text:
    Chedric MOSLEY v. STATE.
    7 Div. 43.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.
    Rehearing Denied Nov. 27, 1984.

      William H. Broome, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Chedric Mosley was indicted and convicted for sodomy in violation of Alabama Code 1975, § 13A-6-63. He was sentenced as a habitual offender to life imprisonment without parole. Two issues are raised on appeal.

I

The State presented sufficient evidence to support the jury’s verdict and the judgment of conviction.

The assault occurred on June 19, 1982, in the Calhoun County Jail. Dennis Duncan testified, in explicit detail, that Mosley and several other inmates beat and sodomized him. His testimony was confirmed by inmate Render Owensby, who witnessed the attack.

Mosley denied the offense and presented the testimony of nine other inmates of the county jail to support his testimony that no sodomy occurred.

Mosley argues that the evidence is insufficient because “it is obvious from the testimony that Dennis Duncan and Render Ow-ensby testified against him in this case for the sole purpose of receiving favorable treatment from the State.” Appellant’s Brief, p. 15.

“It is not the province of this court to reweigh the evidence. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). The weight of the evidence, the credibility of the witnesses, and inferences to be drawn from the evidence, where susceptible of more than one rational conclusion, are for the jury alone. Willcutt v. State, 284 Ala. 547, 226 So.2d 328 (1969).” Walker v. State, 416 So.2d 1083, 1089 (Ala.Cr.App.1982). “It was within the province of the jury to give the evidence in the case whatever weight and emphasis they thought proper in reaching their verdict.” Linson v. State, 394 So.2d 85, 92 (Ala.Cr.App.1981). “Where, as in this case, there is conflicting evidence presented by the prosecution and the defense, it is for the jury to resolve the conflict and determine the defendant’s guilt or innocence_ In making its determination, the jury may believe or disbelieve all or any part of the testimony presented by either side.” Terry v. State, 424 So.2d 652, 655 (Ala.Cr.App.1982).

“Conflicting evidence always presents a question for the jury unless the evidence fails to establish a prima facie case. Starling v. State, 398 So.2d 337 (Ala.Cr.App.), cert. denied, Ex parte Starling, 398 So.2d 342 (Ala.1981).” Gardner v. State, 440 So.2d 1136, 1137 (Ala.Cr.App.1983). By the victim’s testimony, the State established a prima facie case of sodomy in the first degree.

“This Court will not interfere when the evidence is conflicting if there was material evidence tending to support the jury’s verdict. ‘(T)he verdict settles any conflict in the evidence’ and this Court will not invade the province of the jury. 24A C.J.S. Criminal Law § 1881 (1962).” Simmons v. State, 428 So.2d 218, 219 (Ala.Cr.App.1983). “Where there is evidence from which the jury may by fair inference find the defendant guilty, the trial court should submit the case to the jury to determine the weight it will give the evidence, and this Court should not disturb the verdict.” Giles v. State, 440 So.2d 1237, 1239 (Ala.Cr.App.1983). “Conflicting evidence is for the jury and a verdict rendered thereon will not be disturbed on appeal.” Crowell v. State, 389 So.2d 545, 548 (Ala.Cr.App.1980).

The State presented a prima facie case of first degree sodomy, Rudolph v. State, 355 So.2d 739 (Ala.Cr.App.1977), cert. denied, Ex parte Rudolph, 355 So.2d 740 (Ala.1978), which Mosley attempted to discredit by offering conflicting evidence. The trial judge properly submitted the case to the jury, who believed the State’s evidence. This Court is not a trier of fact. The jury has already made that determination and weighed the credibility of the witnesses.

II

Mosley was sentenced as a habitual offender. The record on appeal does not contain a transcript of that hearing. Mosley argues that this omission denies him an adequate and proper appellate review of his conviction and sentence.

Mosley is indigent and was granted a free transcript. After notice of appeal had been given, appellate counsel filed a “motion to complete, supplement and/or amend the record” by including a transcript of the sentencing hearing. After a hearing, the trial judge denied this motion, finding “(t)hat the Court Reporter of the trial Judge did not record or no longer has the transcript of the sentencing hearing.”

The supplemental record filed in this case does show that at the sentencing hearing the prosecutor introduced a certified copy of the Calhoun County Circuit Court minutes showing that Mosley had previously been convicted of three felonies. At trial, Mosley admitted that he had six prior felony convictions for burglary. That admission alone provided the showing necessary to subject Mosley to the Habitual Offender Act. Miliner v. State, 414 So.2d 133, 135 (Ala.Cr.App.1981), on remand, 431 So.2d 581 (Ala.Cr.App.), cert. denied, 431 So.2d 582 (Ala.1983). With three prior felony convictions, the trial judge had no discretion and was required to sentence Mosley to life without parole. Alabama Code 1975, § 13A-5-9(c)(3).

Although Mosley alleges that he has suffered “irreparable harm” and has been denied adequate appellate review due to the absence of a transcript of the sentencing hearing, he fails to allege or even speculate on specific error or injury that may have occurred during sentencing.

Here, there has been no attempt to reconstruct the proceedings of the sentencing hearing through the use of statement of the evidence and proceedings as authorized by Rules 10(d) and (e), A.R.A.P. There has been no contention that such a statement in lieu of a transcript would not afford Mosley “a viable remedy on appeal.” Ex parte Steen, 431 So.2d 1385, 1390 (Ala.1983).

Mosley was represented by the same counsel at trial and on appeal. Even where appellate counsel is different from trial counsel, appellate courts do not follow a “mechanistic approach” and automatically reverse a conviction because the transcript is less than complete. United States v. Upshaw, 448 F.2d 1218, 1223 (5th Cir. 1971), cert. denied, Upshaw v. United States, 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d 810 (1972). From the record before this Court and considering Mosley’s vague and general allegations of injury, we find that none of Mosley’s substantial rights were adversely affected by the omission of the sentencing hearing from the transcript.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: HARRIS, Judge.

license: Public Domain

text:
    Thomas Russell FINCHUM v. STATE.
    7 Div. 271.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.
    Rehearing Denied Dec. 11, 1984.

      Fred Ray Lybrand, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Appellant was indicted for assault and pled not guilty. The ease was tried before a jury, and a verdict was returned finding appellant guilty of assault in the first degree. Appellant was sentenced to twenty-five (25) years’ imprisonment under the Habitual Felony Offender Act, and ordered to make restitution.

At 8:00 p.m. on March 5, 1983, Charlene Pierce and her husband, Michael, were traveling along Lenlock Lane in Calhoun County, Alabama, when an automobile came up behind their car. The unidentified car pulled within less than a car’s length behind the Pierces’ automobile, and began flashing its headlights from bright to dim. Charlene Pierce slowed her vehicle to allow the car to pass, but the car would not pass. Michael Pierce, who was riding in the passenger seat, testified that the car was a small automobile with a grill outline like that of a Honda. The car finally turned off Lenlock Lane, at a traffic light, and Michael Pierce could tell that the car was a dark colored Honda Accord.

The Pierce’s proceeded down Weaver Road, and before they reached Cave Road, the same car came up close behind them again and resumed flashing its lights. Michael Pierce told his wife to pull the car over, that he was going to find out why the persons in the car behind them were “harassing” them. Charlene pulled off the road so that the right tires were on the shoulder of the road, while the left tires were still on the pavement. The Honda pulled within two feet of their rear bumper, but did not pull off the road.

Michael Pierce got out of his car and walked back around the passenger’s side of the Honda. He could see two people in the front of the car. He then walked behind the Honda and came around to the driver’s side as appellant opened his door. Michael Pierce said, “Who the hell do you think you’re harassing?” to which appellant did not respond, and continued to gaze forward through the windshield. As Michael Pierce reached to touch appellant’s shoulder, appellant stabbed him with a knife. Michael Pierce never saw the knife, and sank to the ground holding his abdomen. Appellant closed the car door, locked it, and turned off his headlights. Charlene Pierce had by then gotten out of her car and attempted to grab the driver’s door handle, as appellant backed his car up, went around the Pierces’ car, and down the road.

Charlene and Michael Pierce returned to their car and drove to a police station from which Michael was taken by ambulance to the Regional Medical Center. Michael Pierce suffered a serious laceration of his transverse colon, and required two surgical operations to repair the injury caused by the stab wound.

At trial, appellant testified that he and Tami Davis had gone out that evening to get a pizza. They were returning home with the pizza when an automobile stopped in the road in front of them. Appellant testified that Michael Pierce was screaming and cursing, and reached in the car to grab him out:

“Q All right. What, if anything, did you do on that occasion?
“A Well, he started grabbing me out of the car and I didn’t'know what he had in mind. But you just don’t grab nobody out of the car if you ain’t going to do nothing to them. So I reached by the tackle box and had a knife there and turned around and by this time I had one foot out of the car and I turned around and asked him what the hell he thought he was doing.
“Q All right. What, if anything, did he say?
“A He just proceeded to drag me out of the car and that's when I stabbed him.”

