all the participants appear to be about the same height in order to comply with the dictates of the United States Supreme Court. They were “bending over backwards” to avoid holding an impermissi-bly suggestive line-up. To the officers’ surprise, this line-up photograph was full-length. The identification procedure was somewhat unusual in this case, but considering the evidence in light of the factors listed in Neil v. Diggers, supra, we do not feel that it was impermissibly suggestive.

The appellant introduced the photographic line-ups into evidence during the cross-examination of Mr. Baker. The jury was, therefore, informed of the possibility of misidentification and could study the pictures themselves to decide whether the pictures were impermissibly suggestive. De-

Loach v. State, 356 So.2d 222 (Ala.Cr.App.1977).

Mr. Baker made a positive in-court identification of the appellant based on his observation of the appellant on the night of the robbery. He testified at trial that “[w]hen this actually happened, I took the man who had the gun and I just tried to drill a picture of his face into my head. I figured I was going to get shot, so I would need that, and that’s exactly what I did.” Even if Mr. Baker’s pretrial identification had been the result of suggestion, he made an independent in-court identification based upon his memory of the appellant the night of the robbery, and, therefore, a substantial risk of misidentification was not created. Jones v. State, 431 So.2d 1367 (Ala.Cr.App.1983); Lee v. State, 444 So.2d 895 (Ala.Cr.App.1984).

We have reviewed and considered the other issues raised on appeal and find them to be without merit.

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Gerald Ray CAMPBELL v. STATE.
    8 Div. 967.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.

      See also, 435 So.2d 234.
    L. Thomas Ryan, Jr., Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant, Gerald Ray Campbell, was convicted of first degree murder and sentenced to life in the penitentiary. Three issues are raised on appeal.

I

Campbell first argues that several questions posed by the prosecutor were improper and highly prejudicial. After reviewing the record, it is clear that the prosecutor’s questions were not good examples of preferred trial technique; however, the objections made at trial were general and, thus, no issue is preserved for review. Steele v. State, 389 So.2d 591 (Ala.Cr.App.1980).

It should be noted that in his reply brief, Campbell brought to this court’s attention additional instances of improper questioning by the prosecutor. As on the other occasions, Campbell’s original objection was general and, thus, preserved nothing for review. When he finally gave specific grounds for his objection, it was sustained.

II

Campbell next complains that his requested charges were refused. Here again, the issue is not preserved for review because Campbell failed to bring to the court’s attention specific refused charges and specific grounds for the objection. Malone v. State, 421 So.2d 1357 (Ala.Cr. App.1982); Comment, Temp. Rule 14, A.R. Crim.P.

III

Lastly, Campbell contends that the jury ignored the evidence of his insanity. This issue is without merit, since the State put on an expert witness who testified that Campbell was not insane.

The judgment of the lower court is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Marsha TOWNS v. STATE.
    6 Div. 310.
    Court of Criminal Appeals of Alabama.
    April 10, 1984.
    Rehearing Denied May 8, 1984.

      Andrew LaPlante, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen. and James B. Prude,,Asst. Atty. Gen., for ap-pellee.
   HUBERT TAYLOR, Judge.

The appellant in this case, Marsha Towns, was convicted of theft of property in the second degree and sentenced to fifteen years in the penitentiary under the Habitual Felony Offender Act.

The State’s evidence showed that on March 13, 1983, Towns, accompanied by a male companion, shoplifted a man’s suit in a Pizitz department store. Store security guard Anita Buchanan said that while the male companion picked up one suit and held it, she observed appellant roll up another and secrete it inside a white plastic shoe bag. Towns then moved to another area of the men’s clothing department still carrying the bag. When the appellant saw the security guard moving towards her, she unsuccessfully tried to remove the suit from the bag; when Buchanan finally reached her, Towns threw the bag down near a clothing rack.

The guard, who was accompanied by another store employee, told Towns she was under arrest and started to escort her to the security office. Appellant began talking very loudly, saying that she did not know what she was being taken to the office for. Towns then threw her hands up and hit Buchanan in the face and neck. She ripped the guard’s earring out, hit her in the eye, and then grabbed her by the hair. The two women fell to the floor in the scuffle, and Towns was finally subdued. After the appellant was brought into the security office, she continued to shout, screaming obscenities and threatening Buchanan. She also told Buchanan that when she got out of jail, Buchanan would “owe her one.”

I

The first issue raised on appeal is whether or not prejudicial error was committed when the trial court admitted testimony concerning the altercation begun by Towns at the time of her arrest. Appellant claims that the evidence could serve no other purpose but to “inflame the jury” and “create ill feeling” toward her. We cannot agree, since we find the testimony was admissible as part of the res gestae. See Ala. Digest, Criminal Law, Key No. 364(4) and cases cited therein. Appellant’s conduct and her statements were clearly incriminating; she implied she knew she would go to jail for what she had done, and she made numerous threats against the guard who arrested her.

This court has stated that for evidence to be admissible under the res gestae exception, it must be incident to the crime committed and it must shed light on the main fact. Smoot v. State, 381 So.2d 668 (Ala.Cr.App.1980), and cases cited therein. We conclude that the evidence to which appellant objects clearly falls within this exception.

II

Appellant next contends that she did not obtain sufficient control over the stolen suit to constitute theft in the second degree under § 13A-8-4(e), Code of Alabama 1975. In § 13A-8-2, theft of property is defined as follows:

“A person commits the crime of theft of property if he:
“(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property; or
“(2) Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his property.”

