text:
    Walter HILL v. STATE.
    6 Div. 269.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.

      Jackie McDougal, and Robert C. Boyce, III, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for appellee.
   ON REHEARING

BOWEN, Presiding Judge.

In view of the sentence imposed in this case, we withdraw our opinion on original submission which did not specifically treat each and every issue Hill raised on this appeal. The opinion which follows addresses all the issues raised on appeal and becomes the opinion of the Court.

Walter Hill, the appellant, was indicted for the capital murder of Lois Gene Tatum, Willie Mae Hammock, and John Tatum, Jr. Alabama Code Section 13-ll-2(a)(10) (1975). A jury found him guilty of “murder in the first degree with aggravating circumstances as charged in ... the indictment” and fixed punishment at death. At a separate sentencing hearing, a circuit judge accepted the jury’s recommendation and sentenced Hill to death.

This appeal involves Hill’s second conviction for the same capital offense. His first conviction was reversed in Hill v. State, 371 So.2d 64 (Ala.Cr.App.1979). His second conviction was reversed in Hill v. State, 407 So.2d 567 (Ala.Cr.App.), cert. denied, 407 So.2d 567 (Ala.1981), on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Ritter v. State, 403 So.2d 154 (Ala.1981). That cause was then vacated and remanded by the United States Supreme Court for further consideration in light of Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). Alabama v. Hill, 457 U.S. 1114, 102 S.Ct. 2920, 73 L.Ed.2d 1325 (1982).

The indictment averred that Hill “unlawfully and with malice aforethought, killed Lois Gene Tatum, Willie Mae Hammock, and John Tatum, Jr., by shooting them with a pistol.” The indictment did not aver in the statutory language the aggravating circumstance that the persons were intentionally killed “by one or a series of acts.”

A capital offense “requires an intentional killing with aggravation.” Beck v. State, 396 So.2d 645, 662 (Ala.1980). This is stressed in Alabama Code Section 13-11-1 (1975) which states: “In all cases where no aggravated circumstances enumerated in section 13-11-2 are expressly averred in the indictment, the trial shall proceed as now provided by law, except that the death penalty or life imprisonment without parole shall not be given.” Section 13-ll-2(a) specifically provides that the aggravation “must also be averred in the indictment.”

“In Alabama, by statute, the aggravating circumstance must be alleged in the indictment where the death penalty is sought. The aggravating circumstances must be set forth in the indictment because the state is required to give the accused notice that a greater penalty is sought to be inflicted than for a first offense. It is fundamental that the accused must be advised and informed of the nature and extent of the offense with which he is charged.
“Under the Death Penalty Statute, the aggravating circumstance is a statutory element of the crime. Without it, one could not be charged and convicted for ‘capital murder’.”
Wilson v. State, 371 So.2d 932, 940 (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 1135] (1980), reversed on other grounds, 405 So.2d 696 (Ala.Cr.App.1981) (citations omitted).

We find that the necessary aggravating circumstance (“by one or a series of acts”) is inherently present in the fact that multiple murders are charged in the same count of the indictment. It is clear to this Court that the purpose and intent of Section l'3-ll-2(a)(10) is to create a capital offense when multiple murders are committed by one defendant. The fact that the murders are averred in the conjunctive dictates that they occurred at the same time or so near to each other as to constitute the same offense. Burgess v. State, 44 Ala. 190 (1870). Additionally, we note that the fact that there are multiple murders constitutes the aggravating circumstance. We can conceive of no circumstances by which three people can be murdered without the murders being “committed by one or a series of acts.”

Hill cannot complain that he had no notice that the death penalty was sought. See Ex parte Tomlin, 443 So.2d 59 (Ala.1983). Hill’s original conviction for capital murder was reversed in Hill v. State, 371 So.2d 64 (Ala.Cr.App.1979), on authority of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). On retrial, Hill was again convicted of capital murder and sentenced to death. However, that conviction was reversed on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Hill v. State, 407 So.2d 567 (Ala.Cr.App.1981). See also Alabama v. Hill, 457 U.S. 1114, 102 S.Ct. 2920, 73 L.Ed.2d 1325 (1982). The very indictment which is now argued to be void has been subject to judicial scrutiny for six years. It has been the basis for two trials, two appeals, and one appeal. before the United States Supreme Court. The purpose of the indictment has been fulfilled — Hill knew the nature of the charge and the evidence presented by the State supports that charge.

To award Hill a new trial at which he unquestionably will, once again, be found guilty is not only fundamentally unfair but also inherently unsound when judged by the standards of common sense and reason. To grant a new trial on the basis argued by Hill would be to apply highly technical, formalistic rules of law that have absolutely no relation to the individual rights of anyone.

II

Hill was prosecuted under Alabama’s Death Penalty Act (Alabama Code Sections 13-11-1 through 9), which was condemned in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) because it contained a preclusion clause which provided that a capital offense, under that act, did not include any lesser offenses. Section 13-ll-2(a). Our Supreme Court severed the preclusion clause from this Death Penalty Act in Beck v. State, 396 So.2d 645 (Ala.1980) and affirmed the constitutionality of the act after changing the rules of procedure to be followed in capital cases to comport with constitutional requirements.

The issue here is whether Hill has the right to a new trial or sentencing procedure because of the presence of the preclusion clause in the statute at the time of his trial and conviction.

The arguments advanced by Hill have been considered in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982); Ritter v. State, 429 So.2d 928 (Ala.1983), and most recently in Tomlin v. State, 443 So.2d 59 (Ala.1983), wherein our Supreme Court held: “A defendant convicted under Section 13-11-2 of the 1975 statute is entitled to a new trial because of the preclusion clause in the statute if there was evidence introduced at trial which would have warranted a jury instruction on a lesser included offense or if the defendant suggests any plausible claim not contradicted by his own testimony which he might conceivably have made which would have entitled him to a jury instruction on a lesser included offense. Cook v. State, 431 So.2d 1322, 1324 (Ala.1983).” Both Tomlin and Cook stand for the proposition that, when a defendant testifies that he was in a distant location when the crime was committed, his own testimony directly contradicts any evidence he might have introduced to show that he was guilty of a lesser included offense.