Appellant then left the scene and returned to Tami Davis’s mother’s home. Appellant did not contact the police about the incident and was finally questioned two days later by police.

Appellant contends that the trial court erred in denying appellant’s motion for judgment of acquittal at the close of the State’s evidence, and again at the conclusion of all the evidence. Appellant specifically alleges that he was acting in self defense when he stabbed Michael Pierce.

The evidence is undisputed that appellant did, in fact, stab Michael Pierce. The question of whether the act was justified as having been committed in self defense is for the jury to decide. Johnson v. State, 433 So.2d 473 (Ala.Cr.App.1982), affirmed, 433 So.2d 479 (Ala.1983). With this a defense claim, appellant was entitled to no more than a determination by the jury of the issue. Ashley v. State, 420 So.2d 810 (Ala.Cr.App.1982). Self defense evidence, like all other conflicting evidence, is a matter for the jury to decide, and it is within the province of the jury to decide how much weight and credibility to give such evidence. Davis v. State, 450 So.2d 473 (Ala.Cr.App.1984).

To justify conduct through a claim of self defense, the accused must neither provoke nor encourage the difficulty. Moore v. State, 364 So.2d 411 (Ala.Cr.App.), cert. denied, 364 So.2d 416 (Ala.1978). Additionally, some form of retreat is required to establish a claim of self defense. Hambright v. State, 432 So.2d 13, 15 (Ala.Cr.App.1983). The evidence is un-controverted that appellant was following the Pierce’s automobile and was flashing his lights. Both Tami Davis and appellant testified that the headlights were flashed. When appellant was confronted by a visibly angry man, there is no evidence that he attempted to retreat until after he had stabbed Michael Pierce. Without question, under these facts, the jury could determine that appellant was not acting in self defense.

The jury chose not to believe appellant’s version of the incident, and it is not within the province of this court to determine the truthfulness of appellant’s testimony. Davis, supra. We must disagree with appellant’s contention that the evidence shows that the victim was the initial agressor, and, therefore, at fault. Where evidence raises a question of fact for the jury, such evidence, if believed, is sufficient to sustain a conviction, and a denial of appellant’s motion for judgment of acquittal does not constitute error. Stewart v. State, 405 So.2d 402 (Ala.Cr.App.1981).

An examination of appellant’s contentions and of the record reveals no errors prejudicial to appellant’s substantive rights. This cause is due to be, and is hereby, affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge. BOWEN, Presiding Judge,

text:
    George EDWARDS and Franklin D. Harris v. STATE of Alabama.
    7 Div. 307.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.
    Rehearing Denied Nov. 27, 1984.

      George Edwards and Franklin D. Harris, pro se.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

George Edwards and Franklin D. Harris filed a petition for writ of habeas corpus in the St. Clair Circuit Court. The petition was denied without a hearing and the petitioners now appeal from the denial of their petition.

Petitioner Harris was found guilty of intentionally creating a security or health hazard at a disciplinary hearing. The Disciplinary Board recommended that Harris be remanded to the Receiving arid Reclassification Center for reclassification, lose up to six months of good time and lose pass/leave privileges. Petitioner Harris had been on work release status prior to the disciplinary hearing. Pursuant to the Disciplinary Board’s decision, Petitioner Harris was reclassified and transferred to the St. Clair Correctional Facility.

Petitioner Harris appealed the Disciplinary Board’s decision and his appeal was granted by the Department of Corrections Commissioner. The Commissioner ordered the Director of Central Records to expunge the Central Records of any reference to this disciplinary.

In their petition for writ of habeas corpus, the petitioners contend they are being unlawfully detained at the St. Clair Correctional Facility and should be returned to their status before the disciplinary. We must agree.

The Department of Corrections Administrative Regulations Number 403, § VI, 13(d)(1) states that upon the Commissioner’s approval of an appeal, “[t]he director will take all actions to expunge the disciplinary from the inmate’s central record and return the inmate to his previous status prior to the disciplinary_”

In light of the above quoted portion of Administrative Regulation Number 403, we must reverse and remand this cause to the trial court with instructions. The Director of Central Records must file an answer in that circuit court in order that the appropriate action can be taken pursuant to Administrative Regulation Number 403 with respect to these petitioners.

The initial order denying the habeas corpus petition is hereby set aside and vacated.

REVERSED AND REMANDED.

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

BOWEN, Presiding Judge,

dissenting.

Inmates Harris and Edwards were assigned to the Decatur Work Release Center. On February 4, 1984, they failed to report to work. After a hearing, the Disciplinary Board recommended that the inmates be transferred and reclassified.

The inmates appealed and the Commissioner of the Department of Corrections reversed the decision of the Disciplinary Board and ordered the disciplinary expunged from the central record of each inmate.

During the pendency of the appeal, both inmates were transferred to the St. Clair Correctional Facility. Petitioners claim that their rights of due process have been violated and that they should be returned to their status on work release.

The majority opinion quotes from Department of Corrections Administrative Regulation Number 403. Nowhere in either the record on appeal or in the briefs of the parties is that regulation set out. I know of no authority by which this Court can take judicial knowledge of that administrative regulation. “[Ojur courts will not take judicial notice of the regulations of an administrative board, unless they are of such wide application and established duration as to have become a part of the common knowledge of well informed persons.” State v. Friedkin, 244 Ala. 494, 497, 14 So.2d 363 (1943). Judicial notice will be taken of the rules and regulations of an administrative board where a statute referring to such rules and regulations expressly declares that they shall have the force and effect of law. Friedkin, 244 Ala. at 497, 14 So.2d 363.

Moreover, work release does not constitute a “liberty” interest entitling the inmate to a due process hearing. Moody v. Daggett, 429 U.S. 78, 88, n. 9, 97 S.Ct. 274, 279, n. 9, 50 L.Ed.2d 236 (1976). The due process clause of the Fourteenth Amendment does not entitle state prisoners to a hearing when they are transferred from a medium to a maximum security prison absent a state law or practice conditioning such transfers on proof of serious misconduct or the occurrence of some other event. Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). See also Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983); Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). Even the Alabama statutes dealing with parole create no liberty interest entitled to the protection of due process. Gaines v. State, 415 So.2d 1 (Ala.Cr.App.1982).

This Court should not become involved in the enforcement of prison administrative rules and regulations. I would affirm the judgment of the circuit court.

      . As the State points out in its brief, the record does not contain a disciplinary report for Petitioner Edwards. However, the record does indicate that he was also found guilty of intentionally creating a security or health hazard by the Disciplinary Board and his appeal of that decision was granted by the Commissioner. Therefore, even though the record does not contain the disciplinary report, our opinion is applicable to Petitioner Edwards.


author: TYSON, Judge.

text:
    Larry BURRELL v. STATE of Alabama.
    1 Div. 897.
    Court of Criminal Appeals of Alabama.
    Nov. 27, 1984.

      Larry Burrell, pro se.
    Charles A. Graddick, Atty. Gen. and Richard L. Owen, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Larry Burrell filed a petition for writ of error coram nobis in Mobile Circuit Court. The trial judge denied the petition without a hearing.

In his petition, the petitioner alleges, among other things, that he was denied effective assistance of counsel. Therefore, he claims he was entitled to an evidentiary hearing on the authority of Ellison v. State, 406 So.2d 439 (Ala.Crim.App.1981). The State, who declined to file a brief, has filed a letter with this court, stating that the petitioner was entitled to an evidentiary hearing on his claim of inadequacy of counsel since the petition contained facts which supported that claim.

The petitioner was convicted of possession of burglary tools in violation of § 13A-7-8, Code of Alabama 1975. 429 So.2d 636 (Ala.Crim.App.1982). In support of his claim of ineffective assistance of counsel, the petitioner asserts that his trial counsel failed to subpoena a key witness, who would have testified that the petitioner was in possession of these tools as a result of his particular employment.

While Ellison, supra, stands for the proposition that an evidentiary hearing is required if a petition for writ of error cor-am nobis alleging ineffective assistance of counsel is meritorious on its face, this court has made it clear that the petition “must contain more than mere naked allegations that a constitutional right has been violated.” Stephens v. State, 420 So.2d 826, 828 (Ala. Crim.App.1982).