Appellant claims that her possession of the suit was not complete since security guard Anita Buchanan stated she had the right to search customer packages under certain circumstances. Towns says that this right to search qualified her possession and, thus, her act of placing the suit inside the bag could only be viewed as attempted theft. As authority for this proposition, appellant cites the case of Scott v. State, 409 So.2d 933, 934 (Ala.Cr.App.1981), which stated that to satisfy the requirements of the crime of Larceny,

“[T]he alleged thief, at some moment, must have obtained complete independent and absolute possession and control of the item, adverse to the rights of the owner. [Citation omitted.] If the possession is imperfect in any degree, or if the alleged thief’s control is qualified by any circumstance, however slight, the severance is incomplete and the act is only an attempt." (Emphasis in original.)

We cannot agree with appellant that the Scott ease stands for the proposition that the right to search a customer’s bag qualifies a thief’s control of shoplifted merchandise to the extent that the wrongdoer cannot be found guilty of the crime. Appellant’s possession of the plastic bag constituted the type of complete, unauthorized control required to sustain a conviction of theft in the second degree.

To accept the argument that the security guard’s limited right to search customers’ packages made appellant’s possession incomplete under the theft statute is ridiculous. If this court adopted such a standard and carried it to its logical extreme, then no one found with stolen goods on his person could ever be convicted of theft, since law enforcement officers possess the power to search individuals under certain limited circumstances.

Ill

Appellant next argues that her movement from one portion of the men’s department to another while carrying the white plastic bag did not constitute sufficient action to support a completed act of theft. There is no merit in this argument, since the issue is not how far the accused moved the merchandise but rather what intent accompanied that movement. If an individual moves merchandise within a store with the intent to steal, then sufficient asportation has occurred to constitute the crime regardless of how far that movement was. See Craig v. State, 410 So.2d 449 (Ala.Cr.App.1981).

Since appellant’s intent is a question for the jury and not for this court, we are left with nothing to review. See Anderson v. State, 418 So.2d 967 (Ala.Cr.App.1982).

IY

The fourth issue raised on appeal is whether or not the trial judge committed reversible error when he refused to allow Towns to read to the jury an exculpatory statement she had given to the police after her arrest.

We agree with the State that such self-serving declarations made by an accused after the commission of an offense are generally not admissible. Chisolm v. State, 409 So.2d 930 (Ala.Cr.App.1981).

An exception exists where such statements are part of the res gestae, Smoot, supra, but appellant’s statement does not fall within this exception (see Ala. Digest, Criminal Law, Key No. 364(5)), and, thus, we find no merit in this issue.

V

The last issue appellant raises is whether or not the trial judge’s refusal to charge the jury on attempted theft was error.

The relevant portions of the Code dealing with attempt read as follows:

“(a) A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.
“(c) A person is not liable under this section if, under circumstances manifesting a voluntary and complete renunciation of this criminal intent, he avoided the commission of the offense attempted by abandoning his criminal effort and, if mere abandonment is insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof. The burden of injecting this issue is on the defendant, but this does not shift the burden of proof.” Ala.Code § 13A-4-2 (1975).

It is clear that one of the elements of attempt is failure to consummate the intended crime. See commentary to § 13A-4-2.

Appellant was seen hiding a suit she had not paid for inside the plastic bag she was carrying. This evidence could not support a finding that appellant’s actions constituted a mere attempt. As this court stated in Myers v. State, 401 So.2d 288 (Ala.Cr.App.1981):

“The trial court is not required to charge the jury on a lesser included offense when the evidence offered at trial points either to the guilt of the accused of the offense charged in the indictment or to his innocence. An accused is entitled to have the jury charged on a lesser included offense only where there is a reasonable theory from the evidence to support the lesser offense.”

We cannot say that a reasonable theory could be extracted from the evidence adduced at trial that would have given appellant the right to a jury charge on attempt.

We further find that Towns’s unsuccessful attempt to pull the suit out of the bag after she saw the security guard walking toward her does not constitute an abandonment under § 13A-4-2(c); the crime of theft was consummated once appellant hid the suit. Towns’s assertion that her effort to pull the suit out was a “complete renunciation of her criminal intent” is without foundation.

In conclusion, we find that the judgment of the lower court in this case is due to be affirmed.

AFFIRMED.

All the Judges concur.

      . Reporter’s Note: Judge Hubert Taylor resigned from the Court of Criminal Appeals on April 2, 1984. The Judges of the Court of Criminal Appeals had concurred in this decision prior to his resignation.


text:
    Charles August LEE v. STATE.
    2 Div. 401.
    Court of Criminal Appeals of Alabama.
    April 24, 1984.
    Rehearing Denied June 26, 1984.
    William A. Ryan, Greensboro, for appellant.

      Charles A. Graddick, Atty. Gen., and Michael M. Eley and Douglas L. Anderson, Asst. Attys. Gen., for appellee.
   HARRIS, Judge.

On September 21, 1983, appellant, Charles August Lee, was convicted of escape in the first degree and was sentenced to a term of ninety-nine years in the state penitentiary.

Appellant now alleges that he was denied his right to a speedy trial as guaranteed by the Sixth Amendment to the Constitution of the United States. The facts governing determination of this issue are the following:

1. November 20, 1980—Appellant escaped from a minimum security facility in Hale County.
2. November 26, 1980—Appellant was captured north of Ozark by the Dale County Sheriff.
3. May 10, 1982—Appellant was indicted for escape.
4. November 15, 1982—The defense was granted a continuance.
5. April 18, 1983—Appellant filed a pro se motion to dismiss the case, claiming a denial of his right to a speedy trial. Motion denied.
6. May 10, 1983—Appellant was arraigned; trial was again continued on motion of the defense.
7. September 21, 1983—Trial, judgment and sentencing of appellant.

