text:
    Donald WADSWORTH v. STATE.
    7 Div. 88.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.
    Rehearing Denied Aug. 30, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-1251.

      Charles Robinson of Church, Trussed & Robinson, Pell City, for appellant.
    Charles A. Graddick, Atty. Gen. and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Presiding Judge.

The defendant was indicted and convicted for the first degree robbery of Iva Lynn Gilley. Sentence was twenty years’ imprisonment. Two issues are raised on appeal.

I

This robbery was committed by three men: the defendant, his twin brother Ronald, and Steve McCullars. Prior to trial, defense counsel made an oral motion to prohibit the State from “bringing out” any evidence of the fact of the brother’s conviction or “anything about the sentence imposed.” The trial judge indicated his agreement with the defendant’s request.

On cross examination of Mrs. Gilley, the robbery victim, defense counsel attempted to impeach her with her testimony in Ronald’s trial:

“Q. At a previous trial of Ronnie Wads-worth, right here in this courtroom, did you testify that Ronnie Wadsworth was the man that appeared at your door?
“A. Yes.”

Apparently, defense counsel also used a transcript of Ronald’s trial in his efforts to impeach the victim’s testimony at the defendant’s trial. Counsel' repeatedly established the fact that Mrs. Gilley identified Ronald at Ronald’s trial for this robbery.

On redirect examination, the prosecution established, without objection, that Ronald and the defendant are twins, that the testimony used by defense counsel on cross examination was the testimony Mrs. Gilley gave “in a trial proceeding involving Ronnie Wadsworth for this same robbery”, and that that trial was “tried to a conclusion.”

The basis for the first issue on appeal occurred during the prosecutor’s redirect examination of St. Clair County Sheriffs Deputy Luther McCain.

Deputy McCain had investigated the robbery. On cross examination, defense counsel elicited the facts that the deputy had arrested Ronnie “a couple of weeks” after the crime based on Mrs. Gilley’s identification and that Ronald “was tried and prosecuted here based on her testimony.”

Then on redirect examination of Deputy McCain by the prosecutor the following occurred:

“Q. Mr. Robinson (defense counsel) referred to Ronnie Wadsworth being tried and prosecuted in this courtroom. Do you recall if that case was tried to a conclusion?
“A. Yes, sir.
“Q. Do you know where Ronnie Wads-worth presently resides?
“MR. CHURCH (Defense counsel): Judge ...
“THE COURT: He can consider it yes or no.
“A. I think so, yes, sir.
“Q. Where does he reside?
“A. In jail.
“Q. That’s all.”

Out of the presence of the jury, defense counsel requested a mistrial on the ground that the State “over my motion in limine that they not bring out the fact that Ronald Wadsworth was convicted in this Court.”

The trial judge responded:

“The question was where does he reside? I instructed the witness he could answer yes or no. He said, T think I do.’ He went further and ask(ed) him where, and as I understood he said ‘in jail’.”

After additional argument, the judge overruled and denied the motion. Defense counsel made no further objection or request for curative instruction.

The defendant argues that the very sequence of the questions and answers provides the inference that Ronald was “tried, convicted and serving a sentence for the robbery.” Although this inference can be drawn, the trial judge’s response to the request for the mistrial indicates that he did not make that same conclusion.

A high degree of “manifest necessity” for the granting of a mistrial must be demonstrated before a mistrial should be granted. Woods v. State, 367 So.2d 982 (Ala.1978); Alabama Code Section 12-16-233 (1975). “A trial judge is allowed the exercise of broad discretion in deciding whether that high degree of necessity is present.” Woods, 367 So.2d at 984. An appellate court “will not interfere with the exercise of that discretion unless there is clear abuse of it.” Woods, supra. This is because the trial judge “heard what transpired and has seen the scenario unfold. He is in a far better position to determine whether a jury should be discharged and a mistrial granted.” Duncan v. City of Birmingham, 384 So.2d 1232, 1240 (Ala.Cr.App.1980).

Whether an improper question, answer or remark is so prejudicial as to require a mistrial depends upon the issues, parties, and general circumstances of the particular case. Williams v. State, 245 Ala. 32, 36, 15 So.2d 572 (1944). “The entry of a mistrial is not lightly to be undertaken ... (T)he entry should be only a last resort, as in cases of otherwise ineradicable prejudice.” Thomas v. Ware, 44 Ala.App. 157, 161, 204 So.2d 501 (1967) (emphasis in original). A mistrial indicates more than a “mere erroneous ruling of law” and signifies such fundamental errors in a trial as to vitiate the result. Thomas, supra.

Here, we are of the opinion that the possible inference attributed to the series of questions and answers was not ineradicable. See Renfroe v. State, 382 So.2d 627 (Ala.Cr.App.), cert. denied, Ex parte Renfroe, 382 So.2d 632 (Ala.1980). Since the inference was eradicable, the trial judge correctly overruled the motion for a mistrial. Chillous v. State, 405 So.2d 58, 61 (Ala.Cr.App.1981); Dickey v. State, 390 So.2d 1177, 1178 (Ala.Cr.App.), cert. denied, Ex parte Dickey, 390 So.2d 1178 (Ala.1980); Nix v. State, 370 So.2d 1115, 1117 (Ala.Cr.App.), cert. denied, Ex parte Nix, 370 So.2d 1119 (Ala.1979); Griffin v. State, 364 So.2d 428, 430 (Ala.Cr.App.1978); Van Antwerp v. State, 358 So.2d 782, 790 (Ala.Cr.App.), cert. denied, Ex parte Van Antwerp, 358 So.2d 791 (Ala.1978).

II

State’s witness McCullars testified that he and the defendant went inside Mrs. Gil-ley’s house and robbed her while Ronald, the defendant’s brother, waited outside in an automobile and served as a lookout.

On cross examination, defense counsel elicited McCullars’ admission that he had also robbed the Brunsons. Defense counsel went into some of the details of that robbery and attempted to show that the witness had made a deal with the authorities in exchange for his testimony against the defendant.

On redirect examination by the prosecutor, the following occurred. This constitutes the basis for the defendant’s second argument on appeal.

“Q. Mr. Robinson had asked you about a robbery that you were involved in involving some people named Brunson. You said, you, in fact, participated in it. Is that correct?
“A. Yes, sir.
“Q. Did anyone else assist or participate in that robbery with you?
“A. Yes, sir.
“Q. Is there anybody in this courtroom today that helped or assisted you in that Brunson robbery?
“A. Yes, sir.
“Q. Would you point that person out?
“MR. ROBINSON (Defense Counsel): I’m going to object to that Judge, and move for a mistrial.
“THE COURT: The objection is sustained.
“MR. ABBOTT (Assistant District Attorney): I want to make an offer of proof. Mr. Robinson has made an issue about a Brunson robbery. The State takes the position that after he has opened it up, we are entitled to go into it ourselves. That is all I want to do.
“THE COURT: Your objection is sustained.
“MR. ROBINSON: I would further make a motion for a mistrial on the ground he said the man was in this room. This man is on trial and he has not taken the stand. Even if he had taken the stand, there has been no indictment. We had a right to go into it with this man here.
“THE COURT: Ladies and Gentlemen of the jury, any answer this witness gave in response to that last question is stricken from your consideration. Is there any member of this jury that cannot erase that from their mind? If you cannot erase it from your mind, raise your hand.
“(No response from the Jury)
“Your motion for a mistrial is overruled.”

We find no error in the denial of the mistrial. The trial court sustained the objection, instructed the jury to disregard and polled the jury on their ability to follow his instructions. There is a prima facie presumption against error where the trial court immediately charges the jury to disregard improper remarks or answers. Davis v. State, 233 Ala. 202, 203, 172 So. 344 (1937); Kelley v. State, 405 So.2d 728, 729 (Ala.Cr.App.), cert. denied, Ex parte Kelley, 405 So.2d 731 (Ala.1981); Elmore v. State, 414 So.2d 175, 176 (Ala.Cr.App.1982).

The judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge. SAM W. TAYLOR, Judge.

license: Public Domain

text:
    James Clifton GUSTER v. STATE.
    8 Div. 820.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.
    Rehearing Denied Aug. 30, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-1258.
    Norman Bradley, Jr., Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found this appellant guilty of burglary in the third degree, a Class C felony, which is committed if one “knowingly enters or remains unlawfully in a building with intent to commit a crime therein.” Alabama Criminal Code, § 13A-7-7. A sentence hearing was thereafter conducted at which, after due notice, the State proceeded against defendant pursuant to the Habitual Felony Offender. Act and introduced evidence showing two previous felony convictions. The court sentenced him to imprisonment for twenty-five years, it being recognized by all concerned that the limitations on a term of imprisonment on a Class C felony is “not more than 10 years or less than 1 year and 1 day (§ 13A-5-6(a)(3),” that on a conviction of a Class C felony after having “been previously convicted of any two felonies” a defendant “must be punished for a Class A felony (§ 13A-5-9(b)(l)),” and that on conviction of a Class A felony, the term is “for life or not more than 99 years or less than 10 years (§ 13A-5-6(a)(l)).”

All issues presented by appellant, three in number, pertain to the question of the sufficiency of the evidence to present a jury question as to defendant’s guilt or its sufficiency to withstand a motion for a new trial grounded on a claim that the verdict was contrary to the weight of the evidence. The issues presented call for a short summary of the evidence.

