author: TYSON, Judge.

text:
    Brian Keith BALDWIN v. STATE of Alabama.
    1 Div. 901.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.

      John L. Carroll and Stephen J. Ellmann, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little and Jean Williams Brown, Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Brian Keith Baldwin was indicted for the capital offense of robbery when the victim is intentionally killed by the defendant. At trial, the jury found the appellant “guilty as charged in the indictment.” The trial judge, after weighing the aggravating and mitigating circumstances in this case, fixed the appellant’s punishment at death by electrocution. See Appendix A, hereto attached and made a part hereof.

The appellant’s conviction was originally affirmed by this court in Baldwin v. State, 372 So.2d 26 (Ala.Cr.App.1978) and by the Alabama Supreme Court at 372 So.2d 32 (Ala.1979). The United States Supreme Court, 448 U.S. 903, 100 S.Ct. 3043, 65 L.Ed.2d 1133, vacated the judgment and remanded the case for further consideration in light of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Thereafter, the Alabama Supreme Court, 405 So.2d 698, remanded the case to this court, 405 So.2d 699, for further consideration and we reversed and remanded on authority of Beck. The State has requested a rehearing and for the reasons set forth below, we once again affirm this appellant’s judgment of conviction and sentence of death.

The facts of this case as set out in this court’s original opinion and quoted by the Alabama Supreme Court, are as follows:

“The victim of the appellant’s vicious crime was a sixteen-year-old girl named Naomi Rolon. On November 25, 1976, she was driving across town in Hudson, North Carolina, to visit her father who was in a local hospital. She was abducted before reaching her destination by the appellant and his companion, Edward Horsley, both of whom were escapees from a North Carolina prison camp at the time. They took control of her automobile and drove to Charlotte, North Carolina, where they attempted to rape her and to choke her to death. They stripped her of all her clothing except her shoes and socks. She was stabbed with a knife in various parts of her body and then locked in the trunk of the automobile she had been driving. Baldwin and Horsley then drove the car through South Carolina to Atlanta,‘Georgia, where they spent the night. They next drove to Montgomery, Alabama, on Interstate Highway 85 and then proceeded to Camden, Alabama, located in Wilcox County. The victim remained locked in the trunk of the car during the entire trip.
“In Camden, the appellant stole a pickup truck which contained a hatchet. Hors-ley drove the automobile, and the appellant drove the truck to an isolated spot in Monroe County. There they removed the victim from the trunk of the car, and Horsley attempted to run the car over her. After several unsuccessful attempts to kill the victim with the automobile, the appellant took the hatchet from the trunk and killed her with a blow leaving a gaping wound in the base of her neck. The two killers were later arrested in Lanett, Alabama, where they were traveling in the stolen truck. The automobile tag from the victim’s car was found in the truck which appellant was driving. Both were transported to the Wilcox County Jail on the truck theft charge.”

Baldwin v. State, 372 So.2d 26 (Ala.Cr.App.1978).

I

The first issue the appellant raises is essentially the same issue he raised on his initial appeal and which was addressed both by this court and the Supreme Court in the two previous opinions. However, this court must now analyze this issue in a different light because of Beck.

The principal question this court must resolve is whether the appellant is entitled to a new trial because the preclusion clause was in effect at the time of his conviction for the instant offense. The appellant contends that although the intentional killing most probably took place in Alabama, the robbery occurred in North Carolina. If such was the case, the appellant claims the State of Alabama did not have jurisdiction over the robbery and thus the appellant could have only been convicted of first degree murder at most in Alabama. Thus, the jury should have been entitled to an instruction on the lesser included offense of murder.

The United States Supreme Court in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982) stated:

“Beck held that due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction. But due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction. The jury’s discretion is thus channelled so that it may convict a defendant of any crime fairly supported by the evidence.”

Thus, “ ‘[t]he jury must be permitted to consider a verdict of guilt of a non-capital offense’ only when ‘the evidence would have supported such a verdict.’ (Additional emphasis supplied.) Hopper v. Evans, supra.Bryars v. State, 456 So.2d 1122 (Ala.Cr.App.1983).

Following the United States Supreme Court’s decisions in Beck and Hopper, the Alabama Supreme Court in Cook v. State, 431 So.2d 1322 (Ala.1983) stated that in the determination of whether an appellant, who was convicted of a capital offense when the preclusion clause was in effect, is entitled to a new trial, the test to be applied is:

“(1) Was there any evidence presented at trial upon which a conviction of a lesser included offense could have been based?
(2) If not, has the defendant suggested any plausible claim which he might conceivably have made, had there been no preclusion clause, that is not contradicted by his own testimony at trial? If the answer to both of these questions is no, then a conviction at trial is due to be affirmed.”

The evidence at trial conclusively established that the appellant and his companion took control of the vehicle in which the victim was driving in North Carolina. There was some conflicting evidence presented as to whether the victim was killed in Alabama or North Carolina. The appellant urges that if the robbery occurred in North Carolina and the killing took place in Alabama, then he could only be convicted of murder in Alabama and robbery in North Carolina because the two acts were separate offenses. Thus, reversible error occurred because the jury was prohibited by the preclusion clause from considering the lesser included offense of murder.

We do not agree. As Judge Bookout stated in his opinion in this appellant’s original appeal, quoting from the opinion in the-appellant’s companion’s appeal [Horsley v. State, 374 So.2d 363 (Ala.Cr.App.1978) ]:

“ ‘Notwithstanding the importance of robbery as an essential element of the crime charged, it did not constitute the crime charged in the indictment or a crime proscribed by the death penalty statute. No crime proscribed by that statute falls short of an intentional killing. Each of the fourteen crimes enumerated in the statute has within it the culminating factor of an intentional homicide. The statute is for the prevention and punishment of homicides committed under legislatively determined aggravating circumstances. It is impossible to complete, to consummate, any of the fourteen crimes enumerated without the intentionally] taking of the life of a human being.”

Baldwin v. State, 372 So.2d 26 (Ala.Cr. App.1978).

Justice Torbert, reiterating this position in his opinion in this case said:

“The crime of robbery when the victim is intentionally killed is a single offense beginning with the act of robbing or attempting to rob and culminating with the act of intentionally killing the victim. The offense consists of two elements, robbing and intentionally killing, but does not consist of two separate offenses. See Ex parte Clements, 370 So.2d 723 (Ala.1979); Horsley v. State [374 So.2d 363], [1 Div. 931] (Ala.Crim.App.1978). Therefore, although the offense was commenced in North Carolina, it was not consummated until Naomi Rolon was killed in Monroe County, Alabama.”

Baldwin v. State, 372 So.2d 32 (Ala.1979).

Therefore, the robbery at issue was a continuing offense which began in North Carolina and culminated in Alabama. Thus, this issue was resolved by the jury which properly found that the robbery and the killing occurred in Alabama.

Furthermore, even if there was evidence that both the robbery and intentional killing took place in North Carolina, the appellant would still not be entitled to request a lesser included offense instruction. If both of these crimes were committed in North Carolina, then Alabama would have no jurisdiction over the case and the appellant could not have been convicted of either offense in Alabama. Whether the killing took place in North Carolina or Alabama was a question for the jury which they properly resolved after considering all of the evidence.

After reviewing the evidence in this case and the theories which the appellant has raised in light of Beck, and the cases which have followed, we conclude the appellant was not due an instruction on the lesser included offense of murder.

II

The appellant urges that the prosecutor’s remark during his opening statement concerning the appellant’s escape from a prison camp in North Carolina constitutes error.

Generally, evidence of other crimes which a defendant has committed is not admissible at his trial on a particular offense. McElroy's Alabama Evidence, § 69.01(1), Third Edition (1977). However, the prosecutor’s statement falls within one of the widely recognized exceptions to the general rule.

“... [I]f two or more crimes constitute one criminal transaction, evidence of the other crime or crimes is admissible. In Parsons v. State, 251 Ala. 467, 477, 38 So.2d 209, it was stated:
‘But the rule is that if several crimes in fact constitute one criminal transaction, evidence of all such crimes may be given as part of the res gestae of the offense with which defendant is charged. Allison v. State, 1 Ala.App. 206, 55 So. 453; Askew v. State, 6 Ala.App. 41, 60 So. 455; Ingram v. State, 39 Ala. 247, 84 Am.Dec. 782.’
“Judge McElroy, citing numerous supporting authorities, has the following to say on the subject:
‘Evidence of accused’s commission of another crime is admissible if such other crime is inseparably connected with, or is a ‘part of the res gestae’ of the, now-charged crime; or, if such other crime and the now-charged crime are parts of one continuous transaction or one continuous criminal occurrence...’ McElroy, Law of Evidence in Alabama, § 69.-01(3).”

Brown v. State, 338 So.2d 1050 (Ala.Cr.App.1976).

From a review of the record, it is clear to this court that this escape commenced the series of events that eventually led to the killing of the victim herein. Thus, the prosecutor’s remark was properly allowed.

Furthermore, the appellant’s statement was later admitted into evidence and in this the appellant told of his escape from the prison camp and of the unfortunate sequence of events that followed the escape. There is no error on this issue.

Ill

The appellant contends one of the prospective jurors, Julia Preyear, was improperly excluded from the jury venire and asserts she was excused solely because of her opposition to the death penalty, and not because of the requirements set out in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

The relevant portion of the record is set out below:

“THE COURT: Mr. Pearson and Mr. Morrow, they seem to be qualified. Do you have any additional questions from the State?
“MR. PEARSON: We have a couple. We would like to know if anybody has any religious scruples, or any other scruples, about fixing punishment at death in this case if the State proves beyond a reasonable doubt that the defendant is guilty.
“THE COURT: Ladies and gentlemen of the jury, do any of you have any scruples, religious or otherwise, which would prevent you from sentencing this defendant to death by electrocution, if, in your mind, his guilt had been established beyond a reasonable doubt and to a moral certainty? (No response.)
“THE COURT: Do you understand the question? Do any of you have any scruples, religious or otherwise, if you were selected as a juror in this case that you could not pronounce the judgment of execution against this defendant if his guilt had been established beyond a reasonable doubt and to a moral certainty? “A JUROR: Yes, sir.
“THE COURT: Are you a juror?
“A JUROR: Yes, sir.
“THE COURT: What is your name, please?
“A JUROR: Julia Preyear.
“THE COURT: Mrs. Preyear, stand up and tell me what you want to tell me, please.
“THE JUROR, JULIA PREYEAR: I just don’t believe in capital punishment. “THE COURT: You don’t believe in capital punishment?
“THE JUROR, JULIA PREYEAR: No, sir.
“THE COURT: Mrs. Preyear, are you telling this Court that if you were on this jury and if you were convicted beyond a reasonable doubt of the guilt of this defendant that you could not or would not follow the law and fix his punishment at death? Is that what you are telling this Court?
“THE JUROR, JULIA PREYEAR: Yes, sir, that’s right.
“MR. PEARSON: We would challenge her, Judge.
“THE COURT: The challenge will be sustained as to Mrs. Julia Preyear.” (R. 24-25).