Appellant’s right to a speedy trial attached on May 10, 1982, when the indictment was returned against him. Harper v. State, 420 So.2d 835 (Ala.Cr.App.1982) (and cases cited therein). The relevant period for determination of the question of whether appellant was denied a speedy trial is thus from May 10, 1982, when he was indicted, to November 15, 1982, when trial was first set. Delays thereafter were occasioned by the defense. We do not find this six-month delay to be “presumptively prejudicial,” or “patently offensive,” triggering analysis of the remaining factors set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Byrd v. State, 421 So.2d 1344 (Ala.Cr.App.1982); Watson v. State, 389 So.2d 961 (Ala.Cr.App.1980); Corn v. State, 387 So.2d 275 (Ala.Cr.App.) cert. denied, 387 So.2d 280 (Ala.1980). We find no violation of appellant’s right to a speedy trial.

Next appellant contends that Section 13A-10-31, Code of Alabama (1975), when applied in pari materia with Section 13A-5-9, prescribes cruel and unusual punishment, and is thus unconstitutional on its face and as applied to appellant.

The -thrust of appellant’s argument is that his punishment should not have been enhanced simply because he had previously been convicted of felonies. The constitutionality of Alabama’s recidivist statute has, however, been affirmed on numerous occasions by this court, and the practice of meting out harsher sentences to habitual criminals is not unconstitutional. E.g., Weaver v. State, 437 So.2d 626 (Ala.Cr.App.1983). We find appellant’s argument that the enhanced punishment statutorily prescribed is unconstitutional as applied to him in particular unconvincing since he had previously been convicted of two first degree murders.

There is no allegation that appellant’s sentence-was beyond statutorily prescribed limits, and where the punishment imposed is within such limits this court does not have jurisdiction to review that punishment. Wright v. State, 423 So.2d 345 (Ala.Cr.App.1982); Fagan v. State, 412 So.2d 1282 (Ala.Cr.App.1982); Grace v. State, 57 Ala.App. 586, 329 So.2d 643 (Ala.Cr.App.1976).

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

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Wesley MEAD v. STATE.
    5 Div. 854.
    Court of Criminal Appeals of Alabama.
    April 24, 1984.
    Wesley Mead, pro se.
    Charles A. Graddick, Atty. Gen., and Michael A. Bownes, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

This is an appeal from the denial of a petition for writ of habeas corpus.

At one trial with one jury, Mead was convicted of first degree assault (Case No. CC82-03359) and second degree assault (Case No. CC82-03358). He was sentenced to twenty years’ and five years’ imprisonment respectively, with the sentences to run consecutively. He was denied bond pending appeal and this denial constitutes the basis of his complaint.

His petition was not verified by oath as required by Alabama Code § 15-21-4 (1975) and for that reason alone his petition was properly dismissed.

The State argues that the petition was also properly denied because Mead was sentenced to a total of 25 years’ imprisonment and bail is only authorized for a sentence which does not exceed a term of twenty years.

Alabama Code § 12-22-170 (1975) provides: “If the sentence is for a term not exceeding 20 years, the judge must direct the clerk of the court in which the conviction is had to admit the defendant to bail in a sum to be fixed by the judge, with sufficient surety, conditioned upon his appearance at the court, from time to time thereafter, as fixed by the court to abide such judgment as may be entered on the appeal.” (Emphasis added.) Joinder of offenses for trial does not affect the court’s power to sentence the defendant separately for each offense of which he is convicted. A.R.Temp.C.P. 15.3(c).

Mead argues that he has no single sentence which exceeds twenty years because he received one sentence for each conviction and it is only the total of the two sentences when combined which totals in excess of twenty years. We decline to answer this question. This issue is not properly before this Court in that the petition was not verified, and any opinion we would advance thereon would be merely dicta. “If the ruling of the trial court is correct for any reason, it will not be reversed.” Collier v. State, 413 So.2d 396, 403 (Ala.Cr.App.1981), affirmed on other grounds, 413 So.2d 403 (Ala.1982).

Ground number four of the State’s motion to dismiss the petition was that “[p]eti-tioner has failed to properly verify his petition as required by law. Code of Alabama 1975, § 15-21-4, O’Such v. State, 423 So.2d 317, [ (Ala.Cr.App.] 1982[)].” Petitioner Mead answered the other three grounds of this motion but failed to address this particular ground, failed to submit a verified petition, and failed to verify his answer.

We recognize and adhere to the principle stated in Ex parte Thomas, 270 Ala. 411, 412, 118 So.2d 738 (1960): “Niceties of pleading are not favored in habeas corpus proceedings. A petition which substantially complies with the provisions of [§ 15-21-4], and its corollary statutes is all that is necessary to secure the writ and bring before the judge the petitioner and his cause of detention.” Verified pleadings constitute affidavits and are treated as evidence. Ex parte Green, 221 Ala. 298, 300, 129 So. 72 (1930); Christison v. State, 39 Ala.App. 175, 176, 96 So.2d 701 (1957). We do not consider the failure to verify a petition for writ of habeas corpus a "nicety of pleading” that can be disregarded. Without such a verification there is no evidence before the circuit court.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Danny Ray JEFFERSON v. STATE.
    8 Div. 11.
    Court of Criminal Appeals of Alabama.
    April 24, 1984.