Joe C. Hagler testified on call of the State that he was the manager of Decatur Tire Center, the legal entity that owned the building that the defendant was charged with having entered or remained in unlawfully, that he had been at the place of business until 5:00 P.M. on January 12, 1982, and was at home in bed at approximately 9:30 that night, having been aroused therefrom by someone from the Decatur Police Department reporting that Decatur Tire Center had been broken into. The witness described the premises of the company of which he was the manager and the adjoining premises of another company; the security system or the electric burglary alarm system of the building of Decatur Tire Center was one that could not be activated except by an entry into the building. He said that when he first arrived at the premises “there were so many officers there I couldn’t tell you one from the other.” He testified:

“A. I went on into my building and remained in there for approximately twenty-five minutes and finally I went out the door and tried to find one of the officers and they told me to stay there, that they would be there.
“Q. All right, sir. What did you discover out there that was out of the ordinary?
“A. Nothing when I first went into the building. I turned the alarm off. That released the police department’s red light. They asked me to unlock the rest of the building. I unlocked the door that goes into the service area and in turn goes back to the area where someone had broken in.
“Q. All right, sir. If you could, did you inspect the area where someone had broken in?
“A. I was getting to that. After I went into the service department, we have another storage area and that storage area has doors that have been paneled up. They are not sensitive, you might say. If you touch one of them they don’t go off. I discovered a hole large enough for a human to get inside the building and immediately I discovered we were about four tires short in our inventory. I knew where they were.
“Q. All right. That alarm system you have been describing out there, does the alarm sound on the premises?
“A. No, sir, directly to the police department. No sound on the inside.
“Q. So an intruder would not be aware that the alarm had gone off?
“A. No, sir.
“Q. Did you ever give any permission to that man sitting over there at the counsel table, James Clifton Guster or to a man named Chairs, to enter your building?
“A. No, sir.
“Q. And take your tires?
“A. No, sir.”

Five police officers, who arrived at the premises of Decatur Tire Center and the adjoining business of Consolidated Freight-way in prompt response to the security alarm, testified on call of the State. Two of them parked their car and approached the building on foot from opposite directions around a ehainlink fence that surrounded the premises of both companies. One of them “observed a black male jumping the fence and running away into the night.” A few minutes thereafter, two other officers arrested defendant while he was walking eastward along the edge of Highway 20 approximately 300 yards from the point where, according to appellant’s brief, “One of the first two officers had seen a man jumping the fence.” One of the officers mentioned then arrived at the scene of the arrest and identified this appellant as the man he had seen inside the Consolidated Freightway yard.

Toward the end of the search of the premises by the officers, an officer arrested one James Chairs, who was found on the premises.

Although James Chairs was not being tried and did not testify in this particular case, there seems to be no dispute whatever between the parties as to the guilt of James Chairs as one of the two men who had burglarized the alleged building and had taken therefrom two or four tires. There was testimony by a female friend of this appellant and James Chairs that the two had been at her home on January 12, 1982, playing cards between 4:00 P.M. and around 5:30 P.M. She said that at her request, appellant picked up her eight-year-old son at her mother’s house and returned him to the witness’s house around 6:30 P.M. She also testified that it was possible that the appellant had returned to her residence sometime later in the evening, while she was in bed and did not notice.

The only witness for the defense, other than one character witness favorable to defendant, was the defendant himself. The defendant testified that he owned three motor vehicles and two of them were at the house of his friend, “Hilda Lampkin,” that day. He said that around 5:30 P.M. he and Chairs drove to pick up the son of Mrs. Lampkin and returned directly to her house with the boy. He further testified that he and Chairs re-entered the Lampkin residence and stayed until 8:00 or 8:30 P.M., whereupon he and Chairs left at the same time but drove away in separate vehicles, both vehicles belonging to the defendant. He said that he and Chairs worked together in the demolition business. According to appellant’s brief, appellant testified as follows:

“Appellant testified that he then drove to Twelfth Avenue, parked the car, and went to visit a female friend who was visiting from out of town. He stated that this friend was visiting at a project four or five blocks west of Hilda Lamp-kin’s house; that she was a romantic interest of Chairs’; and that Chairs did not know that Appellant was going to visit the friend. He stated that he parked his car around the corner from the friend’s residence because he did not want Chairs to know he was visiting her. “Appellant testified that he visited the friend for fifteen or twenty minutes and left around 9:00 p.m. He stated that when he left he decided to walk home, which was in an easterly direction from the place where the friend was staying at a distance of five or six blocks. He stated that he decided to walk home rather than driving in order to avoid the scrutiny of several people who were in the vicinity of his car.”

According to further testimony of defendant, while he was walking eastward on Highway 20, he thought he saw a person on the other side of the street, crossed the street to investigate, determined that the object was not a person, and re-crossed Highway 20, and after proceeding eastward along the south side of Highway 20 for a short distance, he was stopped by the police. He robustly denied being with Chairs at the time of the burglary and stoutly contended that he was not on the premises of Decatur Tire Center on the evening of January 12, 1982.

The parties have opposing views as to the value of testimony as to footprints between the vicinity of the burglary and the place where appellant was arrested, the appellant urging, with considerable plausibility, we think, that under the prevailing circumstances it was of little, if any, value. We find it unnecessary to attribute any value to it in concluding, which we do, that the other circumstances summarized above are sufficient to support the verdict of the jury and that 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.

ON REHEARING

SAM W. TAYLOR, Judge.

On rehearing, appellant raises the issue based on the recent United States Supreme Court opinion Solem v. Helm, - U.S. -, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). We have reviewed the sentence in this case applying the principles of Solem v. Helm and are convinced that the sentence is proportional and does not constitute cruel and unusual punishment.

OPINION EXTENDED;

APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Cornell ROBINSON v. STATE.
    3 Div. 693.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Aug. 30, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-1240.
    Joan Van Almen of DeMent & Wise, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Ger-rilyn V. Grant, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

This is an appeal from a denial of a petition for writ of habeas corpus in which petitioner Robinson seeks credit for the time for which he was incarcerated pending trial.

Robinson was arrested for robbery on December 16, 1967. He was placed in the Jackson County Jail and remained there until January 31, 1968, when he was released on bond. At the time of his arrest, Robinson was on parole from an earlier prison sentence.

Robinson was ultimately convicted of the robbery charge and sentenced to twenty-nine years’ imprisonment. At present he is serving this and other sentences in the state penitentiary system.

In his pro se petition for writ of habeas corpus, Robinson sought jail credit for some two years, six months and nineteen days, which he allegedly spent in county jails awaiting trial on various charges. On appeal, he recognizes that he is not entitled to all of this time but seeks credit only for the time spent in the Jackson County Jail between December 16, 1967, and his release in January of 1968. This particular issue was not litigated in the circuit court and consequently is not preserved for review.

Moreover, the petition for writ of habeas corpus was properly denied. Alabama Code Section 15-18-5 (1975), providing credit towards a sentence for the time spent incarcerated pending trial, was made to operate retrospectively by Section 15-18-7. However, we do not think that the legislature intended that an individual receive jail credit while at the same time serving another sentence on parole.

When Robinson was arrested for robbery in December of 1967, he was on parole and was “serving time” even though outside prison walls. Ivey v. Alabama, 381 F.Supp. 503 (S.D.Ala.1974); Pinkerton v. State, 29 Ala.App. 472, 198 So. 157 (1940). The record shows that he was not declared a delinquent parolee until January 31, 1968, and was not rearrested as a parole violator until May 30, 1968. Consequently, Robinson was receiving credit on the conviction and sentence on which he was on parole from the time of his arrest in December of 1967, until the time he was declared delinquent in January of 1968. Alabama Code Section 15-22-32 (1975). Any other construction would allow Robinson to receive “double credit” — a result we do not think that the legislature intended.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: PER CURIAM.

text:
    Ex parte Donald V. WATKINS.
    3 Div. 870.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Aug. 17, 1983.
    Solomon S. Seay, Jr., and Terry G. Davis, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Al-gert S. Agricola, Jr., Asst. Atty. Gen., for appellee.
    Johnny Hardwick, Montgomery, amicus curiae.
   PER CURIAM.

After a thorough review and consideration of the record and the briefs and oral arguments of all the parties and the amicus curiae, this Court makes the following findings: (1) Petitioner Watkins has not shown the existence of any attorney-client relationship or privilege that would excuse or justify his refusal to disclose to the Montgomery County Grand Jury the names of the Montgomery police officers who allegedly provided information concerning police brutality and abuse in what has commonly been referred to as “The Todd Road Incident.” Harris v. State, 281 Ala. 622, 206 So.2d 868 (1968). (2) Even if the existence of an attorney-client relationship were found, the names and identities of the client-officers are not within the attorney-client privilege under the facts of this case. In re Enzor, 270 Ala. 254, 117 So.2d 361 (1960). (3) Act No. 618, Section 9.03, 1973 Ala. Acts (August 28,1973), authorizing the council, the Mayor, or any person or committee authorized by either of them, to conduct investigations as to municipal affairs did not create any executive, legislative, or other governmental privilege that would authorize or justify the withholding of material evidence from a duly constituted grand jury. (4) Neither this same Act nor any other makes information received by a councilman conducting such an investigation privileged or confidential. (5) This Court finds there is no procedural defect associated with the ruling of the circuit court.

Therefore, it is the judgment of this Court that the order of the circuit court of July 18, 1983, citing Petitioner Watkins for contempt, be upheld and that the petition filed in this cause seeking review and relief from that order be denied. The order of this Court of July 22, 1983, staying the imposition of the fine imposed on Petitioner Watkins shall remain in effect until a final disposition of the petition.

BOWEN, P.J., and TYSON, HARRIS and HUBERT TAYLOR, JJ., concur.

SAM W. TAYLOR, J., dissents.


author: PER CURIAM. ADAMS, Justice,

text:
    Ex parte Donald V. WATKINS. (Re Ex Parte Donald V. Watkins, Petition for Writ of Certiorari (Mandamus)).
    82-1159.
    The Supreme Court of Alabama.
    September 23, 1983.
    Dissenting Opinion Sept. 30, 1983.
    Solomon S. Seay, Jr. and Terry G. Davis, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., and Al-gert S. Agricola, Jr., Asst. Atty. Gen., and James H. Evans, Dist. Atty., Montgomery County, for respondent.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

All Justices concur, except ADAMS, J., dissenting.