Hill argues that he did not present an alibi defense because, although he admitted being on the premises when the crime occurred, “it is obvious from the testimony that the Defendant had at least some knowledge of what was occurring.” (Appellant’s Supplemental Brief, p. 6).

Hill did not have to present evidence or testify that he was in an adjoining county or a distant place in order to establish a defense of alibi. In this case, his trial testimony that he merely drove his automobile to the residence where the killings had either just or recently occurred, that he did not go inside the residence, that his pistol was missing, and that he did not kill “those three people” was sufficient, if believed by the jury, to establish an alibi defense.

An alibi is “a traverse of the material averment in the indictment that the defendant did, or participated in, the particular act charged.” Allbritton v. State, 94 Ala. 76, 10 So. 426 (1892). “(T)he essence of alibi is the impossibility of the defendant’s guilt based on his physical absence from the locus of the crime.” Roper v. United States, 403 F.2d 796, 798 (5th Cir.1968). Our review of the record convinces us that the evidence in this case simply would not have supported a lesser included offense under any analysis.

Hill has not suggested “any plausible claim not contradicted by his own testimony which he might conceivably have made which would have entitled him to a jury instruction on a lesser included offense.” Tomlin, supra (emphasis added). His suggestions of prejudice are the speculative and theoretical type rejected in Evans, Tomlin, Cook, and Ritter. Consequently, we find that the presence of the preclusion clause in the statutory scheme under which Hill was convicted did not prejudice him and does not entitle him to either a new trial or sentencing hearing.

Ill

The trial judge properly dismissed counts one (charging the murder of Lois Gene Tatum), two (the murder of Willie Mae Hammock), and three (the murder of John Tatum, Jr.) of the indictment and permitted Hill to be tried under count four only (charging the murder of all three victims). Hill objects because the dismissal of the three counts occurred after the jury had been struck.

Wooster v. State, 55 Ala. 217, 220 (1876), held: “It was the right of the solicitor, certainly at any time before the trial was commenced, ... with the consent of the court, to enter a nol. pros, as to either count in the indictment.” Contrary to Hill’s interpretation, Wooster does not limit the dismissal or nolle prosequi of a count in an indictment to only the time before trial. The Alabama Supreme Court has also held that a defendant may not complain of the entry of a nolle prosequi as to one count of the indictment after the evidence was closed. Barnett v. State, 54 Ala. 579 (1875). In Morrison v. State, 398 So.2d 730, 740 (Ala.Cr.App.1979), reversed on other grounds, Ex parte Morrison, 398 So.2d 751 (Ala.1981), this Court approved of the nolle prosequi of one count of a two-count indictment made prior to the prosecutor’s opening statement and over the objection of defense counsel. See also 22A C.J.S. Criminal Law, Section 457(b) (1961).

IV

The former testimony of Jack P. Helton, the Deputy Coroner, given at Hill’s previous trial was admissible because of Helton’s death between the first and second trial. C. Gamble, McElroy’s Alabama Evidence, Section 245.07 (3rd ed. 1977). Hill now argues that portions of the coroner’s testimony were inadmissible because they contained “leading and suggestive” questions or because answers were unresponsive or constituted an “illegal opinion”.

The trial judge properly allowed defense counsel to make his objections despite the fact that such objections were not advanced when the witness testified at the former trial. See Louisville & Nashville R.R. v. Scott, 232 Ala. 284, 167 So. 572 (1935). These objections were also properly overruled. The record shows that Deputy Coroner Helton was properly qualified as an expert and properly allowed to state his opinion on the cause of death. See McDaniel v. State, 56 Ala.App. 591, 324 So.2d 305, cert. denied, 295 Ala. 410, 324 So.2d 311 (1975). We find that his former testimony was properly admitted.

V

A pistol was properly admitted into evidence over the objection that there was no proper proof of its chain of custody. Sexton v. State, 346 So.2d 1177, 1180 (Ala.Cr.App.), cert. denied, 346 So.2d 1180 (Ala.1977). Hill’s argument that certain bullet fragments were not properly identified or authenticated is also without merit.

Hill’s contention that his motion to exclude the State’s evidence is premised on the arguments that the pistol and bullet fragments were improperly admitted into evidence. As those contentions are without merit, so also is this one.

VI

On cross examination of Hill, the prosecutor inquired whether or not Hill had talked to the police upon his return to Alabama (“When you were brought back to Alabama did you tell the police this?”). The question was not answered. The trial judge sustained defense counsel’s objection and instructed the jury to disregard any comment on the post-arrest silence of the accused. Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), held that when the accused’s post-arrest silence precedes Miranda warnings, the prosecutor may impeach a defendant with his silence without violating due process. We do not consider the question to constitute ineradicable error and indulge the prima facie presumption against error where the trial court immediately charges the jury to disregard improper remarks. Kelley v. State, 405 So.2d 728, 729 (Ala.Cr.App.), cert. denied, 405 So.2d 731 (Ala.1981). Moreover, the question was not answered and was therefore harmless. Borden v. State, 371 So.2d 82 (Ala.Cr.App.1979); Jones v. State, 356 So.2d 728, cert. denied, 356 So.2d 735 (Ala.1978).

VII

Under Alabama Code Section 13-ll-2(a)(10) (1975) the exact language of the death penalty statute under which Hill was charged is that “two or more human beings are intentionally killed by the defendant by one or a series of acts.” (Emphasis added.) In his oral instructions to the jury the trial judge charged “by one or more acts.” Hill argues that the use of the word “more” instead of “series” misled the jury and constituted error.

While the judge’s charge is incorrect, it does not constitute reversible error in this particular case. All the evidence indicates that each victim was murdered by a gunshot wound to the brain in a sequence of related events. We find no confusion or prejudice resulting from the trial judge’s charge.

VIII

Circuit Judge Harry E. Pickens was the trial judge. He held a sentencing hearing at the conclusion of which he announced he was sentencing Hill to death. However, Judge Pickens died before he signed the written order sentencing Hill to death.