In order for a petitioner to be entitled to an evidentiary hearing, he must “make a full disclosure of the specific facts relied upon and not mere conclusions as to the nature and effect of such facts” and provide affidavits which sufficiently refute a record that appears correct. Stephens, supra; Whitson v. State, 435 So.2d 230, 231 (Ala.Crim.App.1983).

We hold that the above requirements have been met in this case. The petitioner has set out supportive facts of his claim of inadequacy of counsel and signed an affidavit that the allegations contained in his petition are true. This affidavit is sufficient since the trial record is not before us. See Whitson, supra.

Therefore, we reverse and remand this cause to the trial court with instructions that counsel be appointed to represent the petitioner and a full evidentiary hearing be held on all the issues raised in the petition and that the petitioner be present at the hearing.

REVERSED AND REMANDED.

All the Judges concur.


text:
    James Larkin HANNERS v. STATE of Alabama.
    5 Div. 901.
    Court of Criminal Appeals of Alabama.
    Nov. 27, 1984.
    Tom Radney of Radney & Morris, Alexander City, for appellant.
    Charles A. Graddick, Atty. Gen. and Phillip Luke Hughes, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

James Larkin Hanners was convicted of driving under the influence of alcohol (DUI), in violation of § 32-5A-191(a)(2), Code of Alabama 1975. After a sentencing hearing, the trial judge sentenced the appellant to “one year in the county jail, 60 days to be served, balance suspended” and fined him $1,000.00.

The evidence shows that the appellant was a well driller. On September 20, 1983, he was finishing a job in rural Randolph County. Tim Harrington stated that he went to the scene of the appellant’s well drilling operation around 3:00 p.m. The appellant was taking a break from the process of dismantling his well-drilling rig at this time. Harrington said the appellant was drinking a beer, but did not appear intoxicated.

, Harvey Chapman testified that his daughter, Karen Chapman, left home on September 20, 1983, around 5:20 p.m. She was going to visit a friend. He stated that his daughter was a normal girl and had no physical or mental impairment at this time. A short while after his daughter left home he received a telephone call about a car accident. He went to the scene and saw his daughter’s car and his daughter. As a result of this accident she was mentally incapable of testifying in this case.

Hugh Lamar Phillips testified that he came upon this accident shortly after it occurred. Karen Chapman’s car was off the road, but on her side of the highway. She was still in the car. The appellant’s truck was in the road, and the appellant was sitting on the side of the road. Phillips said that he could smell alcohol on the appellant’s breath, but the appellant acted sober.

Billy Herrin went to the scene of the accident with a wrecker. He talked to the appellant and stated that the appellant had the smell of alcohol on his breath.

Mark Herrin testified that he arrived at the scene of the accident with Hugh Lamar Phillips. He stated that he smelled alcohol on the appellant.

James Bailey testified that he was an Alabama State Trooper. On September 20, 1983, he arrived at the scene of an accident involving Karen Chapman and the appellant. He talked to the appellant at the scene of the accident and detected an odor of alcoholic beverages on appellant’s breath. The appellant told Bailey that he had been drinking earlier that day. Bailey did not bring any charges against the appellant.

Officer Bailey stated that he had three years’ experience working accident scenes and he had been trained to examine such scenes. His investigation of this accident revealed that the point of impact was located on Karen Chapman’s side of the road.

The appellant offered the testimony of Mrs. Gladys Butler. She stated that the accident occurred in front of her home. She was on her front porch at the time of the accident. She stated that she saw the appellant’s truck coming down the road, but never saw the other ear involved in the accident. According to Mrs. Butler, the appellant’s truck never left his lane. She further stated that she talked with the appellant at the scene and did not smell any alcohol on his breath.

Maxine Rice testified that she lives next to Mrs. Butler. She went to the scene of the accident and talked with the appellant. She did not smell any alcohol on appellant. She also stated that the appellant did not appear to be intoxicated.

Stephanie Rice, the twelve year old daughter of Maxine Rice, testified that she was on Mrs. Butler’s front porch when the accident occurred. She saw Miss Chapman’s car come around a curve in the road and hit the appellant’s truck. She said that the appellant’s truck never left his side of the road. She was around the appellant at the accident scene and did not smell any alcohol.

The appellant did not testify at trial.

I

Appellant contends that the evidence was insufficient to support a conviction for driving under the influence of alcohol.

“The question of driving on a public highway while intoxicated or under the influence of alcohol was discussed by Judge Samford in Broxton v. State, 27 Ala.App. 298, 171 So. 390 (1936), wherein he stated:

‘The taking of one or more drinks of intoxicating liquor would not of itself be sufficient to establish the fact of intoxication.... when, therefore, an accident occurs on a public road in which a person is killed by being run over by an automobile, and it is shown that the driver has been drinking, it becomes a question for the jury to say, from all the facts and circumstances surrounding the homicide, whether or not the driver at the time of the accident was under the influence of liquor, and, if so, was that condition the proximate cause of the homicide. If these facts be proven to the satisfaction of the jury beyond a reasonable doubt, the crime of manslaughter in the second degree would be complete.’ ”

Smith v. State, 56 Ala.App. 609, 324 So.2d 323 (1975).

In a very recent decision of this court, we held that “[w]hen a person is under the influence of alcohol, his ability to drive is impaired and he is incapable of driving safely. The person’s degree of intoxication is irrelevant. If a person is intoxicated to any degree, his driving capacity is diminished and he is a danger to others who may travel over the public highways. Evans v. State, 389 So.2d 567 (Ala.Crim.App.1980).” Pace v. City of Montgomery, 455 So.2d 180, 185 (Ala.Crim.App.1984).

This court further found in Pace, supra, that “[a] person ' is guilty of violating § 32-5A-191(a)(2) if he drives a vehicle under the influence of alcohol, regardless of the degree of that influence. Pace, supra at 185.

The testimony at trial was sufficient to allow the jury to conclude, by fair inference, that the appellant was driving while under the influence of alcohol. Whether the appellant was driving under the influence of alcohol was a jury question in this case, which the jury properly resolved. Cumbo v. State, 368 So.2d 871 (Ala.Crim.App.1978), cert. denied, 368 So.2d 877 (Ala.1979).

Under the authorities hereabove cited, the jury properly decided this case. This record is free of error and the judgment below is therefore affirmed.

AFFIRMED.

All the Judges concur.

BOWEN, P.J., files opinion.

BOWEN, Presiding Judge,

concurring.

The trial court summarized the evidence in denying the defendant’s motion for a judgment of acquittal:

“As I recall the evidence there was testimony that Mr. Hanners had been seen drinking a beer earlier in the day. And there was several witnesses who testified that they detected the odor of alcohol about him immediately after the accident in question. There was physical evidence which if the jury believed it would indicate that Mr. Hanners was on the wrong side of the road at the time of the accident. And that would be a jury question. There was also evidence that would support a possible conclusion that the windshield wipers were not operating even though there was a good deal of substance, perhaps rain and other material, on the windshield. All these things together would in my judgment support a finding by the jury of guilt.”

The result of this case is difficult to accept until one comprehends the distinction between being “drunk” and being “under the influence”.

“There is a distinction between drunkenness and being under the influence of intoxicating liquor, and it is not necessary to prove drunkenness to secure a conviction under a statute prohibiting the operation of motor vehicles while under the influence of intoxicating liquor, nor is it necessary to prove any specific degree of intoxication. With regard to the offense of driving while under the influence of intoxicating liquor, it has been held in several jurisdictions that even the slightest degree of intoxication is sufficient to support a conviction, and that intoxication need not be of such degree that it interferes with the proper operation of a motor vehicle.” 7A Am.Jur.2d Automobiles And Hiqhway Traffic § 302 (1980).

It is true, as the defendant argues, that mere proof that he smelled of alcohol will not sustain a conviction for driving under the influence.

“Proof of the drinking of intoxicating liquor, or that the defendant’s breath smelled of liquor, is not in itself sufficient to show that the defendant was intoxicated or under the influence of intoxicating liquor. However, where the charge is driving while under the influence of intoxicating liquor, it is not necessary that the prosecution show that the defendant was in a drunken stupor. And where there is evidence in the record from which the jury may infer that the defendant drove a motor vehicle upon a public way while intoxicated or under the influence of intoxicating liquor, a conviction will not be disturbed on appeal, even though there is also evidence in the record to the contrary.” 7 A Am.Jur.2d, supra, at § 375.

Rainey v. State, 31 Ala.App. 66, 67, 12 So.2d 106 (1943) (“The statement that he was ‘drinking’ does not necessarily establish that he was intoxicated.”). Intoxication is not “established by the mere fact that accused drank intoxicating liquor or had an odor of liquor on his breath, in the absence of some proof showing that it produced in him some manifestation of intoxication.” 61A C.J.S. Motor Vehicles § 633(7) (1970). Although no chemical test for intoxication was performed in this case, Alabama Code 1975, § 32-5A-194 (1980), provides that a person whose blood-alcohol level is 0.05 percent is presumed not to be under the influence of alcohol. Consequently, our DWI statute condemns driving under the influence, not merely drinking and driving.