ADAMS, Justice,

dissenting.

I respectfully dissent. The majority, in deciding to quash the writ previously granted in this case, of necessity, decided that the petitioner was guilty of civil, rather than criminal contempt. It is clear to me that the petitioner, if guilty of anything, is guilty of criminal contempt. In the Circuit Court the fine in a criminal contempt case is not to exceed $100.00, plus imprisonment for five days. Here, petitioner was punished civilly at $500.00 per day until he purged himself of the contempt. The amount of the fine, in this case, if continued for a year, would be $183,000.00.

In a case decided by the Alabama Supreme Court almost identical to this case, an attorney who refused to give the grand jury the name of a person who told him about a bribe to miscount election returns, was convicted of criminal contempt. Ex parte Enzor, 270 Ala. 254, 117 So.2d 361 (1960).

I further dissent because we have decided an important question of attorney-client privilege without a full record. The majority, by denying the writ, must have concluded that petitioner’s claim of attorney-client privilege is a sham. I cannot make that determination without a record. Obviously, if such a relationship did exist, our decisions hold that petitioner would not have to communicate the information requested to the grand jury. Ex parte Enzor, supra.


author: SAM W. TAYLOR, Judge.

text:
    John MILLER v. STATE.
    7 Div. 127.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Aug. 30, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-1244.
    Myron K. Allenstein, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   SAM W. TAYLOR, Judge.

John Miller was charged with murdering his mother, Lula Miller, by beating her with his hands and fists. Appellant entered a plea of not guilty and not guilty by reason of insanity. The jury found him guilty of the lesser included offense of manslaughter and he was sentenced to ten years’ imprisonment. He appeals.

I

Appellant first contends that statements made by the decedent to witness Crommer naming the appellant as the person who beat her were inadmissible. Mrs. Crommer, after establishing that she lived next door to apartments where the decedent lived, testified that she saw the decedent, Mrs. Lula Miller on November 22, 1981. She testified that Mrs. Miller came to her front door about 6:80 p.m. and knocked on the door. She said that Mrs. Miller’s mouth was bleeding, she had bruises all over her face, she had only one shoe on and although it was a cold evening, she had no coat or sweater. Over objection the witness testified that Mrs. Miller asked if she could come in and said, “He’s trying to kill me.” Mrs. Crommer let her in and Mrs. Miller asked if she might be allowed to stay there. Over objection, the testimony was that Mrs. Miller said, “He’s trying to kill me, and he’s beat me up.” She then asked Mrs. Crommer to not tell anyone that she was there and asked her to just let her stay there for a little while. Mrs. Crommer called a friend and then called the police. Mrs. Miller was rambling, saying that Mrs. Crommer didn’t know what she had been through. Mrs. Crommer said, “Well, was it your husband?” Mrs. Miller said no, it was her son. Then she asked if she might be allowed to stay with Mrs. Crommer for a while until she could get in touch with her grandson because she couldn’t go back and live with her son. Mrs. Crommer testified that she supplied Mrs. Miller with a blanket and washcloth. Mrs. Crommer called the emergency number and the police and paramedics responded. They asked her if her name was Lula Miller and she said yes. They asked her did John do that and she said yes. It was testified that she consented to go to the hospital and she left on a stretcher in an ambulance.

Appellant argues on appeal that this testimony was offered as a dying declaration; he contends that no proper predicate was laid for its admissibility as a dying declaration. We take a different view. We consider that the events and statements testified to by Mrs. Crommer were incident to the beating itself and shed light on the main fact. The evidence was admissible as part of the res gestae. In Williams v. State, 291 Ala. 213, 279 So.2d 478 (1973), a neighbor asked a mortally wounded person “Who done it?” and the reply was “Eunice done it.” This was held to be part of the res gestae. In Smoot v. State, 381 So.2d 668 (Ala.Cr.App.1980), two witnesses reached a victim lying in a field and he told them, “The Smoot boy” was the person who “did this to me.” This was held admissible as part of the res gestae.

Other similar factual situations in which there was a statement incriminating the accused occurring after the event may be found in West’s Alabama Digest, Criminal Law, Key 366(4). The principle involved is set out in Nelson v. State, 130 Ala. 83, 30 So. 728 (1901). The question was whether certain statements by the victim were a part of the res gestae and the court said:

“And this depends upon whether the circumstances are such as that it may with reasonable certainty be affirmed that the declarations were produced by and instinctive upon the occurrences to which they relate rather than a retrospective narration of them. If they are the ebullition of a state of mind engendered by what happened and not a mere statement of the facts as held in memory of a past transaction — if they were made so soon after the difficulty as that, under the particular circumstances transpiring between the difficulty and the declarations, it is reasonably clear that they sprang out of the transaction and stand in relation of unpremeditated result thereto, the idea of deliberate design in making them being fairly precluded and tend to elucidate the difficulty—they are to be regarded as contemporaneous with the main transaction and as part of it within the rule as to res gestae.”

We find that the decedent was fleeing from her attacker and was seeking to conceal herself so as to prevent a continuation of the beating which proved fatal. We are satisfied that her statements were “the spontaneous givings out of a mind in the thrall and shadow of the mortal assault, ...” and were “not a mere narration of a past transaction.” Nelson, id. Thus, the testimony was properly admitted.

II

Appellant further contends that the court erred by refusing a charge on involuntary intoxication. § 13A-3-2(c), Code of Alabama 1975, deals with involuntary intoxication and says:

“(c) Involuntary intoxication is a defense to prosecution if as a result the actor lacks capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.”

It further defines voluntary intoxication in (e)(2):

“ ‘Voluntary intoxication’ means intoxication caused by substances that the actor knowingly introduced into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them under circumstances that would afford a defense to a charge of crime.”

The commentary to this code section correctly states that involuntary intoxication is intoxication resulting from force, fraud or artifice.

The evidence was that the appellant had twice been treated in hospitals for alcoholism. The appellant apparently contends that chronic alcoholism causes one to be “involuntarily intoxicated.” Such is not the law. The trial court did not err in refusing a requested charge on involuntary intoxication.

Ill

Appellant contends that the state was guilty of prosecutorial misconduct by asking questions which implied the existence of a factual predicate which was not supported by the evidence. The prosecutor in cross examining the nephew of the accused proceeded as follows:

“Q: Did you know he has had two wives?
“A.: Yes, sir.
“Q: Did he have a pattern of beating those wives?”

Objection was made and a mistrial sought. The motion for mistrial was denied. The state’s attorney argued in the presence of the jury that he had the right to seek to establish a pattern, plan, motive or design by such questions. The court cautioned the state’s attorney that a proper predicate had to be laid for such a question and the court noted that “—there was a conclusion within the question, whether or not he knows of his treatment of his prior wives and whether that treatment was good or bad, I think the Court would allow that.”

The prosecutor then proceeded, “Do you know of his treatment of his prior wives, Sammy?” The answer, in effect, was no. And the prosecutor said: “He has gone into it. Let me ask you this, did you know about John jumping on his mother for her not turning over her Social Security check so he could buy whiskey?” Again, there was an objection and a motion for mistrial. The motion for mistrial was denied, but the court stated:

“. .. but, please, again, let me caution about asking questions which, in essence, are saying a question such as have you stopped beating your wife that, perhaps, contain an answer within the question itself or a statement which has not been established in fact. Now, as to what treatment he knows of, prior conduct, and whether or not he knows on what that conduct was based, I certainly will allow those questions.”

These facts place this court in the same situation as was the court in Young v. State, 363 So.2d 1007 (Ala.Cr.App.1978), which stated:

“We now come to the most serious question presented by this record. Is it unprofessional conduct for a prosecuting attorney to ask questions on cross-examination of the defendant which imply the existence of a factual predicate which the examiner knows he cannot support by evidence? As said by Judge Harris, Presiding Judge of this Court, in the case of Bezotte v. State, Ala.Cr.App., 358 So.2d 521, at page 525:
‘We find in the American Bar Association Standards for Criminal Justice the following statement concerning the function of the prosecution. “It is unprofessional conduct to ask a question which implies the existence of a factual predicate which the examiner knows he cannot support by evidence.” Similarly, Alabama law states that, while the prosecuting attorney is under a duty to prosecute the case with vigor and earnestness, he should not take unfair advantage of the defendant. Arant v. State, 232 Ala. 275, 167 So. 540.
Even though a prior conviction involving moral turpitude may be shown upon the cross-examination of a witness, this examination should be subject to the limitation that it be conducted in good faith. See 3 A.L.R.3d 965, and the cases cited therein, concerning lack of documentary proof of a prior felony conviction.’
In the case of McGovern v. State, 44 Ala.App. 197, 205 So.2d 247, 250, Judge Johnson declared that:
‘The State owed appellant that diligence necessary to establish properly a predicate and to clarify whether or not his alleged conviction involved moral turpitude, outside of the hearing of the jury, so as to not prejudice appellant in the eyes of the jury.’
We have reviewed the entire record in this case, including all of the oral charge to the jury and hold that, under the facts shown in the record in this case, the appellant was denied a fair trial due to the improper conduct of the prosecuting attorney in asking questions which implied the existence of factual predicates which the examiner knew he could not support by evidence, and that the court erred in overruling appellant’s motion for a mistrial. Jones v. State, 21 Ala.App. 505, 109 So. 564; Bezotte v. State, supra; McGovern v. State, supra; American Bar Association Standards For Criminal Justice, Prosecution Function Examination Of Witnesses, Sec. 5.7(d); Code of Alabama, 1975, Sec. 12-21-162; Birmingham Baptist Hospital, Inc. v. Blackwell, 221 Ala. 225, 128 So. 389; Gregath v. Bates, Ala.Civ.App., 359 So.2d 404; Moore v. State, 30 Ala.App. 552, 9 So.2d 146; People v. Perez, 58 Cal.2d 229, 23 Cal.Rptr. 569, 373 P.2d 617, 3 A.L.R.3d 946; Wolffe v. Minnis, 74 Ala. 386; Blue v. State, 246 Ala. 73, 19 So.2d 11; Madison v. State, 55 Ala.App. 634, 318 So.2d 329; certiorari denied, 294 Ala. 764, 318 So.2d 337.”

