text:
    Rickey Allen PREWITT v. STATE.
    1 Div. 555.
    Court of Criminal Appeals of Alabama.
    July 17, 1984.
    Rehearing Denied Aug. 14, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1356.

      Michael Scheuermann, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson and Edward Carnes, Asst. Attys. Gen., for appellee.
   HARRIS, Judge.

Rickey Allen Prewitt was convicted of “murder for hire” pursuant to § 13A-5-31(a)(7), Code of Alabama 1975, for the brutal slaying of Mrs. Paul Leverett. In accordance with the jury’s recommendation, the trial court sentenced Prewitt, the appellant herein, to life imprisonment without parole.

On the afternoon of May 30, 1980, Mrs. Leverett was murdered in her own home in Mobile, Alabama. The coroner testified that the victim died from a combination of gunshot and knife wounds. She had been shot once in the face and once in the neck. The latter shot, apparently, had first penetrated the victim’s left hand before it entered her neck. The victim’s throat had been slashed by at least four independent movements of a very sharp knife. The victim had also received a number of other knife wounds on her face and chest, at least some of which were inflicted by a long, sharp knife. The coroner further explained that all of the wounds could have been, and probably were, inflicted within a matter of seconds. He estimated that the victim had died within three hours of receiving those extensive injuries and that the time of death was between 3:00 p.m. and 5:20 p.m.

The key prosecution witness was Hilton Connell Robinson, a convicted criminal, who was an acquaintance of the appellant at the time of the instant offense. Robinson testified that on the afternoon of the murder, between 4:00 p.m. and 5:00 p.m., the appellant met him at Robinson’s place of business in Mobile and told him that he, the appellant, pursuant to a “contract for hire,” had murdered Mrs. Leverett in her own home. Robinson described the grisly details of the crime as they were, allegedly, related to him by the appellant. The details described by Robinson were substantially consistent with the circumstantial evidence presented by the state, including the physical evidence at the murder scene and the wounds inflicted upon Mrs. Leverett. Robinson further testified that he witnessed the “pay-off,” when Mr. Leverett delivered $10,000 in one-hundred-dollar bills to the appellant.

The State also presented evidence that the appellant had made statements to others about his involvement in certain “murders for hire” statements which, arguably, referred to Mrs. Leverett’s murder, and evidence that the appellant had purchased, just weeks before Mrs. Leverett’s murder, a .357 Magnum pistol and a Gerber knife, weapons which were consistent with the wounds inflicted upon Mrs. Leverett.

The appellant presented an alibi defense. His mother and father testified that, on the day Mrs. Leverett was murdered, the appellant arrived at their home in Ackerman, Mississippi, between 12:30 p.m. and 2:00 p.m., and that he remained with them for the rest of the afternoon. The owner-operator of the Ackerman Supply Company, a friend of the appellant, testified that the appellant was in his store in Ackerman, Mississippi, between 11:00 a.m. and 1:30 p.m. on the day of the murder, and that Ackerman, Mississippi, is approximately 210 miles from Mobile, Alabama. (Robinson had previously testified that the appellant told him that he, the appellant, had arrived in Mobile by airplane at around noon on the day of the murder.)

The appellant also presented extensive evidence to discredit Robinson’s testimony. Numerous witnesses testified that Robinson’s general reputation in the community was “bad.” Robinson, himself, had admitted that he was a convicted criminal. Other witnesses testified that Robinson had agreed to cooperate with the State and to testify against the appellant in exchange for the State’s assistance in obtaining a reduction in those sentences which had already been imposed upon Robinson for two then-recent convictions.

The appellant did not testify in his own behalf.

The sufficiency of the evidence for conviction is not challenged on this appeal.

There is no merit in appellant’s argument that the trial court’s dismissal of a certain prospective juror, due to her opposition to capital punishment, constituted a Witherspoon violation. “The holding in Witherspoon is not applicable where the jury recommends a sentence less than the death sentence.” Eady v. State, 284 Ala. 327, 224 So.2d 876 (1969); see, Brinks v. State, 44 Ala.App. 601, 217 So.2d 813, cert. denied, 283 Ala. 712, 217 So.2d 820 (1969); see also, Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The appellant was sentenced, in this instance, to life imprisonment in the penitentiary without parole, rather than “death.”

The appellant contends that, on three separate occasions during the presentation of the State’s case in chief, evidence which referred to other possible, independent, offenses was presented in the presence of the jury. He argues that the combination of these three incidents effectively denied him his constitutional right to a fair trial. We disagree.

Contrary to appellant’s arguments, only one of the incidents specifically referenced a possible, independent offense. Angie Smith testified that she met the appellant in July 1980 (after the instant offense had been committed), and that she lived with him from September 1980 until February 1981. The prosecutor questioned Smith, on direct examination, in an attempt to disclose any incriminating statements or admissions, with reference the instant offense, that the appellant might have made to her. Smith told the jury that during one conversation with the appellant in July or August 1980, he mentioned that he had previously squandered a large sum of money that he had received for a “job” that he had done in the spring of 1980. In a later conversation, in response to Smith’s warning that the police might arrest him for some unpaid traffic tickets, the appellant told her that the traffic tickets were the “least of his worries” because the statute of limitations had not run “on that homicide I did.” During the prosecution’s apparent attempt to connect these statements with the instant offense, the following occurred:

“Q. He said — Did he tell you when he did the homicide?
“A. I didn’t ask.
“Q. Did he tell you who he had killed? “A. Some hot shot up north.
“Q. Did he provide — Now, this conversation—
“THE COURT: Mr. Galanos, Mr. Han-ley, let me see you.”

During the “bench conference” which followed, a conference called by the trial court even though there had been no objections by the appellant to this line of testimony, the trial court ruled that Smith’s testimony concerning these conversations with the appellant was inadmissible because of the risk of injecting illegal evidence of another offense, unrelated to the instant offense. However, the trial court denied appellant’s motion for a mistrial and, instead, instructed the jury to disregard Smith’s last answer about “a job done up north.” The trial court polled the jurors, each of whom indicated that he or she could disregard Smith’s last answer and focus on the “allegations of the indictment.”

The trial court’s prompt, and unsolicited, actions in this instance cured any error that was introduced by Smith’s unexpected answer to the prosecutor’s question. See, Huffman v. State, 360 So.2d 1038 (Ala.Crim.App.1977), affirmed, 360 So.2d 1045 (Ala.1978); Barbee v. State, 395 So.2d 1128 (Ala.Crim.App.1981), and cases cited therein; Wood v. State, 416 So.2d 794 (Ala.Crim.App.1982).

Moreover, evidence of another “murder for hire” committed by the appellant might well have been admissible as an exception to the general exclusionary rule, if relevant to prove a “motive” for the instant offense, or to “identify” the appellant through a common scheme or pattern or a distinct modus operandi. See, generally, C. Gamble, McElroy’s Alabama Evidence §§ 69.-01(6)-(8) (3d ed. 1977); see also discussions in, Bynum v. State, 348 So.2d 804 (Ala. Crim.App.1976), cert. denied, 348 So.2d 828 (Ala.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 766, 54 L.Ed.2d 781 (1978); Allen v. State, 380 So.2d 313 (Ala.Crim.App.1979), cert. denied, 380 So.2d 341 (Ala.), cert. denied, 449 U.S. 842, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980); and Brewer v. State, 440 So.2d 1155 (Ala.Crim.App.), cert. denied (Ala.1983). The applicability of these exceptions cannot be determined from this record because, in its desire to protect appellant’s rights, the trial court preempted further inquiry into the details of the alleged other offense, details which might have'rendered evidence of such an offense admissible.

The other two alleged references to another offense committed by this appellant are not substantiated in the record. Sandra Shephard, another acquaintance of the appellant, who met him after the instant offense had been committed, testified, over appellant’s objection and after a thorough voir dire examination by both parties and by the trial court, that during conversations with the appellant in December 1980 he told her that he had previously killed someone for money and that he had been “offered a hit job before.” Another witness testified that he had learned that the appellant had purchased “fourteen different firearms” from the Ackerman Supply Company.

Neither of these incidents specifically referenced another offense committed by the appellant. Shepard’s testimony logically implied appellant’s involvement in Mrs. Leverett’s murder. This evidence was admissible either as appellant’s own “admission” that he had indeed committed the instant offense, or as proof of his motive (“murder for hire”) for the instant offense. See, generally, Miller v. State, 48 Ala.App. 28, 261 So.2d 447, cert. denied, 288 Ala. 746, 261 So.2d 451 (1972); Hines v. State, 50 Ala.App. 161, 277 So.2d 905, cert. denied, 291 Ala. 783, 277 So.2d 912, cert. denied, 414 U.S. 1010, 94 S.Ct. 374, 38 L.Ed.2d 248 (1973).

The testimony about appellant’s purchases of firearms was an unresponsive answer to a question by the prosecutor. The jury was promptly and properly instructed to disregard it and each juror, when polled, indicated that he or she would be able to do so. These instructions cured any possible harm caused by this unresponsive answer. See, McHellen v. State, 351 So.2d 689 (Ala.Crim.App.1977); Wood v. State, supra; Carter v. State, 420 So.2d 292 (Ala.Crim.App.1982).

As explained above and as is evident throughout the record, the trial court was in complete control of the proceedings at trial. For aught that appears, its rulings on the three incidents discussed above were well-reasoned and correct. The trial court took every precaution to safeguard appellant’s right to a fair trial. Under these circumstances, with regard to the above three incidents, its overruling of some of appellant’s objections and its denial of his several motions for a mistrial did not constitute reversible error. See, Wood v. State, supra.