In Wilson v. State, 371 So.2d 932 (Ala.Cr.App.1978), affirmed 371 So.2d 943 (Ala.1979), vacated on other grounds, 448 U.S. 903, 100 S.Ct. 3042, 65 L.Ed.2d 1133 (1980), remand, 405 So.2d 696 (Ala.1981), Judge Bowen stated:

“A prospective juror may be excused for cause where he has been examined by the trial judge and a determination made that the juror’s feelings as to capital punishment are sufficiently strong so that he would automatically refuse to impose a death sentence regardless of the evidence produced at trial and despite of the instructions of the trial court. Witherspoon, 391 U.S. at 522, 88 S.Ct. at 1777. In accordance with the general law that allows a juror who is not impartial to be challenged for cause, a prospective juror may properly be excused for cause where his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt. Witherspoon, 391 U.S. 522, n. 21, 88 S.Ct. 1770 [1777, n. 21].” (Footnotes omitted).

The prospective juror, Mrs. Preyear, made it very clear to the trial judge that she could not sentence the appellant to death if she were convinced the appellant was guilty beyond a reasonable doubt. Certainly, it would be absurd to believe that if she were not so convinced of his guilt beyond a reasonable doubt, that she would consider fixing his punishment at death.

The appellant claims, citing Wither-spoon, supra, that a prospective juror can only be excluded from the venire “if he is irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings.”

However, it is well recognized that the exact words in Witherspoon do not have to be used when the trial judge examines the prospective jurors concerning their views on the imposition of the death penalty. Wilson v. State, supra.

Prom our review of the pertinent portion of the record, we are convinced that Mrs. Preyear unequivocably told the trial judge that she could not, under any circumstances, impose the death penalty on this appellant, and that she would automatically vote against its imposition. We conclude that the trial judge’s examination of Mrs. Preyear concerning her feelings about capital punishment was proper and that her subsequent exclusion did not offend the principles of Witherspoon.

IV

The appellant argues that the trial judge, during his determination of this sentence, improperly considered two non-statutory aggravating circumstances, and therefore, his sentence of death should not be permitted to' stand.

The trial judge in his written findings of fact cited five aggravating circumstances and one mitigating circumstance. (See Appendix A). Three of the aggravating circumstances fall clearly within the list of aggravating circumstances enumerated in § 13-11-6, Code of Alabama 1975 (the Code section in effect at the time of the appellant’s conviction) and § 13A-5-49, Code of Alabama 1975. We must now examine more closely the other two aggravating circumstances to determine if they were improperly considered.

A

The first finding that the appellant claims the trial judge should not have considered is set out below:

“(b) The Court further finds that the defendant had previously plead guilty to a felony in the state of North Carolina involving the use of violence to the person of the victim and was sentenced to five years imprisonment in the North Carolina penitentiary as a youthful offender.” (R. 308).

Clearly, a defendant’s conviction for a crime of violence can be an aggravating circumstance. Ala.Code § 13-11-6(2) (1975); Ala.Code § 13A-5-49(2) (1975). The question before us is whether the appellant’s adjudication as a youthful offender prohibits consideration of that conviction as an aggravating circumstance. Under the Alabama statute, after one is adjudged a youthful offender, any determination of guilt shall not be deemed a conviction, and thus, could not be an aggravating circumstance under § 13-11-6(2) or § 13A-5-49(2) Code of Alabama (1975). However, the appellant was not adjudicated as a youthful offender in Alabama, but in North Carolina. Therefore, the laws of that state regarding youthful offender status should here govern.

As the state correctly points out in its brief, the intent of the youthful offender statute in North Carolina is completely different from Alabama’s youthful offender statute.

In Alabama, the proceedings under the Youthful Offender Act are not criminal in nature and are used to protect persons in a specified age group, who would otherwise be tried as adults, from the harsh consequences of the criminal adjudicatory process. Raines v. State, 294 Ala. 360, 317 So.2d 559 (1975).

“The Youthful Offender Act is intended to extricate persons below twenty-one years of age from the harshness of criminal prosecution and conviction. It is designed to provide them with the benefits of an informal, confidential, rehabilitative system. A determination that one is a youthful offender (1) does not disqualify the youth from public office or public employment, (2) does not operate as a forfeiture of any right or privilege, (3) does not make him ineligible to receive any license granted by public authority, and (4) shall not be deemed a conviction of crime; and (5) the record shall not be open to public inspection except upon permission of the court. Title 15, § 266(6), Code of Alabama.”

Raines v. State, supra. See also commentary in § 15-19-1 through § 15-19-7, Code of Alabama 1975.

The purpose of North Carolina’s Youthful Offender Statute is clearly set out in § 148-49.10, N.C.Gen.Stat.:

“The purposes of this Article are to improve the chances of correction, rehabilitation and successful return to the community of youthful offenders sentenced to imprisonment by preventing, as far as practicable, their association during their terms of imprisonment with older and more experienced criminals, and by closer coordination of the activities of sentencing, training in custody, parole, and final discharge. It is the intent of this Article to provide the courts with an additional sentencing possibility to be used in the court’s discretion for correctional punishment and treatment in cases, where in the opinion of the court a youthful offender requires a period of imprisonment, but no longer than necessary for the Parole Commission to determine that the offender is suitable for a return to freedom and is ready for a period of supervised freedom as a step toward unconditional discharge and restoration of the rights of citizenship.” (Emphasis added).

In State v. Niccum, 293 N.C. 276, 238 S.E.2d 141 (1977), the Supreme Court of North Carolina stated:

“In summary, the purposes of Article 3A as stated in G.S. 148-49.1 were to improve the chances of rehabilitating youthful offenders: (1) by segregating them, as far as practicable, from older and more experienced criminals; and (2) by providing the court with ‘an additional sentencing possibility’ to be used for correctional punishment and treatment in cases where, in its opinion, a youthful offender required imprisonment only for the time necessary for the Board of Paroles to determine his suitability for a return to supervised freedom. Article 3A, ipsissimis verbis, could have no application to capital cases.
“As defined in Article 3A, ‘a “youthful offender” is a person under the age of 21 at the time of conviction, and a “committed youthful offender” is one committed to the custody of the Commissioner of Correction under the provisions of this Article.’ G.S. 148-49.2.
“Upon a youthful offender’s conviction of an offense punishable by imprisonment G.S. 148-49.4 authorized the court, ‘in lieu of the penalty of imprisonment otherwise provided by law,’ to sentence him to the custody of the Commissioner of Correction for supervision and treatment pursuant to Article 3A until discharged at the expiration of the maximum term imposed or released conditionally or unconditionally by the Board of Paroles.” (Footnote and emphasis added).

It is clear from reading the above cited statute and case that the North Carolina Youthful Offender Statute serves a different purpose than the Alabama statute. A determination of guilt of a youthful offender in North Carolina is a conviction, the same as if he had been tried and found guilty as an adult. The only preferential treatment a youthful offender receives is in the sentencing procedure. Therefore, we conclude that the North Carolina legislature, in inacting their youthful offender statute, intended an adjudication of guilt of a youthful offender to be a conviction, as the term is commonly used. Since the appellant was convicted and sentenced as a youthful offender in North Carolina, we must also consider the appellant’s determination of guilt of that offense as a conviction. The trial judge herein properly considered the appellant’s conviction under the North Carolina Youthful Offender Statute as an aggravating circumstance.

B

The second finding which the appellant contends was improperly considered as an aggravating circumstance is as follows:

“(c) The Court further finds that the defendant was previously charged in the state of North Carolina with the offense of kidnapping and rape, which said offenses were disposed of in juvenile proceedings by defendant being adjudged delinquent by reason of the charge of assault to commit rape.” (R. 309).

Clearly, rape and kidnapping are violent offenses but we cannot analyze an adjudication of guilt in a juvenile proceeding in the same manner as we did as to the appellant’s youthful offender conviction. In North Carolina, as in Alabama, juvenile proceedings are not criminal in nature and a determination of delinquency is not a conviction. Section 7A-638, N.C.Gen.Stat.; In re Drakeford, 32 N.C.App. 113, 230 S.E.2d 779 (1977). The appellant’s adjudication of guilt in the juvenile proceedings does not fall within one of the aggravating circumstances enumerated in § 13-11-6 or § 13A-5-49, Code of Alabama 1975. Thus, the question we have before us is whether the appellant’s sentence of death can constitutionally be permitted to stand when the trial judge considered an aggravating circumstance not set out in the Alabama code.

Current case law in Alabama indicates that when a trial judge relies upon an invalid aggravating circumstance, the case must be remanded to the trial court for a new sentencing hearing. See Ex Parte Bracewell, 407 So.2d 853 (Ala.1981) and Judge Bookout’s special concurrence in Bracewell v. State, 407 So.2d 848 (Ala.Cr.App.1979); Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.1979). But see Mack v. State, 375 So.2d 476 (Ala.Cr.App.1978) (wherein this court affirmed the death sentence where there was only one valid aggravating circumstance and several invalid aggravating circumstances).

The trial judge’s reliance on the non-statutory aggravating circumstance was clearly error. However, in light of two recent United States Supreme Court cases, Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) and Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983), we must now determine if the consideration of the non-statutory aggravating circumstance constituted “harmless error.”

The Barclay decision is more helpful in our analysis of this issue because the Florida death statute is so similar to Alabama’s because it also requires the jury and the trial judge to weigh both the aggravating and mitigating circumstances in order to determine whether the death penalty is the appropriate sentence in a particular case. Fla.Stat.Ann. § 921.141 (Supp.1976-1977). Furthermore, Florida law also forbids the consideration of non-statutory aggravating circumstances in the balancing process. Barclay v. Florida, supra.