In reversing a conviction in Terrell v. State, 397 So.2d 232 (Ala.Cr.App.1981), Judge Bookout stated as regards this issue:

“A universally recognized rule of law is that it is impossible to introduce evidence of distinct and independent offenses not charged in the indictment on which an accused is being tried. Brasher v. State, 249 Ala. 96, 30 So.2d 31 (1947); Racine v. State, 290 Ala. 225, 275 So.2d 655 (1973); Horton v. State, 41 Ala.App. 16, 122 So.2d 920, cert. denied, 271 Ala. 699, 122 So.2d 923 (1966); Headley v. State, 51 Ala.App. 148, 283 So.2d 458 (1973); Anderson v. State, Ala.Cr.App., 354 So.2d 1156, cert. denied, Ala., 354 So.2d 1161 (1977); Tillman v. State, Ala.Cr.App., 374 So.2d 922, cert. quashed, Ala., 374 So.2d 926 (1978); Gamble, McElroy’s Alabama Evidence, (3d ed. 1977), § 69.01(1), et seq.
“The Alabama Supreme Court gave a comprehensive discussion of the rule against use of evidence of prior collateral crimes or misconduct in Hinton v. State, 280 Ala. 48, 189 So.2d 849 (1966), and in Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953). Throughout the cases on this point of law, relevancy is the key factor in determining whether collateral misconduct of a defendant is admissible in evidence.
“Evidence which tends to show the commission of a collateral crime or wrongful act not charged in the indictment is inadmissible in order ‘to prevent conviction based on a jury belief that the accused is a person of bad character. The jury’s determination of guilt or innocence should be based on evidence relevant to the crime charged.’ United States v. Turquitt, 557 F.2d 464, at 468 (5th Cir.1977).
“In Johnson v. State, 38 Ala.App. 82, 76 So.2d 351 (1954), it was held to be reversible error on a charge of obtaining property by false pretense to admit into evidence, over objection, that the appellant had given the same bank in question a false financial statement previous to the transaction for which he was being tried.
“In McMickens v. State, 16 Ala.App. 78, 75 So. 626 (1917), in a prosecution for larceny of scrap brass, which the defendant sold to a scrap yard) it was held to be error to show other sales of wire and brass by the defendant to the same dealer at various times during the year. Likewise, in Gibson v. State, 14 Ala.App. 111, 72 So. 210 (1916), in a prosecution for sale of illegal liquor, it was held to be error to allow a witness to testify to having seen large quantities of whiskey stored in the back room of the defendant’s store some time prior to the sale in question. Since the charge was for selling, the evidence of illegal possession, another similar crime, was held to be irrelevant. The court there stated:
“ ‘It is the established rule that when irrelevant or improper testimony is admitted on a criminal trial, against the objection of the defendant, it will work a reversal unless it affirmatively appear that the effect was to the benefit of, or not injurious to, the defendant. ..’
“In a much earlier case, the use of evidence of irrelevant but suspicious acts met with the same result. In a prosecution for receiving stolen cotton, the Alabama Supreme Court held it to be error to allow testimony that, during the week previous to discovery of the stolen cotton in the defendant’s storehouse, persons were seen going into that storehouse just before and about daybreak ‘with sacks of cotton, and coming out with the sacks empty.’ Gassenheimer v. State, 52 Ala. 313 (1875).
“The rare exceptions to the rule against use of evidence of other offenses ‘may be summarized as knowledge, intent, plan or design, motive, identity and inseparable crimes.’ Mason, supra. None of those exceptions exist in the instant case.”

The trial court could not have anticipated such questions but recognized their highly prejudicial nature. We find that neither the admonition to the State’s attorney nor the curative instruction overcame the prejudice as referred to in the cases cited above. We suggest that at the retrial of this case, which we hereby require, the court might consider an order to counsel requiring a hearing out of the presence of the jury before any reference is made to any distinct and independent offenses not charged in the indictment.

REVERSED AND REMANDED.

All the Judges concur.


author: TYSON, Judge.

text:
    Johnny LUKE v. STATE of Alabama.
    4 Div. 195.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.

      Julius H. Hunter, Jr., Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen., and R. David Christy, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Johnny Luke was indicted for the murder of Edwin L. Meng “by shooting him with a shotgun” in violation of § 13A-6-2, Code of Alabama 1975, as amended.

The appellant withdrew his not guilty plea, pled guilty and the trial court set sentence at 35 years’ imprisonment. From this proceeding, this appeal follows.

I

The issue here presented is first as to the voluntariness of appellant’s plea; and secondly, as to whether or not the guilty plea may be established by the assertions of the prosecuting attorney and on that basis the acceptance of such plea based upon the appellant’s protestations concerning his innocence.

The Supreme Court of the United States in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) points out that an accused may plead guilty without admitting the acts or crime or even protesting innocence, if he intelligently and understandingly concludes that his interest so requires, and the record at issue strongly evidences his guilt.

The United States Court of Appeals for the Fifth Circuit in United States v. Dayton, 604 F.2d 931 (1979), in passing upon Rule 11 of the Federal Rules of Criminal Procedure with reference guilty pleas, set forth the following criteria which are helpful in considering the issue presented by this record:

“(1) That the defendant understands the nature of the charge to which the plea is offered, any mandatory minimum penalty provided by law, and the maximum possible penalty provided by law.
“(2) If the defendant is not represented by an attorney, that he understands he has the right to be represented by an attorney at every stage of the proceedings against him and that, if necessary, one will be appointed to represent him. Though the rule does not require it, we think careful practice will usually add, in appropriate circumstances, that the services of appointed counsel will be furnished without expense to the defendant.
“(3) That he understands he has the right to plead not guilty or to persist in that plea if it has already been made, the right to be tried by a jury, with the right at that trial to have the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.
“(4) That if he pleads guilty or nolo con-tendere he understands there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial.
“(5) That if he pleads guilty or nolo con-tendere, he understands the court may ask him questions about the offense to which he has pleaded, and if he answers these questions under oath, on the record, and in the presence of counsel, his answers may later be used against him in a prosecution for perjury or false statement.
“(6) That the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement, and whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or his attorney.
“(7) That there is a factual basis for the plea.” (Footnote omitted).

In passing upon a very similar issue wherein the appellant maintained he had no criminal intent, the Supreme Court of Alabama, speaking through Mr. Chief Justice Torbert in Yamada v. State, 426 So.2d 906 (Ala.1982), stated:

“... [T]he mere fact that he [defendant] denied any criminal intent is insufficient to override such a guilty plea. We likewise hold that a factual basis for accepting a guilty plea may be established by several sources, including a prosecuting attorney’s assertions of what he expects the evidence to show.”

In the instant case following the establishment of a proper Boykin v. Alabama colloquy, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the record indicates the following: (R. 5-12)

“THE COURT: Do you understand that your attorneys would represent you throughout the trial?

“THE DEFENDANT: Yes.

“THE COURT: For the record, how old are you?

“THE DEFENDANT: Thirty-seven.

“THE COURT: And how far did you go in school?

“THE DEFENDANT: Ninth grade.

“THE COURT: Do you understand that if you tell me you are guilty and your plea of guilty is accepted, you will be giving up all these rights that I have just asked you about; in other words, that you would be giving up your rights to a jury trial?

“THE DEFENDANT: Yes.

“THE COURT: If you say you are guilty there won’t be a trial; do you understand that?

“THE DEFENDANT: Yes, I know.

“THE COURT: I have a document before me that’s called an Ireland Form, that explains the rights that you have as a defendant in this case. Have your attorneys gone over this form with you?

“THE DEFENDANT: Yes, Mr. Phillips did.

“THE COURT: Has he explained it to you?

“THE DEFENDANT: Yes, sir.

“THE COURT: Do you have any questions that you would like to ask me, ask him, or ask Mr. Bernard about what this paper means or about anything else?

“THE DEFENDANT: Well, I signed it for thirty-five years.

“THE COURT: That was the agreed-upon sentence?

“THE DEFENDANT: Yes.

“THE COURT: All right. Do you have any questions about what this means here, about what this paper means?

“THE DEFENDANT: I couldn’t get no more time than that, could I?

“THE COURT: In other words, that would be the recommended sentence — but I understand what you’re saying. What I’m asking you is, do you have any questions about what these words right here mean, on this paper, about the rights you would be giving up?

“THE DEFENDANT: No.

“THE COURT: Now, you say there is a recommended sentence of thirty-five years if you enter a plea of guilty?

“THE DEFENDANT: Yes, sir.

“THE COURT: Is that the recommendation of the state?

“MR. ESTES: The state so recommends, your Honor.

“THE COURT: Has anyone promised you anything or promised you any money or—

“THE DEFENDANT: No, sir.

“THE COURT: —reward or anything or done anything to get you to say you are guilty?

“THE DEFENDANT: No, sir.

“THE COURT: Has anyone made any kind of threats of force or anything else or done anything to get you to say you are guilty or change your plea?

“THE DEFENDANT: No, sir.

“THE COURT: Then to this charge of murder as contained in the indictment, charging that you did intentionally cause the death of another person, Edwin L. Meng, by shooting him with a shotgun, in violation of Section 13A-6-2 of the Code of Alabama 1975, as amended, how do you plead; do you plead guilty or not guilty?

“THE DEFENDANT: Well, not guilty. I didn’t do it.

“THE COURT: All right. You said just a few minutes ago that you wanted to change your plea to guilty. I’m not trying to trick you or put pressure upon you, I just need to know how you plead at this time. Is it guilty or not guilty?