A new sentencing hearing was held before Circuit Judge Gardner F. Goodwyn, Jr., who sentenced Hill to death. Hill argues that this constitutes “a constitutionally impermissible capital sentencing procedure.” We disagree. In Berard v. State, 402 So.2d 1044, 1051 (AIa.Cr.App.1980), this Court, in a capital case also involving the intentional killing of two or more human beings, remanded the cause for a new sentencing hearing and directed: “As the trial judge who conducted the original hearing is no longer holding that office, the hearing must necessarily be conducted by another circuit judge.” This is in accord with the general rule that it is not error for a judge other than the one who tried the accused to pronounce judgment and sentence. Annot. 83 A.L.R.2d 1032 (1962). Here, Judge Goodwyn noted in his written findings that he “personally read and reviewed the official transcript of the record of evidence and trial which was held before Judge Pickens.” At the sentencing hearing before Judge Goodwyn, defense counsel, in arguing for a sentence of life without parole, stated: “I know the court has thoroughly reviewed the trial transcript of the witnesses.” We find no ground for Hill to complain.

IX

Although the statute under which Hill was indicted and convicted is of pre-Beck v. State, 396 So.2d 645 (Ala.1980), origin, it has sufficient constitutional validity to support a conviction in certain cases. Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), and Ritter v. State, 429 So.2d 928 (Ala.1983). Its application is constitutionally permissible here, as we determined in Issue II.

X

Although the statute under which Hill was convicted predates Beck v. State, 396 So.2d 645 (Ala.1980), and Alabama Code Section 13A-5-53 (1975), we make the following determinations in compliance with those authorities in affirming the imposition of the death penalty in this particular case.

In accordance with Beck, we make the following determinations: (1) Hill was convicted under Alabama Code Section 13-ll-2(a)(10) (1975) for “(m)urder in the first degree wherein two or more human beings are intentionally killed by the defendant by one or a series of acts.” That offense is in fact one properly punishable by death. (2) Similar crimes throughout this state are being punished capitally. Berard v. State, 402 So.2d 1044 (Ala.Crim.App.1980); Ex parte Kyzer, 399 So.2d 330 (Ala.1981); Crawford v. State, 377 So.2d 145 (Ala.Cr.App.), affirmed, Ex parte Crawford, 377 So.2d 159 (Ala.1979), vacated on other grounds, 448 U.S. 904, 100 S.Ct. 3044, 65 L.Ed.2d 1134 (1980). (3) Our independent weighing of the aggravating and mitigating circumstances convinces us that the sentence of death is appropriate in relation to this particular defendant.

In compliance with Alabama Code Section 13A-5-53(c) (1975), we make the following determinations: (1) The sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor (Section 13A-5-53(b)(l)). (2) As we indicated in number (3) above, our independent weighing of the aggravating and mitigating circumstances indicates that death was the proper sentence (Section 13A-5-53(b)(2)). In arguing for a sentence of life imprisonment without parole, defense counsel argued that despite Hill’s two prior murder convictions, Hill was not “a cold-blooded killer.” We find such an assertion contrary to the evidence presented and in support of our finding attach at the end of this opinion the circuit judge’s findings of fact in imposing the death sentence. (3) Finally, we conclude that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant (Section 13A-5-53(b)(3)).

In reviewing this appeal, we have searched the entire record for error and found no error adversely affecting Hill’s rights. In our opinion, he received a fair and impartial trial and sentencing hearing. We find that the trial judge’s findings concerning aggravating and mitigating circumstances are supported by the evidence.

The judgment of the circuit court is affirmed.

ORIGINAL OPINION WITHDRAWN;

APPLICATION FOR REHEARING OVERRULED;

JUDGMENT AFFIRMED.

All Judges concur.

APPENDIX

State of Alabama, Plaintiff vs. Walter Hill, Defendant

IN THE CIRCUIT COURT TENTH JUDICIAL CIRCUIT OF ALABAMA, JEFFERSON COUNTY, BESSEMER DIVISION

Case No. CC 77-249

On this the 22 day of Feb., 1980, the defendant being in open court with his counsel, the Honorable Robert C. Boyce, III, and Jackie McDougal, the Court makes and files the following Findings of Fact as required by the 1975 Code of Alabama, Section 13-11-3, et sequa.

FINDINGS OF FACT UNDER THE ALABAMA CODE of 1975, SECTION 13-11-3 et sequa

In accordance with the 1975 Code of Alabama, Section 13-11-3, et sequa, the Court held a hearing on February 19, 1980.

At that hearing the defendant was present with his counsel, the Honorable Robert C. Boyce, III.

The State was represented by Special Assistant Attorney General, Tony McLain.

The trial of this defendant took place on August 21, 1979, and was presided over by the Honorable Judge Harry Pickens. A Findings of Fact hearing under the Alabama Code of 1975, Section 13-11-3 was held on September 14, 1979, Judge Pickens presiding. Judge Pickens died on September 18, 1979, having not signed the Order emanating from the hearing on September 14, 1979.

The Court, Judge Gardner F. Goodwyn, Jr. presiding, on January 8, 1980 heard the defendant’s Motion For New Trial. The Court at this time determined that a new Findings of Fact Hearing under Section 13-11-3 of the Alabama Code of 1975 would have to be held before the judge presently presiding.

Prior to the Findings of Fact Hearing on February 19, 1980, the Court personally read and reviewed the official transcript of the record of evidence and trial which was held before Judge Pickens, said official transcript of the record having been properly identified and introduced into evidence before the presently presiding judge, and of which record the Court takes judicial knowledge.

On that hearing on February 19, 1980, both the State and the defendant were afforded an opportunity to present any evidence they wished to present, relevant to sentence, including evidence of any aggravating or mitigating circumstances.