      Mark McDaniel and Marc Sandlin, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and Martha Gail Ingram, Asst. Atty. Gen., for ap-pellee.
   SAM TAYLOR, Judge.

Appellant Danny Ray Jefferson was sentenced to 10 years’ imprisonment for assaulting with a knife one Harold Thomas at Butler High School, Huntsville, Alabama, in violation of Ala.Code § 13A-6-20 (1975).

Jefferson and Thomas got into a fight before school. The appellant was handed a knife and stabbed Thomas 15 times, including stab wounds to the base of the neck, the right chest and the left cheek. After this occurrence the appellant walked to the assistant principal’s office where he saw Mrs. Janice Stewart, a “campus supervisor.” At trial, Mrs. Stewart testified that she heard that there had been a fight and someone had been cut. She went to the scene of the fight and found the knife, later identified as state’s exhibit 10, lying in a pool of blood. Mrs. Stewart took the knife to the principal’s office and later turned it over to the police. Mrs. Stewart spoke to the appellant and got some ice to place on his injured hand. Jefferson said that the knife had broken and cut him during the fight and he threw it down. She asked him if the other boy was hurt badly and he replied, “He’s probably bleeding to death.” Then he said that if the knife hadn’t broken and cut him, he “would still be cutting.” Appellant also said this to Rodney Williams and Charlie Langford, two other students who were in the office at the time.

I

Appellant first contends that the statements made to Mrs. Stewart were the result of a custodial interrogation without appropriate constitutional guarantees. Therefore, he contends, such statements should have been suppressed. We disagree.

Although appellant cites the Miranda definition of a custodial interrogation— “Questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way,” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966) — we do not find the elements necessary to rise to a custodial interrogation in this case. Jefferson voluntarily went to the assistant principal’s office. He was not in custody and Mrs. Stewart did not arrest him. The record indicates that his statements were voluntary.

For these reasons, we find that appellant’s Miranda rights were not violated. The trial court did not err as to this contention.

II

Jefferson further contends that the court erred in allowing cross-examination of his character witnesses regarding whether they had heard of certain specific acts of bad conduct by appellant. Appellant called his minister, a co-worker and several others to the witness stand to testify to his good general reputation. The prosecutor cross-examined these persons by asking whether they had heard that the appellant had pulled a knife on the assistant principal at Butler High School; if they had not heard that he had threatened a parent who was attempting to pick up her child from school; if they had not heard that appellant had been convicted of harrassment in 1982; and if they had not heard that he had assaulted a one-year-old child. It is to these questions that appellant objects.

There was only a general objection made to the questions asked of the first character witness. No objections were made to the same or similar questions asked of subsequent character witnesses. If counsel makes objections and secures rulings "off the record,” this court cannot consider those rulings. If the trial court hears objections and makes rulings in sidebar conferences only, then the court reporter must be a party to the side-bar conference if the actions of counsel and the court are to be recorded. Our review is limited to matters of record. Trest v. State, 409 So.2d 906, 909 (Ala.Cr.App.1981). Motions to exclude responses of certain witnesses at the conclusion of all the testimony and a motion for mistrial at the conclusion of all the testimony, such as were made here, do not serve to preserve error as substitutes for objections made at the time the questions were asked and before the answers were given. The substantive issue sought to be raised by appellant is covered by C. Gamble, McElroy’s Alabama Evidence § 27.01(5) (8d ed. 1977), which states that

“If a witness testified at the calling of the accused to the accused’s good general reputation as a whole, the state, on cross-examination, may ask such witness whether, prior to the time of the alleged offense, he heard reports, rumors or statements derogatory of the accused.”

No error was committed by the court in this regard.

Ill

Appellant next contends there was error in admitting into evidence state’s exhibit 10, the knife, on the grounds that there was not evidence of an “unbroken chain of custody.” At trial, appellant objected only on the ground that the state failed to prove the knife was in the same condition as it was when received and where it had been in the meantime. The knife was identified by Mrs. Stewart as the one she picked up at the scene of the fight in the pool of blood immediately after the fight. She stated that it was in the same condition as it was at the time she recovered it. She said that she gave the knife to the police and until she saw it in court she did not know where it had been. There may have been a break in the chain of custody, but this does not prevent the piece of evidence from being admitted. We find that there existed a reasonable probability that there had been no tampering with the evidence. See Congo v. State, 409 So.2d 475 (Ala.Cr.App.), cert. denied, 412 So.2d 276 (Ala.1982).

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: ADKINS, Justice.

text:
    David Livingston FUNCHESS, Appellant/Petitioner, v. STATE of Florida, Appellee/Respondent. David Livingston FUNCHESS, Petitioner, v. Louie L. WAINWRIGHT, etc., et al., Respondents.
    Nos. 62870, 62748.
    Supreme Court of Florida.
    March 8, 1984.
    Rehearing Denied May 24, 1984.
    Andrew A. Graham, Melbourne, for appellant/petitioner.

      Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Miami, for appellee/respondents.
   ADKINS, Justice.

We have before us an appeal from the denial of a motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We also have a petition for a writ of habeas corpus which is based on a claim of ineffective assistance of appellate counsel. We have jurisdiction. Art. V, § 3(b)(1), (7) and (9), Fla. Const.