In Barclay, the trial judge found several statutory aggravating circumstances but also relied on one non-statutory aggravating circumstance. The United States Supreme Court decided this was error but stated. “... [M]ere errors of state law are not the concern of this court, Gryger v. Burke, 334 U.S. 728, 731, 68 S.Ct. 1256, 1257, 92 L.Ed.2d 1683 (1948), unless they rise for some other reason to the level of a denial of rights protected by the United States constitution.” Barclay v. Florida, 103 S.Ct. at 3428. The Supreme Court analyzed this issue to see if the consideration of the non-statutory aggravating circumstance rose to the level of a constitutional violation. They concluded that it did not.

“There is no reason why the Florida Supreme Court cannot examine the balance struck by the trial judge and decide that the elimination of improperly considered aggravating circumstances could not possibly affect the balance. See n. 9, supra, ‘What is important ... is an individualized determination on the basis of the character of the individual and the circumstances of the crime.’ Zant, supra, 462 U.S. at-, 103 S.Ct. 2743-44 (emphasis in original).”

Barclay v. Florida, supra.

However, the Supreme Court warned that in some cases, the consideration of improper aggravating circumstances will not be deemed “harmless error.”

“The thrust of our decisions on capital punishment has been ‘that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.’ Zant v. Stephens, 462 U.S. 862, -, 103 S.Ct. 2733, 2741, 77 L.Ed.2d 235 (1983), quoting Gregg v. Georgia, 428 U.S. 153, 189 [96 S.Ct. 2909, 2932, 49 L.Ed.2d 859] (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.)”

Trial judges must not be allowed to rely on non-statutory aggravating circumstances that are so arbitrary and improper as to offend the Constitution. As long as the trial judge properly exercises his discretion and the facts indicating the death penalty are “so clear and convincing that virtually no reasonable person could differ,” a harmless error analysis can be used. Barclay v. Florida, supra.

The safeguard in employing a harmless error analysis is that:

“... Since, however, the trial judge must justify the imposition of a death sentence with written findings, meaningful appellate review of each such sentence is made possible, and the Supreme Court of Florida, like its Georgia counterpart, considers its function to be to ‘[guarantee] that the [aggravating and mitigating] reasons present in one case will reach a similar result to that reached under similar circumstances in another case... If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great.’ State v. Dixon, 283 So.2d 1, 10 ([Fla.] 1973). 428 U.S., at 248-251 [96 S.Ct. at 2965-66] (footnotes omitted) (emphasis supplied).”

Barclay v. Florida, supra.

The Barclay case differs from the case at bar in one important respect. In Barclay, the trial judge found no mitigating circumstances while the trial judge in this case found the appellant’s age to be a mitigating circumstance.

A case has recently been decided by the United States Eleventh Circuit, which dealt with the same situation that we have in this cause. In Witt v. Wainwright, 714 F.2d 1069 (11th Cir.1983), the trial judge relied on two statutory aggravating circumstances, two non-statutory aggravating circumstances and only one mitigating circumstance, i.e., the defendant’s age, in making his determination that the defendant should receive the death penalty. The court, in affirming the defendant’s sentence of death, relied heavily on a Florida Supreme Court case, Brown v. State, 381 So.2d 690 (Fla.1980). The Florida Supreme Court in that case stated:

“Although improper aggravating circumstances (factors enumerated 1 and 2) went into the calculus of the trial judge’s sentence decision and there was identified a mitigating circumstance (appellant’s age), nevertheless, Elledge v. State, 346 So.2d 998 (Fla.1977) does not compel a reversal of the sentence judgment in this case. This is so because unlike Elledge, here ‘we can know’ that the result of the weighing process would not have been different had the impermissible factors not been present. 346 So.2d at 1003.
“The trial judge has told us in his order that the appellant’s age, 22 years at the time of the offense and 23 years at the time of the trial, had only ‘some minor significance.’ When this tenuous factor is juxtaposed against at least two well-founded aggravating circumstances it is beyond reason to conclude that the trial judge’s decision to impose the death penalty would have been affected by the elimination of the unauthorized aggravating circumstances. This case then is dissimilar to Elledge, but like Hargrave v. State, 366 So.2d 1 (Fla. 1978), where the doubling up of aggravating circumstances was not fatal to the imposition of a death sentence even in light of the existence of two mitigating circumstances. Here, as there, ample other statutory aggravating circumstances exist to convince us that the weighing process has not been compromised.”
The conclusion of the court was that, “[gjiven the imprecision of the criteria set forth in our capital punishment statute we must test for reasoned judgment in the sentencing process rather than a mechanical tabulation to arrive at a net sum. Hargrave v. State, supra; State v. Dixon, 283 So.2d 1 (Fla.1973).”

Brown v. State, supra.

In Witt, the court distinguished another case, Goode v. Wainwright, 704 F.2d 593 (11th Cir.1983), in which it was held the “harmless error” rule did not apply.

“The case at bar differs from Goode in a subtle, yet significant manner. Unlike Goode, the instant case involves the existence of only a single and insubstantial mitigating circumstance, i.e., age.
“While there is no doubt that the sentencing judge relied heavily upon the aggravating factor which the state procedures themselves forbid in imposing the death penalty upon Witt, it is not entirely apparent that all other defendants in Florida would have been entitled to re-sentencing under these circumstances, because of the existence of only a single and insubstantial mitigating circumstance, i.e., age. Consequently, it is also not entirely apparent that the concerns expressed in Goode over arbitrary and freakish executions should be invoked in Witt’s case. See Gregg v. Georgia, 428 U.S. 153, 188-89, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976).”

Witt v. Wainwright, supra.

Furthermore, the Eleventh Circuit went on to say that, “we believe Witt’s claims are properly encompassed within Barclay’s affirmance of Florida’s procedures. Indeed, the concurrence in Barclay suggests that the reasoning of that opinion extends to the Florida Supreme Court’s handling of the Brown case. See 463 U.S. at-n. 12, 103 S.Ct. at 3432 n. 12 (Stevens, J., concurring, joined by Powell, J.).”

In light of Witt and Barclay, it is our conclusion that it is proper to apply a “harmless error” analysis to the case at bar. The trial judge only considered one improper aggravating circumstance, (the appellant’s juvenile record) and the only mitigating circumstance (the appellant’s age) was the same as was addressed by the Florida Supreme Court in Brown v. State, supra, and by the Eleventh Circuit in Witt.

Therefore, although the consideration of the non-statutory aggravating circumstance was clearly error, it was harmless error when viewed in light of the other aggravating circumstances in this case.

From our review of the trial judge’s findings of fact, even in the absence of the non-statutory aggravating circumstance, the aggravating circumstances far outweigh the single mitigating circumstance. The trial judge properly exercised his discretion in sentencing this appellant to death. Therefore, a new sentencing hearing is not required in this cause.

V

This court is required by § 13A-5-53(a) Code of Alabama, 1975 to independently review each case in which the sentence of death is imposed to determine.

“(1) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor;
“(2) Whether an independent weighing of the aggravating and mitigating circumstances at the appellate level indicates that death was the proper sentence; and
“(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”

Alabama Code § 13A-5-53(b), see also Beck v. State, 396 So.2d 645 (Ala.1980).

First, we do not believe the trial judge’s sentence was imposed under any passion or prejudice or for an arbitrary reason.

Secondly, as we stated in our previous discussion, the statutory aggravating circumstances greatly outweighed the single mitigating circumstance and we do not feel that the trial judge’s consideration of the non-statutory aggravating circumstance affected the balance to any significant degree.

Thirdly, the appellant’s sentence of death has been imposed in similar cases. See Luke v. State, 444 So.2d 393 (Ala.Cr.App.), affirmed, 444 So.2d 400 (Ala.1983); Ritter v. State, 429 So.2d 928 (Ala.1983); Womack v. State, 435 So.2d 754 (Ala.Cr.App.1982), aff’d 435 So.2d 766 (Ala.1983).

The State of Alabama’s application for rehearing is herewith granted. The judgment of reversal by this court dated October 6, 1981 is hereby set aside.

For the reasons stated above, the judgment of conviction and sentence of death are hereby affirmed.

We have carefully again examined this record and find no error therein. Application for rehearing granted. Judgment affirmed.

AFFIRMED.

All the Judges concur.

APPENDIX A

STATE OF ALABAMA vs. BRIAN KEITH BALDWIN, Defendant

IN THE CIRCUIT COURT OF MONROE COUNTY, ALABAMA CASE No. CC-77-51

The Court, having conducted a hearing pursuant to Title 15, Section 342(6) of the 1940 Code of Alabama, as amended, to determine whether or not the Court will sentence Brian Keith Baldwin to death or to life imprisonment without parole; and the Court having considered the evidence presented at the trial and at said sentence hearing; the Court makes the following findings of fact:

The Court first considers the aggravating circumstances as set out in Title 15, Section 342(8) of the 1940 Code of Alabama, as amended:

(a) The Court finds that the capital felony of robbery in the course of which the victim was intentionally killed was committed by the defendant while he was under sentence of imprisonment in the state of North Carolina but from which he had escaped.
(b) The Court further finds that the defendant had previously pled guilty to a felony in the state of North Carolina involving the use of violence to the person of the victim and was sentenced to five years imprisonment in the North Carolina penitentiary as a youthful offender.
(c) The Court further finds that the defendant was previously charged in the state of North Carolina with the offense of kidnapping and rape, which said offenses were disposed of in juvenile proceedings by defendant being adjudged delinquent by reason of the charge of assault to commit rape.
(d) The Court further finds that the capital felony was committed while the defendant was in the commission of robbery or flight after committing the said crime of robbery.
(e) The Court further finds that under the circumstances of this case as revealed by the record, the capital felony was especially heinous or atrocious or cruel.

The Court now considers mitigating circumstances as described in Title 15, Section 342(9) of the 1940 Code of Alabama, as amended.

(a) The Court finds the only mitigating circumstance to be the age of the defendant at the time of the commission of the crime, to-wit, eighteen.

The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances, it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the jury should be and is hereby accepted.