Here, there was not only evidence that the defendant had been drinking, but evidence of the manner in which he was driving. There was undisputed evidence that the defendant not only smelled of alcohol but that he had been drinking earlier. These facts when coupled with the evidence, although conflicting, that the defendant was on the wrong side of the road when the collision occurred supply sufficient evidence to present to the jury the issue of the defendant’s intoxication.

The language of Pace v. State, 455 So.2d 180 (Ala.Cr.App.1984), is consistent with the time-honored rule in this state that “when it is shown that the driver of an automobile has been drinking it becomes a question for the jury to say, from all the facts and circumstances, whether or not the driver was under the influence of liquor.” Evans v. State, 36 Ala.App. 145, 146, 53 So.2d 764 (1951).

Although there is evidence from which the jury could have found the defendant not guilty, I cannot say that their finding is contrary to the great weight of the evidence.


author: PATTERSON, Judge.

text:
    Trent Kadett THIGPEN v. STATE.
    8 Div. 158.
    Court of Criminal Appeals of Alabama.
    Nov. 27, 1984.

      Joe M. Patterson, Jr., Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and Phillip Luke Hughes, Asst. Atty. Gen., for appellee.
   PATTERSON, Judge.

In December 1983, the Lauderdale County Grand Jury charged the appellant, Thig-pen, in a four-count indictment: two counts charged assault in the first degree in violation of § 13A-6-20, Code of Alabama 1975, and two counts charged assault in the second degree in violation of § 13A-6-21. After being adjudged a youthful offender, Thigpen was sentenced to three years’ imprisonment for each count, with the sentences to run concurrently. These sentences were suspended and Thigpen was sentenced to probation for three years and to imprisonment for fifty-two consecutive weekends. It is from this adjudication and sentence that Thigpen appeals.

The issue of guilt was submitted to the trial court, on the following facts, to which the District Attorney and the defense attorney had stipulated, with any disagreement noted:

“On July 23, 1983, Defendant Trent Kadet Thigpen was operating a 1970 Chevrolet pickup truck. He drove to the Skate Center on Azalea Drive in Florence, Alabama, and picked up six (6) passengers. Defendant, with his six (6) passengers, drove to the access road off Florence Boulevard, commonly referred to as ‘The Strip’. While in route to the strip, defendant’s truck was involved in a near collision with a car driven by Michael Burgess. Mr. Burgess reported the near-accident by phone to the Florence Police. The Florence Police put out a radio message to its patrol units to be on the look-out for defendant’s truck.
“Defendant drove from the strip back to the Skate Center and let out one of his passengers. Defendant then drove back to the strip with his five (5) remaining passengers.
“Officer Alan Hill spotted defendant’s truck on the strip. Officer Hill saw defendant commit what he deemed to be the traffic infraction of improper lane usage. Officer Hill turned on the emergency lights of his patrol car and defendant stopped his truck in response. Officer Hill pulled in behind defendant and stopped his patrol car. As Officer Hill was exiting his patrol car, the defendant drove off at a high rate of speed.
“Officer Hill gave chase. The chase proceded east on Highway 72 and reached speeds of 115 miles per hour or more. [Defendant claims that to his knowledge the speed never reached an excess of 100 miles per hour, if that fast, and that his one-half ton pickup truck with a standard small V8 engine would not exceed 100 miles per hour under any circumstances.] A St. Florian patrol unit heard about the chase on its radio and was requested to help in the apprehension of defendant. Officer Bill Hendrix was the driver of the St. Florian patrol car. Passengers were Officers Dwight Angel and Joe Gans.
“Officer Hill pulled his patrol car onto Highway 72 east, turned on his emergency lights and accelerated in an attempt to force defendant to stop by means of a rolling road block.
“Defendant ran into the rear of the St. Florian patrol car at a high rate of speed and injured all three St. Florian officers. [Defendant claims that he never saw the car until impact because he was observing through the rearview mirror the vehicle chasing him. He further asserts that Officer Hendrix testified in the transfer hearing that he changed lanes to put his police car squarely in defendant’s path.] Officer Hendrix was injured slightly, but Officers Angel and Gans were injured badly, both having broken bones that demanded surgery.
“Defendant, Trent Kadett Thigpen, was charged with Driving Under the Influence and Attempting to Elude. He has entered a plea of guilty to both of those charges.”

I

Thigpen timely submitted a plea of former jeopardy. This plea averred that Thig-pen had already been convicted in the Florence municipal court for the misdemeanor offenses of driving under the influence and attempting to elude a police officer. These prior convictions arose out of and were based on the same occurrence upon which the assault charges were founded. Thig-pen now contends that the trial court erred in denying this plea of former jeopardy, arguing that his previous convictions barred his assault prosecutions.

As noted by the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), the constitutional prohibition against double jeopardy consists of three separate constitutional guarantees: (1) protection against a second prosecution for the same offense after an acquittal; (2) protection against a second prosecution for the same offense after a conviction; and (3) protection against multiple punishments for the same offense. In the instant ease, we are concerned with the second protection and thus our determination is whether either the offense of driving while under the influence or the offense of attempting to elude the police is the “same offense” for double jeopardy purposes as the assault charges brought against Thigpen. See Illinois v. Vitale, 447 U.S. 410, 415-16, 100 S.Ct. 2260, 2264-65, 65 L.Ed.2d 228 (1980).

“ ‘The test to determine whether successive prosecutions impermissibly involve the same offense under the double jeopardy clause was laid out by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).
“ ‘ “(W)here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.”
“ ‘This test is satisfied if each offense requires the proof of a fact that the other does not, even though there may be a substantial overlap in the proof offered to establish the crimes. Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977), quoting Iannelli v. United States, 420 U.S. 770, 785, n. 17, 95 S.Ct. 1284, 1293, n. 17, 43 L.Ed.2d 616 (1975).’ ”

Rowell v. State, 447 So.2d 193, 195-96 (Ala.Cr.App.1983), writ quashed, 447 So.2d 196 (Ala.1984), quoting Brown v. Alabama, 619 F.2d 376, 378 (5th Cir.1980).

In the instant case, Thigpen was charged by counts one and two with the reckless-assault-in-the-first-degree alternative contained in § 13A-6-20(a)(3), which reads as follows: “A person commits the crime of assault in the first degree if ... [u]nder circumstances manifesting extreme indifference to the value of human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to any person.” He was also charged by counts three and four with the reckless-assault-in-the-second-degree alternative contained in § 13A-6-21(a)(3), which reads as follows: “A person commits the crime of assault in the second degree if ... [h]e recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.”

Section 32-5A-191 proscribes driving under the influence by making it unlawful for a person to “drive or be in actual physical control of any vehicle” while under the influence of alcohol or under the influence of a controlled substance, a combination of alcohol and a controlled substance, or any substance if the influence is “to a degree which renders him incapable of safely driving.” Section 32-5A-193 proscribes fleeing or attempting to elude a police officer and reads, in part, as follows: “Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle, when given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a misdemeanor.”

An examination of each of these statutory provisions reveals that each statute requires proof of an additional element which the other statutes do not; thus the offenses are not the same under the Block-burger test and Thigpen’s prosecution for the assault offenses was not barred by the prohibition against double jeopardy. Furthermore, Illinois v. Vitale, is distinguishable from the instant case, since neither the offense of driving under the influence nor the offense of fleeing or attempting to elude the police is a lesser included crime of either degree of assault as a matter of law, nor was it necessary for the prosecution to rely on the conduct constituting driving under the influence or attempting to elude a police officer to establish its assault cases. See Rowell v. State, 447 So.2d at 196. The general proof necessary to establish the additional offenses of assault was that Thigpen acted recklessly and that the reckless conduct caused serious physical injury. This element of acting recklessly was sufficiently sustained by the proof that Thigpen was driving in excess of 100 miles per hour prior to impact and that, at the time of impact, he was driving at a “high speed.”

II

Thigpen’s remaining arguments for reversal are as follows: (1) he was denied his constitutional right to due process because the misdemeanor charges and the felony charges were not joined and brought in the circuit court, and (2) he was further denied his right to due process by prosecu-torial vindictiveness, suggested by the prosecution’s instigation of the felony charges after he had pleaded guilty to the misdemeanor charges. However, neither issue was presented in the trial court. As we noted in Hand v. State, [Ms. 1 Div. 653, April 24, 1984] (Ala.Cr.App.1984):

“In Fuller v. State, 269 Ala. 312, 113 So.2d 153 (1959), the Alabama Supreme Court held that before an appellate court will review an alleged violation of one’s constitutional rights, it must first be ‘raised seasonably in the trial court.’ This court has consistently followed this ruling.” (Citations omitted)

Accordingly, neither issue is preserved for our review.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.