In keeping with the requirements of the 1975 Code of Alabama, Section 13-11-4, et sequa, the Court finds from the evidence presented at the trial and at the sentence hearing as follows:

The defendant, Walter Hill, was about 45 years old on January 7, 1977. The defendant was at the home of Willie Mae Hammock, John and Lois Tatum and Robert and Toni Hammock. Some time after 4:30 on the evening of the 7th, Walter Hill asked Willie Mae Hammock if he could marry Toni. Willie Mae said, “No,” and then went to a clothes closet in the front bedroom. Walter Hill followed her to the closet and shot her in the back of the head. Walter Hill then went to the dining room and shot John Tatum, Lois Tatum’s retarded brother, in the back of the head twice. Then the defendant chased Lois Tatum through the house catching her and shooting her in the back of the head.

Thereupon, the defendant told Toni to get her clothes, and leaving 814 Mulga Avenue they proceeded to Atlanta, Georgia, where defendant kidnapped a man, telling him he had killed three people and would kill anyone that got in his way.

Thereupon, on January 9, 1977, the defendant was apprehended in Williamston, North Carolina, having in his possession a .32 caliber pistol that was proved to be the murder weapon.

The weight of the evidence showed beyond a reasonable doubt and to a moral certainty the defendant’s guilt of the charged capital felony.

The capital felony of which the defendant was convicted was especially heinous, atrocious and cruel under the 1975 Code of Alabama, Section 13-11-6(8). The Court finds that the defendant, during his commission of the charged capital felony, heartlessly and methodically executed three defenseless persons, one of which was retarded.

The Court further finds the following aggravating circumstances under the 1975 Code of Alabama, Section 13-11-6(2). The Court finds that the defendant was previously convicted of felonies involving the use of threat of violence to the person, to wit: In 1952 the defendant was adjudged guilty of murder in the 2nd degree and sentenced to ten years in the state penitentiary. According to the defendant’s testimony he was released from prison in 1961. Defendant thereupon enlisted in the Jamaican Army. The defendant received a dishonorable discharge after nine months; and on September 7, 1962, the defendant was adjudged guilty in Federal Court of a violation of the Dyer Act and sentenced to five years and at the same time was adjudged guilty of kidnapping and sentenced to twenty years to run consecutively. On the 28th of June, 1967, the defendant was adjudged guilty of murdering a fellow-convict on a government reservation and in accordance with State’s Exhibit One, a certified copy of this judgment, was sentenced to five years to commence to run from the expiration of the sentences he was at that time serving.

The defendant was paroled in 1975 and on January 7, 1977, committed the series of acts wherein he killed Willie Mae Hammock, Lois Tatum and John Tatum. Accordingly, the Court finds that under the 1975 Code of Alabama, Section 13-11-6(3), the defendant knowingly created a great risk of death to many persons.

The Court finds there are no mitigating circumstances of a kind enumerated in the 1975 Code of Alabama, Section 13-11-7.

The Court, having considered all the circumstances, accepts the death penalty as fixed by the jury.

Done this the 22 day of Feb., 1980.

/s/ G.F. Goodwyn, Jr.

G.F. Goodwyn, Jr., Judge

And now on this the 22 day of Feb., 1980, the defendant, Walter Hill, being in open court with his counsel, the Honorable Robert C. Boyce, III, and having been convicted by a jury of Capital Felony and his punishment fixed by said Jury at Death, the defendant, Walter Hill, being asked by the Court if he had anything to say why the Judgment of the Court and the sentence of the law should not now be pronounced upon him says, I am not Guilty.

It is, therefore, considered by the Court and it is the judgment of the Court that the defendant, Walter Hill, is guilty of Capital Felony in accordance with the verdict of the Jury in this cause and it is the judgment of the Court and the sentence of the law that the said Walter Hill suffer death by electrocution on the 23rd day of May, 1980, and the Sheriff of Jefferson County, Alabama, be and he hereby is directed to deliver the defendant, the said Walter Hill, to the custody of the Director of the Department of Corrections and Institutions at Montgomery, Alabama, and the designated executioner shall, at the proper place for the execution of one sentenced to suffer death by electrocution, cause a current of electricity of sufficient intensity to cause death, and the application and continuance of such current, to pass through the body of said Walter Hill, until said Walter Hill is dead.

Done and ordered the 22 day of Feb., 1980.

/s/ G.F. Goodwyn, Jr.

G.F. Goodwyn, Jr., Judge

22 Feb. 1980: The defendant is hereby declared to be indigent, a free transcript is ordered, and the Honorables Jackie McDou-gal and Robert C. Boyce, III, are appointed to represent defendant on appeal.

/s/ G.F. Goodwyn, Jr.

G.F. Goodwyn, Jr., Judge


source: Caselaw Access Project

author: BEATTY, JUSTICE.

license: Public Domain

text:
    Ex parte Walter HILL. (Re Walter Hill v. State)
    Case Number: 83-519.
    Supreme Court of Alabama.
    July 6, 1984.
    Rehearing Denied Aug. 24, 1984.

      Jackie McDougal, Bessemer, and Robert C. Boyce III of Furner, Boyce & Nave, Homewood, for petitioner.
    Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for respondent.
   BEATTY, JUSTICE.

Having considered the record, together with the briefs and arguments of counsel, this Court has concluded that the judgment of the Court of Criminal Appeals must be affirmed. It is so ordered. .

AFFIRMED.

All the Justices concur, except TOR-BERT, C.J., who did not sit.


author: TAYLOR, Judge.

text:
    Marrick L. GARNER v. STATE.
    8 Div. 12.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied Aug. 31, 1984. Alabama Supreme Court 83-814.
    William P. Burgess, Jr., Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Callen Sparrow, Asst. Atty. Gen., for appel-lee.
   TAYLOR, Judge.

Appellant Marrick L. Garner appeals his guilty plea conviction of rape in the second degree by presenting one issue: he contends that there was an inadequate factual basis to sustain the acceptance of his guilty plea by the court.