It is therefore Considered and Adjudged by the Court that Brian Keith Baldwin is guilty of the capital felony charged in the indictment, and specifically of intentionally killing Naomi Rolon during the robbery or attempt thereof of the said Naomi Rolon, deceased.

It is therefore Ordered and Adjudged that you, Brian Keith Baldwin, suffer death by electrocution at any time before the hour of sunrise on the 9th day of December, 1977, inside the walls of the William C. Holman Unit of the Prison System at Atmore, Alabama, in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution.

It is therefore further Ordered and Adjudged by the Court that the Warden of William C. Holman Unit of the Prison System at Atmore, or in case of his death, disability, or absence, his deputy, or in the event of the death, disability, or absence of both the Warden and his deputy, the person appointed by the Commissioner of Corrections, at any time before the hour of sunrise, shall on the 9th day of December, 1977, inside the walls of the William C. Holman Unit of the Prison System at At-more, in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution, cause to pass through the body of the said Brian Keith Baldwin, a current of electricity of sufficient intensity to cause his death, and the continuance and application of such current through the body of the said Brian Keith Baldwin, until the said Brian Keith Baldwin be dead. May God have mercy on your soul.

ORDERED this 9th day of September, 1977.

/s/ Robert E.L. Key Circuit Judge Thirty-fifth Judicial Circuit of Ala. State of Alabama

      . In Beck, the United States Supreme Court invalidated the preclusion clause in Alabama’s death penalty statute because the jury was for-456 So.2d — 5 bidden to consider any lesser included offenses. This clause was in effect at the time the appellant was tried and convicted.

      . Ala.Code § 15-19-7(a) (1975). There is no similar provision in the North Carolina statutes.

      . Article 3A was repealed by the North Carolina Legislature 1977 N.C.Sess.Laws, C. 732, S. 1, and has been basically reincorporated in Article 3B (which includes § 148-49.10 through § 148-49.-16, N.C.Gen.Stat.)

      . The opinion of the Eleventh Circuit in Witt is an excellent discussion and analysis of the recent cases that have dealt with the issue of the consideration of non-statutory aggravating circumstances.


source: Caselaw Access Project

author: PER CURIAM. JONES, Justice BEATTY, Justice

license: Public Domain

text:
    Ex Parte Brian Keith BALDWIN. (Re Brian Keith Baldwin v. State).
    83-276.
    Supreme Court of Alabama.
    July 13, 1984.
    Rehearing Denied Aug. 24, 1984.

      John L. Carroll, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., and William D. Little and Jean Williams Brown, Asst. Attys. Gen., for respondent.
   PER CURIAM.

Brian Keith Baldwin was indicted for, and convicted of, the capital offense of “robbery ... with the aggravated circumstance of intentionally killing the victim.” Ala.Code 1975, § 13-ll-2(a)(2) (repealed 1981, Act No. 81-178, § 20, but effective as to conduct occurring before July 1, 1981). He was sentenced to death.

The conviction was affirmed originally by the Court of Criminal Appeals in 1978, Baldwin v. State, 372 So.2d 26 (Ala.Crim.App.1978), and by this Court in 1979, Ex Parte Baldwin, 372 So.2d 32 (Ala.1979) {Baldwin I). After having granted certio-rari, the United States Supreme Court vacated the judgment and remanded the case for further consideration in light of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Baldwin v. Alabama, 448 U.S. 903, 100 S.Ct. 3043, 65 L.Ed.2d 1133 (1980). This Court remanded the case to the Court of Criminal Appeals, Baldwin v. State, 405 So.2d 699 (Ala.1981), which once again affirmed the conviction, Baldwin v. State, 456 So.2d 117 (Ala.Crim.App.1983). Baldwin’s present petition for writ of certiorari was granted as a matter of right under A.R.A.P., Rule 39(c).

The facts of this case have been set out repeatedly in the above decisions. We only briefly reiterate them. Petitioner and Edward Horsley, escapees from a North Carolina prison camp, abducted their young victim in Hudson, North Carolina. They took control of her automobile and locked her in the trunk. They then drove the car from North Carolina, through South Carolina and Georgia, to Monroe County, Alabama, where they intentionally killed her. Petitioner and Horsley had separate trials in the Circuit Court of Monroe County.

Petitioner now raises these issues:

(1) Was petitioner prejudiced at trial by the existence of the preclusion clause and, therefore, entitled to a new trial under Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)?

(2) Was the prosecutor’s remark in his opening statement, that the petitioner had escaped from a prison camp in North Carolina, reversible error?

(3) Was a prospective juror improperly excluded under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)?

(4) Are the sentencing provisions of the 1975 Death Penalty Act, under which petitioner was sentenced, unconstitutional?

(5) Was it improper to consider the petitioner’s prior youthful offender and juvenile adjudications as aggravating circumstances to support the sentence of death?

I.

Petitioner’s trial was held in 1977, before the preclusion clause of the 1975 Death Penalty Act was struck down by the United States Supreme Court in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). The only offense with which petitioner was charged, and for which he was tried, was the capital offense of robbery in which the victim is intentionally killed. In accordance with the then existing preclusion clause, contained in § 13-ll-2(a), Ala. Code 1975, the jury was not allowed to consider any lesser included offenses during its deliberations. It returned a verdict of guilty of capital murder.

Petitioner now contends that under Beck v. Alabama, supra, he is entitled to a new trial because he was prejudiced by the existence of the preclusion clause. The complete test to determine the effect of the preclusion clause on a pre-Beck trial was set out in Cook v. State, 431 So.2d 1322 (Ala.1983):

“(1) Was there any evidence presented at trial upon which a conviction of a lesser included offense could have been based?
(2) If not, has the defendant suggested any plausible claim which he might conceivably have made, had there been no preclusion clause, that is not contradicted by his own testimony at trial? If the answer to both of these questions is no, then a conviction at trial is due to be affirmed.”

Cook v. State, 431 So.2d at 1324. The first question is taken from Beck v. Alabama, supra. The second one was posed first in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).

Petitioner asserts that the answer to both questions is yes. We do not agree.

Regarding the first part of the test, petitioner contends that although the murder most probably occurred in Alabama, the great weight of the evidence shows that the robbery, if any, took place entirely within North Carolina, where he and Hors-ley took control of the victim’s car. Petitioner argues that he committed, at most, first degree murder in Alabama, and he would have been entitled to a jury charge on this offense had the preclusion clause not existed.

Alabama’s jurisdiction to try and convict petitioner for the capital offense of robbery in which the victim is intentionally killed is not dependent upon the venue of the robbery. Petitioner may be convicted of this offense regardless of where the robbery occurred. Therefore, evidence that the robbery took place in North Carolina does not entitle petitioner to a jury charge on first degree murder. We made this clear in Baldwin I when we defined this capital offense and held that Alabama had jurisdiction to convict petitioner of the crime:

“The crime of robbery when the victim is intentionally killed is a single offense beginning with the act of robbing or attempting to rob and culminating with the act of intentionally killing the victim. The offense consists of two. elements, robbing and intentionally killing, but does not consist of two separate offenses. See Ex parte Clements, 370 So.2d 723 (Ala.1979); Horsley v. State, [374 So.2d 363] (Ala.Crim.App.1978). Therefore, although the offense was commenced in North Carolina, it was not consummated until Naomi Rolon was killed in Monroe County, Alabama.
“The place where the crime was consummated is the place where the crime was committed and the place where the defendant may be tried. 21 Am.Jur.2d Criminal Law § 399, at 416. Section 15-2-4 provides:
“ ‘When the commission of an offense commenced elsewhere is consummated within the boundaries of the state of Alabama, the offender is liable to punishment in Alabama, although he was out of the state at the commission of the offense charged, if he consummated it in this state through the intervention of an innocent or guilty agent or by any other means proceeding directly from himself; and venue in such case is in the county in which the offense was consummated, unless otherwise provided by law.’
“§ 15-2-4, Code 1975.
“Accordingly, venue did lie in Monroe County and petitioner was properly tried and convicted. The decision of the Court of Criminal Appeals is affirmed.”

Baldwin I, 372 So.2d at 33, 34.

We have searched the entire record and have found no other evidence to support a verdict of guilty of a lesser included offense. Petitioner is not entitled to a new trial under Beck v. Alabama, supra, and the answer to the first question must be no.

Prior to closing arguments at trial, the trial court ruled that Alabama had jurisdiction to convict the petitioner of the capital offense, if both the robbery and the intentional killing occurred in Alabama. It also determined that the venue of the crime was a question of fact to be determined by the jury. It instructed the jury accordingly:

“I think this case really comes down to this, ladies and gentlemen. I want to put it to you in two different questions. There are two questions that this jury must answer: First, did the defendant rob Naomi Rolon in Monroe County, Alabama, as I have defined the term? Second, did the defendant intentionally kill Naomi Rolon in Monroe County, Alabama, in the course of said robbery?
“If each and every one of you are convinced beyond a reasonable doubt and to a moral certainty that the answer to each of these questions is ‘yes>’ your verdict should be guilty. If you are not so convinced, your verdict should be not guilty.”

Petitioner correctly argues that the decision in Baldwin I necessarily holds that the trial court’s charge to the jury was incorrect. However, petitioner was not prejudiced by this error. Under the court’s charge, the jury was required to find not only that the petitioner intentionally killed the victim in Monroe County, but also that he robbed her there. This charge, although erroneous, was to petitioner’s benefit, not his detriment. Petitioner argues otherwise. He contends that this charge presented to the jury the very dilemma that the United States Supreme Court hoped to eradicate by its decision in Beck v. Alabama, supra. It was concerned that a jury would convict a defendant of a capital offense, even if it had some doubt as to the existence of some element of the crime, rather than let the defendant go free. However, we find that petitioner’s case is different. Even if the jury had some doubt about the venue of the robbery, its conviction on the capital offense is supported by the evidence, because, under Baldwin I, petitioner is guilty of the offense, regardless of where the robbery took place. The effect of the incorrect jury instruction made it more difficult to convict petitioner, but it did not result in an unconstitutional conviction.

Petitioner next argues that if we affirm Baldwin I, which we have done, then his defense at trial was invalid and frivolous, and, consequently, he received ineffective assistance of counsel.