The appellant further argues that he was denied “the right to call and question witnesses in his own behalf” when the trial court granted the state’s “Motion in Li-mine” with respect to the testimony of witness Mary Williams. The State had contested the admission of any testimony from Williams based on recollections remembered through hypnosis. The trial court, ultimately, ruled that only that testimony which was independent of hypnosis would be admissible.

Williams testified, without objection, that she saw Mrs. Leverett on the day of the murder, first at the beauty parlor, and later at the shopping center where Mrs. Lev-erett’s automobile was discovered after the murder. Williams stated that as she was backing out of a parking space in front of a drug store in the Cottage Hill Road Shopping Center, she saw Mrs. Leverett’s automobile “parked way out in the parking lot.” As she drove through the parking lot she saw Mrs. Leverett exiting the car. As Williams was attempting to further explain the details of what she had seen in the shopping center parking lot, the State objected and, with the trial court’s permission, asked Williams about the basis for her testimony. Williams responded: “Well, this is what — Some of this is what I remember from being under hypnosis.”

In the bench conference that followed, outside the presence of the jury, the trial court questioned the witness and concluded that she could distinguish between the information she remembered before the hypnosis and the information that she remembered only through hypnosis. The trial court permitted Williams to testify that she had seen Mrs. Leverett’s automobile and Mrs. Leverett in the shopping center parking lot, but excluded testimony that she also had seen a man in a white shirt and a tie in the vicinity of Mrs. Leverett’s automobile, apparently making gestures to Mrs. Leverett. Williams had told the trial court that this latter evidence was solely a product of hypnosis.

The appellant theorized at trial and now argues on appeal that the man Williams remembered through hypnosis was Hilton Robinson, the State’s key witness against the appellant. He contends that the court should have permitted him to develop this theory for the jury, using Williams’s hypnotically induced recollections. He argues that such recollections are generally admissible, that challenges concerning the reliability of this information should affect its weight and credibility, not its admissibility. He explains that had these hypnotically induced recollections not been excluded, he could have argued to the jury that Robinson, not the appellant, killed Mrs. Leverett.

The State argues, to the contrary, that hypnotically induced recollections are generally inadmissible. In particular, the State points out that the hypnotic evidence proffered by the appellant in this case was properly excluded because of appellant’s failure to offer any evidence, whatsoever, to establish the reliability of Williams’s hypnotically induced recollections.

Initially, we note that appellant’s theory, that Williams saw Robinson in that parking lot with Mrs. Leverett on the day of the murder, is not substantiated by the record before us. Williams testified, out of the jury’s presence, that, through hypnosis, she remembered seeing a man with Mrs. Leverett, but that she could not identify him. Furthermore, even if we accepted this theory, we are not convinced that the evidence placing Robinson with the victim on the afternoon of the murder would have either incriminated Robinson or exculpated the appellant, absent some other independent, corroborative evidence.

In any event, we are convinced that, under the circumstances, the trial court was justified in excluding Williams’s hypnotically-induced recollections.

The appellant failed to establish that hypnotically induced recollections meet the “reliability” requirements for general admissibility. In appropriate cases, Alabama follows the rule in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), for safeguarding “against admission into evidence of facts gleaned from an unreliable scientific test.” Ex parte Dolvin, 391 So.2d 677 (Ala.1980); see, Wilcutt v. State, 41 Ala. App. 25, 123 So.2d 193, cert. denied, 271 Ala. 315, 123 So.2d 203 (1960); Flurry v. State, 52 Ala.App. 64, 289 So.2d 632 (1973), cert. denied, 292 Ala. 720, 289 So.2d 644 (1974); Wynn v. State, 423 So.2d 294 (Ala.Crim.App.1982). In order to satisfy the Frye test for general admissibility, a scientific principle or discovery, or evidence produced therefrom, “must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, supra.

The applicability of the Frye test to hypnotically induced recollections is an issue of first impression in Alabama. However, the Frye test has been applied, analogously, to lie detector test results and it has clearly been determined that lie detector tests have not yet gained the required general acceptance for admissibility. See Ex parte Dolvin, supra; Wynn v. State, supra, and cases therein cited. On the other hand, the Dolvin court held that the Frye test was inapplicable to the forensic odontology test therein challenged, because the forensic odontology test is a physical comparison rather than a scientific test or experiment.

Nevertheless, we are convinced that the Frye test is applicable to hypnotically induced recollections. Hypnotic evidence may not be the same kind of physical evidence produced by mechanical testing, as with a lie detector, but it is evidence “developed by” or “based upon” novel scientific techniques, the type evidence with which the Frye test is normally associated. See, People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775 (Cal.1982), cert. denied, 458 U.S. 1125, 103 S.Ct. 13, 73 L.Ed.2d 1400 (1982); State v. Collins, 296 Md. 670, 464 A.2d 1028 (1983). In short, hypnotically induced recollections, unlike forensic odontology comparisons, must be considered as scientific results, and must be judged by the same admissibility test (the Frye test) as similar scientific results. See, People v. Hughes, 59 N.Y.2d 523, 466 N.Y.S.2d 255, 453 N.E.2d 484 (1983); People v. Gonzales, 415 Mich. 615, 329 N.W.2d 743 (1982). The similarity between hypnosis and lie detector tests was recognized in Wilcutt v. State, supra, wherein the court stated:

“In Jones on Evidence, Sec. 436 p. 829 it is said: ‘Truth tests by lie detectors, truth serum, hypnosis and the like are very generally rejected by the courts, usually on the ground that there is no general scientific recognition of .their efficacy.’ ” (Emphasis supplied.)

The appellant, as the proponent of the hypnotically induced recollections in the instant case, had the burden of demonstrating compliance with the Frye test. People v. Shirley, supra; People v. Hughes, supra. This he failed to do. He presented no evidence, whatsoever, as to the reliability of hypnotically induced recollections or the general acceptability of such evidence by the scientific community. In the absence of any such proof of compliance with Frye, the trial court’s exclusion of Williams’s hypnotically induced recollections was not improper.

Moreover, the appellant failed to lay a basic predicate for the admission of these particular hypnotically induced recollections. The results of scientific examinations, tests, or experiments which have been established as reliable, e.g., blood-grouping tests, fingerprint comparisons, and ballistics tests, “are admissible, provided a proper foundation is laid.” Chatom v. State, 348 So.2d 838 (Ala.1977); see, Whetstone v. State, 407 So.2d 854 (Ala.Crim.App.1981), and authorities therein cited; Moore v. State, 442 So.2d 164 (Ala.Crim.App.1983); see also, Coleman v. State, 423 So.2d 276 (Ala.Crim.App.1982). In holding that “atomic absorption test” results are generally admissible, the Cha-tom court stated that “we do not mean ... that every atomic absorption test is admissible.” The court explained that the trial court must be satisfied with the competency of the operator and the methods used. The court, nevertheless, held that the predicate established in Chatom, although very limited, was sufficient to support the trial court’s decision to admit those specific atomic absorption test results.

In Whetstone the court explained that the proponent of scientific test results has an extensive burden to lay a basic predicate for their admission to insure the reliability of those specific results. The court stated that “[i]n order for the test results to be reliable, and thus relevant to the matter at issue, the results must be from generally accepted tests conducted under conditions which do not impeach the reliability of the testing procedure.” (Emphasis supplied.)

In the instant case the appellant made no attempt, whatsoever, to lay a predicate for the admissibility of Williams’s hypnotically induced recollections, even after the trial court had conditionally excluded the evidence “pending proof of reliability.” Consequently, the record is silent with respect to the circumstances surrounding the hypnotic session(s) involved in this case. The record does not disclose the nature of the pre-hypnosis interrogations of Williams, the identity or the qualifications of the hypnotist, the hypnotic technique or procedure used, the nature and extent of hypnotic suggestions, or the nature and extent of any “safeguards” taken to enhance the reliability of the information obtained. Therefore, the trial court would have been justified in excluding these particular hypnotically induced recollections, even if the appellant had established general compliance with Frye.

Because the appellant did not satisfy his burdens of proof, we must conclude that the trial court’s actions in this instance were proper. From the evidence presented at trial, we cannot and need not determine whether or not hypnotically induced recollections generally satisfy the Frye test, or whether or not Williams’s specific recollections might have been admissible in this case.

As noted above, the general admissibility of hypnotically induced recollections is an issue of first impression in Alabama. However, this issue has been extensively litigated in other jurisdictions and has recently been the subject of many detailed and well-reasoned appellate court decisions. See, e.g., United States v. Charles, 561 F.Supp. 694 (S.D.Tex.1983); People v. Shirley, supra; Brown v. State, 426 So.2d 76 (Fla.Dis.Ct.App.1983); Key v. State, 430 So.2d 909 (Fla.Dist.Ct.App.1983); Crum v. State, 433 So.2d 1384 (Fla.Dist.Ct.App.1983); State v. Wren, 425 So.2d 756 (La.1983); State v. Collins, supra; People v. Gonzales, supra; People v. Hughes, supra; Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981).