It appears that appellant was 23 years old and the victim 15 years old when the alleged offense occurred. The colloquy at the sentencing proceeded along these lines:

“THE COURT: You are charged with rape in the first degree, and the State is moving to amend that to rape in the second degree. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Do you consent to the amendment?
“THE DEFENDANT: On second degree? Yes, sir.
“THE COURT: Do you want the indictment read to you?
“THE DEFENDANT: No, sir.
“THE COURT: Do you understand the charge against you?
“THE DEFENDANT: Yes, sir.
“THE COURT: To the charge of rape in the second degree how do you plead?
“THE DEFENDANT: Guilty.
“THE COURT: Is that because you m fact did the offense designated in the indictment? Raped the person, or is there some other reason?
“THE DEFENDANT: Just because I had sex, I did not rape her.
“THE COURT: Then I cannot accept your plea....”

The court then recessed, and later the same day the following took place:

“THE COURT: Mr. Garner, I informed you that I would not accept your plea to rape in the second degree. I have reviewed the statute and the elements that are necessary to the offense in this case. It is my understanding that you are admitting to having had sex with the alleged victim in this case, is that correct?
“THE DEFENDANT: Yes, sir.”

The offense in this case had been reduced to rape in the second degree, the old “statutory rape” in which the consent of the underage victim is not a defense. Therefore, an admission by the appellant that he “had sex” with the underage female is an entirely sufficient basis upon which to accept a guilty plea.

Appellant’s argument that the phrase “having sex” is ambiguous and indefinite is without merit. We can think of no set of circumstances where the words “having sex” would not have the same meaning as the words “having sexual intercourse.” To find otherwise would be to ignore the common understanding and usage of the language.

We note further that nothing is more common than to hear an accused person who is pleading guilty begin to equivocate about the facts of the case. Human nature and the instinct for self-preservation causes accused persons to shade or mitigate in some fashion the facts surrounding the offense to which they are pleading guilty. It should not be expected that an accused, in pleading guilty, will answer, “Yes, I did the crime,” or “Yes, I raped her.”

The only factual basis required for a guilty plea is that which will satisfy the court that the appellant knows what he is pleading guilty to, and we find that requirement was met in this case.

Finding no error on the part of the trial court, we affirm.

AFFIRMED.

All the Judges concur.


author: TORBERT, Chief Justice. FAULKNER, Justice

text:
    Ex parte Marrick L. GARNER. (In re Marrick L. Garner v. State of Alabama).
    83-814.
    Supreme Court of Alabama.
    Aug. 31, 1984.
    William P. Burgess, Jr., Huntsville, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   TORBERT, Chief Justice.

WRIT DENIED.

MADDOX, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

FAULKNER, J., dissents.

FAULKNER, Justice

(dissenting).

I would grant the writ.


author: HARRIS, Judge.

text:
    Joseph Roy LaBARBER, alias v. STATE.
    3 Div. 820.
    Court of Criminal Appeals of Alabama.
    April 10, 1984.
    Rehearing Denied July 17, 1984.
    Certiorari Denied Sept. 21, 1984 Alabama Supreme Court 83-1214.
    Edward W. Drinkard, of Drinkard & Drinkard, Prattville, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

The Autauga County Grand Jury, during its Fall, 1981, Term, indicted appellant, Joseph Roy LaBarber, alias, Joseph Lee Collins, for illegal possession of marijuana, valium and quaaludes. On April 21, 1983, he was found guilty as charged in the indictment and was sentenced to fifteen years’ imprisonment as a habitual felony offender.

From April 8, 1980, through May 2, 1980, appellant occupied room 246 at the Ramada Inn in Prattville, Alabama. On May 2, 1980, on the basis of information supplied by a confidential informant, a search warrant was issued authorizing a search of appellant’s motel room. Two police officers executed the warrant at 3:36 p.m. that same day. The officers found men’s clothing in the dresser drawers, and in other parts of the room, toilet articles and a picture of appellant. They also discovered and confiscated a piece of tin foil containing a partially crushed yellow pill from the night stand next to the bed, two clear plastic bags containing plant material and seventy-three white tablets from a dresser drawer. Subsequent laboratory analyses revealed that the items seized contained valium, marijuana and quaaludes — all controlled substances.

Appellant was employed as a bartender at a lounge two or three miles from the motel where he was living. After the search and seizure of the contraband the officers went to the lounge and arrested the appellant.

Barbara Hollen, desk clerk at the Ramada Inn, testified that Robert Chambliss, appellant’s employer, was authorized to use the key to room 246 and had on occasion done so, though she did not remember Chambliss visiting in the room within the twenty-four hour period preceding appellant’s arrest. She stated that appellant had visitors, whom she described as young adults, in and out of his room at various times.

This concluded the State’s evidence.

Thomas Jackson testified for the defense that on the morning of May 2, 1980, he drove appellant home from the bar and remained in appellant’s room drinking beer, along with two women, until 3:00 a.m.

Anita McEllay drove appellant back to the bar later that morning. She and two other women were in his room while he dressed in the bathroom. When they arrived at the bar, they found Jerry Wake-field asleep in his car. Anita heard Wake-field ask appellant for the key to his room so that he could go there and bathe. She did not hear appellant’s reply, or see him give Wakefield the key.

The housekeeper for Ramada Inn testified that she inspected the room after it had been cleaned on May 2, 1980 and that she did not see the tin foil containing the valium on the night stand.

Appellant testified that he gave Wake-field the key to his room at about 11:00 a.m. He denied knowing anything about the drugs found in his room.

Appellant contends that the trial court erred in denying his motion for judgment of acquittal at the close of the State’s evidence.

The duty of the trial court in regard to appellant’s motion for judgment of acquittal was to determine whether there was any evidence at that juncture in the trial, even though entirely circumstantial, that the accused was guilty of the crime charged. Parker v. State, 395 So.2d 1090 (Ala.Cr.App.1980), cert. denied, 395 So.2d 1103 (Ala.1981). As a corollary, this court may consider on review only such evidence as was before the trial court when the motion was made and ruled upon. E.g., Hinds v. State, 423 So.2d 1382 (Ala.Cr.App.1982). Additionally, evidence presented by the State must be accepted as true, in a light most favorable to the State and the State must be accorded all legitimate inferences arising from the evidence presented. Hinds, supra. Under these guidelines, we find no error by the trial court in its ruling on appellant’s motion.