The burden of proof is upon the petitioner. The United States Supreme Court, in a very recent decision, Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), explicitly described the burden of proof with regard to this claim. First, petitioner must show that counsel’s performance was so deficient as to fall below an objective standard of reasonableness. Counsel’s conduct must be considered within the context of the facts of the particular case and as of the time of the alleged misconduct. Second, petitioner must show that counsel’s deficient performance prejudiced the defense and deprived petitioner of a fair trial. Prejudice is shown when, absent the errors, there is a reasonable probability that the jury would have had a reasonable doubt respecting guilt.

At the time of the trial, the defense asserted was not frivolous, because, if the jury had believed petitioner and found the facts to be as he contended, i.e., that the robbery occurred in North Carolina, he would have been acquitted of the charge. Therefore, under the law of the case, trial counsel’s decision to use this defense against the charge was sound. Counsel did not fail in the performance of his duty to present the best defense possible under the law. We need not consider the second factor of the test in Strickland.

Returning to the test in Cook v. State, supra, for the effect of the preclusion clause, we answer the second question of that test in the negative also. Petitioner has not suggested any plausible claim which he would have made had there been no preclusion clause. Petitioner must not only suggest a defense which he might have made, but he must also show that he did not assert the defense because of the preclusion clause. Hopper v. Evans, supra; Ritter v. Smith, 726 F.2d 1505 (11th Cir.1984), petition for cert. filed, 52 U.S. L.W. 3875 (U.S. May 15, 1984). If we did not require this last showing, petitioner conceivably could assert any defense which has now occurred to him and demand that he be given a new trial at which he may raise a new defense. This could not be what the United States Supreme Court intended in Hopper v. Evans, supra, when it formulated this part of the test. That court was concerned with the effect the preclusion clause had upon the trial, i.e., whether the “brooding omnipresence” of the preclusion clause in any way influenced the defendant’s decision on how to defend against a capital charge. The Supreme Court specifically stated that “a defendant might make a plausible claim that he would have employed different trial tactics — for example, that he would have introduced certain evidence or requested certain jury instructions — but for the preclusion clause.” (Emphasis added.) Hopper v. Evans, 456 U.S. at 612-13 n., 102 S.Ct. at 2053-54 n. This should not be construed as an invitation to all defendants tried under the 1975 Death Penalty Act to defend against the capital charge anew before the appellate courts, asserting any new defense not presented at trial, without regard to whether it was one that was considered and discarded because of the preclusion clause.

Petitioner suggested during oral argument that he might have defended by presenting evidence that at the time of the killing he was under the influence of narcotics and unable to form the specific intent to kill. There was no showing that the existence of the preclusion clause stopped petitioner from asserting this defense. There is not even an inference that this was the case. Petitioner could have made this defense at trial and have been acquitted, if it were successful. The jury was charged that specific intent was an element of the capital offense, and that it must find that specific intent in order to return a verdict of guilty. No other claims are put forth by petitioner.

We hold that petitioner was not prejudiced by the existence of the preclusion clause and that he was not entitled to an instruction on a lesser included offense. There was no evidence presented at trial which would have supported a conviction of a lesser included offense, nor has petitioner suggested any plausible claim which he would have made but for the preclusion clause.

II.

Petitioner contends that he was denied an impartial jury as guaranteed by the Sixth Amendment of the United States Constitution, because one of the prospective jurors was excluded improperly. He contends that this prospective juror was excluded solely because she would not fix punishment at death even if she “were convinced beyond a reasonable doubt of the guilt of this defendant.” He argues that Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), requires that a juror be excluded only “if [s]he is irrevocably committed, before the trial has begun, to vote against the death penalty regardless of the facts and circumstances that might emerge in the course of the proceedings.” Witherspoon v. Illinois, 391 U.S. at 522, n. 21, 88 S.Ct. at 1777, n. 21. Petitioner insists that this juror was excluded for reasons which fall below the standard set in Witherspoon.

The Court of Criminal Appeals held that this prospective juror was not excluded in violation of the principles of Witherspoon. That Court, upon review of the pertinent portion of the record, which is set out in the opinion, found that the prospective juror “unequivocally told the trial judge that she could not, under any circumstances, impose the death penalty on this appellant, and that she would automatically vote against its imposition.” Baldwin v. State, 456 So.2d 117 (Ala.Crim.App.1983). It noted that the trial court does not have to use the exact words of the United States Supreme Court in Witherspoon during examination of the jurors in order to fulfill the standards set by that decision.

We adopt the holding of the Court of Criminal Appeals and add one citation. In Ex Parte Dobard, 435 So.2d 1351 (Ala.1983), we affirmed the exclusion of a prospective juror who had a “fixed opinion against capital punishment” and who would not be able “to return a verdict sentencing someone to the electric chair if they were found guilty beyond a reasonable doubt and to a moral certainty of the crime of the charges.” Dobard, 435 So.2d at 1356. The juror’s exclusion was proper even though the exact language of Witherspoon was not used by the trial court, because it was “difficult to envision how [the] ... prospective juror could have been more explicit in expressing an unqualified opposition to the death penalty.” Dobard, 435 So.2d at 1356. Similarly, in this case, a review of the transcript of the voir dire examination of the prospective juror whose exclusion is questioned makes it unmistakably clear that this prospective juror would not vote for the death penalty under any circumstance.

For these reasons and the reasons contained in the opinion of the Court of Criminal Appeals, we hold that the prospective juror’s exclusion .was proper and that petitioner was not denied his constitutional right to an impartial jury.

III.

Petitioner next argues that the prosecutor’s remarks during his opening statement, that petitioner had escaped from a North Carolina prison camp only hours before meeting the victim and abducting her, were reversible error. The rules regarding what is permissible during opening statement are well settled:

“Erroneous insistences and prejudicial conduct on the part of district attorneys tend unduly to prejudice and bias the jury against the defendant. It is not permissible for the solicitor to make an emphatic statement that the defendant is guilty of the crime charged. Rowland v. State, 31 Ala.App. 605, 20 So.2d 881 (1945). The prosecution’s opening statement to the jury on what it expects to prove should be confined to statements based on facts admissible in evidence. Higdon v. State, 25 Ala.App. 209,143 So. 213 (1932). Counsel, however, is to be allowed considerable latitude in presenting to the jury in his opening statement what he expects the evidence to show. Rogers v. State, 49 Ala.App. 78, 268 So.2d 859 (1972). The trial judge must be given wide discretion in determining whether the making of a certain utterance by the District Attorney requires that a mistrial be granted. Ballard v. State, 51 Ala.App. 393, 286 So.2d 68 (1973).”

White v. State, 294 Ala. 265, 314 So.2d 857, 861-2 (1975); cert. denied, White v. Alabama, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975); reh. denied, 423 U.S. 1039, 96 S.Ct. 577, 46 L.Ed.2d 415 (1975).

The issue then is whether the questioned remark was based on facts admissible in evidence. The Court of Criminal Appeals properly answered this question:

“Generally, evidence of other crimes which a defendant has committed is not admissible at his trial on a particular offense. McElroy’s Alabama Evidence,
§ 69.01(1), Third Edition (1977). However, the prosecutor’s statement falls within one of the widely recognized exceptions to the general rule.
“ ‘... [I]f two or more crimes constitute one criminal transaction, evidence of the other crime or crimes is admissible. In Parsons v. State, 251 Ala. 467, 477, 38 So.2d 209, it was stated:
“ ‘ “But the rule is that if several crimes in fact constitute one criminal transaction, evidence of all such crimes may be given as part of the res gestae of the offense with which defendant is charged. Allison v. State, 1 Ala.App. 206, 55 So. 453; Askew v. State, 6 Ala.App. 41, 60 So. 455; Ingram v. State, 39 Ala. 247, 84 Am.Dec. 782.” ’
“ ‘Judge McElroy, citing numerous supporting authorities, has the following to say on the subject:
“ ‘ “Evidence of accused’s commission of another crime is admissible if such other crime is inseparably connected with, or is a ‘part of the res gestae’ of the, now-charged crime; or, if such other crime and the now-charged crime are parts of one continuous transaction or one continuous criminal occurrence ...” McElroy, Law of Evidence in Alabama, § 69.01(3).’
“Brown v. State, 338 So.2d 1050 (Ala. Crim.App.1976).
“From a review of the record, it is clear to this court that this escape commenced the series of events that eventually led to the killing of the victim herein.”

Baldwin v. State, 456 So.2d at 121 (Ala. Crim.App.1983).

Evidence of the escape is admissible under this exception, and such evidence, in fact, was admitted. Petitioner’s sworn statement, in which he told of his escape and the subsequent events, was admitted. The prosecutor was within reason at the time he delivered his opening statement to expect that such evidence would be admitted.

We do not find any abuse of discretion by the trial court in allowing the remark to be made to the jury during the prosecutor’s opening statement and, accordingly, affirm the Court of Criminal Appeals decision that there was no reversible error committed.

We hold that petitioner was not entitled to a jury instruction on a lesser included offense. We also hold that there was no reversible error committed during the trial. We have reviewed the entire record of the trial proceeding and find no error which “has or probably has adversely affected the substantial rights of the petitioner.” A.R.A.P., Rule 39(k). Accordingly, we affirm the conviction.

IV.

We now consider petitioner’s challenge to the sentencing phase of the proceedings. He contends that the sentencing provisions of the 1975 Death Penalty Act, under which he was sentenced, are unconstitutional.

The relevant provisions state:

“§ 13-ll-2(a) If the jury finds the defendant guilty [of one of the aggravated offenses listed in § 13-11-2], it shall fix the punishment at death....
“§ 13-11-3. If the jury finds the defendant guilty of one of the aggravated offenses listed in section 13-11-2 and fixes the punishment at death, the court shall thereupon hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole....
“§ 13-11-4. Notwithstanding the fixing of the punishment at death by the jury, the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment without parole, which shall be served without parole; or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death.”

These provisions have never been held to be unconstitutional by this Court or by the United States Supreme Court. Ritter v. State, 429 So.2d 928 (Ala.1983); Beck v. State, 396 So.2d 645 (Ala.1980). The Eleventh Circuit Court of Appeals, in Ritter v. Smith, 726 F.2d 1505 (11th Cir.1984), however, has held recently that these sentencing provisions are unconstitutional on their face.

Petitioner relies solely upon this Eleventh Circuit decision to support his argument that the 1975 sentencing procedure is unconstitutional. This issue was raised by Ritter on a petition for writ of habeas corpus.