“MR. BERNARD: Ask your question again, Judge.

“THE COURT: To this charge in the indictment as I have outlined it to you, how do you plead?

“THE DEFENDANT: Guilty.

“THE COURT: Did you commit this offense as I have just outlined it to you or are you saying—

“THE DEFENDANT: No, I didn’t.

“THE COURT: —it’s not true, or what?

“THE DEFENDANT: What say?

“THE COURT: What I’m asking you is, you said that you — you entered a plea of guilty. You have also said something about T didn’t do it.’ I’m not trying to put words into your mouth. Did you shoot Edwin Meng?

“THE DEFENDANT: No, I didn’t.

“THE COURT: Were you with him — were you with someone when he was shot?

“THE DEFENDANT: Yes, I was.

“THE COURT: Did you know that shooting was going to take place beforehand?

“THE DEFENDANT: No, sir.

“THE COURT: Then why is it you wish to enter a plea of guilty now?

“THE DEFENDANT: Well, less time; because I didn’t do it, you know.

“THE COURT: Under the Supreme Court laws a person has a right to enter a plea of guilty, even if they continue to deny committing the offense, because — taking what they believe to be the better option available to them.

“As I understand what you are saying is, you did not do the actual shooting itself?

“THE DEFENDANT: No, I didn’t.

“THE COURT: However, you wish to enter a plea of guilty because of the evidence that would be against you?

“THE DEFENDANT: Yes, sir.

“THE COURT: You want to make sure that you get a sentence of thirty-five years?

“THE DEFENDANT: Yes, sir.

“THE COURT: Could the state proffer the evidence that it would expect to show in this case in chief?

“MR. ESTES: Your Honor, we would expect to show — we would expect to elicit testimony from George E. Warren, the defendant’s accessory and accomplice in this matter, who would testify that the defendant fired the fatal shots. We would also expect to proffer the testimony from a witness in the community who indicates that he talked with the defendant on the day that Mr. Meng’s body was discovered, and that the defendant said to him, T shot Meng; I killed Mr. Meng.’ That would be included among the evidence that the state would show on the trial of this case.

“THE COURT: Mr. Phillips, let me ask you and Mr. Bernard something. Based upon the status of the evidence that you understand the state would present and upon your investigation as to the paucity of the evidence that you two would be able to present on behalf of Johnny Luke, what is your opinion in regards to the entry of a plea and acceptance of a plea?

“MR. PHILLIPS: It’s my feeling, your Honor, that he should accept thirty-five years and enter his plea. I have gone over this case with the state not once but several times. I know generally what the state’s evidence is going to be and I know exactly what Mr. Luke’s testimony or evidence will be. That would be my recommendation, and I would say the same thing if my brother were standing here beside me.

“MR. BERNARD: I concur. I have investigated this case and had an opportunity to talk with the District Attorney’s office, Mr. Luke, and Mr. Phillips, and I feel that I do not have enough to present a good defense in this particular case, which I feel would in effect get Mr. Luke a longer or, in this particular case, a worse sentence than the recommended thirty-five years.

“THE COURT: Mr. Luke, then the reason that you desire to enter a plea of guilty is because you can be sure of getting thirty-five years and you had rather take that than go to trial and possibly getting a longer sentence, is that what you’re saying? I’m not trying to put words into your mouth but that’s what I understand you’re saying. Is that right or wrong?

“THE DEFENDANT: Well, that’s right.

“THE COURT: If it’s wrong in any way, you let me know. I’m not trying to, like I say, put words into your mouth. In other words, let me ask you: Why is it you wish to enter a plea of guilty at this time?

“THE DEFENDANT: Well, for lesser time.

“THE COURT: A lesser time than you might get if you went to trial?

“THE DEFENDANT: Yes, sir.

“THE COURT: Then let me ask again: To this charge how do you plead, the charge in this indictment of murder, how do you plead? In other words, do you plead guilty or not guilty at this time?

“THE DEFENDANT: Guilty.

“THE COURT: Excuse me; I didn’t hear you.

“THE DEFENDANT: Guilty.

“THE COURT: Mr. Phillips, based upon your experience as an attorney in criminal cases it’s your opinion that the plea of guilty should be received.

“MR. PHILLIPS: Yes, sir.

“THE COURT: The same question to you, Mr. Bernard?

“MR. BERNARD: Yes, sir, I concur.

“THE COURT: The plea of guilty will be accepted.

“Does the state desire a sentence hearing?

“MR. ESTES: The state waives its right to any sentence hearing, your Honor, and waives any delay for sentencing.

“THE COURT: Does the defendant wish a sentence hearing.

“MR. BERNARD: No, sir.

“THE COURT: Is the state in the position it would be able to delve into the matter of restitution at this time or any future time?

“MR. ESTES: No, sir.

“THE COURT: Upon that showing the Court makes no finding regarding restitution.

“Is there any reason why sentence could not be pronounced at this time?

“MR. PHILLIPS: I know of none.

“MR. BERNARD: Me either.

“THE COURT: Mr. Luke, do you have any reason why sentence should not be pronounced at this time, why sentencing shouldn’t go ahead and take place now?

“THE DEFENDANT: No.

“THE COURT: Do you have anything that you would like to say before I pronounce sentence?

“THE DEFENDANT: No.

“THE COURT: Upon your plea of guilty to the offense of murder in this case, in the presence of counsel the Court adjudges you guilty of murder and, upon recommendation of the District Attorney, your punishment is fixed at thirty-five years imprisonment in the state penitentiary.

“Costs will be assessed against the State of Alabama.

“Now, under Alabama law you have the right to appeal from this judgment within forty-two days. If you are indigent an attorney will be appointed to represent you on appeal and you will be provided with a free copy of the transcript of the court proceedings and the court record in this case.

“That will be all. The defendant will be remanded to the custody of the sheriff.

“(Proceedings concluded.)”

It should be here noted that the appellant does state that he was not guilty in that he appears to indicate another party actually did the shooting, but the trial court then wisely inquired into the matter, and has made a proper determination that a factual basis existed for accepting the appellant’s plea. Likewise, the above colloquy also clearly establishes a voluntary, understanding and intelligent plea of guilty, which follows the constitutional standards hereinabove set forth. We therefore hold that the trial court properly determined that a factual basis existed for accepting the appellant’s plea of guilty based on the colloquy hereinabove set forth. Wallace v. Turner, 695 F.2d 545 (U.S. 11th Cir., 1983), and authorities hereinabove cited.

The judgment of the trial court is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    John Cornelius HAMMINS v. STATE.
    1 Div. 407.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.

      Stephen K. Orso, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., P. David Bjurberg, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant was convicted of possession of marijuana in violation of § 20-2-70, Code of Alabama 1975. Sentence was fifteen years in the penitentiary. Four issues are presented for our review.

I

Hammins contends that there was insufficient evidence of his knowledge of the presence of marijuana in the car he was driving at the time of his arrest. On the basis of an informant’s tip, Hammins and one James Watt were put under surveillance by agents of the F.B.I. and members of the Mobile Police Department.

Hammins was the driver of the car when stopped and had been the only person seen driving the car during the course of a two-day surveillance. At one point, after his arrest, he told a police officer that he owned the car but later retracted the statement. The marijuana was found in the trunk compartment of the car. There was one passenger in the car with Hammins when he was arrested. There were no suspicious or incriminating circumstances surrounding Hammins’s activity.

The mere presence of a defendant in an automobile containing contraband is insufficient to sustain a conviction for possession. There must be additional circumstances from which knowledge of the presence of the contraband can be inferred.

In the case sub judiee, Hammins, as the driver of the automobile, had complete possession, dominion, and control over the area where the contraband was found, namely, the trunk of the vehicle. It is highly unusual for anyone to have access to the trunk of a vehicle without the driver’s knowledge. This is not a case in which the accused just happened to be driving a car with which he had little connection; he had been the only person Mobile area law enforcement officials had seen drive the car over a two-day period. Additionally, Ham-mins initially indicated that the car belonged to him. This was later disputed, but it seems clear that he had complete and total use of the car. These circumstances justify the inference that he knew of the presence of marijuana. Reed v. State, 368 So.2d 326 (Ala.Cr.App.1979); Corrao v. State, 154 Ind.App. 525, 290 N.E.2d 484 (1972).

II

Hammins next contends that there was insufficient probable cause to support the issuance of the search warrant for the vehicle in question. The State argues that Hammins has no standing to challenge the search because he did not own the vehicle or have a possessory interest in it. It is clear that the appellant did have a possessory interest in the vehicle; if it had been otherwise, there would have been nothing from which to infer his knowledge of the presence of the contraband.

The State does point out, however, that the search warrant and its supporting affidavit are not in the record on appeal. Although a transcript of the suppression hearing is provided, it contains only the arguments of the attorneys which, in turn, are directed toward the missing affidavit. It is well settled that an affidavit and search warrant not contained in the record cannot be considered on appeal. Turner v. State, 380 So.2d 393 (Ala.Cr.App.1980). Even if the issue had properly been before the court, its merit is doubtful in light of the recent decision of Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

III

Hammins’s next issue concerns the waiver of his right to remain silent. Police Officer Mote, on voir dire, testified that he read the Miranda warning to appellant while transferring him to city jail. He further testified that although Hammins did not orally answer, he indicated that he understood his rights. Hammins offered no rebuttal evidence, and, on the basis of the officer’s testimony, the judge allowed the statement to be admitted.

The voluntariness of a confession is determined by the judge in the exercise of enlightened discretion and his decision will not be disturbed unless it is palpably contrary to the great weight of evidence. Burks v. State, 353 So.2d 539 (Ala.Cr.App.1977). He need only be convinced by a preponderance of the evidence that it was voluntarily made. Manigan v. State, 402 So.2d 1063 (Ala.Cr.App.1981). In the instant case, the only evidence that cast any doubt on the voluntariness of the confession was Officer Mote’s testimony that he did not remember in what manner Hammin had indicated that he understood his rights. This testimony was brought out after the ruling on the statement’s admissibility, causing it to go to the weight and not the admissibility of the statement.