Through similar analyses these other courts have reached a variety of conclusions as to the admissibility of hypnotically induced recollections as a matter of law. The courts in Key and Crum, for instance, concluded that such evidence is generally admissible with “reliability” disputes affecting only its weight and credibility. The courts in Gonzales and Shirley, on the other hand, decided that such evidence, and any other related evidence from the same witness, is generally inadmissible due to the unproven reliability of recall induced through hypnosis. The rules espoused by the other courts seem to fall somewhere between these two extremes.

The court in People v. Gonzales, supra, adequately summarized the currently recognized shortcomings of hypnotically induced recollections as follows:

“The hypnotic state is a condition of altered consciousness marked by heightened suggestibility. A subject in a hypnotic state may not have accurate recall. A hypnotized subject is highly susceptible to suggestion, even that which is subtle and unintended. Such suggestion may be transmitted either during the hypnotic session or before it by such persons as, in this case, the policemen investigating the killing. The person under hypnosis experiences a compelling desire to please either the hypnotist or others who have asked the person hypnotized to remember or who have urged that it is important that he or she remember certain events. The subject may produce the particular responses he believes are expected of him. In this state of hypersuggestibility and hypercompliance the subject will unconsciously create answers to the questions which the hypnotist asks if he cannot recount the details being sought. This process of filling the gaps of memory with fantasy is called confabulation. Neither the person hypnotized nor the expert observer can distinguish between confabulation and accurate recall in any particular instance. Finally, a witness who is uncertain of his recollections before being hypnotized will become convinced through the process that the story he told under hypnosis is true and correct in every respect. This effect not only persists, but the witness’s conviction of the absolute truth of his hypnotically induced recollection grows stronger each time he is asked to repeat the story.” (Footnotes omitted.)

These observations are generally accepted by all courts which have specifically addressed this issue. Those courts which have generally admitted, into evidence, hypnotically-induced recollections, e.g., Key v. State, supra, and Crum v. State, supra, have done so pursuant to the theory that the recognized reliability problems should affect only the weight and credibility of such evidence, not its admissibility.

Other courts have focused on the suggestions and confabulation associated with hypnotically induced recollections, Gonzales, supra, and Shirley, supra, and have held inadmissible not only the hypnotically-induced recollections, but also any pre-hyp-nosis recollections by the same witness on the same subject. The Gonzales and Shirley courts theorize that a person is irreversibly “tainted” by hypnosis and should be considered unavailable as a witness on that subject.

The courts in United States v. Charles, supra, and Brown v. State, supra, favor a case by case admissibility determination, with hypnotically induced recollections being admissible “under appropriate circumstances.”

The emerging trend appears to be a rule which prohibits the admission of hypnotically induced recollections (at least until such time as they are proven to be in compliance with the Frye test), but permits pre-hypnosis evidence from that same witness on the same subject. See, People v. Hughes, supra, and State v. Collins, supra. The Hughes court explained that the “suggestive” nature of hypnosis is not unlike other “impermissibly suggestive pre-trial identification procedures,” which might “taint” other evidence. That court, as does Collins, recommends that pre-hypnosis testimony be admitted, provided the proponent proves, to the satisfaction of the trial court, the reliability of such evidence. See, People v. Perrino, 466 N.Y.S.2d 408, 96 A.D.2d 952 (1983); State v. Metscher, 297 Md. 368, 464 A.2d 1052 (1983); Simkus v. State, 296 Md. 718, 464 A.2d 1055 (1983); Grimes v. State, 297 Md. 1, 464 A.2d 1065 (1983) (cases applying the rule of Hughes and Collins.)

In spite of the persuasive analyses in Hughes and Collins we are not prepared, at this writing, to hold that hypnotically induced recollections are inadmissible in Alabama, as a matter of law. However, neither are we compelled to find such evidence generally admissible. The appellant has failed to provide us with any proof that such evidence satisfies the Frye test, or that Williams's hypnotically induced recollections, in particular, were generated under circumstances that insured their reliability. Consequently, resolution of this issue must await a more appropriate case, where the issue has been fully litigated and properly presented to us. See, Commonwealth v. Nazarovitch, supra; Commonwealth v. McCabe, 303 Pa.Super. 245, 449 A.2d 670 (1981).

We do, however, acknowledge the efficacy of hypnosis as an investigatory tool. We caution those who so use it to properly document pre-hypnosis evidence to insure its admissibility in appropriate cases, to refute claims that it is somehow “tainted” by hypnosis. We also caution the proponents of hypnotic evidence to take every possible precaution to assure its reliability.

The appellant argues that the State, in effect, destroyed evidence by hypnotizing Williams, thereby preventing the appellant from refreshing her memory by acceptable methods. This argument has a logical premise, but is not supported by the record. For aught that appears, Williams was originally thought to be a key witness in the State’s investigation of Mrs. Lever-ett’s murder, and hypnosis was resorted to only after every reasonable effort was made to refresh her memory using traditional memory refreshing methods. Williams more or less confirmed this at trial. She submitted to hypnosis voluntarily and clearly remembered those recollections which were solely the product of that hypnosis. Moreover, she did testify as to everything she remembered independently from hypnosis. She also stated that she had no present recollection of the information induced through hypnosis, but rather remembered that information only due to post-hypnotic suggestions. She could not independently confirm the fact that she saw someone with Mrs. Leverett in the parking lot, and the appellant presented no other evidence to corroborate this fact.

Considering the circumstances, we cannot say that the State’s actions in this regard were improper.

For the reasons herein stated, appellant’s capital murder conviction and his sentence to life imprisonment without parole are due to be and are, hereby, affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Robert Lee OWENS v. STATE.
    4 Div. 254.
    Court of Criminal Appeals of Alabama.
    July 17, 1984.
    Rehearing Denied Aug. 14, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1339.

      Richard L. Osborne, York, and Jo Celeste Pettway, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen. and T.A. Harding Fendley, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found Robert Lee Owens guilty under an indictment charging him with the unlawful possession of cocaine, “a controlled substance, contrary to and in violation of § 20-2-70 of the Code of Alabama 1975, as amended.” The indictment was returned September 23, 1983; on October 5, 1983, he appeared with his retained attorney and on arraignment entered a plea of not guilty. On October 11, 1983, said attorney filed a motion captioned, “Motion for Withdrawal as Counsel and Continuance,” alleging in pertinent part: (1) that the attorney had been retained as counsel on October 5, 1983, (2) that defendant had expressed dissatisfaction with the assistance rendered by counsel for defendant, (3) that defendant had failed to communicate with counsel concerning certain matters related to defendant’s case, and (4) that said counsel could not adequately provide a defense in this case without the cooperation of defendant.

The District Attorney filed a document on October 11, 1983, captioned “Answer to Defendant’s Motion for a Continuance,” stating in pertinent part:

“1. The State has no objection to defendant’s counsel being permitted to withdraw for the reasons stated in the said motion; but on the contrary
“2. The State strongly objects to defendant being allowed, by his own misconduct and uncooperative attitude toward counsel, to cause his case to be continued for the term.
“The State, therefore, prays that defendant be required to appear before the Court with new counsel, and be further required to stand ready for trial by Thursday, October 20, 1983, the date on which his said case is presently scheduled.”

When the case was called for trial on October 26, 1983, defendant was there with “Richard L. Osborne, Esq., Attorney at Law, York, Alabama, appearing in behalf of the defendant.” Immediately upon call of the case, the State announced ready, and the following occurred:

“THE COURT: Is the defendant ready?
“MR. OSBORNE: Your Honor, the defendant is ready providing that the witnesses that the defendant has subpoenaed are present.
“THE COURT: Have you checked to see if they are present?
“MR. OSBORNE: He’s not in the courtroom, Your Honor, Culver Murry.
“THE COURT: I don’t show any witnesses here, at least in the file, about being subpoenaed. Did you file a request with the Clerk to have some witnesses subpoenaed?
“MR. OSBORNE: I called, Your Honor, because of the distance that I had to travel, and she verbally took them down.
“THE COURT CLERK: I will have to check with the office to see. Where was this subpoena served?
“MR. OSBORNE: This one is Fort Gordon, Georgia.
“THE COURT CLERK: Fort Gordon?
“MR. OSBORNE: Yes, sir.
“THE COURT: The Clerk wouldn’t have any authority to order somebody to appear from Fort Gordon, Georgia.
“MR. OSBORNE: Pardon me, sir?
“THE COURT: The Clerk would not have any authority to order somebody to appear from Fort Gordon, Georgia, because it would be outside his jurisdiction or outside the State.
“MR. OSBORNE: We also have some materials requested, too, a subpoena duc-es tecum, but it was also for Georgia.
“THE COURT: Do you have a copy of that motion? I don’t have it here in the file.
“(Mr. Osborne handed a document to the Court.)
“THE COURT: Thank you.
“MR. OSBORNE: Two of the persons on that list did get their subpoenas.
“THE COURT CLERK: Do you remember which two?
“MR. OSBORNE: Taylor and Atkins.
“THE COURT: While the Clerk is checking on the subpoenas, subject to that, are you ready to proceed?
“MR. OSBORNE: Subject to the witness being present, yes, sir.
“THE COURT: While he’s checking on that let me — I’ll go ahead, if there’s not any objection, and start to qualify the jurors and then I’ll deal with the matters about the subpoenas in just a few minutes, as soon as I can get some more information from the Clerk’s office, if his office has any records or any returns on those subpoenas.”