The evidence before the court when appellant’s motion was made and ruled upon was the following: Appellant was registered and paid rent on room 246 at the Ramada Inn from April 8 to May 1, 1980. Personal items present in the room indicated that he was living there. He received visitors there and authorized motel management to loan Robert Chambliss a key to his room if he asked for one. The desk clerk did not recall Chambliss requesting the key during the twenty-four hour period preceding appellant’s arrest. Law enforcement officials received information from a reliable source that illegal drugs were present in room 246 of the Ramada Inn, and a search of that room yielded quantities of marijuana, valium and quaa-ludes.

Appellant was not found in actual physical possession of the drugs, and thus the State’s burden was to prove constructive possession. Franklin v. State, 437 So.2d 609 (Ala.Cr.App.1983). Constructive possession may be proved through a showing of surrounding facts and circumstances as well as through direct evidence. Luker v. State, 358 So.2d 504 (Ala.Cr.App.1978). Hence, determination of the question of whether there was constructive possession may involve the process of weighing facts which tend to support defendant’s necessary control against facts which tend to demonstrate lack of dominion and control. Crane v. State, 401 So.2d 148 (Ala.Cr.App.), cert. denied, 401 So.2d 151 (Ala.1981).

The facts adduced by the defense on cross-examination of the State’s witnesses tending to show lack of dominion and control consisted of evidence that the accused sometimes received visitors in his room, and that another person, Robert Chambliss, had access to the room. Appellant relies heavily upon Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978), wherein the court held that when a person is not in exclusive possession of the premises where a controlled substance is found there must be additional circumstances connecting defendant to the contraband in order to prove constructive possession by that defendant.

We find the Temple case inapposite and appellant’s claim that the room was jointly occupied unsupported by the evidence. The facts that appellant was absent during the search, entertained visitors, and permitted an associate access to the room through the desk clerk did not demonstrate that he was not in exclusive possession of the room where he lived and kept his belongings and on which he paid rent. Coleman v. State, 394 So.2d 82 (Ala.Cr.App.1981). On the contrary, there was evidence before the trial court at the close of the State’s evidence that the accused was in constructive possession of the controlled substances seized from his motel room. At the close of all the evidence the issue of appellant’s knowledge of the presence of the controlled substances in his motel room was properly submitted to the jury. Holley v. State, 447 So.2d 829 (Ala.Cr.App.1983), and authorities cited therein.

Appellant next argues that the trial court improperly granted the State’s motion in limine forbidding appellant’s attorney to mention the sentence which appellant might receive if convicted. We find that the trial court’s ruling was entirely proper since appropriate sentencing is a matter for the trial court’s determination. § 13A-5-2, Code of Alabama (1975); Brown v. State, 401 So.2d 213 (Ala.Cr.App.1981).

Lastly, appellant contends that the trial court abused its discretion in permitting the State to question him about prior arrests and to comment on his criminal record during closing arguments. We find no error by the trial court in this regard.

During cross-examination, appellant volunteered the information that a 1964 forgery conviction was the result of his first arrest. Subsequent questioning about arrests prior to the 1964 arrest for forgery was proper impeachment of appellant’s credibility, inasmuch as appellant himself opened the subject up to inquiry. Travis v. State, 397 So.2d 256 (Ala.Cr.App.), cert. denied, 397 So.2d 265 (Ala.1981).

It is clear that the trial judge has broad discretion in controlling closing arguments. Hurst v. State, 397 So.2d 203 (Ala.Cr.App.), cert. denied, 397 So.2d 208 (Ala.1981); Miller v. State, 380 So.2d 1011 (Ala.Cr.App.1980). It is equally clear that when evidence of collateral crimes has been properly admitted it may be commented upon by the prosecution in closing argument. Player v. State, 421 So.2d 1338 (Ala.Cr.App.1982); Watson v. State, 398 So.2d 320 (Ala.Cr.App.1980), cert. denied 398 So.2d 332 (Ala.1981), cert. denied, 452 U.S. 941, 101 S.Ct. 3085, 69 L.Ed.2d 955.

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

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Lawrence SWANN v. CITY OF HUNTSVILLE.
    8 Div. 902.
    Court of Criminal Appeals of Alabama.
    April 10, 1984.
    Rehearing Denied May 8, 1984.
    Certiorari Denied July 20, 1984. Alabama Supreme Court 83-928.

      Carolyn L. Williams, Birmingham, for appellant.
    Walter A. Record, III, City Atty., Huntsville, for appellee.
   BOWEN, Presiding Judge.

Following convictions for driving under the influence and disorderly conduct in the Huntsville Municipal Court, Lawrence Swann appealed to the Madison Circuit Court. After a jury trial, he was convicted of both charges and sentenced: for DUI, to six months’ imprisonment with three months suspended, and ordered to make restitution to the victim in the amount of $719; and for disorderly conduct to five days’ imprisonment.

Evidence for the City showed that on the afternoon of May 1, 1982, Swann was driving a pickup truck in Huntsville when he was observed weaving in and out of traffic and veering off the road. Mr. Richard Lindsey testified that he saw Swann’s truck strike a Volkswagen stopped in a turn lane. Ms. Alice Terry, the driver of the Volkswagen, testified that after the collision she and Swann got out of their vehicles and were exchanging information when Swann stated, “Since there are no injuries I’m going on; I’ve already given my driver’s license, my name and address.”

' Mr. Lindsey, who had also stopped at the scene, blocked Swann’s truck to prevent him from leaving until the police arrived. He noticed some slurring of Swann’s speech and stated that, in his opinion, Swann was intoxicated. Ms. Terry also gave her opinion that the defendant was intoxicated. Both Mr. Lindsey and Ms. Terry testified that, once the Huntsville police officer arrived on the scene and began questioning witnesses, the defendant became loud and belligerent, continually interrupting the investigating officer.