      . The question in Vitale was "whether the Double Jeopardy Clause of the Fifth Amendment prohibits the State of Illinois (State) from prosecuting for involuntary manslaughter the driver of an automobile involved in a fatal accident, who previously has been convicted for failing to reduce speed to avoid the collision." 447 U.S. at 411, 100 S.Ct. at 2262.


author: HARRIS, Judge. BOWEN, Presiding Judge,

text:
    Thomas Curtis HINES v. STATE.
    1 Div. 882.
    Court of Criminal Appeals of Alabama.
    Dec. 11, 1984.
    Thomas Curtis Hines, pro se.
    Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

In the pro se petition for writ of error coram nobis filed by appellant Hines, two issues were raised: (1) denial of his right to a speedy trial, and (2) denial of constitutionally effective assistance of counsel. The trial court dismissed appellant’s petition on the State’s motion without a hearing.

Appellant’s allegation of denial of his right to a speedy trial is not properly presented in a petition for writ of error coram nobis. There is no error in denying a petition that asserts denial of a speedy trial. Senn v. State, 43 Ala.App. 323, 189 So.2d 870 (1966).

Hines’s allegation of ineffective assistance of counsel is made against his attorney that was both his trial and appellate counsel. The allegations are sufficient to warrant an evidentiary hearing on this issue alone.

We must remand this case with instructions to the circuit court to conduct a hearing.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

BOWEN, Presiding Judge,

dissenting.

I dissent from the opinion reversing the judgment of the circuit court and remanding this cause for an evidentiary hearing on the petition for writ of error eoram nobis.

Hines’ conviction for the possession of burglar’s tools (Alabama Code 1975, § 13A-7-8) was affirmed by this Court without published opinion. Hines v. State, 453 So.2d 7 (Ala.Cr.App.1984).

In his petition, Hines argues that he was denied a speedy trial and that he was denied the effective assistance of counsel at trial. His dissatisfaction with his appellate counsel is asserted for the first time in his reply brief filed before this Court in this appeal. The majority disposes of the speedy trial issue and holds that Hines is entitled to an evidentiary hearing on the assistance of counsel issue. With regard to that issue, Hines alleges in his petition that trial counsel was ineffective because counsel (1) mentioned Hines’ criminal record in his opening remarks to the jury, (2) failed to object “to the prosecution prejudicial inference” that the pliers were used in a burglary, (3) did not object to a single question asked by the prosecution, (4) failed to object to the prosecutor’s comments on his “prior and present offenses as offenses ... without establishing a predicate”, (5) did not object to the use of the prior felony convictions at the sentencing hearing, (6) did not move to dismiss the indictment for the denial of a speedy trial, and (7) failed to move for a directed verdict of acquittal.

A review of the trial record, which is attached to the petition as Exhibit G, reveals that counsel’s conduct did not so undermine the proper functioning of the adversary process that the trial cannot be relied on as having produced a just result. That is the test for determining the effectiveness of counsel under Strickland v. Washington, 466 U.S. _, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The circuit judge who denied the coram nobis petition was the same judge who presided over Hines’ trial. In his order denying the petition, that judge found that counsel was not ineffective:

“This matter having been presented to the Court on the ‘Petition for a Writ of Error Coram Nobis’ filed by the petitioner herein the 7th day of May, 1984, and the Court having considered the allegations of said petition, and having considered the pleadings and documents on file, as well as the evidence which was presented at petitioner’s trial, the Court finds that the defendant was not denied his right to a speedy trial and that his attorney did not deny him his right to effective assistance of counsel, and in fact diligently defended said petitioner, it is therefore
“ORDERED that the petition filed herein on May 7, 1984, be and the same hereby is DENIED.”

A judge’s stated personal knowledge concerning the allegations of the petition may furnish an adequate and proper ground for denying the petition. Lewis v. State, 435 So.2d 154, 155 (Ala.Cr.App.1983).

Had not the circuit court made these specific findings, Hines would have been entitled to an evidentiary hearing. Stephens v. State, 420 So.2d 826 (Ala.Cr.App.1982). Here, the trial judge has made a factual determination that the petition is without merit. I would affirm the judgment of the circuit court.


text:
    Curtis MARSH v. STATE of Alabama.
    1 Div. 912.
    Court of Criminal Appeals of Alabama.
    Dec. 11, 1984.

      James M. Byrd, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Curtis Marsh was indicted for “intentional murder” in violation of § 13A-6-2, Code of Alabama 1975. The trial judge instructed'the jury on “reckless murder” over the timely objection of Marsh. The jury then returned a verdict of guilty of murder.

On appeal, this court held that there was not a fatal variance between an indictment charging “intentional murder” and an instruction on “reckless murder.” See Marsh v. State, 418 So.2d 191, (Ala.Crim. App.), cert. denied, 418 So.2d 191 (Ala.1982).

Subsequent to our decision in Marsh, supra, the Alabama Supreme Court in Ex Parte Washington, 448 So.2d 404 (Ala.1984), reversed this court on this precise issue.

Marsh now appeals to this court because of the denial of his petition for writ of error coram nobis by the Mobile Circuit Court on this question. Marsh urges this court to reverse his conviction and remand this case for a new trial based on Washington, supra.

I

The primary issue before our court is whether the Alabama Supreme Court’s opinion in Washington, supra, is to be applied retroactively or prospectively. There is no indication of what the Alabama Supreme Court intended on this point in its opinion in Washington, supra.

There is no general principle of law which states when a new rule of law should operate retroactively or prospectively. In criminal cases, courts have usually looked at the purpose of the new rule, the extent of the State’s reliance on the old rule, and the impact of the new rule on the administration of justice in deciding whether to apply the new rule retroactively or prospectively. See Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977) and cases cited therein.

In Hankerson, supra, the United States Supreme Court citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), stated:

“Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.”

Hankerson, 97 S.Ct. at 2344.

The Alabama Supreme Court clearly stated in its opinion in Washington, supra, that the reason it reversed Washington’s conviction was that a “defendant has a constitutional right to be informed of the charges against him.” Washington, supra at 408.

If a defendant is only charged with “intentional murder” but the trial judge also charges the jury on “reckless murder”, there is a distinct possibility that the jury could find the defendant guilty of “reckless murder” rather than “intentional murder.” There is a serious risk that a defendant, in this situation, could be convicted of an offense for which he was not charged and of which he had no opportunity to defend himself.

It is clear to this court that the rule of law set out in Washington, supra, raises serious questions about the accuracy of guilty verdicts in past trials in which a “reckless murder” instruction has been given even though the defendant was only charged with “intentional murder”. Therefore, this rule should be applied retroactively. (See cases herein cited).

Thus, we hold that Marsh’s petition for writ of error coram nobis should have been granted. We reverse and remand this case to the trial court with instructions that a new trial be held in this cause.

Reversed and Remanded.

AH the Judges concur.

      . See also, Hughley v. State, 451 So.2d 439 (Ala.Crim.App.1984); Ponder v. State, 451 So.2d 1382 (Ala.Crim.App.1984); and Dawson v. State, 449 So.2d 800 (Ala.Crim.App.1984).

      . For a discussion on the applicability of overruling decisions, see Annot. 10 A.L.R.3d 1371 (1966).


author: BOWEN, Presiding Judge.

text:
    Jerry HARRISON v. STATE.
    4 Div. 287.
    Court of Criminal Appeals of Alabama.
    Dec. 11, 1984.
    Vreeland G. Johnson, Andalusia, for appellant.

      Charles A. Graddick, Atty. Gen. and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Jerry Harrison was indicted and convicted for theft in the first degree. Alabama Code 1975, § 13A-8-3. He was sentenced as an habitual offender to life imprisonment.

On appeal of the conviction, Harrison’s appointed trial counsel did riot file a brief and the conviction was affirmed by this Court on June 12, 1984, without opinion, 461 So.2d 53. Harrison then filed a petition for writ of error coram nobis and was granted an “out-of-time” appeal. See Ex parte Longmire, 443 So.2d 1265 (Ala.1982).

On this appeal from his conviction, Harrison is represented by appointed counsel. The only issue raised is whether trial counsel was constitutionally ineffective.

In his order granting the coram nobis petition, the trial court found that trial counsel’s failure to file an appellate brief was “due to the illness of his [counsel’s] wife and a personal physical ailment of a staph infection of the eye.”