Soon after the proceedings quoted above, the names on the jury panel from which the jury was to be selected in the instant case were called and “each juror stood as his of her name was called.” Thereupon, the following occurred:

“THE COURT CLERK: The subpoenas were mailed to Fort Gordon last Thursday. We do not have a return.
“THE COURT: What about the others?
“THE COURT CLERK: Those two were served.
“THE COURT: Are they here?
“THE COURT CLERK: I don’t know if they are here or not. We don’t have a return from those counties.
“(A brief off-the-record discussion was had among the court, the court clerk, and Mr. Osborne.)
“MR. OSBORNE: Your Honor, may I make a statement about the other witness that we have subpoenaed, Culver Murry?
“THE COURT: Wait just one second. Do you want this on the record or off?
“MR. OSBORNE: I think off.
“(A brief off-the-record discussion was had between the Court and Mr. Osborne.)
“THE COURT: Ladies and gentlemen, let me go ahead and qualify you at this time in regard to specific questions of this case and regarding the special qualifications to be jurors in this case. The oath that you have taken previously regarding qualification of jurors will still apply to the question that I must ask you now.
“(A jury was duly qualified by voir dire examination by the Court, selected by striking by the State and counsel for the defendant, and placed in the jury box.)
“THE COURT: Ladies and gentlemen, by procedural laws of Alabama there are certain things that are required to be done outside your presence. I have certain matters in this case that must be attended to that have to be done by law outside your presence. So, being aware of that and it being close to the noontime hour, I would propose to go ahead and let you folks depart now and get your noontime meal and ask you to come back this afternoon; and in the meantime I will be going ahead and dealing with the matters that have to be done with you folks not here.”

The trial judge then continued his instructions to the jury for about three paragraphs, and then the jury left the courtroom, and soon thereafter the court commenced the hearing of defendant’s motion to suppress as evidence a tape recording that had been obtained, without the knowledge or permission of defendant, of a lengthy transaction and profuse conversations between defendant and Culver Murry, an acknowledged informant, and others, which was summarized by counsel for the State in part as follows:

“... [A]n informant was wired with a microphone by the Ozark, Alabama, Police Department. He was sent to a location where the defendant was located and he, with the microphone taped to his body, began transmitting the conversations between himself and the defendant, which were monitored by and recorded by Detective Grant at the Ozark Police Department.
“... [Djuring the recording of these events, ... the defendant and the informant left in an automobile and traveled from Dale County, Alabama, to Columbus, Georgia, with their vehicle under constant surveillance by police vehicles, including Detective Grant and Investigator Johnny Griffin, of the ABI.”

The prosecuting attorney continued with the following:

“We expect the evidence to show that there was conversation about a cocaine transaction to be engaged in between the informant and the defendant wherein the defendant agreed to procure cocaine for the informant for a sum of money, which was provided by the Ozark Police Department and the ABI. We expect the evidence to show that the defendant and the informant had their discussion about where the cocaine was to be procured, namely, in Columbus, Georgia; and that the transaction was monitored and observed by Ozark police officers, Dale County Sheriffs officers,- ABI officers and GBI officers and Columbus police officers.
“After that transaction took place, we expect the evidence to show that the defendant and the informant proceeded in the same automobile back into Phenix City, Alabama, at which time they were stopped by the officers who had been following them in a police vehicle and had been monitoring the broadcast conversation and recording it. And we expect the evidence to show that the recording that we have was made contemporaneously with that monitored — with those monitored conversations. We expect the evidence to show that the substance was seized at the time of the stop on their return to Alabama.”

Soon after the statement quoted above by the prosecuting attorney, the trial court indicated that it was ready to proceed with the hearing on defendant’s motion to suppress the proposed evidence and the following then occurred:

“THE COURT: Mr. Osborne, are you ready to proceed? Is there anything further you want to put in regard to your motion?
“MR. OSBORNE: Are we going to take up the motion for continuance after the hearing?
“THE COURT: What motion for continuance do you have at this point?
“MR. OSBORNE: I don’t have it written down.
“THE COURT: All right. Go ahead and recite it for the record.
“MR. OSBORNE: It’s not a written motion because I didn’t—
“THE COURT: Go ahead.
“MR. OSBORNE: Due to the fact that I just came into this case a couple of weeks ago, and at that time the DA’s office ... informed me that the case would be tried probably on the nineteenth, and based upon several conversations with him it was determined that we would at least have two days’ notice before the trial itself. Based upon this, I was instructed to call him back the day before to make sure the date of the trial. I did so, and he informed me on that date — which probably was the nineteenth — that the trial would be held on the twenty-sixth. That was in the afternoon.
“The very next day, which would be on the twentieth, I called the Clerk’s office and immediately asked that certain witnesses be subpoenaed. The state your Honor has the resources with which to locate, find, and bring forth their witnesses into court. We only requested that the informant, who was Culver Mur-ry, be brought into court as a witness for the defendant. We gave him his rank, his social security number, his place of employment, and his location.
“MR. OSBORNE: Your Honor, we feel that Mr. Murry, as the informant, is an important witness in this case and it would be not in fairness or justice would not be done in this case if Mr. Murry is not here and available to testify. Mr. Murry is the person that they used to establish what we think to be probable cause we feel that would be the mini-
mum that they should have in order to be in this investigation.
“THE COURT: Now, you subpoenaed him through the Clerk’s office?
“MR. OSBORNE: Yes, sir.
“THE COURT: So you know where he is.
“MR. OSBORNE: Yes, sir.
“THE COURT: And where is it that you subpoenaed him from — or where is his present location?
“MR. OSBORNE: He’s at Fort Gordon, Georgia. He’s currently in the military service.
“THE COURT: In the state of Georgia?
“MR. OSBORNE: Yes, sir. The commander informed me that the state subpoena would be honored and they would get him here as well as some records that we had subpoenaed.
“THE COURT: To the best of your knowledge the Clerk has mailed a copy of the subpoena to him?
“MR. OSBORNE: Yes, sir.
“THE COURT: But he’s not here at this time?
“MR. OSBORNE: He’s not here to testify today.
“THE COURT: Mr. Osborne, you have been in the case since around the 11th of October, you say? Is that when it was?
“MR. OSBORNE: I’m not quite sure, your Honor. I believe it was later than that. It was about — it was a Monday, the Monday preceding the 19th — Friday, preceding the nineteenth. Friday afternoon I think was Mr. Owens’ contact with me.
“THE COURT: That would be October 14th. Now, the file shows that Mr. Owens was represented by different counsel at the time of the arraignment.
“MR. OSBORNE: Yes, sir, he was.
“THE COURT: So he did have counsel at arraignment and before that time.
“MR. OSBORNE: Yes, sir, he did.
“THE COURT: Let me be in recess just one second. If there are any witnesses that the state may need in regards to laying the proper foundation in addition to Mr. Grant here, I would ask you to go ahead and get those people here. Let me be in recess for one moment.
“THE COURT: Mr. Osborne, would it be fair to assume that Mr. Murry is in the military, that he was stationed at Fort Rucker—
“MR. OSBORNE: Yes, sir, he was.
“THE COURT: —at the time at this went on?
“MR. OSBORNE: Yes, sir.
“THE COURT: And he’s been since transferred to Fort Gordon?
“MR. OSBORNE: Yes, sir.
“THE COURT: In Georgia?
“MR. OSBORNE: Yes, sir.
“THE COURT: Was he transferred in the normal course of his duties or is there any reason for the transfer that you are aware of or any evidence at this point?
“MR. OSBORNE: I could only go by speculation, Your Honor, if that — and we would get that from one of our witnesses, that he had a charge in Ozark, and as a result of his participation in this event he was transferred.
“THE COURT: By the United States Army?
“MR. OSBORNE: Judge, I don’t know the details.
“THE COURT: Well, I’ll be glad to hear any matter that you have on that, after we get through on the motion to suppress.
“Well, are you prepared to go into that at this time, though?
“MR. OSBORNE: Judge, we also needed him for that — to proceed with our motion.
“THE COURT: I understand. I’m inquiring as to — you say that you speculate there was some reason for the transfer. I’m saying I’ll be glad to hear any evidence that you may wish to present about the reason for the transfer. If you wish to present any, I’ll certainly give you an opportunity now or after the motion to suppress, whichever — .”

Soon thereafter, the court proceeded for approximately forty pages of the transcript to hear the motion to suppress, as to which four witnesses testified. The motion to suppress was overruled by the trial court. Before ruling thereon, however, the court, ruling on the motion to continue the case, stated the following:

“All right. Let me deal first with the motion for a continuance. That has mainly to do, as I can see it, based upon the absence of a person subpoenaed by the defendant by the name of Culver Murry, who is not in attendance. It would appear from the evidence that he is presently serving in the United States Armed Services in Fort Gordon, Georgia, outside the jurisdiction of this State. There is no evidence here that the State has encouraged him or helped him to leave the State or that it has withheld any information about his location. It appears that the identity of this informant has been known to the defendant, since the defendant is the one who subpoenaed him. Accordingly, the motion for continuance will be overruled and denied.”