Officer Thomas Green of the Huntsville Police Department, who investigated the accident, testified that he noticed the odor of “something” on Swann’s breath but was not sure it was alcohol. When he asked Swann if he had been drinking, Swann “started to get loud” and began “ranting and raving up and down in front of me.” According to Green, Swann became very agitated and uncooperative, interrupting the officer and shouting, “This is some shit.... Damn you; you’re just doing this because I’m black. You’re bringing us back a hundred years.” Green testified that he found a plastic bottle containing a strong-smelling yellowish liquid in Swann’s truck but was not sure whether it was alcohol.

Officer Tommy McCulley testified that he was qualified to operate the Breathalyzer 1000 machine and that he did so in accordance with the rules and regulations promulgated by the Board of Health. He stated that he administered a breath test to Swann at 4:00 P.M. on May 1, 1982, and received a reading of .09 percent alcohol.

Swann testified in his own behalf and maintained that he had not been drinking while or before driving. He stated that he had a drink after the collision and before the police arrived on the scene. He maintained that the veering of his truck was due to an engine problem, and he called a mechanic, who had ridden in the vehicle the day before the collision, to testify that the truck was not operating properly. He also put on the testimony of a witness who said he saw Swann take a drink at the scene after the accident.

Swann claimed that he was not belligerent or disorderly to the investigating officer, but was reacting to the officer’s having addressed him, a black man, as “boy”.

I

Swann argues that the court improperly refused to accept his guilty plea and then penalized him for exercising his right to trial by jury. The facts pertinent to this issue indicate that prior to trial, Swann, his attorney, and the City Attorney had discussed settling the case on a guilty plea and recommended sentence. The plea negotiations never resulted in an agreement. Nevertheless, Swann’s attorney, relying on his expectation of a settlement, did not subpoena witnesses or prepare the case to be tried. When the case was called for trial on December 7, 1982, defense counsel informed the court that he was not ready. Swann, who had earlier requested to act as his own co-counsel, then moved for a continuance, which the trial court denied. At that point, Swann told the court he felt he was having a heart attack and needed to see a doctor.

After ascertaining that Swann had no prior history of heart trouble and appeared to be'healthy, the judge told Swann that he believed him to be feigning a heart attack and if a physical examination revealed no illness Swann would be held in contempt. Swann then conceded that he felt “just ... real sick and nervous.” Following a brief recess during which defense counsel informed the court that his client wished to plead guilty, the court began to question Swann regarding his plea:

“THE COURT: All right. Mr. Swann your attorney has indicated to me that you wish to enter a plea of guilty to the charge of driving under the influence of alcohol; is that correct or incorrect? “THE WITNESS: I say, but with reluctance, sir, yes, sir.”
“THE COURT: What I want you to understand, Mr. Swann, is that this Court is as much to vindicate as it is to condemn; that it is for the purpose of giving you a trial, which you have demanded, or taking your plea, which you have indicated you wish to enter. And I don’t have a preference. I really don’t. And I want you to understand that whatever you do should be because of your choice and not because of this Court's choice; do you understand that?
“THE WITNESS: I understand that, Your Honor, and I can appreciate it. But if I had been allowed to have some witnesses here, then — you know, I don’t stand a chance of doing anything but lose now anyway, so I accept it.”
“(THE COURT): Do you admit or deny the allegations of that complaint?
“THE WITNESS: I admit it, sir.
“THE COURT: And is that because you are, in fact, guilty, or is there some other reason?
“THE WITNESS: I say the correct thing to say, sir, is because I’m guilty. That’s what the correct thing to say is.”
“THE COURT: Do you understand that you have the right to a trial by jury? “THE WITNESS: Yes, sir. Your Honor, can I make a statement that’s not unbiased?
“THE COURT: Yes, sir.
“THE WITNESS: Would accept it as not being, please, sir?
“THE COURT: Yes, sir.
“THE WITNESS: I understand that I have the right to a trial by jury, but I also thought I had a chance to have witnesses here if I had some, and— “THE COURT: Who were your witnesses, that you wanted to call?
“THE WITNESS: Oh, I had Sam Patton, and I had the lady that I had the wreck with — several people. I plead guilty, sir, yes, I plead guilty.
“THE COURT: Sir, is that because you were driving under the influence of alcohol, or is there some other reason?
“THE WITNESS: I plead guilty. I drank the whiskey at the scene, and there were some people there that saw me. I plead guilty to it. That’s my only way out.
“THE COURT: Have a seat over here, Mr. Swann (indicating). I’ll note your plea of not guilty.
“THE WITNESS: I plead guilty, sir. “THE COURT: Mr. Swann, when you tell me, ‘That’s my only way out’, then— “THE WITNESS: Sir, I don’t have any witnesses here.
“THE COURT: I understand what your position is with regard to your witnesses.
“THE WITNESS: I plead guilty, sir.
“THE COURT: You are indicating to me that you are not pleading guilty because of your guilt but because you don’t have your witnesses subpoenaed here.
“THE WITNESS: I plead guilty, sir, without anything being said. I don’t know no other way to do it, sir.”
“THE COURT: Do you understand that you have the right to compel witnesses to attend in your behalf; do you understand that?
“THE WITNESS: I understand that, but I was not allowed that right, sir.
“THE COURT: Did anyone prevent that right?
“THE WITNESS: I didn’t know about it, sir.
“THE COURT: Well, • we’ve been through that before.
“THE WITNESS: Yes, sir.
“THE COURT: And you understand the case has been set for trial for a substantial number of days, and that there’s nothing that precluded you from compelling witnesses to attend in your behalf; do you understand that?
“THE WITNESS: I understand that, sir. Only I didn’t know it.”
“THE COURT: Do you understand that you should not plead guilty because anyone has threatened you or coerced you or intimidated you or offered you a reward or leniency to plead guilty?
“THE WITNESS: Yes, sir.
“THE COURT: Has any of this occurred?
“THE WITNESS: (No response.)
“THE COURT: Is there a question in your mind that some of this has occurred, Mr. Swann? If so, state that for me.
“THE WITNESS: No, sir.
“(At this point, witness begins sobbing uncontrollably.)”