IV

The last issue concerns improper closing arguments by the District Attorney. During the course of his argument, the D.A. indicated that Hammins went to Atlanta to buy the contraband in question. There had been no evidence to that effect presented at trial. Later the D.A. told the jury that he had been associated with the case for a number of years and he knew a lot more about it than he could tell the jury.

Counsel objected to both statements and moved for a mistrial. His objections were sustained but his motions were denied. On both occasions the judge gave curative instructions that included the following: (1) that statements by attorneys are not evidence; (2) that the verdict must be based on the evidence; (3) that if the jury’s recollection of the facts differs from a statement made by an attorney, they should disregard the attorney’s statement; and (4) that they must not speculate.

When improper arguments are made to the jury, they will be considered eradicated by the trial judge if he sustains objections thereto and gives appropriate instructions to the jury. When prejudicial remarks have been made, the action of the trial court in regard to the arguments is reviewed with all presumptions in favor of such actions. There is a prima facie presumption against error where the trial court immediately charges the jury to disregard the prosecutor’s improper remarks. Chambers v. State, 382 So.2d 632 (Ala.Cr.App.1980).

For the foregoing reasons, the judgment of the lower court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Leslie Tilden DAY v. CITY OF MOBILE.
    1 Div. 547.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    James M. Byrd, Thomas M. Haas, Mobile, for appellant.
    J.D. Quinlivan, Jr., Mobile, for appellee.
   HUBERT TAYLOR, Judge.

Appellant was convicted in the Municipal Court of Mobile, Alabama of driving while intoxicated. Appellant gave notice of appeal and filed a written demand for trial by jury with the clerk of the Circuit Court of Mobile County. The City of Mobile moved, by oral motion, to strike appellant’s demand for trial by jury. This motion was granted over appellant’s objection. After the City rested, the appellant renewed his request for trial by jury. His motion was denied and he was convicted. This appeal concerns but one point of law, namely, whether one who has been found guilty of violating a municipal ordinance in city court has a right to trial by jury if he appeals the case to circuit court.

The City of Mobile argues that since § 12-14-70, Code of Alabama 1975, is silent as to whether jury trials may be had on appeal from municipal court, the intent of the legislature was to deny jury trials. We disagree.

Section 15-14-30, Code of Alabama 1975, clearly states, “[A]ll misdemean- or cases in the circuit court ... shall be tried by the judge ... except in cases where a trial by jury is demanded in writing by defendant. Such written demand shall be filed ... within 30 days after the defendant has appealed if the case is brought to the circuit court by appeal.” The language of this section does not limit its operation to those cases appealed from district court. The case of Kennedy v. Town of Oxford, 22 Ala.App. 77, 112 So. 813 (1927), addressed this very issue and found that appellant was not entitled to a jury trial only because he had not made his request within the required time.

Any other ruling would have the potential effect of causing the right to a jury trial, or lack thereof, to be determined on the basis of what law enforcement agency made the initial arrest. That would amount to an arbitrary and capricious discrimination. The judgment of the lower court is due to be reversed with instructions that appellant be tried by jury in accordance with his request.

REVERSED AND REMANDED WITH INSTRUCTIONS.

All the Judges concur.


text:
    Allen Dale GOLDEN v. STATE.
    1 Div. 582.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.

      C. MacLeod Fuller, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., Helen P. Nelson, Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

Appellant was indicted for the murder of Johnnie Lannette Moore by the Mobile County Grand Jury in November 1982. After a trial by jury, appellant was convicted of manslaughter and sentenced to ten years in the penitentiary. Three issues are addressed on this appeal.

Appellant first contends that the police illegally questioned him after he made known his desire for an attorney. During the course of a tape recorded interview, the following exchange occurred:

“Q. Okay, Allen, I understand that you have already been advised of your rights prior to this. I’m going to run through them quickly again. I want you to answer me after each one of them if you understand those rights, okay?
“A. Okay.
“Q. First of all, you have the right to remain silent and do not have to make any statement at all; do you understand that?
“A. Yes, sir.
“Q. Any statement that you make can be used against you in a court of law; do you understand that?
“A. Yes, sir.
“Q. You have the right to have an attorney present with you during any questioning; do you understand that?
“A. Yes, sir.
“Q. If you want an attorney and cannot afford one, the Court will appoint one for you; do you understand that?
“A. Yes, sir; I don’t have the money for one.
“Q. At any time during the questioning you may request the questioning to be stopped and it shall be stopped; you understand that?
“A. Yes, sir.
“Q. And with all these rights in mind and understanding them, Allen, do you wish to talk to us at this time?
“A. Yes, sir. I would like to get it straightened out.” [Emphasis added.]

Appellant argues that the statement which indicated that he could not afford a lawyer was in fact a request for a lawyer.

The appellant did not make any definite request for a lawyer before he was questioned. The ambiguous statement, at most, indicated that appellant wanted appointed counsel, as opposed to retained counsel, to represent him. It does not indicate that the appellant was unwilling, or that he even hesitated, to answer questions. At no time before or during the questioning did appellant specifically request a lawyer to be present even though he was apprised of that right. Appellant had signed a waiver of rights form after it had been read to him and, prior to questioning,. had been specifically asked if he wanted to talk at that time. Under the circumstances, the officer was not required to initiate some form of inquiry designed to clarify the defendant’s intentions. Owen v. State, 418 So.2d 214 (Ala.Cr.App.1982). The appellant, on several occasions, affirmatively stated that he understood his rights, and he waived those rights at least twice. He made a voluntary, knowing, and intelligent waiver of counsel.

The next contention is that appellant alleges he was threatened and coerced into making an inculpatory statement. On several occasions, the appellant was told, in essence, that he was lying and that his story would not stand up in court. Appellant was also urged to quit playing games and tell the truth so that his problems would not be compounded.

It is well settled that a confession is not made inadmissible because the accused is told that it is better for him to tell the truth. Eakes v. State, 387 So.2d 855 (Ala.Cr.App.1978). Telling a defendant that he has lied is permissible. Allen v. State, 376 So. 826 (Ala.Cr.App.1979). Confessions are not rendered inadmissible because they have been obtained by propounding to the accused questions assuming his guilt. Twymon v. State, 358 So.2d 1072 (Ala.Cr.App.1978). It is clear from the record of this case that appellant’s will was not overborne at the time he made his statement and that the statement was the product of a rational intellect and free will.

The last issue concerns the admission into evidence of a pair of men’s boots. The boots, allegedly taken out of the trunk of a car that had been in appellant’s possession, were muddied with red clay. They were turned over to a criminalist, James Small, who determined that the clay had come from the location where the deceased was found. Appellant challenges the State’s chain of custody.

The following is a summary of the facts relevant to the issue. When appellant was arrested in Dadeville, he was in possession of a vehicle that belonged to the deceased. The deceased’s brother-in-law, Danny En-glebert, went to Dadeville to drive the car back to Mobile. Englebert turned the car over to Mobile police who kept it in their possession for two or three days.

Officer Pickett, a Mobile police officer, and Tim Morgan, the son of the deceased, cleaned out the trunk of the car while it was at the police station. Enough clothing to fill several large bags, a suitcase, and tools were removed from the trunk and carried to the police station. Some garbage, a tire, and some cord were left in the trunk. Officer Pickett testified that he could not remember if he had seen the boots while he was cleaning out the trunk.

After the clothing and other articles had been removed from the car, it was turned over to Morgan, who drove it to Englebert’s apartment. Morgan began removing the remaining articles from the car’s trunk, whereupon he found the pair of boots. He put the boots in the back of Englebert’s truck. The boots were kept overnight in the bed of the truck, which was parked in front of an apartment complex. The next day Englebert was sorting through the items in his truck when he noticed the muddy boots. He took them to Officer Pickett, who turned them over to Sergeant Ivie, who, in turn, gave them to criminalist James Small. At the time Englebert had the boots in his possession, he knew where the deceased had been found.

During the course of the trial, the only person to identify the boots was criminalist Small. His only knowledge of the boots was that they had been given to him by Sergeant Ivie and that they were in the same condition as when given to him. Sergeant Ivie gave no testimony concerning the boots. He neither identified them nor testified that they were in the same condition as when he received them. The boots were never identified by Officer Pickett, Englebert, or Morgan. There was no evidence that the boots belonged to appellant except that they had allegedly been taken out of the trunk of the car he had been in possession of at one time. The car had been bought used by the deceased from an adult male.

The purpose of establishing a chain of custody is to show to a reasonable probability that there has been no tampering with an item of evidence. Congo v. State, 409 So.2d 475 (Ala.Cr.App.1981). Identification and continuity of possession must be sufficiently established to afford ample assurance of the authenticity of the item. To establish a sufficient predicate for admission into evidence, it must be shown that there was no break in the chain of custody of the item. Ex parte Yarber, 375 So.2d 1231 (Ala.1978).

In the present case, the State is obligated to present evidence tending to show that the boots were found in the deceased’s car, otherwise they have no connection to appellant. Assuming that the boots were in the car, the chain of custody began with police possession of the car. A complete break in the chain occurred when the car was turned over to Morgan. The boots, again assuming they were ever in the car, were in the possession of relatives of the deceased for two days.

Morgan and Englebert kept the boots in the bed of a truck parked in front of an apartment complex where anyone could have had access to them. The relatives knew where the victim was found; they had both the opportunity and motive to tamper with the evidence. They, in fact, volunteered this evidence, which was supposedly missed by police investigators. It is our opinion that the State did not, and cannot, establish a sufficient chain of custody of the boots. The possibility of tampering is not remote in this case, rather it is very probable.