In addition to testimony of witnesses for the defendant to the effect that Culver Murry had importuned defendant to purchase some cocaine for Murry and that defendant had expressed himself as reluctant to do so, the defendant testified on the trial that he had been overpersuaded by Murry to go with Murry in an automobile furnished by Murry to Columbus, Georgia, where with money furnished by Murry, who had been furnished the money by law enforcement authorities for such purpose, defendant, without any intent to receive any compensation whatever for the transaction, bought the cocaine for Mr. Murry from a well known dealer in Columbus, Georgia, at the purchase price of $560. Defendant further testified that much of the monitored telephone conversation between him and Murry was not on the tape played to the jury. While being cross-examined as to his expressed “unwillingness to be a part of this transaction,” he testified:

“You remember the part of the tape where he said ‘will you help me sell it?’ and I said, ‘no, you sell it yourself.’
“Q. Okay. That reveals your unwillingness to participate in this transaction?
“A. That’s right. I’m not a dealer.
“Q. How about the time you said, ‘I’m going to tell you how to sell cocaine’; does that show your unwillingness to participate in this transaction?
“A. He asked me how to do it, and I knew. I had learned in Viet Nam how it was done.
“Q. So you were going to tell him how to do it?
“A. Yes, I would have showed him.
“Q. Do you remember telling him that he could have made $1,000.00 out of it, that he would already have $1,000.00 if he had come to you the night before? You remember that on the tape?
“A. He had said he wanted to look the night before.
“Q. Would you tell me one the other place on that tape, Mr. Owens, that indicates in any way that you are an unwilling participant in this transaction?
“A. It’s a whole lot on there; over half the tape I can’t hear. What I said is not on the tape. The only thing I have to go on is what he asked.
“Q. What did you say? Tell the jury, if you will, what did you say to Mr. Murry to convey to him your horror and unwillingness to participate in this transaction. Tell them what you said.
“A. Well, I didn’t say anything not to go to help him get that — not to go and get it, I didn’t say anything.
“Q. You were willing to do that?
“A. To help him, yes.
“Q. And you didn’t know that Deke [the seller] was one of the biggest dealers in Columbus, Georgia?
“A. No.
“Q. But you knew that he did cocaine?
“A. (No answer)
“Q. Is that right?
“A. I knew that he would be around sometimes people that do.
“Q. And he could get it for you?
“A. I didn’t know if he could get it or not; that’s why I called and asked.”

During the redirect examination of defendant, he testified:

“Q. Do you have any prior arrests for any felonies?
“A. No.
“Q. Do you have any arrests at all?
“A. No, nothing but a speeding ticket.
“Q. The only thing you have is a speeding ticket?
“A. Yes, I do.
“Q. Mr. Owens, it was asked whether or not you knew Dickie — what’s his name? — Dickie Thomas or Willie Thomas. You know a lot of people, do you not?
“A. Yes, I lived in Columbus. The year before my wife and I got married I came down from New York with my first sergeant.
“Q. You know a lot of people, do you not?
“A. Yes, I do.
“Q. All the people you know are not drug dealers or drug users, are they?
“A. No, sir.
“Q. All the people you associate with are not drug dealers or drug users, are they?
“A. No.
“Q. As a matter of fact, you and I were in an organization one time, weren’t we?
“A. Yes.
“Q. Mr. Owens, you seem to have pretty good knowledge of drugs, as you said earlier; is that correct?
“A. Yes.
“Q. Have you in fact used marijuana?
“A. Yes, I have.
“Q. And have you used cocaine?
“A. Yes, I have.
“Q. Did Murry know this, Culver Murry knew that you used—
“A. Yes, he did.
“Q. Did you at some point tell him that you had used or was he present at the time that you used?
“A. We had smoked marijuana together. We had never did no more than talk about cocaine together.
“Q. Let me ask you this: in the four months that you knew him he asked you several times to participate as a result of a conversation that you all had had?
“A. To buy?
“Q. Yes.
“A. Yes, he had asked me several times.
“Q. And each time you turned him down up to—
“A. Yes, I did.
“Q. And each time he offered you money?
“A. Yes, he did.
“Q. And this last time he provided the money?
“A. Yes, he did.
“Q. And did you tell him you did not have any money to make a buy?
“A. Yes, I did.
“Q. Then at that point did he tell you how much money he had to make the buy with?
“A. No, he didn’t tell me at that time how much he had. He just stated what he would like to get.
“Q. Did you have any monies of your own?
“A. I had about $12.00, I think.
“Q. The job that you are working on, how often do you get paid?
“A. Every two weeks.
“Q. How many hours do you work?
“A. Eighty hours — forty a week.
“Q. What hours do you work?
“A. I work from 7:15 until 4:15.”

The trial court in its oral charge to the jury instructed the jury extensively as to the issues raised by the defendant’s plea of not guilty and his defense of entrapment.

One of the issues presented by appellant is as to whether the trial court was in error in refusing some of the written charges requested by defendant as to the defense of entrapment. Appellee responds to such issue by a contention that the charges refused were substantially covered by the court’s oral charge.

That the jury found considerable difficulty in arriving at a verdict is emphasized by the fact that after the case was submitted to the jury and after the jurors had deliberated “for some while the jury returned to the court room” and requested further instructions as to the defense of entrapment and as to the contents of the tape that had been played back to them of the conversations that had taken place among defendant, informer Culver Murry, and others, just before, during, and after the trip they made from Ozark, Alabama to Columbus, Georgia, for the purchase of the cocaine. The jurors were unable to arrive at a verdict on the day the case was submitted to them; they were excused and allowed to separate for the evening with instructions to return and resume deliberations at 9:00 A.M. on the next day. At 9:45 A.M. the following day, the jury made two inquiries of the court. In one of the inquiries, the court was requested to clarify the law as to the defense of entrapment. The trial court responded to such request by further instructions on the subject contained in about one page of the transcript. Both parties announced satisfaction with the court’s instructions then given the jury.

We are not convinced that the trial court committed reversible error in its refusal of any of defendant’s requested charges as to the defense of entrapment.

By another issue presented in appellant’s brief, he contends the trial court committed error prejudicial to defendant in overruling defendant’s motion to suppress evidence of the electronically recorded conversations among defendant, Murry, and others. He argues that they were unconstitutionally obtained, in violation of defendant’s right to be secure in his person, house, papers and effects, against unreasonable searches and seizures, as guaranteed by the Fourth Amendment to the Constitution of the United States and Art. I, § 6, of the Constitution of Alabama of 1901. This contention should not be ignored, but we prefer to defer further consideration thereof in this part of our opinion.

Another issue presented in appellant’s brief challenges the use of the electronically recorded conversations between him and Culver Murry by reason of defendant’s inability to cross-examine Culver Murry during the trial of the case. He argues that defendant was thereby deprived of his right “to be confronted with the witnesses against him,” as provided by the Sixth Amendment to the Constitution of the United States and Art. I, § 6, of the Constitution of Alabama of 1901. This issue also deserves serious consideration, but we will not pass upon it at this time for the reason that what is hereinafter made a part of this opinion will make unnecessary and inadvisable the determination of this particular issue presented by appellant.

Although a serious and difficult question is presented by more than one of the issues presented in appellant’s brief, we are persuaded that the predominant issue is whether the trial court was in error in not continuing or postponing the trial of the ease as requested not only by the then recently retained trial attorney but also by the previous attorney who had only recently withdrawn as counsel for defendant. We are persuaded also that the inability of defendant’s trial counsel to obtain a continuance or postponement pervades, to the detriment of defendant-appellant, the other issues raised by appellant.

Before further consideration of the question as to whether the trial should have been continued or postponed, we should not that, in our opinion, defendant’s trial counsel prepared himself to defend the case commendably well in the short time he was defendant’s attorney, and it can hardly be believed that he could have defended him so well without his having devoted all of his available time exclusively to the particular case. It is to be noted also that there is no evidence of any conflict between him and defendant as to how the defense should be handled. In this connection, it should be said that defendant took the stand and testified comprehensively as to pertinent activities between him, a journeyman carpenter employed by Fort Rucker, Corps of Engineers, and Murry, a soldier at Fort Rucker, who apparently had been, transferred to Fort Gordon, Georgia, at the time of the trial of the case.

We do not know, and there is no inkling in the record before us as to the reason, why defendant did not obtain the services of a local attorney to defend him or of some attorney closer to the forum than was the attorney who ably represented defendant upon the trial, who, according to the record, is listed as an attorney at York, Alabama, which is almost the westernmost municipality in Alabama and separated from the easternmost city in Alabama, in which the trial occurred, by approximately two hundred miles. Furthermore, it is obvious that the attorney who had been allowed to withdraw as counsel for defendant appreciated the importance of giving the attorney who was to replace him adequate time within which to prepare for the trial, which is evidenced by that part of his motion stating that he “moves this Court to continue this case for one term of court in order that the aforementioned Robert Lee Owens may obtain other counsel.” Defendant did obtain other counsel, but we do not think his other counsel had adequate opportunity to prepare to defend the case on October 26, 1983, when the trial thereof commenced. Perhaps he should have been more insistent on his motion for a continuance when the case was called for trial, but he is not to be blamed, we think, for what may be considered a concession by him that he would be ready if he could be assured of the attendance of Culver Murry. Furthermore, he is not to be blamed as much as an experienced lawyer in Phenix City should have been blamed for not realizing that Culver Murry, while at or near Fort Gordon in Georgia, would not have been within the jurisdiction for service of process, as he was while at or near Fort Rucker. In addition, we do not think he is to be blamed for not declining to represent defendant on the trial when requested to do so by defendant. We find practically nothing in the record as to the circumstances of his acceptance of employment as defendant’s attorney, but we do not think he is to be blamed for such acceptance, especially as it is shown by the record during the process of the sentence hearing or the hearing as to whether defendant should be granted probation, which the court denied, that defendant’s attorney made it known that he and defendant had “known each other some six years.” The attorney stated also:

“We have participated in other civic activities, particularly in youth activities, summer recreation, and helped create a ballpark and ball fields, and I have known him in that regard and have known him to work in that regard. I have known him, now, to be called ‘Man Owens,’ but I have never known him to be called ‘Sweet Man,’ which indicates that he was, I guess, an instance sort of like a pimp. I wish to add that Mr. Owens is married, I know his wife, his family, and I know them to be together, and he was a dedicated family man.”