At the coram nobis hearing, the issue of trial counsel’s alleged incompetence was explored. In his order granting that petition, the trial court found that this issue was without merit: “The Court finds that the Defendant was adequately and vigorously represented on his trial and that witnesses were subpoenaed and examined and that the State witnesses were competently cross-examined.” There is nothing in the record of either the trial or the coram nobis hearing to generate doubt or uncertainty as to the absolute correctness of the trial judge’s findings. Applying the guiding principles of Strickland v. Washington, _ U.S. _, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), our independent review of the facts of this case convinces us that the defendant was well represented by competent and effective counsel.

At the coram nobis hearing, trial counsel testified that he found no merit to an appeal of the defendant’s conviction: “[I]t was really futile, ... there was really no basis for appeal.” It is significant that the defendant’s present appellate counsel has raised only one issue — that of trial counsel’s competence.

Once again, our review convinces us that the judgment of the circuit court is due to be affirmed.

AFFIRMED.

All Judges concur.


text:
    Shelby Gene O’NEAL v. STATE.
    8 Div. 89.
    Court of Criminal Appeals of Alabama.
    Dec. 11, 1984.

      Gary W. Alverson, Tuscumbia, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas K. Brantley, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

On October 28, 1983, appellant Shelby Gene O’Neal and Jimmy Burns McKinney, also known as Bo Diddley, were arrested and charged with murder in the shooting death of Ricky Mansell and with the attempted murder of Kenneth Jeffries. They were indicted by the Franklin County Grand Jury on November 17, 1983, on the aforementioned charges.

There were two counts in the indictment. The first alleged that the appellant caused the death of Ricky Clayton Mansell by shooting him with a firearm. The second count alleged that the appellant committed the crime of attempted murder by shooting Kenneth Maynard Jeffries with a gun. The appellant entered a plea of not guilty at his arraignment. Later, the appellant’s case was consolidated with that of Jimmy Burns McKinney on December 1, 1983. The trial of appellant commenced on February 6, 1984. McKinney had entered a plea of guilty to both charges shortly before the trial began that same day.

At the conclusion of the State’s case-in-chief, the appellant moved for a judgment of acquittal as to both counts. That motion was overruled by the trial judge. The same motion was renewed at the conclusion of the defendant’s case and again overruled by the trial court.

The jury found the appellant guilty of manslaughter as to count one of the indictment and guilty of assault in the second degree on count two of the indictment.

The appellant was then sentenced by the trial judge to a maximum term of ten years on each charge, the sentence to be served consecutively in the state penitentiary. Appellant then filed a motion for a new trial, which was subsequently overruled by the trial court. This appeal followed.

We must decide whether the trial court committed reversible error in allowing the appellant to be convicted on two charges arising out of the same act. In order to properly address this issue, we must first review the applicable fact of this case.

While some of the testimony at trial is inconsistent, it is apparent that the appellant and Jimmy Burns McKinney, along with Calvin Mosley, rode past the home of the deceased, Ricky Mansell. A beer can or bottle was thrown from the trio’s automobile onto a car parked in front of Man-sell’s home. Ricky Mansell then exited his home and approached the trio’s car, where a heated exchange of words occurred between Mansell and the appellant. At some point, Mansell struck McKinney.

Thereafter, the trio left Mansell’s house, but later returned. As they passed by the house, and while Mansell, Kenneth Jeffries, and Mike Ashley were leaving the house, Jimmy McKinney aimed a shotgun and fired from the car he was riding. The testimony reflected that only one shot was fired, and McKinney actually admitted firing the shot. Also, it is undisputed that the appellant was the individual driving the car. The shot hit Mansell, killing him. A pellet of the shot hit Jeffries and entered his body from his lower back area.

It is clear that only one criminal transaction occurred, not two. “A single crime cannot be split up, or divided, into two or more offenses.” Hurst v. State, 86 Ala. 604, 6 So. 120 (1888). Likewise, several charges cannot be based upon a single act.

The case at bar is an excellent example of the prosecutor “charging multiple offenses based on a single course of conduct.” Free v. State, 455 So.2d 137 (Ala.Crim.App.1984). As stated earlier, the testimony and evidence reveal that only one shot was fired. Therefore, only one criminal transaction occurred, and the appellant could be found guilty of only one offense. For another affirmation of this proposition of law, see Hampton v. State, 455 So.2d 149 (Ala.Crim.App.1984).

Thus, an election should have been made by the State as to which offense it wanted the jury to be charged on before the members retired to make a decision.

Accordingly, the judgment is due to be reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


author: EHRLICH, Justice.

text:
    James H. PAYNE, etc., et al., Petitioners, v. BROWARD COUNTY, et al., Respondents.
    No. 64419.
    Supreme Court of Florida.
    Sept. 13, 1984.
    Rehearing Denied Jan. 7, 1985.

      Krathen & Sperry, P.A., Fort Lauder-dale, and Nancy Little Hoffmann of Hoff-mann & Burris, Fort Lauderdale, for petitioners.
    Susan F. Delegal, Gen. Counsel and John Franklin Wade, Asst. Gen. Counsel for Bro-ward County, Fort Lauderdale, for respondents.
    Edna L. Caruso, West Palm Beach, Florida, amicus curiae for The Academy of Florida Trial Lawyers.
   EHRLICH, Justice.

This case is before us for review of three questions certified to be of great public importance. Broward County v. Payne, 437 So.2d 719 (Fla. 4th DCA 1983). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Seventeen-year-old Allison Payne was fatally injured October 24, 1978, as she tried to cross Rock Island Road walking home from school. Rock Island Road was a two-lane road extending north from Sample Road. Coral Springs High School was located on the northeast corner of the intersection. Two sidewalks paralleled Sample Road, one running along the road, the other about 125 feet to the north, on the north edge of a faculty parking lot. Allison had walked along the north sidewalk, which ended at Rock Island Road, and it was at the end of this walk where she was killed. The evidence was inconclusive as to whether Allison had looked toward the intersection, where the truck came from, before she stepped into the road.

Rock Island Road was planned as a four-lane thoroughfare, but was opened after the first two lanes were completed. Bro-ward County, which was building Rock Island Road, planned various pedestrian control measures for the completed project, such as crosswalk markings, rerouted sidewalks, and traffic signals, but none of these measures had been implemented at the time of the accident. Coral Springs city officials had been asking the county since 1976 to install traffic signals, but, when signals were still not installed at the beginning of the 1978 school year, Coral Springs police began to provide traffic control during school hours. At the time of the accident, one officer was directing traffic, another was monitoring the intersection for traffic violators, and a “community service aide” was at the intersection to help students cross the street. The pick-up truck which struck Allison had turned left off Sample Road, north onto Rock Island Road.

Allison’s parents sued Broward County, the county school board, the city, the driver and the owner of the truck, and the contractor that built Rock Island Road. The latter three parties were dismissed during trial, and a directed verdict was entered in favor of the school board. The jury returned a verdict finding the city fifty percent negligent, the county forty percent negligent, and Allison ten percent negligent. The county appealed to the Fourth District, which consolidated the case with an appeal by the Paynes on the directed verdict for the school board.

The district court opinion addressed the question of whether the county’s sovereign immunity from liability for failure to install the traffic light extended from the time the decision was made to install the light to the time of the accident. The court held that sovereign immunity did apply, under this Court’s decision in Department of Trans portation v. Neilson, 419 So.2d 1071 (Fla.1982). However, based on this Court’s continued adherence to the principle that a governmental entity has a duty to warn of a known trap in Harrison v. Escambia County School Board, 434 So.2d 316 (Fla.1983), the district court certified three questions. The district court opinion did not address the appeal on the directed verdict for the school board, and this Court granted the board’s motion to dismiss it as a party to the proceedings in this Court.

The certified questions are:
I. Was this [the opening of the Rock Island Road intersection] the creation of the kind of known danger which requires a warning or an aversion of the danger?
II. Did the decision once made of the need to install the traffic light carry with it the concomitant duty to warn until such time as the light was operational?
III. Finally, as the Supreme Court required in Harrison, did the instant complaint adequately allege the dangerous condition requiring warning of the danger?

437 So.2d at 720.

We answer the first two questions in the negative, and decline to answer the third as moot.