The Eleventh Circuit first noted that the 1975 sentencing procedure (§ 13-11-4) provides for a mandatory death sentence by the jury. The Court held that such a death sentence “is unguided and standardless, reflects no consideration of the particular defendant or crime, and is irrelevant to the sentencing process,” Ritter v. Smith, 726 F.2d at 1516, and is, therefore, unconstitutional. The Court recognized that in Alabama the trial judge, not the jury, is the sentencing authority, and that a separate sentencing hearing is held by the trial judge after the jury returns a verdict of guilty of a capital offense. However, it found that

“the statute [§ 13-11-4] requires the judge to weigh the mandatory death sentence factor in the balance with his consideration of aggravating and mitigating circumstances in deciding to impose the death penalty. Id. Thus, the constitutionally impermissible factor of the jury’s mandatory death sentence must be given weight in the judge’s own sentencing decision.”

The Eleventh Circuit Court of Appeals concluded by holding that

“the inclusion of the constitutionally invalid factor of the jury’s mandatory death sentence in the sentencing determination, and the statutorily required influence of that invalid factor on the judge’s sentencing decision, renders the 1975 Alabama death penalty statute’s sentencing procedures facially unconstitutional.”

Ritter v. Smith, 726 F.2d at 1516-1517.

The United States Supreme Court has also considered the constitutionality of the 1975 sentencing procedure in Alabama v. Evans, 461 U.S. 230, 103 S.Ct. 1736, 75 L.Ed.2d 806 (1983). The Court vacated a stay of execution which had been granted by the district court. In doing so, it stated that “[rjespondent’s petition for writ of habeas corpus filed on April 21, 1983, [in the District Court for the Southern District of Alabama] thus seeks to litigate several issues conclusively resolved in prior proceedings [including the constitutionality of the 1975 sentencing procedure] and a claim never before raised.” Alabama v. Evans, 461 U.S. at 233, 103 S.Ct. at 1739.

A stay is issued “only if there is a substantial question to be preserved for further proceedings in the courts.” Rosenberg v. United States, 346 U.S. 273, 288, 73 S.Ct. 1152, 1160, 97 L.Ed. 1607 (1953). Therefore, in order to vacate a stay of execution, the Supreme Court must review all of the issues to determine if any of them are “substantial” and unanswered.

The Supreme Court in Alabama v. Evans, supra, did review the issue that Ritter raised and which petitioner now raises and did not find that it was a “substantial” question. Evans was executed on the same day, but after the stay was vacated. We cannot presume that the Supreme Court would have allowed the execution to take place if it had had even the slightest doubt whether Evans’s challenge to the sentencing procedure had some merit.

This Court also addressed the constitutionality of the 1975 sentencing procedure, one year before the Eleventh Circuit’s decision was handed down, in Ritter v. State, 429 So.2d 928 (Ala.1983), upon remand from the United States Supreme Court for consideration in light of Hopper v. Evans, 456 U.S. 605,102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). Ritter v. Alabama, 457 U.S. 1114, 102 S.Ct. 2921, 73 L.Ed.2d 1326 (1982). Like petitioner, Ritter was tried in 1977 under the original 1975 Death Penalty Act. He has never been retried or resentenced. We held, Ritter v. State, 429 So.2d 928, as did the Eleventh Circuit, Ritter v. Smith, 726 F.2d 1505, that Ritter was not prejudiced by the existence of the preclusion clause at the time of his trial and is not entitled to a new trial under Beck v. Ala bama, supra, or Hopper v. Evans, supra. This is also what we held in petitioner’s case. However, unlike the Eleventh Circuit, we upheld the sentencing provisions of the 1975 act. We reaffirm that holding today.

Section 13-ll-2(a) of the 1975 act mandates that “[i]f the jury finds the defendant guilty, it shall fix the punishment at death.” The jury has no discretion in sentencing. The statute also makes it clear, however, that the court, not the jury, is the sentencing authority and that the jury’s sentence of death is merely advisory.

“The requirement that the jury fix punishment of death if it finds the defendant guilty is in no way binding on the trial court in the latter’s role as the sentencing authority. Section 13-11-4 provides in pertinent part that, ‘notwithstanding the fixing of the punishment at death by the jury ...,’ the court, following the sentencing hearing and after weighing the aggravating and mitigating circumstances may sentence the defendant to either death or life imprisonment. See, Beck v. State, 396 So.2d 645 (Ala.1980). Under Alabama’s statute the trial court and not the jury is the sentencing authority. Jacobs v. State, 361 So.2d 640 (Ala.1978).”

Furthermore,

“Additionally, by providing for separate proceedings for determination of guilt and punishment, Alabama’s death penalty statute eliminates those vices enumerated in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). In Roberts, the court pointed out the constitutional weakness of a mandatory death sentence:
“ ‘The constitutional vice of mandatory death sentence statutes — lack of focus on the circumstances of the particular offense and the character and propensities of the offender —_’ (Emphasis added.)
“That point was reemphasized in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), when the Supreme Court said that capital sentencing decisions must focus ‘on the circumstances of each individual homicide and individual defendant.’ See also, Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (O’Connor, J., dissenting). This rationale is for the purpose of ‘determin[ing] independently whether the imposition of the ultimate penalty is warranted.’ Proffitt, at 428 U.S. at 253, 96 S.Ct. at 2967.
“In Ritter’s case, the trial court had a separate sentence hearing and considered, as it appears in its findings after that hearing, each and every aggravating factor in § 13-11-6 and each and every mitigating factor in § 13-11-7, as well as giving the prosecution and defense an opportunity to present any evidence, documentary or otherwise, as well as to present arguments, as envisioned under § 13-11-3.”

Ritter v. State, 429 So.2d at 935-36.

We emphasize that the trial court must conduct a separate sentencing hearing, which is independent of the guilt phase of the proceeding. Section 13-11-4 requires the court to weigh all of the aggravating circumstances against all of the mitigating circumstances, and make its sentencing determination. The court shall either sentence the defendant to death, and necessarily accept the jury’s sentence, or sentence the defendant to life imprisonment without parole, and necessarily reject the jury sentence.

We hold that the sentencing procedure under the 1975 Death Penalty Act is constitutional, even though the jury has no discretion in sentencing. The statute is saved by the fact that the court, which is the sentencing authority, considers the circumstances of the particular offense and the character and propensities of the offender, i.e., the aggravating and mitigating circumstances, in a separate and independent sentencing hearing, and then imposes the sentence.

In Beck v. State, 396 So.2d 645 (Ala.1980), we held that a defendant accused of a capital crime should thereafter receive a bifurcated trial. We were concerned that, absent the preclusion clause, a jury would refuse to convict a defendant of a capital crime proven beyond a reasonable doubt because of the enormity of the sentence and the apparently mandatory nature of the death sentence. The bifurcated trial eliminates this “risk that the jury will use its power to decide guilt to make a de facto punishment decision.” Beck v. State, 396 So.2d at 660.

However, it has never been held that all defendants sentenced under the 1975 act must be resentenced in accordance with the procedure set out in Beck v. State,, supra. The United States Supreme Court (Stewart, Powell, and Stevens, JJ.), in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), stated:

“We do not intend to suggest that only the above-described procedures would be permissible under Furman [v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346] or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Fur-man, for each distinct system must be examined on an individual basis. Rather, we have embarked upon this general exposition to make clear that it is possible to construct capital-sentencing systems capable of meeting Furman’s constitutional concerns.”

Gregg v. Georgia, 428 U.S. at 195, 96 S.Ct. at 2935.

We accordingly hold that petitioner is not entitled to be resentenced under Beck v. State, supra. The risk with which we were concerned in Beck was not present at petitioner’s trial. He was not entitled to an instruction on a lesser included offense. The jury could either acquit or convict him of the capital offense. Even though the jury was instructed to sentence him to death if it found him guilty, it convicted him. He was not prejudiced by the fact that the jury had no discretion to consider any sentence except death. True, he could have been sentenced to life without parole by the trial judge, who had that decision to make, since he was not bound by the jury’s sentence.

V.

Petitioner argues that the trial judge improperly considered two prior juvenile adjudications, rendered in the state of North Carolina, as aggravating circumstances in support of the death sentence.

The Court of Criminal Appeals addressed this issue and held that it was improper to consider one of the prior adjudications. That court found that the elimination of this one, non-statutory, aggravating circumstance did not affect the balance. It was convinced that the sentencing judge would have sentenced petitioner to death, even absent this aggravating circumstance. Having found the error to be harmless error, it affirmed the sentence of death. Baldwin v. State, 456 So.2d at 127 (Ala.Crim.App.1983).

We have studied the record and the opinion of the Court of Criminal Appeals, and we agree. We would be hard pressed to improve upon the opinion of the Court of Criminal Appeals and, therefore, we adopt that part of it which is addressed to this issue, and we affirm the sentence.

VI.

The sentence of death was not imposed in an arbitrary or capricious manner, nor was it handed down under the influence of passion or prejudice. The sentence was appropriate, as the aggravating circumstances greatly outweighed the mitigating circumstances. We take judicial notice that other defendants convicted of this offense have also received sentences of death. Most notably, Edward Horsley, petitioner’s accomplice, has been sentenced to death. Horsley v. State, [MS. November 29, 1983] (Ala.Crim.App.1983).

Accordingly, the conviction of petitioner and the sentence of death are affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, FAULKNER, ALMON, SHORES, EMBRY, and ADAMS, JJ., concur.

JONES, J., concurs in part and dissents in part.

BEATTY, J., dissents.

JONES, Justice

(concurring in part and dissenting in part).

I dissent only as to Part IV — that portion of the opinion relating to the sentencing phase of the trial. In other words, I would affirm as to all aspects of the appeal except that I would reverse the sentence and remand to the Court of Criminal Appeals with instructions to remand to the trial court for a new sentencing hearing. Consistent with the views expressed in my dissent in Ritter, with which Justices Maddox and Adams concurred (and also consistent with Justice Maddox’s special concurring opinion on rehearing, in which I, along with Justice Adams, concurred), I Relieve the restructured, bifurcated proceedings established by this Court in Beck upon remand require a new sentencing hearing. Beck v. State, 396 So.2d 645 (Ala.1980) (Beck II).