Additionally, the State failed to establish that the boots introduced into evidence were the same ones received by Officer Pickett from Englebert. Sergeant Ivie was another missing link in the chain of custody. He received the boots from Pickett and later turned them over to criminalist Small. He never identified the boots at trial as the ones he received from Pickett; in fact, he never testified about the boots at all. Because the boots were illegally introduced into evidence, the case is reversed and remanded.

The foregoing opinion was prepared by Retired Circuit Judge JOSEPH J. MULLINS, 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.


author: HARRIS, Judge.

text:
    Joe Lee GREEN v. STATE.
    2 Div. 370.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.

      Ralph L. Liverman, Eutaw, for appellant.
    Charles A. Graddick, Atty. Gen., Susan Beth Farmer, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Appellant was indicted by the Marengo County Grand Jury for the offense of first degree assault, in violation of § 13A-6-20, Code of Alabama 1975. Appellant was tried before a jury and found guilty as charged. He was sentenced to twenty years’ imprisonment and was ordered to pay the victim $20,000 as restitution.

Prior to trial, a motion to suppress hearing was held to determine the voluntariness of a confession made by appellant to Mar-engo County Sheriff’s Deputies. After hearing testimony, the trial court ruled appellant’s confession voluntary, and, hence, admissible at trial.

Ralston Long, Jr., the assault victim, testified that he was a farmer in Marengo County near Uniontown, Alabama. He stated that, on September 29, 1982, around 11:00 p.m., a friend drove him out to one of his fields so that he could drive home a truck that was parked in the field. After he was dropped off, Mr. Long stated that he noticed a hose leading from his trunk’s gas tank into one of several gas cans on the ground. He stated that his truck would not start because the ignition key was turned on, resulting in a dead battery. Radio knobs were missing and the contents of the glove compartment were strewn over the seat.

Upon finding the truck in this condition, Mr. Long decided to wait in the truck to prevent further tampering with it. He stated that he expected his friend to return when he failed to show up at his house.

While waiting in the truck for about twenty minutes, Mr. Long noticed a car that drove up and down the road several times. Soon thereafter this car drove into the field where he sat. As the car drove up to the truck, Mr. Long stated that he was blinded by the car headlights. He noticed, however, someone moving outside the passenger side of his truck. Shortly thereafter Mr. Long stated that he received a severe blow to his head. He stated that he was unaware at that time that he had been shot.

Mr. Long stated that he was able to leave the truck and walked over to the car. He could see someone in the car but could not identify the person. He stated that he felt his way to the back of the car where he got the car license plate number. As he did this, the car swung around, knocking him over, and drove away.

Mr. Long testified that he realized he was bleeding so he went back to his truck. He wrote the tag number, 53A-5102, on the dashboard of his truck in his own blood. He further testified that he recognized the car because it had once belonged to his grandmother. Soon thereafter, his friend returned to the field, and he was taken to the hospital.

Deputy Sheriff Dennis Mason of the Mar-engo County Sheriff’s Office stated that he arrived at Mr. Long’s field around 3:00 a.m. where he observed the truck with the tag number written in blood on the dashboard. Shortly thereafter, the car whose tag number was written on the dashboard was located. Deputy Mason stated that appellant was subsequently picked up for questioning between 4:30 and 5:00 a.m. that day and was placed under arrest at 6:00 a.m.

At approximately 8:15 a.m. that same day, Deputy Robert Wesley, in the presence of Officer Nate Conner, informed the appellant of his Miranda rights. Appellant thereupon signed a statement acknowledging that he received his rights and signed a waiver of his rights. Deputy Wesley and Officer Conner signed as witnesses. At 9:15 a.m., appellant gave a taped statement implicating himself in the crime.

In his statement, appellant stated that he and Earl Banks were driving around on the night of the assault when they saw Mr. Long’s truck parked in the field. They needed gas so they got some gas cans and siphoned gas from Mr. Long’s truck. When these cans were full, they left to get more cans. When they came back, a man was sitting in the truck. Appellant stated that his companion went to open the truck door whereupon a “dude jumped up from out of his truck.” Appellant stated that his companion fired the shot. Appellant stated that, at the time his companion fired the shot, he was standing at the rear of the truck waiting for the gas cans to get full.

Appellant contends that the trial court erred in denying his motion to suppress his confession made to Marengo County Sheriff’s Officers because the statement was improperly obtained. Appellant argues that the length of time between his arrest and interrogation, coupled with the fact that appellant was tired due to lack of sleep, rendered the confession involuntary and therefore inadmissible.

A confession is presumed to be involuntary and, before its admission, there must be evidence presented to the trial judge sufficient to overcome this presumption. Hardy v. State, 409 So.2d 996 (Ala.Cr.App.1982). In determining the voluntariness of a confession, the totality of circumstances in each particular case must be considered. Moore v. State, 415 So.2d 1210 (Ala.Cr.App.1982). The trial judge must examine all attendant circumstances in making the determination of voluntariness, and the ultimate inquiry by the trial judge is whether the appellant’s rational intellect and free will were overcome at the time he confessed. Eakes v. State, 387 So.2d 855 (Ala.Cr.App.1978). The determination of the voluntariness of the confession is within the sound discretion of the trial court. Hardy, supra.

After reviewing the testimony concerning the issue of voluntariness, we find that the trial court did not abuse its discretion in finding that appellant’s statement was voluntarily made. Officer Mason testified that appellant appeared tired, but he was “very much aware of what was going on.” He had no trouble communicating or responding to any questions asked of him.

Officer Wesley stated that appellant was read his Miranda rights at 8:30 a.m. after being picked up between 4:30 and 5:00 that morning. At the time appellant signed the waiver Wesley stated that appellant was not under the influence of alcohol or drugs. He further testified that appellant was not threatened or coerced into making the statement, nor was he promised some benefit in exchange therefor.

The confession met all the requirements of voluntariness. Appellant was properly advised of his rights, including the right to counsel, and knowingly and intelligently waived the same. The confession was therefore properly admissible.

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

AFFIRMED.

All the Judges concur.


text:
    James Albert LEE v. STATE.
    3 Div. 606.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.

      William A. Gunter, IV, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Richard L. Owens, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

James Albert Lee was indicted by the Montgomery County Grand Jury for first degree theft of a motor vehicle, in violation of § 13A-8-3(b), Code of Alabama 1975. After a jury trial, appellant was found “guilty as charged” and sentenced to life imprisonment under the Alabama Felony Habitual Offender Statute. A motion for new trial was filed on April 16, 1982, which was denied on May 25, 1982.

Prior to trial, appellant’s attorney and the District Attorney stipulated that the appellant did on July 27, 1981, take a 1980 white Pinto automobile from 551 South Hull Street in Montgomery, Alabama, without the permission of the owner, Alabama Reference Laboratory, Inc.

Francis Lee, the ex-wife of the appellant, testified that appellant was living with her on July 27, 1981. Mrs. Lee stated that, around 7:00 that morning, appellant rode with her to downtown Montgomery where she let him out of the car in front of the Alabama Department of Public Safety building. Mrs. Lee stated that at that time she gave appellant two dollars for breakfast and further added that appellant was sober when he was dropped off.

Later that morning around 9:00, appellant called Mrs. Lee on the telephone. Mrs. Lee stated that she could tell at that time by the tone of appellant’s voice that appellant had been drinking. They planned to meet for lunch, but Mrs. Lee stated that appellant never “showed up.”

Mrs. Lee testified that appellant had a history of drinking problems. She stated that appellant had attempted to obtain professional help on several occasions for this problem, but he had had only partial success. She stated that appellant had experienced an alcoholic “blackout” in 1980 in which he did not remember where he had been or what he had done.

Everett Wright, an old friend of appellant and owner of a downtown sandwich shop, testified that appellant came into his shop that morning at 11:00 and appeared “highly intoxicated.” He gave appellant some coffee but refused to give him any money. Mr. Wright stated that appellant told him that he had been out all night drinking. When appellant left, he was staggering, but Mr. Wright stated that appellant was “not that far gone” to be falling down drunk.

Cynthia Robinson, an employee of Alabama Reference Laboratories, Inc., on South Hull Street, stated that she saw appellant at 2:10 p.m. in the office parking lot. She stated that appellant was looking in all the cars parked in the lot and appeared to be intoxicated. Ms. Robinson stated that appellant leaned over and looked into the passenger window of a 1980 white Ford Pinto. He then went around the car and got in the car on the driver’s side. She stated that appellant drove off really fast without swerving, although he had some trouble changing the automobile gears.

Harrell McKinney, the laboratory manager, testified that the Pinto was a company car and that appellant had never been authorized to drive it.

Phillip Stabler, an Alabama State Trooper, testified that he investigated a one-car traffic accident about twenty miles south of Montgomery at approximately 3:00 p.m. on this particular day. He stated that he observed a Pinto automobile that had been demolished. Officer Stabler identified appellant as the driver and stated that he could smell alcohol on him. A partially consumed bottle of vodka was found in the car.

Appellant testified that, after his ex-wife had dropped him off in downtown Montgomery at 7:00 a.m., he went to Charlie’s Cafe and ate breakfast. After breakfast, he walked to Radio Hospital and then went to a “washing machine place.” He stated that after he had gone to the “washing machine place,” he did not remember anything further until waking up two days later in the hospital.

Appellant testified that he was a chronic alcoholic and had experienced “blackouts” previously. He stated that he had attended professional alcoholic treatment centers but received no lasting help.

Willie Parramore, Jr., an alcoholism counselor, stated that he treated appellant in March of 1981 for alcoholism. He testified that appellant is a chronic alcoholic and that “blackouts,” the inability to remember things that took place while drinking, are common among alcoholics.

The appellant contends that because of his drunkenness he could not have formed the necessary mental intent for the crime of theft.