Initially, we note that a governmental entity is always protected by sovereign immunity from liability for the decision to create or open a road. Petitioner argues that the county negligently opened Rock Island Road before center lines or other safety devices were in place. The record shows that there may have been some confusion between county departments, resulting in opening of the road before the center lines had been painted, but the record also clearly shows that the decision to open the road was made by those with authority to make such a decision. Regardless of whether the decision to open the road was unwise, the purpose of this Court’s distinction between planning-level and operational-level functions is to prevent judicial intrusion into planning-level decisions. Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). We have previously held that “the decision to build or change a road, and all the determinations inherent in such a decision, are of the judgmental, planning-level type.” Neilson, 419 So.2d at 1077. However, even when a governmental act is subject to sovereign immunity, liability may arise from a planning-level decision when that decision creates a hidden trap. “[W]hen a governmental entity creates a known dangerous condition, which is not readily apparent to persons who could be injured by the condition, a duty at the operational-level arises to warn the public of, or protect the public from, the known danger.” City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982). There is no question that the county created and was on notice of the conditions at the intersection and the surrounding area. The only question, then, is whether the conditions created a known danger not readily apparent to potential victims or constituted a hidden trap for pedestrians. We conclude that they did not.

Although the parties and the district court focus on the lack of a stoplight at the intersection, this fact is not disposi-tive. Even though a stoplight was not installed, police officers were controlling traffic at the intersection, and such control is the functional and legal equivalent of a stoplight. Avey v. City of West Palm Beach, 152 Fla. 717, 718, 12 So.2d 881, 881 (1943) (traffic light “is in effect the substitution of a signal for a policeman in the regulation of traffic on the streets”), overruled on other grounds, Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957); Weissberg v. City of Miami Beach, 383 So.2d 1158 (Fla. 3d DCA 1980) (police officer and traffic signal equated in the sense that there is an operational duty to ensure that either the officer or the light is properly controlling traffic).

As a matter of law, neither the pleadings nor the evidence establish that the danger Allison faced was any greater than that facing any pedestrian seeking to cross any street at midblock. The pleadings and evidence show that the county had not installed a traffic light, that Rock Island Road had been opened without a center line (although the line had been painted at the time of the accident), and that plans had been made to upgrade pedestrian and vehicular control, but they had not been implemented. However, regardless of the circumstances which resulted in the intersection being in the state it was the day of the accident, no liability may be imposed if those circumstances failed to create a known danger not readily apparent to potential victims, or a trap, and there was no such hidden danger or trap.

We base our conclusion that the intersection and the point where the accident occurred were not a trap, and that whatever danger there was in crossing the street midblock was open and obvious, on the following facts apparent from the record:

1. A city police officer provided traffic control.
2. The accident occurred 125 feet north of the intersection, where the north sidewalk on which Allison walked ended at Rock Island Road.
3. There was no crosswalk at the point where the north sidewalk terminated.
4. There was no sign instructing pedestrians at the end of the north sidewalk to cross at the intersection, nor was there any other impediment to crossing the road at that point.
5. Although there was no sidewalk leading south from the north sidewalk to the corner of the intersection, where a police “community service aide” was available to assist in crossing, there was no impediment to walking south to reach the intersection. The entrance to the faculty parking lot was between- the north sidewalk and the intersection, so the way was paved, although normal care would have to be exercised in crossing the vehicular way.

Even if the county deliberately designed the intersection to permanently remain in the state it was the day of the accident, the danger created was no greater than that existing anywhere it is possible to cross a road in midblock. A governmental entity has no duty to warn pedestrians of the routine danger of crossing the street in midblock.

This brings us to the second certified question, which focuses on the lack of a traffic light at the intersection, which we also answer in the negative.

The decision whether to install a traffic control light at an intersection is a planning decision clothed with immunity, but that decision carries with it the concomitant duty to warn until such time as the light is operational if the absence of such traffic light creates a trap or creates a known danger not readily apparent to persons in or about the intersection. For the reasons expressed earlier there was no duty to- warn Allison under the factual circumstances in this case. The time delay between the decision to install the traffic light and the actual installation does not remove the cloak of immunity.

It is unarguable that the plans envisioned by the county would improve safety. Planning to improve safety can neither create a danger nor transform a patent danger into a latent hazard.

Accordingly, we approve the district court decision.

It is so ordered.

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

       We find instructive two cases from intermediate courts in Illinois. In Resnik v. Michaels, 52 Ill.App.2d 107, 201 N.E.2d 769 (1964), a municipality had passed an ordinance to install stop signs at a certain intersection, but the signs had not been installed two months later when the plaintiff was injured. The court reasoned that the village would not have been liable had it never passed the ordinance, and that it therefore could not be liable until after the signs were installed. The legal obligation did not arise until the signs were installed, and then the obligation was to maintain the signs so that those who would come to depend on the signs would not be injured by their absence or non-operation.
      In Best v. Richert, 72 Ill.App.3d 371, 27 Ill.Dec. 663, 389 N.E.2d 894 (1979), the plaintiffs children were killed when they were forced to walk in the street after a city sidewalk ended abruptly in mid-block. The court rejected the assertion that the city was liable because it had undertaken a plan to construct a sidewalk along the remainder of the block when it passed an ordinance requiring property owners to construct sidewalks. Relying on Resnik, the court found that even if the ordinance constituted a plan, the plan had to be completed before liability attached.
      We find especially convincing the Resnik rationale that the duty to maintain arises because the citizenry depends on those things a government has undertaken to provide. Applying this to the operational-planning dichotomy óf Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), citizens have a reasonable expectation that those things provided by the government as a result of its planning function may be relied upon to continue to operate because of operational-level maintenance.


author: PER CURIAM.

text:
    Allen Lee DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 63374.
    Supreme Court of Florida.
    Oct. 4, 1984.
    Rehearing Denied Jan. 17, 1985.

      Steven L. Bolotin, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Andrew Thomas, Asst. Atty. Gen., Tallahassee, and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

Allen Davis appeals his convictions of murder and sentences of death. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm the convictions and sentences.

The state charged Davis with three counts of first-degree murder for the shooting/beating deaths of a woman and her five- and ten-year-old daughters in their home. The jury convicted him as charged and recommended the death penalty for each conviction. The trial court agreed with the jury’s, recommendation and imposed three death sentences.

On appeal Davis claims: (a) the trial judge abused his discretion (1) by failing to grant a motion for change of venue, (2) by denying a motion for individual and sequestered voir dire, and (3) by denying a motion for mistrial based on a witness’ testimony on redirect examination; (b) the trial judge erred in denying Davis’ challenge for cause of one prospective juror; and (c) the prosecutor’s closing argument rendered the penalty proceeding fundamentally unfair. After considering these points, we find that no relief is warranted. Moreover, our review pf the record reveals that competent, substantial evidence supports the convictions and that the death sentences are appropriate.

These murders occurred on May 11, 1982, the police arrested Davis on May 13, and a grand jury indicted him on May 27. On August 11, 1982 Davis filed a motion for change of venue, alleging that the case had received such extensive publicity that he could not receive a fair trial in Duval County. After a hearing on August 17, the trial judge deferred ruling on that motion until an attempt to select a jury had been made. Jury selection subsequently began on January 31, 1983, with the trial lasting from February 1 through February 4.

Davis now claims that the trial judge’s failure to grant the motion for change of venue constituted an abuse of discretion. An application for change of venue is addressed to a court’s sound discretion, and a trial court’s ruling will not be reversed absent a palpable abuse of discretion. Straight v. State, 397 So.2d 903 (Fla.), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981); Manning v. State, 378 So.2d 274 (Fla.1979). We find no such abuse here.

In Manning this Court reiterated the test for changing venue as set out in McCaskill v. State, 344 So.2d 1276 (Fla.1977). The Court went on to explain that in applying that test

a determination must be made as to whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely on the evidence presented in the courtroom.

378 So.2d at 276. The trial court ruled that Davis did not meet this test, and we agree.

At the hearing Davis presented evidence detailing media coverage of the case. According to this evidence, the bulk of the publicity on the case appeared from mid May through early June 1982 with sporadic coverage after that. By the time for jury selection almost nine months had passed since the murders. Of the forty-some prospective jurors called several acknowledged having heard or read something concerning the case. Either the defense or the state used peremptory challenges to excuse some of these prospective jurors, but the final jury panel contained several persons who had some prior knowledge of the case. All who served on the jury, however, indicated affirmatively that any prior knowledge could be put aside, that they could serve with open minds, and that they could reach a verdict based on the law and the evidence presented at trial.

Media coverage and publicity are only to be expected when murder is committed. The critical question to be resolved, however, is not whether the prospective jurors possessed any knowledge of the case, but, rather, whether the knowledge they possessed created prejudice against Davis. Straight. Davis has not shown a community “so pervasively exposed to the circumstances of the incident that prejudice, bias, and preconceived opinions are the natural result.” Manning, 378 So.2d at 276. Moreover, following jury selection, Davis’ attorney announced that he had consulted with Davis during the jury selection and that both he and Davis were satisfied with the jury selection even though they had one peremptory challenge left. On the facts presented here we find that the trial court did not abuse its discretion by failing to grant the motion for change of venue.