This death penalty case has been before us on three prior occasions: a direct appeal from Funchess’ 1975 conviction of two counts of murder in the first degree and consecutive sentences of death, affirmed in Funchess v. State, 341 So.2d 762 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977); an order remanding the case to the trial court for resentencing without an advisory jury proceeding pursuant to Gardner v. Florida 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), Funchess v. State, 367 So.2d 1007 (Fla.1979); and on appeal following resen-tenee of death, affirmed in Funchess v. State, 399 So.2d 356 (Fla.), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981).

On June 23, 1982, Governor Bob Graham signed Funchess’ death warrant. Shortly thereafter a proceeding was filed by Fun-chess, in federal district court, seeking relief from the sentence. Following entry of a stay of execution and pursuant to an order of that court, Funchess was required to exhaust certain claims in the state court system which were then unexhausted.

On October 14, 1982, Funchess filed a motion for post-conviction relief before the trial court. An evidentiary hearing was held before that court. At the hearing, three witnesses testified and sixty pages of testimony and arguments were taken and transcribed. On October 27, 1982, the trial court rendered its order denying the motion for post-conviction relief. This appeal followed.

Contemporaneously with the filing of the rule 3.850 motion below, Funchess filed a petition for a writ of habeas corpus in this Court raising separate issues not justicia-ble by the court below. Funchess then moved to consolidate both proceedings and this Court granted his motion.

The facts of the crime are set forth in 341 So.2d 762. They need not be repeated here.

Rule 3.850 Appeal

In Funchess’ rule 3.850 motion he urged four grounds for his challenge: 1) that he did not receive effective assistance of counsel at the sentencing proceeding in 1975; 2) that the sentencing instruction precluded the sentencing jury from considering known statutory mitigating circumstances; 3) that the death penalty may not be applied to his case and sentence since he was not found guilty of premeditated murder; 4) that trial counsel at resen-tencing in 1979 was ineffective. The second and third grounds stated are issues which either were or could have been addressed at trial or on direct appeal. Those issues are not subject to collateral attack and were properly dismissed below. Demps v. State, 416 So.2d 808, 809 (Fla.1982); Meeks v. State, 382 So.2d 673, 675 (Fla.1980), cert. denied, 459 U.S. 1155, 103 S.Ct. 799, 74 L.Ed.2d 1002 (1983); Adams v. State, 380 So.2d 423, 424 (Fla.1980).

In Funchess’ claim of ineffective assistance at the penalty phase he alleges the following omissions and errors: 1) failure to investigate and present to the jury evidence of the defendant's psychiatric disturbances, his history of childhood abuse and his heavy use of heroin as a result of a war injury; 2) failure to present to the jury his desperate economic and personal conditions; 3) failure to present any evidence of any kind at the sentencing hearing; 4) failure to object to numerous instructional errors during the penalty phase.

Based on the entire trial record as well as the testimony and evidence presented at the hearing, the trial judge made the following findings all of which we agree with: 1) that trial counsel rendered effective assistance of counsel pursuant to Knight v. State, 394 So.2d 997 (Fla.1981); 2) that trial counsel knew of the defendant’s medical history, family problems and use of drugs and determined that, based on their trial strategy of maintaining his innocence, it would not be beneficial to bring this information to the attention of the sentencing jury; 3) that there was no error involved in counsel’s failure to object to certain jury instructions because they either were not error requiring an objection or the later changes in the law which made them error could not be anticipated. See Meeks v. State.

The defendant has failed to meet his burden of alleging and establishing grounds for relief and of establishing that these grounds resulted in prejudice to him. See Meeks, 382 So.2d at 675. We find, as did the court below, that there was no specific act or omission by the trial counsel or the resentencing counsel which would constitute a deficiency measurably below the performance expected of competent counsel. See Knight v. State.

Habeas Corpus Petition

Funchess contends that he had ineffective assistance of counsel during his direct appeal from conviction and sentence. He bases this assertion on five perceived failings of his trial counsel. All five stem from purported improper instructions given to the jury at the first sentencing proceeding. They are as follows: A) the trial judge erroneously instructed the jury that the aggravating and mitigating circumstances must be proved beyond a reasonable doubt; B) the trial judge erroneously instructed the jury that death is presumed to be the proper sentence unless it or they (aggravating circumstances) are overriden by one or more of the mitigating circumstances; C) the trial judge failed to define the “no significant history of prior criminal activity” mitigating circumstance; D) trial judge failed to limit the jury’s consideration of the “especially heinous, atrocious, or cruel aggravating circumstance”; E) the trial court erred by allowing the jury to consider duplicative aggravating circumstances, including murder during the course of robbery and pecuniary gain, and murder during the course of robbery and avoiding arrest.

We addressed contentions A, B and D in Funchess’ direct appeal from resentencing and rejected them. 399 So.2d at 356. The claims being without merit, we cannot find fault with appellate counsel for not raising them at Funchess’ first direct appeal from conviction and sentence.

The first portion of contention E concerning the doubling of the “for pecuniary gain” factor with the “in the course of a robbery” factor need not be discussed at length. Although appellate counsel did not raise that point in his brief on the first direct appeal, the two factors were merged by the trial judge at resentencing and therefore, there is no error remaining to prejudice Funchess. The second part of contention E, claiming a doubling by finding both the circumstances of commission in the course of robbery and to avoid arrest, stems from Funchess’ claim that this is impermissible because the trial court theorized each aggravating circumstance on the same aspect of the crime. We find this argument to be totally without merit. The trial court can apply more than one aggravating circumstance to a single crime of murder which stems from a robbery as long as the facts support such an application as they did in this case.