The well settled rule in Alabama is that mere drunkenness, voluntarily produced, is never a defense against a criminal act. Green v. State, 342 So.2d 419 (Ala.Cr.App.1977). A specific criminal intent is an essential element of the crime of theft. Ala.Code § 13A-8-2(1975).

The undisputed evidence shows that appellant had been drinking some time after 7:00 a.m. on the day of the theft. Mrs. Lee stated that appellant sounded as though he had been drinking when he called her at 9:20 a.m. Everett Wright testified that appellant appeared “highly intoxicated” at 11:00 a.m. and was staggering when he left his sandwich shop. However, he stated that he “was not that far gone.” Cynthia Robinson stated that appellant appeared intoxicated at 2:10 p.m. while walking from car to car looking in car windows. She also stated that, when he found the Pinto with its car keys inside, he immediately jumped in the car and drove off fast without swerving. State Trooper Stabler stated that he smelled alcohol on appellant that afternoon at the wreck scene. He also found a partially full bottle of vodka in the car. Evidence was also introduced that appellant had a history of alcohol abuse and had previously suffered an alcoholic “blackout.” The record, however, does not disclose whether a blood alcohol examination was ever made of appellant or how much vodka remained in the bottle that was found in the wrecked car.

Although all the evidence shows that the appellant was drunk at the time of the commission of the crime, there was no evidence to show as a matter of law that the appellant was intoxicated to such an extent as to render him incapable of harboring the required intent. The intoxication must be of such character and extent as to render the accused incapable of consciousness that he is committing a crime, incapable of discriminating between right and wrong — stupefaction of the reasoning faculty. Johnson v. State, 32 Ala.App. 217, 24 So.2d 228 (1945); Green, supra. Whether appellant’s intoxicated condition rendered him incapable of harboring the special intent was a question for the jury. Foust v. State, 414 So.2d 485 (Ala.Cr.App.1982). Here the jury decided this issue against appellant.

Appellant further contends that the trial court erred in failing to sustain his objections to questions asked of Mr. Parra-more, an expert witness on alcoholism, concerning whether appellant had the specific intent as defined by Alabama law for the crime of theft. During cross-examination, the following exchange occurred:

(District Attorney):
“Q. Define what is necessary for a criminal intent to commit a theft. You said that this defendant would not have such an intent if he had drunk a bottle of Vodka.
(Mr. Parramore):
“A. Within that given specified period of time — and I will refer this back to my other statement regarding the state of consciousness of the individual, conscious awareness and the ability to form or make judgmental decisions, and these are sufficiently impaired, that the person in all probability would not be capable .of making or forming a conscious intent.
“Q. What is necessary under the laws of Alabama as you understand it.
“MR. GUNTER: I will object to that.
“MR. MILLER: He has testified as an expert.
“THE COURT: Wait just a minute. Overruled.
“You all quit fussing and ask the question.
“Q. Give me the basis of the statutory law and its interpretation in Alabama in order to have a criminal intent with regards to a person being intoxicated on alcohol.
“MR. GUNTER: I will object to that.
“THE COURT: Overruled.
“A. I am not a legal authority. I’m speaking on the disease of alcoholism. I’m sorry that I cannot tell you any legal basis for that.
“Q. So your testimony with regard to his question as to whether or not he would have the legal intent really has no merit under the law of the State of Alabama?
“MR. GUNTER: Objection, Your Honor. I didn’t ask him—
“THE COURT: Overruled.
“Q. Is that correct?
“A. I can speak of a conscious intent as I as a person, as a student of human behavior understands it. I cannot speak with legal authority.... ”

As stated in McGinnis v. State, 382 So.2d 605 (Ala.Cr.App.1979), a specific objection is necessary before a ruling of a trial judge is subject to review, unless the matter is clearly not proper for any purpose. After careful review of the record, we find that no specific grounds for appellant’s objections were given. In any event, appellant was not prejudiced by the above questions since Mr. Parramore never answered said questions.

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

AFFIRMED.

All the Judges concur.


text:
    Lloyd BARNHILL v. STATE.
    5 Div. 792.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Keith A. Howard of Howard, Dunn & Howard, Wetumpka, for appellant.
    Charles A. Graddick, Atty. Gen., P. David Bjurberg, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Barnhill appeals from the summary denial of his petition for writ of habeas corpus challenging a disciplinary action which resulted in the loss of four months good time. The denial of the petition was proper because Barnhill failed to verify the petition by oath. O’Such v. State, 423 So.2d 317 (Ala.Cr.App.1982).

However, to expedite matters in the event a proper petition is filed, we note that the record does not contain a written statement by the disciplinary board setting forth the “ ‘evidence relied on and reasons’ for the disciplinary action” as required by Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 2978, 41 L.Ed.2d 935 (1974). See also Fielding v. State, 409 So.2d 964 (Ala.Cr.App.1981); Washington v. State, 405 So.2d 62 (Ala.Cr.App.1981). In Barker v. State, 437 So.2d 1375 (Ala.Cr.App.1983), this Court held that the following statement by a disciplinary board does not satisfy Wolff: “Inmate plead not guilty. Based on arresting officer’s statement and evidence found, inmate was found guilty.” The board’s statement in the case at bar, “Mr. Hill and Mr. Arrington (the arresting officers) both stated the same as in the above charges. Committee found inmate guilty”, no more meets the requirements of Wolff than the statement in Barker. See also Washington, supra.

The judgment of the circuit court is affirmed.

AFFIRMED.

TYSON, SAM W. TAYLOR and HUBERT TAYLOR, JJ., concur.

HARRIS, J., not sitting.


author: SAM TAYLOR, Judge.

text:
    John PERRY v. STATE.
    6 Div. 944.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Victor L. Miller, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   SAM TAYLOR, Judge.

John Perry was convicted of murdering Derek Oneal Askew by shooting him with a pistol under circumstances manifesting extreme indifference to human life, pursuant to § 13A-6-2(a)(2), Code of Alabama 1975. In accordance with the Alabama Habitual Felony Offender Act, the trial court sentenced Perry to life imprisonment without parole.

The sole issue on appeal is whether or not the trial court erred in overruling appellant’s motion to quash count two of the indictment, the count for which he was convicted.

Count two of the indictment stated as follows:

“The Grand Jury of said county further charge that before the finding of this indictment, John Perry, whose name is otherwise unknown to the Grand Jury, did recklessly engage in conduct which manifested extreme indifference to human life and created a grave risk of death to a person other than the said Derek Oneal Askew, and did thereby cause the death of Derek Oneal Askew, by shooting him with a revolver, in violation of Section 13A-6-2 of the Alabama Criminal Code, .... ” (Emphasis supplied).

Section 13A-6-2(a)(2), Code of Alabama 1975, specifies the type of murder committed by a person if:

“Under circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person.” (Emphasis Supplied).

The appellant argues that the obvious defect in the indictment, wherein the victim’s name was erroneously used in a place where the appellant’s name or the word, “himself,” should have been used, violates the indictment standards specified in Bowens v. State, 54 Ala.App. 491, 309 So.2d 844 (1974), cert. denied, 293 Ala. 746, 309 So.2d 850 (1975). We disagree.

Bowens restates the requirements for a constitutionally sufficient indictment as follows:

“(1) To show the defendant what he should prepare to defend against; (2) to identify the charged offense so that he may be tried for the same charge which was laid before the grand jury; (3) that the judgment (to some degree) may afford some protection against double jeopardy; and (4) to give the court, after conviction, means to accept (or reject) the verdict, pronounce judgment and pass sentence.”

[See also, Summers v. State, 348 So.2d 1126 (Ala.Cr.App.), cert. denied, 348 So.2d 1136 (Ala.1977), cert. denied, 434 U.S. 1070, 98 S.Ct. 1253, 55 L.Ed.2d 773 (1978) ].

In comparing the defective indictment to the statutory language of § 13A-6-2(a)(2), we have concluded that the constitutional requirements were met. Although the appellant argues to the contrary, there was, indeed, no confusion concerning the crime with which he was charged. The state presented evidence which showed that the appellant and Ora Jean Askew, the victim’s mother, had had a previous disagreement. On the day of the shooting, Ora Jean had refused to talk with the appellant and had refused to let him enter her home. The appellant had made several attempts to communicate with Ora Jean from just outside her home by yelling at her through various doors and windows. On his final attempt to enter Ora Jean’s home, after someone had closed the front door “in his face,” the appellant fired two shots from his revolver into the home. One of these shots struck and killed the victim, Derek Oneal Askew.

The appellant pleaded not guilty to both counts of the indictment, but offered no evidence in defense of the charges. At trial, he did not contend, and there is no reason to believe, that he was in any way misled or inadequately informed about the charges against him. His arguments in support of his motion to quash the indictment were based upon the mere existence of the clerical error and not upon any prejudicial effects.

The trial court concluded that the defect in the indictment was merely a clerical error, which did not require a dismissal of count two of the indictment. The trial court explained this clerical error to the jury to avoid any possible confusion over the indictment.

Our review of the propriety of the trial court’s action in refusing to quash the indictment and of the validity of the indictment, itself, has been governed by practical, not technical, considerations. See, United States v. Cox, 664 F.2d 257 (11th Cir.1981). Accordingly, we have concluded that, under the circumstances presented by this case, the clerical error in the indictment was not fatal because it did not “prejudice the substantial rights” of the appellant. Ala.Code § 15-8-4 (1975). See also, Couch v. State, 6 Ala.App. 43, 60 So. 539 (1912); Henry v. State, 57 Ala.App. 383, 328 So.2d 634 (1976); Wheat v. State, 372 So.2d 400 (Ala.Cr.App.1979); Black v. State, 401 So.2d 320 (Ala.Cr.App.1981).

For this reason, appellant’s conviction and sentence are due to be and are, hereby, affirmed.

AFFIRMED.

All the Judges concur.