We realize that the general policy is to the effect that a trial court should not be reversed for its refusal to grant a defendant’s motion for a continuance of the case unless such action clearly constitutes an abuse of the discretion vested in the trial court and that a trial court is hardly ever reversed for its denial of a motion for a continuance. The general rule is sound and should be rigidly adhered to, but we should not overlook the reason for the rule, which is that the trial court is in a better position than an appellate court to determine whether the continuance should be granted. We do not think that such reasoning applies with equal force to the question now under consideration. We are inclined to think that the trial court could not have reasonably foreseen, as now can be seen by the benefit of hindsight, the difficulties that defendant’s counsel encountered during the trial of the case in his dedicated effort to defend his client. He did all that he could to defend him successfully in the presentation of a strong defense of entrapment, as to which the jury could have for good reason decided either way. Whether it would have decided the issue in favor of defendant if the case had been continued or postponed for a few weeks, no one can know with certainty. Nevertheless, the case could have been tried after a postponement of a few weeks without any questionable impairment of defendant’s constitutional right to effective assistance of counsel or his constitutional right to confrontation by witnesses against him, which we think defendant’s counsel was unable to provide, not by reason of any fault of his own, but by reason of his not having adequate time to prepare and present defendant’s defense of entrapment.

The judgment of the trial court should be reversed and the cause remanded for a new trial.

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

REVERSED AND REMANDED.

All the Judges concur, except BOWEN, P.J., who dissents.


text:
    Billy Van HASTINGS v. STATE.
    8 Div. 979.
    Court of Criminal Appeals of Alabama.
    July 31, 1984.
    Rehearing Denied Aug. 28, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1401.

      J. Stephen Salter of Groenendyke & Salter, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Callen Sparrow, Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found this appellant guilty on a trial under an indictment charging that he “did, unlawfully possess Marijuana, a controlled substance as listed in the Alabama Uniform Controlled Substances Act of 1971, subsequent to the passage of said Act, in violation of Section 20-2-70 of the Code of Alabama.”

In the brief of counsel for appellant, the following are the issues presented for review:

“I. THE STATE’S FAILURE TO ADDUCE EVIDENCE THAT THE SUBSTANCE INVOLVED WAS MARIJUANA REQUIRES REVERSAL “II. THE CIRCUMSTANCES OF THE ‘INVESTIGATION’ AND APPELLANT’S ARREST REQUIRE REVERSAL.”

We now consider the issues in the order of their presentation in appellant’s brief.

T

At the conclusion of the testimony of Officer Clarence Bolte, the State rested its case. Thereupon, the court excused the jury from the courtroom and in its absence from the courtroom, the following occurred:

“MR. SALTER [Defendant’s Attorney]: May it please the Court, at this time the Defendant, Billy Van Hastings, moves to dismiss the charge against him on the basis there is no prima facie case been proven. Further move to exclude the state’s evidence as well as renew the motion to suppress previously brought to the Court’s attention; and particularly bring to the Court’s attention at this time in relation to the motion to dismiss, there is absolutely no evidence in front of the jury that what is in those bags is marijuana. There has been no stipulation entered into evidence, no evidence offered by the state, and is completely a failure to prove that bag is marijuana.
“MR. DUKE [State’s attorney]: It’s on record that Mr. Salter agreed that it be stipulated for the record, my understanding, the jury be charged to that effect.
“MR. SALTER: There is no evidence that is before the jury at this time. As it stands at this juncture, there is no evidence before the jury that has been brought into the form of evidence. The Court can charge them that’s marijuana. There has been no stipulation entered, for the Court to make that kind of charge. It appears to be somewhat of a procedural omission on the state’s part; but nonetheless, that is the state of the evidence at this time and we would object to them trying to either reopen the case or to otherwise offer it. They have rested their case.
“THE COURT: My recollection is on hearing of the motion to suppress, I inquired of the defense counsel whether or not the stipulation that it was, in fact, marijuana extended only to the motion or to the case in chief and my recollection is it extended to both.
“MR. SALTER: It does, Your Honor. We have no problem doing that, but that is not before the jury. There is no evidence before them. There should be no further evidence to it at this point. I think its a procedural matter and I don’t think it can be corrected at this time.
“MR. DUKE: We would ask that the state reopen for the purpose of the Judge instructing the jury it has been stipulated that’s marijuana to correct, if there is any procedural mistake.
“MR. SALTER: Of course, we would object to that.
“THE COURT: Well, if I instruct them, I will do it at the end of the case. Anything further?
“MR. SALTER: Other than renew the motion to dismiss on the grounds previously stated to the Court during the motion to suppress hearing; that is, the connection between the police authorities and how the marijuana actually came to be in this courtroom, and our position that it is the marijuana of Tim Little through the conduit of Casey Brown. There was no precautions taken and things that have been argued to the Court.
“THE COURT: Your motions are overruled.”

In our opinion, the attorney for defendant-appellee was mistaken on the trial and is mistaken on appeal as to the effect of a stipulation made in open court between the parties, which is clearly and succinctly set forth by Judge Bowen, now Presiding Judge Bowen, in Spradley v. State, Ala.Cr.App., 414 So.2d 170, 172 (1982):

“A stipulation is a judicial admission, and, as such, it prevents the party who makes it from introducing evidence to dispute it, and relieves a proponent from the necessity of producing evidence to establish facts admitted therein. Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460, 467 (1958). A stipulation is a judicial admission, dispensing with proof, recognized and enforced by the courts as a substitute for legal proof. Ritch Realtors, Inc. v. Kinard, 45 N.C.App. 545, 263 S.E.2d 38, 39 (1980).”

During the presentation of the testimony by the State prior to its resting its case the substance that was found in the possession of defendant was referred to time and again as “marijuana” without any objection by defendant and without any motion by defendant to exclude such evidence.

Appellant’s first issue is without merit.

II.

In the first paragraph of the argument in the brief of appellant’s attorney as to Issue II, it is stated:

“Appellant is mindful that the argument here advanced is unusual, but it is directed by the nature of the facts below. The police were not relying on a credible individual in supplying information leading to Appellant’s arrest. On the contrary, they were working hand-in-hand with one Tim Littles, a recent arrestee on drug charges. By defense pressure and the courage of Casey Brown, Appellant clearly established that he was not only being ‘set up’ in a generic sense, but Tim Littles, then an ‘agent’ of the police, provided the very marijuana for which Appellant was arrested.”

Appellant’s attorney proceeds therefrom to make an interesting and able argument to the effect that defendant was entrapped into the commission of the alleged crime, which argument would be more comprehensively considered by us but for the fact that two separate portions of marijuana were involved at the time and place of the alleged crime and the verdict of the jury and the judgment rendered thereon were based exclusively on that part of the marijuana found on the person of defendant, not on any of the marijuana as to which the defense of entrapment was applicable, which involved a much larger amount of marijuana than the marijuana on the person of defendant, which was exclusively in his possession. The verdict of the jury was as follows:

“We the jury, find defendant guilty of possession of marijuana for personal use only.”

The court sentenced the defendant to imprisonment in the Jackson County Jail for six months and assessed a “fine of $500.00 and costs.” During the sentencing hearing, the trial judge said:

“I have reviewed the evidence in this case, and in my judgment, the jury verdict prohibits me from making any connection between you and the two-pound bags of marijuana. I have reviewed your testimony and the evidence with regard to the two smaller bags [those on defendant’s person exclusively] of marijuana and I have reviewed a sentencing report.”

We refrain from expressing any definite conclusion as to the merits of a large part of appellant’s argument in criticism of the conduct of law enforcement authorities that led to the arrest of defendant and the prosecution of the felony case against him, which is not pertinent to his conviction of the misdemeanor of possession for his personal use only of marijuana that had no connection with a large portion of marijuana to which the issue of entrapment was exclusively applicable. Whatever merit such argument would have if appellant had been convicted of possessing the larger of the two portions of marijuana involved, it is without merit on this appeal from the judgment convicting him of possession of the smaller portion only.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Charles E. GREEN v. STATE.
    4 Div. 292.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Rehearing Denied Oct. 9, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 84-99.
    Jack W. Smith, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Charles E. Green was indicted for murder, convicted of manslaughter, and sentenced to ten years in the penitentiary for killing Alexis Marie Baldwin. On appeal, Green argues that his motion for judgment of acquittal was due to be granted because the State did not prove a prima facie case of homicide.

The State’s evidence established that Alexis Marie Baldwin was the thirteen-month-old daughter of Irma McDuffie, a woman with whom the defendant had been living for several months prior to the infant’s death. Green and McDuffie resided in the Travelers Motor Inn in Dothan with Ms. McDuffie’s two children, Alexis and three-year-old Shannon. Green took care of the children while Ms. McDuffie was at work.

The manager of the Travelers Motor Inn and his wife testified that, during the time the defendant was with the children, they had observed him “smack” the baby on the side of her head, kick her, and shake her by the hair. They also saw him throw the infant into the motel swimming pool, allow her to sink to the bottom, and when she bobbed up, spank her for crying. The defendant was also observed “shaking” and “slinging” the baby.