I do not reach the constitutional question addressed by Judge Johnson, writing for the 11th United States Circuit Court of Appeals in Ritter v. Smith, 726 F.2d 1505 (11th Cir.1984), holding Alabama’s pre-Beck II mandatory death sentence by the jury, in the event of a guilty verdict, constitutionally defective. These considerations are not of primary concern from the standpoint of State law, however, in light of Alabama’s statutory scheme of sentencing, as judicially modified by Beck II upon remand.

Because the trial judge is the ultimate sentencing authority, reasons the majority, the mandatory death sentence imposed by the jury is of no consequence (i.e., such procedure is not prejudicial error), where the conviction is due to stand for lack of a meritorious lesser included offense challenge.

In my opinion, this overlooks the statutory scheme (unchanged by this Court’s Beck II opinion) that gives the jury a vital role in the sentencing process. It may well be that, under the United States Supreme Court’s guidelines for administering the death penalty, the statutory scheme would meet federal constitutional muster if the jury’s role in the sentencing process had been omitted altogether (assuming, of course, that the statute prescribes an appropriate bifurcated sentencing hearing before the trial judge). But it was not omitted. Indeed, the trial judge is statutorily mandated to consider the jury’s verdict of sentence. Under pre-SecA II law, only by acquitting the defendant was the jury authorized to render any verdict other than death. In other words, Baldwin’s jury could either find him not guilty, or find him guilty and sentence him to die.

If one of the factors that the trial judge must duly consider in the exercise of his sentencing prerogative is the sentence pronounced by the jury, then, under the pre-Beck II mandatory sentencing procedure, that judicial consideration is necessarily confined to the jury’s sentence of death. It is not a matter of not trusting the trial judge to exercise his independent judgment, just the opposite. To be sure, I trust our State trial judges to follow the spirit, as well as the explicit mandate, of the statute requiring them to give due consideration to the jury’s pronouncement of sentence, and to exercise their independent judgment accordingly.

Obviously, the legislature, in retaining the jury’s role in the two-step sentencing process, intended for the trial judge, as the final sentencing authority, to have the benefit of the community’s input as expressed in the jury’s “recommendation” of sentence. That legislative will — as a due process requisite — is thwarted where the jury is legally bound to “recommend” only the death penalty.

BEATTY, Justice

(dissenting):

I adhere to my dissent expressed in Baldwin I, 372 So.2d 32 (Ala.1979).

      . Ritter v. State, 403 So.2d 155 (Ala.1981).

      . The characterization of Justice Maddox’s opinion as "concurring specially in denial of rehearing” is an obvious inadvertence and not in keeping with the content of his opinion. His opinion reinforces what I had written in dissent on original deliverance. Because three Justices (Maddox, Adams, and I) would not have reversed the conviction, we necessarily addressed the validity of the sentence issue. Because the majority was reversing and remanding for a new trial as to both the conviction and the sentence, it had no occasion to address the separate issue of whether Ritter was entitled to a new trial as to the sentencing phase only.


author: TAYLOR, Judge.

text:
    Kenneth Ray DONALD v. STATE.
    1 Div. 771.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Paul D. Brown, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   TAYLOR, Judge.

Kenneth Ray Donald was under indictment for more than one offense in the Circuit Court of Mobile County. In the offense pursuant to which he now files this coram nobis petition, he was charged with robbery. The alleged facts were that he entered a beauty supply store on Wilson Avenue in Prichard, Alabama, where he had once dated one of the employees. He forced the clerk on duty to lie down on the floor behind the cash register, pointing a knife in her face. He then took $292 from the cash register, and after he left the employee promptly called the police.

Appellant had a past history of mental problems, including a stay at Searcy Hospital. On this coram nobis proceeding, he contends that he was so heavily drugged at his original trial that he did not know what he was doing. He claims that his attorney failed to render effective assistance because she did not ask for a continuance and because she did not get him a psychiatric examination. He also contended that his attorney at the coram nobis hearing was incompetent because he did not call to the witness stand other attorneys to testify as to what standard of conduct should be applied.

I

At the full hearing given this coram nobis petition, Dr. William H. Rudder, a Mobile physician, testified that he had examined the appellant on the day of his trial and that he appeared, if anything, to be under-medicated at that time. In fact, Dr. Rudder said he imagined the appellant was “not getting nearly enough medication.” He also testified that appellant appeared to be organized, which he felt would hurt appellant’s insanity claim with the jury. In view of this contradiction by an examining physician of the appellant’s contention that he was heavily drugged, we find that the court did not err in denying his petition upon this ground. The claim of ineffective assistance by not seeking a continuance on the basis of the appellant’s being heavily drugged is likewise without merit.

II

Appellant contends that his counsel was ineffective because she did not get him another mental examination. She testified that in another pending criminal case before the same judge, the judge had just denied a motion of this appellant for a mental examination, and that she was aware of this. She testified it was therefore a futile and useless act to ask for such an examination in this case. We have to agree, and we reiterate that counsel are not expected to do useless things in order to adequately represent their clients.

Ill

Appellant contends that at his coram no-bis hearing, counsel should have called other criminal defense lawyers to testify to a standard of conduct. We find this contention incorrect.

The state asserts that petitioners are not entitled to effective assistance of counsel at error coram nobis proceedings, citing Bies v. State, 418 So.2d 940 (Ala.Crim.App.1982), and United States ex rel. Sabella v. Follette, 316 F.Supp. 452 (S.D.N.Y.1970). We held in Bies, supra, and now reiterate that a petitioner has no constitutional right to counsel in a coram nobis proceeding. Since this is true, then this petitioner could not be deprived of effective assistance of counsel by anything his counsel, retained or appointed, might have done at this hearing. See Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982); Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974).

We conclude that under either the traditional state standard of effective assistance or the federal standard as now set forth in the case of Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the appellant was afforded effective assistance of counsel. See Ex parte Baldwin, 456 So.2d 129 (Ala.1984).

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Donald C. PERRY, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1664.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Lehrman & Denker, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See State v. Benitez, 395 So.2d 514 (Fla.1981); State v. Bateman, 423 So.2d 577 (Fla. 2d DCA 1982); State v. Taylor, 411 So.2d 993 (Fla. 4th DCA 1982).


text:
    O.S.B. CONSTRUCTION, INC., a Florida corporation, Appellant, v. Phil PERRY, Appellee.
    No. 84-376.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellant.
    Sweetapple & Kamilar, Miami, for appel-lee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Whatley Equipment Co. v. Duster, 433 So.2d 539 (Fla. 3d DCA 1983).


author: WATSON, Justice.

text:
    DELTA DEVELOPMENT COMPANY, INC. v. George B. JURGENS, III, et al.
    No. 84-C-0515.
    Supreme Court of Louisiana.
    Sept. 10, 1984.
    Raymond J. Salassi, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for plaintiff-applicant.
    George B. Jurgens, III, Frank A. Tessier, Clave E. Gill, III, New Orleans, for defendant-respondent.
   WATSON, Justice.

This suit by Delta Development Company, Inc., to reform certain real estate deeds was dismissed as to all but one defendant on the basis of abandonment. LSA-C.C.P. art. 561. The court of appeal affirmed, and a writ was granted.

The issue is whether serving interrogatories on one defendant interrupted the five year prescriptive period for abandonment as to his co-defendants.

FACTS

On May 31, 1960, Delta sued the heirs of George B. Jurgens and Poydras Realty Company to reform various acts of sale in a chain of title originating with lands patented by the State of Louisiana to George Jurgens. On December 11, 1961, defendants filed an exception of prescription which was overruled on September 10, 1973. In the interim, defendants deposed Delta’s president, Robert J. Chauvin, and propounded interrogatories to Delta. On

September 2, 1975, Delta entered a preliminary default and on August 25, 1980, the plaintiff company propounded interrogatories to W. John Tessier, a defendant. On January 5, 1982, a rule to dismiss the suit was filed on behalf of the other defendants and the trial court dismissed the suit as to all defendants but William John Tessier on March 3, 1983.

LAW

Under LSA-C.C.P. art. 561, a “step” in the prosecution or defense of the lawsuit, consisting of a formal action on the record, was required in the trial court within five years of the last “step” by either party. Melancon v. Continental Casualty Company, 307 So.2d 308 (La., 1975). Filing of answers to interrogatories constitutes a step in the prosecution of a lawsuit. Chevron Oil Co. v. Traigle, 436 So.2d 530 (La., 1983). Defendants conceded that the interrogatories which were filed constituted a step in the proceedings as to W. John Tessier. The court of appeal found no interruption of the five year period as to the other defendants because the interrogatories were directed only to Tessier and the defendants were not solidary obligors.

CONCLUSION

LSA-C.C.P. art. 561 does not make the distinctions drawn by the court of appeal. When any party to a lawsuit takes formal action in the trial court, it is effective as to all parties. Melancon v. Continental Casualty Company, supra. The five year period of inaction which constitutes an abandonment was interrupted as to all the defendants by the interrogatories propounded to W. John Tessier.

For the foregoing reasons, the judgment of the court of appeal is reversed and the case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

      . At the time the trial court acted, on March 3, 1983, LSA-C.C.P. art. 561 provided in pertinent part:
      "An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order or dismissal as of the date of its abandonment.’

      . Delta Development Co., Inc. v. Jurgens, 446 So.2d 783 (La.App. 4 Cir.1984).

      . 447 So.2d 1075 (La., 1984).

      . Named were William W.A. Boden; George E.J. Boden; W. John Tessier; Nell E.L. Boden, wife of Henry C. Rudy; George B. Jurgens, III; Charles J. Tessier; George D. Tessier; Marie Louise Tessier, wife of Clave E. Gill; and Meri-dith Brock Bishop, widow of Robert A. Tessier.

      . All defendants were served except George E.J. Boden.

      . 446 So.2d 784, Footnote 2.


author: DENNIS, Justice. BLANCHE, Justice

text:
    Wilfred OWENS, Sr. v. LIBERTY MUTUAL INSURANCE COMPANY, et al.
    No. 84-C-0093.
    Supreme Court of Louisiana.
    Sept. 10, 1984.
    Rehearing Denied Oct. 4, 1984.

      Roger C. Sellers, Thompson, Sellers & Bundick, Abbeville, for applicant.
    Nan M. Landry, Landry, Watkins & Bo-nin, New Iberia, for respondents.
   DENNIS, Justice.