Funchess’ claim that the trial judge failed to define the “no significant history of prior criminal activity” mitigating circumstance was raised by appellate counsel at the first direct appeal. Although not worded exactly as here, counsel challenged the conclusion by the trial court that Fun-chess had a significant history of prior criminal activity. We found this challenge to be without merit along with the other six points of error claimed by counsel on appeal. 341 So.2d at 763. Section 921.-141(6)(a), Florida Statutes (1981), states as a mitigating circumstance “the defendant has no significant history of prior criminal activity.” The trial judge acted properly in stating this just as the statute reads. Straight v. Wainwright, 422 So.2d 827, 830 (Fla.1982). We have never required that any particular definition of this circumstance be given.

Funchess also claims that he had ineffective assistance of counsel on appeal from the reimposed sentence of death. His first contention under this claim is that there was no proof or findings at the petitioner’s resentencing hearing that he was guilty of premeditated murder and therefore the death penalty cannot be applied and counsel should have argued this point on appeal. He bases this contention on Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). Fun-chess has misapprehended Enmund. In that case the Court determined that the eighth amendment does not permit the death penalty to be imposed “on one such as Enmund who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be used." Enmund, 458 U.S. at 797, 102 S.Ct. at 3376. In the instant case Funchess himself committed the murders and therefore, En-mund does not apply.

Funchess’ second contention under this claim is that two aggravating circumstances found by the court at the second sentencing were duplicative because they were based on the same aspect of the crime. These circumstances were “murder committed in the course of a robbery” and “murder committed to avoid lawful arrest.” He claims that his counsel erred in not raising this issue on appeal. We addressed this point iii our discussion of Funchess’ claim of ineffective assistance of counsel at his first direct appeal and found it to be without merit. His counsel was not ineffective when he failed to raise a meritless claim.

We have reviewed the briefs submitted by Funchess’ counsel for his first direct appeal as well as those submitted by his counsel for the appeal from his resentenc-ing. We find that Funchess either: 1) has failed to demonstrate any error on the part of appellate counsel; 2) has failed to demonstrate performance measurably below that expected of competent counsel or; 3) has failed to demonstrate a substantial error likely to have affected the outcome of the appeal. See Armstrong v. State, 429 So.2d 287 (Fla.1983); Knight v. State.

We find that Funchess is not entitled to relief. Therefore, we deny the petition for writ of habeas corpus.

We find no error on the part of the trial judge in denying the rule 3.850 motion. We affirm the judgment of the court below.

It is so ordered.

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


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Eddie Lee WEST, Respondent.
    No. 64539.
    Supreme Court of Florida.
    April 26, 1984.
    Jim Smith, Atty. Gen. and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for petitioner.
    Mark Lipinski, Palmetto, for respondent.
   PER CURIAM.

West v. State, 439 So.2d 907 (Fla. 2d DCA 1983), is quashed on the basis of Carlton v. State, 449 So.2d 250 (Fla.1984).

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.


author: PER CURIAM. PER CURIAM. ANSTEAD, Chief Judge,

text:
    LANDMARK FIRST NATIONAL BANK OF FORT LAUDERDALE, Appellant, v. BEACH BAIT AND TACKLE SHOP, INC., John J. Day and Henrietta Day a/k/a Hedy Day, Appellees.
    No. 82-1728.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 1983.
    Rehearing Denied June 6, 1984.
    Brian F. Leary of English, McCaughan & O’Bryan, Fort Lauderdale, for appellant.
    Alan H. Fein of Arky, Freed, Stearns, Watson & Greer, P.A., Miami, for appel-lees.
   PER CURIAM.

Appellant Bank obtained a prejudgment writ of replevin based on a verified pleading in which it averred that appellee failed to make payment as agreed. Thereafter, at the defendant/appellee’s request, the trial court conducted an evidentiary hearing and dissolved the writ even though the bank substantiated its allegation. We reverse.

Section 78.068, Florida Statutes (1981), was crafted by the Florida Legislature to conform with the principles enunciated in Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). The statute withstood a due process challenge in Gazil v. Super Food Services, Inc., 356 So.2d 312 (Fla.1978). Section 78.068(2) indicates that a “prejudgment writ of replevin may issue if the court finds ... that the defendant has failed to make payment as agreed.” Commenting on the adequacy of this ground, the Florida Supreme Court observed that “[w]e do not see in Mitchell or any subsequent Supreme Court decision a limitation on the state’s right to identify the circumstances which are appropriate for replevin.” Gazil v. Super Food Services, Inc., supra at 313 n. 4.

Section 78.068(6), Florida Statutes (1981), states that a defendant “may obtain the dissolution of a prejudgment writ of replev-in unless the petition proves the grounds upon which the writ was issued.” In the case at bar, the ground of nonpayment was alleged and proved. Thus, the trial court erred in dissolving the writ. Accordingly, the order is

REVERSED.

ANSTEAD, C.J., and HERSEY and HURLEY, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

The petition for rehearing of appellees is hereby denied.

HERSEY and HURLEY, JJ., concur.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge,

dissenting:

I would grant the petition for rehearing, vacate our prior opinion and affirm the trial court’s order granting the motion to dissolve the prejudgment writ of replevin.