On August 19, 1983, after Mrs. Joann Carter, the co-manager of the motel, watched the defendant shake the child and sling her up in the air outside, she waited until he returned to his room and telephoned him to see if anything was wrong. The defendant told her that the baby had fallen off the bed and he “couldn’t get it to do anything.” Mrs. Carter went to the defendant’s room where she saw the infant, gasping for breath, with a knot on the side of her head. Mrs. Carter opened the baby’s eyelids and saw her eyes “roll back”. She told the defendant to call the paramedics because the child needed to be “seen about as soon as possible.” The defendant replied that he had to pick up Ms. McDuffie, the child’s mother, at work, whereupon he left Alexis with her three-year-old sister and got in his car.

When the defendant returned with the child’s mother, the two of them took Alexis to the Dothan Medical Center Emergency Room where she was seen initially by Nurse Ferrie White. Mrs. White testified that when the child was first brought in she had no pulse or respiration, and was covered with bruises “on its right thigh ... its left forearm, both ears, the right temple. When I turned it over, its buttocks were just a complete bruise. Bruise on both backs of the legs, the lumbar region, the thoracic region, on the back of the neck_” Mrs. White stated that the baby’s heartbeat was restored, but her breathing was accomplished by means of a ventilator. The infant remained on life support systems, with a flat EEG indicating no brain activity, until two days later when her vital organs were removed following the mother’s consent to donate the heart, liver and kidneys for transplant purposes. The baby was pronounced dead two days earlier when brain activity ceased.

Dr. William Lies, the child’s pediatrician, testified that he was called in shortly after the baby arrived at the emergency room. In his opinion, the infant had incurred the bruises during a one to four day period prior to her death. The actual cause of death, he testified, was “swelling of the brain tissue and brain cells. By producing so much pressure inside the head, it stopped the function of the vital cells that control life.” Dr. Lies stated that he believed the swelling to have been caused by trauma of some kind such as “shaking or slinging”. He said bruises such as Alexis had could not have been caused by a fall but, instead, indicated a pattern of “repetitive abuse”.

Officer Nick Monday of the Dothan Police Department talked with the defendant at the Medical Center, where the defendant stated that the baby had fallen out of bed and that he left her to pick up Ms. McDuf-fie after the co-manager of the motel, Mrs. Carter, said that “the child looked okay to her.” The defendant then added, “[W]ell, it really all started last night” when the infant had eaten some of his cigarettes while he was taking a shower. The defendant told Officer Monday that, after he found the child with the cigarettes, he spanked her with a belt.

Green took the stand and denied shaking, slinging, kicking or otherwise harming the baby but claimed that she was prone to falling or had been hurt by her three-year-old sister.

In our judgment, there is no question that the State presented a prima facie case of homicide. The prosecution’s evidence established that the defendant, who had been observed mistreating the child, had the baby in his keeping during the period in which the bruises, according to expert testimony, were inflicted. See Phelps v. State, 439 So.2d 727 (Ala.Cr.App.1983); Smith v. State, 54 Ala.App. 237, 307 So.2d 47 (1975). In addition, the defendant failed to summon the paramedics when advised to do so, see Layne v. State, 54 Ala.App. 529, 310 So.2d 249 (1975), and gave a false account of his conversation with Mrs. Carter to the Dothan police. See Cronnon v. State, 56 Ala.App. 192, 203, 320 So.2d 697 (1975), cert. denied, 294 Ala. 756, 320 So.2d 709, cert. denied, 423 U.S. 1077, 96 S.Ct. 864, 47 L.Ed.2d 88 (1976).

Under the circumstances, the question of defendant’s guilt was for the jury, and the motion for judgment of acquittal was properly denied. Dolvin v. State, 391 So.2d 133 (Ala.1980); Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Thomas Milton WILSON, alias v. STATE of Alabama.
    1 Div. 491.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    James H. Lackey, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Thomas Milton Wilson was indicted for the capital murder of one Joe Lee Gilliland, in a two count indictment. Count one of the indictment alleges the appellant committed this murder while he was under the sentence of life imprisonment, in violation of § 13A-5-40(a)(6), Code of Alabama 1975. Count two alleges the appellant committed a murder and had been convicted of murder in the preceding 20 years, in violation of § 13A-5-40(a)(13), Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment.” Following a sentencing hearing, the jury unanimously recommended this appellant be sentenced to “life imprisonment without parole.” The trial judge set sentence accordingly.

On November 22, 1976, Mary Helen Leonard was living in a house trailer in Mobile County with her two sons and the deceased, Joe Gilliland. On that night she went to a local club and saw the appellant there. At approximately 9:00 p.m., she and the appellant left the club and drove to her trailer. When they arrived at the trailer, she found her two sons watching television in the living room and the deceased was asleep in a bedroom.

At this point, Mary Leonard went to her bedroom to change her shoes and the appellant stayed in the dining room.

A few minutes later, Mary Leonard heard a shot and ran to the front of the trailer. Her two sons told her that the appellant had shot the deceased and that he was dead. She then looked out of the window and saw the appellant get in his car and drive away.

Some weeks later, the Decatur Police Department went to a Decatur residence to arrest the appellant on a fugitive warrant. The appellant was in possession of a driver’s license permit bearing the name of the deceased along with other identification of the deceased.

Evidence was presented that the appellant had been convicted of murder in Troop County, Georgia, in May of 1969 and had been sentenced to life imprisonment.

The appellant admits being at the house trailer on the night in question, but denies any involvement in this killing. He stated that he did have a gun that night and he had placed it under the mattress in Mary Leonard’s bedroom. Several minutes later, he was in the kitchen and heard a shot. He fled because he knew he was wanted for escape. The appellant stated he had obtained the deceased’s driver’s license and other identification from one of Leonard’s sons a couple of weeks earlier.

I

In the case at bar, defense counsel makes a thorough recitation of the facts in this case and the adverse rulings to the appellant. However, after quoting the United States Supreme Court’s holding in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), he states that, after a conscientious examination of this case, he “has found no error harmful to the Defendant or any error which counsel could in good faith and conscience advance in the client’s behalf.” (Appellant’s brief, page 21). Mitchell v. State, 54 Ala.App. 324, 307 So.2d 720 (Ala.Crim.App.1975) and authorities cited.

This court is now required by An-ders, supra, to determine if this appeal is wholly frivolous. The State clearly established all of the elements of the offense charged and the evidence was sufficient for the jury to conclude that the appellant was guilty beyond a reasonable doubt of this capital offense. A review of the record reveals that the trial counsel was a competent and zealous advocate for his client and a fair and adequate defense was presented at trial. Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Duncan v. State, 461 So.2d 906 (Ala.Crim.App.1984).

After a careful examination of the record by this court, we can find no error harmful to the appellant or which would affect the substantial rights of this appellant. Therefore, this cause is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    James Michael WARRICK v. STATE.
    1 Div. 625.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.

      William L. Utsey and William R. Christopher, Butler, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   HARRIS, Judge.

The appellant in this cause has been before this court previously on the same cause of action. We reversed and remanded the cause to the lower court and a new trial was held. The applicable facts of this proceeding are detailed in our previous opinion at 409 So.2d 984.

Appellant was tried again on May 4 and 5, 1983 before Circuit Judge J. Richmond Pearson. The jury returned a verdict finding the appellant guilty of manslaughter in the first degree and the trial judge sentenced appellant to ten years in the state penitentiary. This appeal followed.

Appellant asserts that the trial court erred in allowing Officer Jimmy Acton to testify as to statements made in response to Officer Acton’s questions prior to appellant being informed of his constitutional rights.

A review of the facts reveals that, upon his arrival at the scene of the crime, Officer Acton spoke with Mrs. Pat Cooper and she informed him that several shots had been fired in a nearby field. After noticing the appellant’s presence in the field, Officer Acton approached appellant and inquired as to his knowledge of the shooting incident. Officer Acton testified that the appellant stated that he had fired two shots in the air and that he had chased some people down the field toward what is known as the Big Wheel. Officer Acton also testified that, upon appellant’s exit from the field, Lillie Williams exclaimed, “You’re the one that shot Bobby,” at which time the appellant responded, “I ain’t shot nobody. If I had I wouldn’t miss.”

Appellant maintains that the trial court erred in not sustaining his objections to admission of these statements and now argues that they were made while he was “in custody”. We disagree.

Miranda warnings are required only when there has been a restriction of one’s personal freedom as to render that person in custody. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). The record in the case at bar does not reflect that the appellant was under any form of custody when he made incriminating statements to both Officer Acton and Lillie Williams. Miranda warnings are inapplicable to such traditional investigatory functions as general on-the-scene questioning. Cork v. State, 433 So.2d 959 (Ala.Crim.App.1983); Hall v. State, 399 So.2d 348 (Ala.Crim.App.1981); United States v. Montos, 421 F.2d 215 (5th Cir.1970), cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532.

In determining the existence of custodial interrogation, the standard that is applicable is “whether a reasonable man would feel that he was physically deprived of his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action is restricted by such interrogation.” Hall, supra; and see cases cited therein.