This is a suit for worker’s compensation following an employee’s fourth recurrence of a hernia.

Plaintiff Owens originally sustained a hernia on July 12, 1968 during the scope and course of his employment by the defendant employer. The initial hernia was corrected by surgery, with compensation benefits for disability from it paid until May of 1969. In October of 1969, the first recurrence occurred, surgery was again performed and compensation was paid through January of 1970. In November of 1971, the second recurrence occurred, the plaintiff again submitted to surgery, and compensation benefits were paid until April, 1972. The third recurrence became manifest on August 23, 1972, and the plaintiff submitted to surgery. Liberty Mutual, compensation insurer for defendant employer, however, refused to pay benefits and Owens filed suit. Following full litigation of the matter, Owens was adjudged permanently and totally disabled and in May of 1976 awarded the maximum weekly benefits provided for by law, commencing August 23, 1972.

The fourth hernia recurrence, which gives rise to the present suit, occurred on May 19, 1977 and was surgically corrected in November of 1979. Plaintiff Owens, who was still receiving compensation payments awarded after the third recurrence, did not file a claim immediately. After receiving the final compensation payment owed under the 1976 judgment, however, Owens demanded reinstatement of compensation payments, claiming that the fourth recurrence is separately compensable.

Following a trial, the district court awarded plaintiff Owens 500 weeks of total and permanent disability compensation based on his fourth hernia recurrence. Defendants appealed, and the court of appeal reversed, 442 So.2d 1357 (1983), dismissing the plaintiff’s suit with prejudice.

The worker’s compensation statute requires an employee disabled by a hernia which results from a work injury to submit to surgery, or else, if not reasonably excused, suffer as a penalty the limitation of his weekly compensation to twenty-six weeks. To protect the employee from the risk of recurrence, the statute further provides at La.R.S. 23:1221(4)(q)(iv): “Recurrence of the hernia following surgery shall be considered as a separate hernia, and the provisions and limitations of this subpara-graph shall apply.”

This case is a sequel of Owens v. Liberty Mutual Insurance Company, 307 So.2d 313 (La.1975), which concerned plaintiff Owens’ third hernia recurrence. In that case the trial court initially dismissed the plaintiff’s suit as prescribed, and the court of appeal affirmed on the ground that plaintiff had no cause of action because the recurrence did not happen while Owens was working for his initial employer. 296 So.2d 449 (La.App. 3rd Cir.1974). We reversed, holding, in effect, that the recurrence of an employee’s compensable hernia revives his cause of action for compensation based on the initial hernia, but is considered as a separate hernia for purposes of determining when the prescriptive period of compensation commences.

The rationale of this court’s interpretation of the statute, as set forth in the first Owens opinion by Mr. Justice Tate, is rooted in jurisprudential and legislative history. Under the jurisprudence, a recurrence or aggravation of a hernia initially sustained at work is regarded as compensa-ble and as resulting from an injury by accident during the scope and course of the employment, even if by the time of the recurrence the employee had left the original employment. See, e.g., Brock v. Jones & Laughlin Supply Co., 39 So.2d 904 (La. App. 1st Cir.1949). That is, the initial hernia accident at work is a legal cause of the subsequent recurrence and the disability consequent to it, even though the recurrence occurs away from the premises and while the claimant is no longer employed by the master for whom he worked at the time of the initial hernia. There was no intention by (4)(q)(iv) to change this rule. The purpose of the legislation is to protect an employee who submits to surgical correction of his work-related hernia injury by providing that, for purposes of prescription, each recurrence shall be considered as a separate hernia, and by continuing the jurisprudential rule that each recurrence revives and continues the employee’s cause of action for compensation based on his original work-related hernia. Owens v. Liberty Mutual Insurance Company, supra at 317.

Since the initial injury (hernia) is regarded as a legal cause of the recurrence, as under the former jurisprudence, the employee’s action based upon the recurrence is a revival or continuation of his cause of action based on the initial hernia. The recurrence does not establish an independent cause of action. Consequently, except for the special prescriptive rule of (4)(q)(iv), which requires that a recurrence be considered as a separate hernia for purposes of prescription, an employee’s action after the hernia recurrence is governed by the same provisions and limitations that apply to the cause of action based on the initial hernia.

Plaintiff Owens was paid the maximum amount of compensation provided by law for his compensable hernia which produced his disability to do work. For purposes of determining the maximum compensation which shall be paid because of this injury each recurrence of the hernia constituted a revival and continuation of the same cause of action and not a new and independent cause of action for compensation. Therefore, Owens cannot recover further under the cause of action based on his initial hernia and recurrences thereof. Accordingly, we conclude that the court of appeal reached the correct result and we affirm its judgment.

AFFIRMED.

BLANCHE, J., concurs and assigns reasons.

WATSON, J., dissents and would reinstate judgment of the trial court.

BLANCHE, Justice

(concurring).

The majority is correct in denying plaintiff additional compensation for his injury. However, this writer approves of the test found in Montagnino v. Allstate Insurance Company, 336 So.2d 235 (La.App. 1st Cir.1976), writs denied 339 So.2d 24 (La.1976) upon which the Court of Appeal rested its decision. The record shows that plaintiff has met none of the requirements of this test.

       “[S]ubparagraph” replaced "section” in Acts 1983, 1st Ex.Sess., No. 1 § 1. This change is inconsequential to the present case.


author: THE COURT,

text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. Roy L. PRICE, Respondent.
    No. 84-B-1218.
    Supreme Court of Louisiana.
    Sept. 19, 1984.
   ORDER

Based upon the Court’s concurrence with the opinion of the Committee on Professional Responsibility that the crimes of which Roy L. Price has been convicted constitute serious crimes, the necessary elements of which reflects upon said attorney’s moral fitness to practice law:

IT IS ORDERED BY

THE COURT,

that Roy L. Price be and is hereby suspended.

It is further ordered that the Committee institute the necessary disciplinary proceedings against Roy L. Price, seeking his disbarment or other remedy deemed appropriate, all in keeping with Article XV of the Articles of Incorporation of the Louisiana State Bar Association.

LEMMON, J., dissents from the order.


author: PER CURIAM

text:
    STATE of Louisiana, ex rel. John FULFORD v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-2162.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   PER CURIAM

GRANTED IN PART. The district attorney is ordered to answer the following portion of relator’s Claim III:

“The prosecution was under court order to give the defense all exculpatory evidence in its possession, and failed to supply critical evidence showing that Mrs. Frank Corso (victim’s wife) gave the police artist details for composite drawing of only one alleged burglary perpetrator shortly after the crime showing that she could identify only one man. Mrs. Corso told the police artist that one perpetrator was 5' 8", white, and had long hair. Mrs. Corso told the police artist that only two white men committed the crime, but that they were wearing ski masks and that she could only identify the one who was shot by her husband who removed his ski mask inside the house before fleeing. Mrs. Corso described the second perpetrator as being 5' 5" or 5' 6", white, 130 pounds and wearing a mask when she saw him inside the house. This petitioner is 6' 6", 240 pounds, and white. During the course of trial Mrs. Corso told the jury that she saw petitioner, Peter Mule’, and Kirksey Nix outside her back door and that they kicked in the door and then got into a gun battle with her husband and caused his death, and that they were not wearing any masks whatsoever. The prosecutor’s failure to disclose this evidence resulted in substantial prejudice to petitioner’s defense as it would have changed the jury’s verdict.”

Additionally, the trial court is ordered to conduct an inspection of the district attorney’s file, particularly police report Item # D070801, and of Mrs. Corso’s trial testimony (and, if additionally necessary, thereafter to conduct an evidentiary hearing) to determine the merits of relator’s claim.

Otherwise, the writ is denied.


text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. Haley M. CARTER, Respondent.
    No. 83-B-0328.
    Supreme Court of Louisiana.
    Sept. 20, 1984.
   ORDER

Considering the petition of Respondent, Haley M. Carter, and the recommendations of the Committee on Professional Responsibility of the Louisiana State Bar Association:

IT IS ORDERED that Haley M. Carter be suspended from the practice of law on the ground of medical incapacity and disability until the further order of this Court.

IT IS FURTHER ORDERED that all pending disciplinary proceedings against Haley M. Carter be held in suspense.


text:
    Roger P. AIPLE v. Bruce NACCARI and Raoul Galan.
    No. 84-C-1507.
    Supreme Court of Louisiana.
    Aug. 9, 1984.
   In re Aiple, Roger P., applying for writ of certiorari, to the Court of Appeal, Fifth Circuit, No. 84-CA-403; Parish of Jefferson, 24th Judicial District Court, Div. “0”, No. 298-755.

Prior report: 454 So.2d 894.

Denied.


text:
    Theo GUIDRY, Jr. v. Rachell Lynn Malhiot GUIDRY.
    No. 84-CC-1527.
    Supreme Court of Louisiana.
    Aug. 29, 1984.
   In re Rachell Lynn Malhiot, applying for reconsideration of writ denied on August 15, 1984, 454 So.2d 126; Parish of Calca-sieu 14th JDC, No. 81-3512; Court of Appeal, Third Circuit, No. 84-736.

Granted. The trial court is ordered to conduct an adversary hearing on or before September 5, 1984 and to render a judgment without delay.


text:
    Clifton HEBERT v. CELOTEX CORPORATION.
    No. 84-C-1120.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Clifton Hebert, applying for writ of certiorari to the Fifth Circuit Court of Appeal, No. 83-CA-821; Parish of Jefferson, 24th Judicial District Court, No. 268-454, Division F.

Granted. The Court of Appeal and District Court judgments are amended. The plaintiffs suit is dismissed, reserving to plaintiff the right to file another compensation claim if and when he becomes disabled as the result of an occupational disease, and reserving the defendant’s right to assert a plea of preemption as well as other exceptions or pleas to any suit which may be hereafter brought by plaintiff. See LaCoste v. J. Ray McDermott & Co., 250 La. 43, 193 So.2d 779 (1967).


text:
    STATE of Louisiana, ex rel., Michael A. CHAPMAN v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-1839.
    Supreme Court of Louisiana.
    Sept. 14, 1984.
   In re Michael A. Chapman, applying for writ of habeas corpus, Parish of Orleans, No. 281-252.

Granted. The District Court is ordered to conduct a hearing on relator’s habeas application.