Davis also claims that the trial court erred by failing to conduct individual and sequestered voir dire of the prospective jurors as requested by the defense. The granting of individual and sequestered voir dire is within the trial court’s discretion. Stone v. State, 378 So.2d 765 (Fla.1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980); Jones v. State, 343 So.2d 921 (Fla. 3d DCA), cert. denied, 352 So.2d 172 (Fla.1977). The purpose of conducting voir dire is to secure an impartial jury. Lewis v. State, 377 So.2d 640 (Fla.1979). Davis has demonstrated neither the partiality of his jury nor an abuse of discretion by the trial court, and we find no merit to this claim.

As his last point dealing with the jury, Davis argues that the trial court erred by not excusing a certain prospective juror for cause. The competency of a challenged juror is a mixed question of law and fact, the determination of which is within the trial court’s discretion. Christopher v. State, 407 So.2d 198 (Fla.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1761, 72 L.Ed.2d 169 (1982). Manifest error must be shown before a trial court’s ruling will be disturbed on appeal. Id. “The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and theMnstructions on the law given to him by the court.” Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984). The prospective juror in question met that test. When the defense challenged her for cause the court pointed out that “the last time you inquired of her, she said that she could listen to all of the evidence and render a verdict based on that, so I will deny your motion.”

Prospective jurors are frequently ambivalent, and their answers, as well as the questions asked of them, are, sometimes, not models of clarity. In such instances, as here, it can be argued that the words on the cold record have several meanings and are subject to several interpretations. It is of great assistance to an appellate court if a trial court states on the record the reasons for granting or not granting a challenge for cause, and we encourage trial courts to do so.

At trial the state called Davis’ father to testify about a pistol missing from his home. The following exchange between the prosecutor and the witness occurred:

Q [Mr. Austin] While — did Allen subsequently leave with the police to go to the police station?
A [Donald Davis] Yes.
Q Do you know whether he did that freely and voluntarily or not?
A Yes, he did.
Q He did?
A I heard him tell [Detective] Kessinger, “Let’s go take a lie detector test and get it over with.”

Defense counsel then objected to the mention of a polygraph examination as being highly prejudicial and moved for a mistrial. After discussion, the trial court denied the motion and stated: “I don’t think there is any prejudice. It was mentioned. There is no evidence that [a polygraph examination] was given and no evidence that there is [sic] any results.” The court then directed the jury to disregard the witness’ reference to a lie detector. Davis now claims that the trial court erred in denying his motion for a mistrial.

Unless both sides consent, the results of polygraph examinations are inadmissible in adversarial proceedings. Walsh v. State, 418 So.2d 1000 (Fla.1982). Here, however, neither party sought to have any such results introduced. The mere mention of the possibility of a polygraph examination does not compel the granting of a new trial. See Sullivan v. State, 303 So.2d 632 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976). The trial court’s cautionary instruction to the jury cured any problem with this witness’ inadvertent reference to a polygraph examination, and we find no error on this point.

As his final point on appeal, Davis contends that the prosecutor’s argument to the jury during the penalty phase rendered those proceedings fundamentally unfair. After the jury charge, defense counsel objected to one of the prosecutor’s remarks, an alleged “golden rule” comment. The court overruled the objection, finding that the manner and context of the remark did not constitute a “golden rule” argument. We agree. The control of comments in closing arguments is within a trial court’s discretion, and a court’s ruling will not be overturned unless a clear abuse is shown. Teffeteller v. State, 439 So.2d 840 (Fla.1983), cert. denied, _ U.S. _, 104 S.Ct. 1430, 79 L.Ed.2d 754 (1984). No such showing has been made here.

Defense counsel did not object to the other comments complained about on appeal. In the absence of fundamental error the failure to object precludes consideration of this point on appeal. Bassett v. State, 449 So.2d 803 (Fla.1984); Mason v. State, 438 So.2d 374 (Fla.1983), cert. denied, _ U.S. _, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984). Davis now claims that the comments constituted fundamental error. This simply is not correct. The comments had no significant impact on the jury’s recommendation or the sentence imposed. They did not go to the foundation of the conviction or sentence.

Even if this prosecutor’s argument had been objected to there was no reversible error committed by the argument. In State v. Murray, 443 So.2d 955, 956 (Fla.1984), we stated that “prosecutorial error alone does not warrant automatic reversal ... unless the errors involved are so basic to a fair trial that they can never be treated as harmless.” We went on to hold that the error must be so prejudicial as to taint the entire trial as judged by the harmless error rule from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Wide latitude is permitted in arguing to a jury. Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, 459 U.S. 1060, 103 S.Ct. 482, 74 L.Ed.2d 627 (1982). In this case the prosecutor strongly urged the jury to recommend the death penalty, but we do not find that he went overboard. Our review of the record discloses that the prosecutor restricted his argument to evidence in the record and to reasonable comments on that evidence. This case is factually distinguishable from Hance v. Zant, 696 F.2d 940 (11th Cir.), cert. denied, _ U.S. _, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983), on which Davis relies. As the prosecutor pointed out, the killing of a woman and her two young children in their home is a terrible crime, and the proof against Davis was substantial. We therefore find no merit to this point.

In his sentencing order the trial court found five aggravating factors (under sentence of imprisonment; previous conviction of violent felony; committed during course of a burglary; heinous, atrocious, or cruel; and cold, calculated, and premeditated) applicable to all three counts of the indictment plus one additional factor (avoid or prevent arrest) applicable to the younger daughter’s death. The trial court found nothing in mitigation.

Davis’ appellate attorney has not challenged the death sentences. In response to a question asked at oral argument he stated that he had made a tactical decision not to do so and gave several reasons for his decision. First, he said that, in all candor, only the cold, calculated, and premeditated and avoid or prevent arrest aggravating circumstances could be argued against. Moreover, because no mitigating circumstances existed and because the jury had recommended the death sentence, the sentence could be sustained even if this Court found those aggravating circumstances improper. Elledge v. State, 346 So.2d 998 (Fla.1977). Finally, defense counsel stated that, taking the above into consideration, he had decided to use his brief to attack the convictions rather than the sentences, even though he disagrees with the sentences.

Section 921.141, Florida Statutes, however, directs this Court to review both the conviction and sentence in a death case, and we will do so here on our own motion. Our review convinces us that all but one aggravating circumstance, avoid or prevent arrest, are supported by the record and that the trial court properly applied them to Davis. Davis had been convicted previously of several counts of robbery, attempted robbery, and use of a firearm during commission of a felony. At the time of these murders Davis was on parole from a fifteen-year prison sentence. Additionally, the person who had dropped Davis off so that he could commit a burglary stated that when he picked Davis up again Davis had in his possession a camera of the same make as one belonging to the family of the victims which the victims’ husband and father reported as missing after their deaths. The manner and method of these murders supports the finding of heinous, atrocious, or cruel — the mother had been beaten over the head with a pistol almost beyond recognition, one child was tied up and then shot twice, and the second child was shot once in the back and then beaten, all of which occurred in the mother’s bedroom and the short hallway to that bedroom. See Breed-love v. State. The state’s evidence is also sufficient to support the court’s finding of cold, calculated, and premeditated in aggravation. Compare Harris v. State, 438 So.2d 787 (Fla.1983), cert. denied, _ U.S. _, 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984) (no evidence of planning, instruments of death all from victim’s premises) with the instant case (entering home armed with pistol and with rope used to bind one of the victims). We do not find, however, that the evidence meets the standard of Riley v. State, 366 So.2d 19 (Fla.1978), and Menendez v. State, 368 So.2d 1278 (Fla.1979), and we therefore strike the court’s finding of avoid or prevent arrest in aggravation of the younger child’s murder.

In the sentencing order the trial court stated: “The Court finds that there are no statutory mitigating factors existent in this cause .... ” The mitigating evidence was not restricted to that listed in section 921.-141, however, and we find the court’s failure to mention nonstatutory mitigating evidence to be merely inartful drafting of the sentencing order.

Striking one of the aggravating circumstances leaves five valid ones for each count, with nothing in mitigation. We therefore affirm both the convictions and the sentences of death.

It is so ordered.

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

ADKINS, J., concurs in result only with the conviction and concurs, with the sentence.

      . A trial court may wait to decide whether to grant a change of venue until after an attempt to seat a jury is made. Manning v. State, 378 So.2d 274 (Fla.1979).

      . In Chapman the Court held that a reviewing "court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt." 386 U.S. at 24, 87 S.Ct. at 828.