Montos, supra, developed the criteria that courts should utilize in determining whether Miranda warnings were necessary. The criteria included: (1) probable cause to arrest, (2) subjective intent of the police, (3) subjective belief of the accused, and (4) focus of the investigation. “While the focus of the investigation is especially important in deciding whether an accused should be given the Miranda warning, it is custody and not focus which marks the point at which it becomes mandatory” (emphasis deleted). Hall, supra; Mathiason, supra; Harris v. State, 376 So.2d 773 (Ala.Crim.App.), cert. denied, 376 So.2d 778 (Ala.1979).

The record in the instant case does not support appellant’s contention of “custodial interrogation” at the time he made the statements. Therefore, Miranda warnings were not required and the trial court acted properly in admitting the statements into evidence.

Similarly, the appellant argues prejudicial error was committed by the trial court in allowing Lillie Williams the opportunity to testify as to statements made by appellant prior to his being given Miranda warnings.

As stated earlier, upon seeing the appellant leaving the field, Lillie Williams stated, “You’re the one that shot Bobby.” Ms. Williams testified at trial that the appellant initially denied the allegation but went further and stated that if he had been trying to shoot someone he would not have missed. Ms. Williams was also allowed to testify that the appellant made statements to the effect that he was tired of people hunting on his land and that he had shot at someone in a blue denim jacket.

Appellant argues that he was in custody at the time he made the statements to Lillie Williams, since Officer Acton had escorted him to where Ms. Williams was standing and stated that “this is the boy that was doing the shooting.” Again, we disagree with appellant’s contention.

Appellant refers to Hall v. State, supra, in his argument. The point that appellant relies on in Hall is that the distinction between general and custodial interrogation must be determined by a case-by-case factual analysis. The facts in the case at bar do not meet the “custodial standard” at the point in time the appellant made statements to Ms. Williams. Harris v. State, supra, quoted Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in defining “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” The officer’s actions and words at the most amounted to “a focusing of the investigation” on the appellant. Therefore, “Miranda warnings are not required simply because the questioned person is one whom the police suspect or one on whom the investigation has focused.” Harris, supra, Oregon v. Mathiason, supra; Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); Malone v. State, 361 So.2d 674 (Ala.Crim.App.), cert. denied, 361 So.2d 691 (Ala.1978).

Moreover, the questions propounded to the appellant were asked by a citizen, not a law enforcement officer. According to Terry v. State, 397 So.2d 217 (Ala.Crim.App.1981) Miranda warnings are not required in instances where inculpatory or otherwise admissible statements are made to persons who are not law enforcement officers or their agents. Hinshaw v. State, 398 So.2d 762 (Ala.Crim.App.1981); Truex v. State, 282 Ala. 191, 210 So.2d 424 (1968); Ellis v. State, 338 So.2d 428, (Ala.Crim.App.1976); Bedingfield v. State, 47 Ala.App. 677, 260 So.2d 408 (1972). Thus, the trial court acted properly in admitting into evidence the appellant’s contested statements.

Appellant also contends that the admission into evidence of photographs of the deceased body had no probative value, since he, the appellant, had stipulated to the cause of death. He therefore maintains that the trial court committed prejudicial error in allowing their admission.

The law in Alabama on this issue is clear. Photographs which depict the character and location of external wounds on the body of a deceased are admissible even though they are cumulative and based upon undisputed matters. Wicker v. State, 433 So.2d 1190 (Ala.Crim.App.1983); Hines v. State, 365 So.2d 320 (Ala.Crim.App.), cert. denied, 365 So.2d 322 (Ala.1978); Ellenburg v. State, 353 So.2d 810 (Ala.Crim.App.1977); Davis v. State, 338 So.2d 507 (Ala.Crim.App.1976). The fact that a photo is gruesome and ghastly, if it has some relevancy to the proceeding, is no reason to exclude its admission into evidence, even if the photographs may tend to inflame the jury. Richards v. State, 337 So.2d 171 (Ala.Crim.App.), cert. denied, 337 So.2d 173 (Ala.1976). Therefore, the appellant’s argument is without any substantial merit.

Lastly, the appellant complains that the trial court committed prejudicial error in denying his motion for a new trial based upon juror Virginia Williams’s failure to answer questions submitted to the venire during voir dire examination. It is undisputed that, during the voir dire examination, the venire was asked whether anyone knew anything about the facts of the case about to be tried. Several venirepersons responded that they had heard the facts of the case through various sources. However, Venireperson Virginia Williams did not respond even though the substance of the question was asked a total of four times in some form. Later, at a hearing on appellant’s motion for a new trial in front of the trial judge, when Juror Williams was asked why she failed to respond, she replied, “I think you would have had all of us stand up and say the same thing.” As appellant stated in his brief to this court, “This is not a case of a juror not hearing the question or the question being ambiguous.” It is apparent that the juror affirmatively elected not to answer.

The transcript of the motion for new trial hearing also shows that Juror Williams was employed at G and H Ready Mix in Jackson, Alabama, at the time of the trial. Her immediate supervisor, at G and H Ready Mix was the brother-in-law of the deceased. She testified at the hearing that she knew her supervisor James Baby Ray Foster was a brother to Willie and Munk Foster, who had run advertisements in local papers regarding the unfairness of appellant’s previous trial and the injustice that had been accorded by such a light sentence. Juror Williams admitted that she had discussed the facts of the case with James Baby Ray Foster at length on several occasions prior to the second trial and that James Baby Ray Foster had stated that he thought that the first trial was unfair and that justice had not prevailed. She also testified that she put a lot of faith into what Mr. Foster told her.

Initially, one would think that the question that we must answer in deciding this issue is whether the appellant was prejudiced by Juror Williams’s failure to respond. However, Ex parte Ledbetter, 404 So.2d 731 (Ala.1981) dealt with this type of problem and held that the test is not whether the appellant was actually prejudiced, but whether he might have been prejudiced. Beauregard v. State, 372 So.2d 37 (Ala.Crim.App.1979).

Ex parte Ledbetter, supra, utilized Leach v. State, 31 Ala.App. 390, 18 So.2d 285 (1944) in its decision. In Leach, supra, the venire was questioned as to whether any member of the panel was qualified to serve as a law enforcement officer. Two venirepersons responded in the affirmative and were stricken, but another remained silent and was subsequently selected for jury service. The appellate court held that the concealment constituted error, whether or not it was deliberate or unintentional.

The facts in Ex parte Ledbetter are similar to those in the case at bar. The Ledbet-ter venire was asked if any member of the panel or their family had ever been the victim of a crime of violence of any sort. This question was asked three times in some form by the defense counsel. A particular venireperson elected not to respond and was subsequently chosen for jury service. However, at Petitioner Ledbetter’s hearing on a Motion for New Trial, the particular juror testified that approximately five months prior to petitioner’s trial, his house and automobiles had been sprayed with shotgun pellets. The incident was reported to the local authorities, who investigated and filed a report. The Court held that the juror’s failure to disclose the incident resulted in probable injury to the petitioner.

It is axiomatic that jurors must maintain an indifferent interest in the outcome of each and every verdict. They should view and hear the proceedings without bias or prejudice and consider the evidence presented by both the accused and the State with a sense of impartiality. Not only family relationships, but those formed within the everyday social interactions of life may impart a want of impartiality. By way of nature, social interaction creates relationships where one party feels some sort of commitment to the other party. Favors and affections, whether personal or professional, spring out of most relationships. Brazleton v. State, 66 Ala. 96 (1880); Ex parte Ledbetter, supra. The purpose of voir dire examinations of a ve-nire prior to a trial is to discover any interest a potential juror might have in the proceeding about to be tried.

Questions that ask venirepersons whether they know any of the individuals involved in the case, whether they know any of the facts of the case, and whether any of the venire has ever been the victim of a crime are all important considerations that determine the impartiality and fairness of a trial proceeding. When these questions and others are answered falsely, either by vocal assertions or by intentional or indifferent silence, which in many cases is perhaps the most detrimental, an accused is denied his right to challenge for cause and has in fact been deceived into forgoing his right of a peremptory strike.

In the case at bar, we feel confident that had Yenireperson Williams made known her knowledge of the facts of the case about to be tried and her professional relationship with the brother-in-law of the deceased, she would have been either challenged for cause or “struck” by the appellant. While our position may appear to be tantamount to second guessing what the defense counsel’s actions would have been had he known of Williams’s knowledge of the case, we cannot abide by a practice allowing potential jurors to deprive defendants in criminal actions of the right to truthfully know jurors’ biases and thus prevent defendants from properly utilizing their jury strikes and ultimately resulting in probable prejudice.

Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970), a leading case on voir dire examination, “did not address the effect of an improper answer or failure to answer questions on voir dire which had they been answered properly would have disclosed a challenge for cause.” Burroughs Corporation v. Hall Affiliates, Inc., 423 So.2d 1348 (Ala.1982); Ex Parte O’Leary, 438 So.2d 1372 (Ala.1983). Freeman, supra, did, however, establish standards that a reviewing court should consider in scrutinizing a trial court’s decision. Freeman, supra, stated:

“We hold that the proper inquiry for the trial court on motion for new trial, grounded on allegedly improper responses or lack of responses by prospective jurors on voir dire, is whether this has resulted in probable prejudice to this movant.”

We are of the opinion that in this case the lack of response by the prospective juror Williams resulted in probable prejudice to the appellant. Having studied the trial record and the transcript of the hearing on the motion for new trial we feel it is clear that there is more than a likelihood that the appellant was denied his right to an impartial jury. For this reason, we reverse the conviction and remand this case to the trial court for a new trial.

REVERSED AND REMANDED.

All the Judges concur.