Section 78.068 provides:

78.068 Prejudgment writ of replev-in.—
(1) A prejudgment writ of replevin may be issued and the property seized delivered forthwith to the petitioners when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the verified petition or by separate affidavit of the petitioner.
(2) This prejudgment writ of replevin may issue if the court finds, pursuant to subsection (1), that the defendant is engaging in, or is about to engage in, conduct that may place the claimed property in danger of destruction, concealment, waste, removal from the state, removal from the jurisdiction of the court, or transfer to an innocent purchaser during the pendency of the action or that the defendant has failed to make payment as agreed.
(3) The petitioner must post bond in the amount of twice the value of the goods subject to the writ or twice the balance remaining due and owing, whichever is lesser as determined by the court, as security for the payment of damages the defendant may sustain when the writ is obtained wrongfully.
(4) The defendant may obtain release of the property seized under a prejudgment writ of replevin by posting bond within 5 days after serving of the writ in the amount of one and one-fourth the amount due and owing on the agreement for the satisfaction of any judgment which may be rendered against him.
(5) A prejudgment writ of replevin shall issue only upon the signed order of a circuit court judge or a county court judge.
(6) The defendant, by contradictory motion filed with the court within 10 days after service of the writ, may obtain the dissolution of a prejudgment writ of replevin unless the petitioner proves the grounds upon which the writ was issued. The court shall set down such motion for an immediate hearing. This motion shall be in lieu of the provisions of subsection (4).

This section uses both “may” and “shall.” See, e.g., §§ 78.068(1) and 78.-068(5). Furthermore, throughout chapter 78 the drafters have used both “may” and “shall.” See, e.g., §§ 78.03 and 78.19(2). Thus, it may be inferred that the drafters carefully chose “may” or “shall” depending upon whether the subsection was permissive or mandatory.

In Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), the United States Supreme Court upheld a Louisiana prejudgment replevin statute. The Louisiana statute appears to have provided the model for the Florida statute. In Mitchell the court noted that prejudgment replevin was used to prevent the debtor from destroying the disputed goods or from using the goods and fostering the goods’ depreciation. The Florida statute provides that a writ of replevin may issue if the creditor shows that the debtor will destroy the goods or that the debtor has not made timely payments. § 78.068(2). If the statute were mandatory, any debtor in default would be subject to replevin of secured goods. Thus, the Legislature would have made the determination that the debtor’s continued use of the goods would necessarily result in the depreciation of their value and that less depreciation would take> place if the creditor were put in possession of the goods. It would seem that such a determination would better be done as a matter of discretion on a case-by-case basis. In this way, a trial court judge could weigh the relative depreciation of the goods from the debtor’s continued use against the depreciation through storage by the creditor. Such a determination would depend entirely upon the nature of the goods involved. For example, an automobile placed in storage for a long period of time deteriorates faster than one in normal use. In addition, if the statute were mandatory, replevin of certain goods could seriously damage a debtor’s business or, in some instances, perhaps even threaten his health. For example, replevin of a business’s inventory and fixtures would prevent that business from producing income and irrevocably deny thp debtor an opportunity to become current with his payments. Replevin of medical equipment necessary to the debtor’s health might jeopardize his health. Thus, because the desirability of replevin in most instances may depend upon a number of factors, including the nature of the goods being replevied, I do not believe the Legislature designed this statute to compel replevin merely upon proof of failure to pay.


text:
    Joseph Ralph STANZIONE, Appellant, v. Catherine Ann STANZIONE, Appellee.
    No. 83-1917.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.
    Rehearing Denied May 30, 1984.
    Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Ted H. Bartelstone, Miami, for appellant.
    Smith & Mandler and Mitchell W. Man-dler, Miami Beach, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Rubin v. Rubin, 418 So.2d 1065 (Fla. 3d DCA 1982); Bradley v. Bradley, 347 So.2d 789 (Fla. 3d DCA 1977); Castor v. Castor, 316 So.2d 588 (Fla. 1st DCA 1975).


text:
    AETNA CASUALTY AND SURETY COMPANY and Emil Morton, Appellants, v. Benjamin POLLOCK, Appellee. Benjamin POLLOCK, Appellant, v. FLAGSHIP FIRST NATIONAL BANK OF MIAMI BEACH, as Trustee, Appellee.
    Nos. 83-1058, 83-1916.
    District Court of Appeal of Florida, Third District.
    March 27, 1984.
    As Corrected on Denial of Rehearing May 29, 1984.

      Ress, Gomez, Rosenberg & Howland, North Miami, Dubbin, Berkman, Dubbin & Greenfield, Evan J. Langbein and Steven Edelstein, Miami, for Aetna Cas. and Sur. Co. and Emil Morton.
    Sidney L. Syna, Miami, and George Schwartz, Miami Beach, for Benjamin Pollock.
    Therrel, Baisden, Stanton, Wood & Setlin and Allen R. Roman, Miami Beach, for Flagship First Nat. Bank of Miami Beach.
    Before BARKDULL, HUBBART and NESBITT, JJ.
   PER CURIAM.

Pollock obtained a money judgment against T & M Investments, Inc. (T & M). In order to satisfy a writ of execution, he then instituted an action against T & M and Morton (as an officer of T & M and beneficiary of a trust holding the property sought to be executed upon) seeking to set aside a fraudulent conveyance from T & M to Flagship First National Bank of Miami Beach (Bank). Pollock prevailed and an order was entered requiring the Bank, as trustee, to execute a warranty deed in favor of T & M. Morton appealed and filed a supersede-as bond in the amount of $25,000 for which Aetna was the surety. The trial court’s order was affirmed here. Morton v. Pollock, 386 So.2d 1327 (Fla. 3d DCA 1980).

Subsequently, Morton filed a suit against the trustee of T & M, Pollock and the Bank to impress an equitable lien upon the property which was the subject of the second lawsuit. During these proceedings, the parties by agreed order stipulated that the Bank could satisfy its obligation under the judgment in the second case by delivering a quit-claim deed into the court registry. Thereupon, the Bank complied with the court order.

Pollock then sought to obtain payment of the supersedeas bond in order to satisfy the money judgment from the first case. The court granted this motion precipitating this appeal by Aetna and Morton. After the notice of appeal was filed, Pollock filed a motion to compel and/or for sanctions against the Bank, seeking to compel the Bank to deliver a warranty deed. Pollock cross-appeals the denial of this motion.

We conclude that the Bank, by complying with the agreed order requiring conveyance of a quit-claim deed, has satisfied the obligations it owed under the second judgment. Accordingly, we hold that the trial court erroneously ordered that the bond be utilized to satisfy the prior money judgment.

Because the Bank has complied with the final judgment, Pollock’s motion to compel was properly denied.

Affirmed in part; reversed in part.


text:
    Sidney COTTRELL, Individually, and Al Conti, Individually, Appellants, v. Mae THORNTON, as the President and/or the acting President of the Board of Directors of Outdoor Resorts At Orlando, Inc., a Florida Condominium Association, Appellee.
    No. 83-1557.
    District Court of Appeal of Florida, Second District.
    March 30, 1984.
    Rehearing Denied May 18, 1984.
    Irby G. Pugh, Orlando, for appellants.
    Richard A. Zaeur of Mensh, Zacur & Graham, P.A., St. Petersburg, and Aivars J. Melkus of Boswell, Boswell & Conner, Bartow, for appellee.
   PER CURIAM.

Appellants, owners of recreational campsites and members of the Outdoor Resorts Condominium Association, Inc., seek review of the trial court’s final judgment that approved the association’s board of directors’ action to restore common elements and assess costs against the unit owners without a vote of approval by the unit owners. We affirm.

Appellants filed suit against appellee, Mae Thornton, as president of the board of directors of the condominium association, after the board of directors specially assessed over $600 against each unit owner. The assessment was made to pay for the cost of remedying severe problems with three common elements: the canal system, the roadway system and the olympic-size swimming pool.

The canals at the condominium were filling in due to erosion, excess weed growth and pollution from excess runoff. The erosion caused slippage of soil from the lots contiguous to the canals; those lots were gradually crumbling away into the canals. The swimming pool was built on soil which was not demucked prior to construction. The pool floated up and the southwest corner tilted and began to sink. There were cracks in the floor and sidewalls of the pool and cracks in the deck. The pool was closed to any type of pedestrian traffic due to the unsafe conditions. The roadways had several large, severe potholes. There was testimony that the canals needed to be drained, scraped, demucked and lined with seabags to make the seawalls secure. The roads needed to be resurfaced.

The declaration of condominium and the bylaws authorize the board of directors to fix and determine assessments necessary and adequate for the operation, maintenance, repair or replacement of the common elements. Those documents further provide that no substantial additions or alterations shall be made to the common elements unless authorized by the board and approved by the members of the condominium association. The repairs made to the pool, roads and canals, and the resulting assessments, were authorized by the board of directors without a membership vote.

On appeal, appellants claim the repairs were material alterations of the common elements. Appellee, as president of the board, argues that only necessary repairs and replacements were authorized by the board. Thus, the issue presented on appeal is whether the proposed changes were substantial additions or alterations, or necessary repairs.

We find this issue to be a question of fact for the trial court. Appellee presented expert testimony that the elements were in need of repair. On the basis of this testimony, the trial court found the proposed changes constituted necessary restoration of the condominium property. Because necessary repairs were planned, not material alterations, the trial court found the board of directors was authorized to make assessments against the unit owners without holding a vote.

The trial court also held that the restoration was necessary to prevent further damage to the common elements. This finding was in keeping with the principles stated in Tiffany Plaza Condominium Association, Inc. v. Spencer, et al., 416 So.2d 823 (Fla. 2d DCA 1982). In Tiffany, the condominium association found that the construction of a rock revetment was necessary to protect the beachfront, a common element, from erosion and damage. This court held that condominium unit owners could be assessed for the cost of the rock revetment without their consent, if the trier of fact found the rock revetment was necessary to protect the common elements. Here, the trier of fact found the action taken by the association was required to protect the pool, the roads and the canals from further damage. On this basis, the association could properly assess all unit owners for the cost of repairs.

We are often faced with appeals which are similar in nature to this appeal. One area of misunderstanding seems to derive from the fact that a necessary repair, such as the trial judge found was involved here, may involve a major expenditure of funds. The fact that a major expenditure is involved in making a substantial, necessary repair does not convert the repair into a material or substantial addition or alteration as is contemplated under the terms of the condominium documents, which would trigger a required vote of the unit owners. That is not to say, however, that condominium owners are not without a solution to this frequent problem. We strongly urge that before conflicts arise that require resort to the courts, the owners should consider whether it is desirable to amend the condominium documents to place a restriction on the amounts that could be expended to make necessary repairs without a prior vote of the owners.

We find the evidence was sufficient to support the findings of the trial court, and we therefore affirm.

HOBSON, A.C.J., and SCHEB and CAMPBELL, JJ., concur.