“There is, of course, no absolute right to have a guilty plea accepted.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). See James v. State, 380 So.2d 995, 998 (Ala.Cr.App.1979), cert. denied, 380 So.2d 999 (Ala.1980); Pelmer v. State, 389 So.2d 584, 590 (Ala.Cr.App.1980). From the foregoing exchange, it is evident that the trial court was well within its discretion in concluding that Swann was not freely and voluntarily admitting his guilt, and therefore declining to accept his plea.

II

Swann contends that the City did not live up to its plea bargain agreement with him. We note, first, that the record contains absolutely no evidence of an agreement. In fact, it indicates just the contrary, that the parties were unable to reach an understanding. Moreover, even if the parties had arrived at a plea bargain, the trial judge would not have been compelled to accept a guilty plea thereunder. See English v. State, 56 Ala.App. 704, 708, 325 So.2d 211, 215 (1975), cert. denied, 295 Ala. 401, 325 So.2d 216 (1976).

III

Swann complains that the court refused to compel the attendance of three of his witnesses who did not appear on the date set for trial. The record reveals that Swann did not request subpoenas for these witnesses until the Friday preceding his Wednesday trial date. The subpoenas were served on Monday and the City Attorney informed the court that the witnesses, all police officers, would “be here”. Swann should have requested that the-court issue attachments for the witnesses. Under these circumstances, there was no adverse ruling on which to predicate Swann’s argument on appeal.

IV

The trial judge determined that Swann was gainfully employed and was not indigent. Swann was not, therefore, entitled to court-appointed trial counsel. See Alabama Code Section 15-12-21 (1975). The fact that he had not secured other counsel after his retained attorney was allowed to withdraw two months earlier did not authorize the court to provide him with an attorney at State expense. Swann was not denied due process by the withdrawal of his first counsel, and two months was adequate time in which to employ substitute counsel. See generally Annot., 73 A.L.R.3d 725 (1976).

V

Swann complains that the City failed to provide him with information concerning the Breathalyzer test, as required by Alabama Code Section 32-5A-194(a)(4) (1975). That section states:

“Upon the written request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney.”

In contrast to the analogous section of the Uniform Vehicle Code from which this section was derived, Section 32-5A-194(a)(4) requires a written request for chemical test information. Cf U.V.C. Section 11-902.1 (Supp.1972). Swann made written requests for test information, if they can be so construed, via the directions appended to his requested subpoenas duces tecum:

Subject of Subpoena Additional Instructions

Lt. Kennemer “Bring records from Lawrence Swann’s GCI tests on 5/1/82.”

Lt. Wilburn “Bring records from Lawrence Swann’s Breath Test on 5/1/82.”

In addition, the record contains the following note, also apparently attached to Swann’s subpoena requests:

“Dear Mr. Miller (City Attorney):
I am requesting all the information or full information concerning the attempted tests and test given to me on 5/1/83 by the mobile unit. I need this information before trial time. Is this mobile unit still at the factory being repaired?
L. Swann
837-1572 — Home
1710 Jordan Lane
Huntsville, Ala. 35805
1/27/83”

Although Swann dates his breath test May 1,1983, it is apparent that this is a mistake, and he intended it to be May 1, 1982.

There is no indication in the record that Mr. Miller, the City Attorney, ever received the note, and there is every reason to believe that he was not aware of it, since the writing was included with subpoena requests for witnesses filed in the Circuit Clerk’s Office and Mr. Miller was not a subpoenaed witness. In any case, neither party to this appeal has moved to supplement the record in order to clarify this issue.

Furthermore, it appears that Swann waived receipt of the information when he failed to pursue the matter at trial. During the City’s case in chief, Officer McCul-ley testified that the Breathalyzer machine produced a printout. When Swann requested to see the printout, the following occurred:

“THE COURT: Is that printout available to you?
“THE WITNESS: Yes, sir. To my knowledge, it would be, yes, sir.
“THE COURT: How long would it take to get it?
“THE WITNESS: I could make a call and find out. Offhand, I don’t know. “THE COURT: All right. We’ll continue with your examination, but see if you can get it at lunch.
“MR. MILLER (Attorney for City): Okay.
“THE COURT: Examine your witness, Mr. Swann.
“MR. SWANN: Okay.”

The transcript contains no further reference to the printout and no further request by Swann for information. For aught that appears, Officer McCulley may have produced the material at lunch as the court instructed him. From the record before us, we cannot say that Swann made a proper request for the material, or, having made it, was denied the information he sought.

VI

The denial, in part, of Swann’s application for probation was entirely within the discretion of the trial judge and is not reviewable on appeal from the judgment of conviction. Howard v. State, 420 So.2d 828 (Ala.Cr.App.1982); Turner v. State, 365 So.2d 335 (Ala.Cr.App.), cert. denied, 365 So.2d 336 (Ala.1978).

VII

Swann challenged the sufficiency of the City’s evidence against him by means of a motion for “Direct Verdict of Not Guilty”, which we construe to be a motion for judgment of acquittal pursuant to Rule 12, A.R. Crim.P.Temp. He contends that the evidence did not support a finding that he was either intoxicated or disorderly.

In our judgment, the evidence fully warranted the guilty verdict on the charge of DUI, but was insufficient to support a verdict of disorderly conduct. We therefore affirm the judgment pertaining to the DUI charge, but reverse and render the judgment as to the disorderly conduct charge.

Swann is correct that .09 percent alcohol in the blood does not constitute legal intoxication per se. Section 32-5A-194(b)(2) provides:

“If there were at that time in excess of 0.05 percent but less than 0.10 percent by weight of alcohol in the person’s blood, such fact shall not give rise to any presumption that the person was or was not under the influence of alcohol, but such fact may be considered with other competent evidence in determining whether the person was under the influence of alcohol.” (Emphasis added.)

When considered with the testimony of Mr. Lindsey and Ms. Terry that Swann drove erratically and dangerously, slurred his speech, and was intoxicated, as well as the testimony of Officer Green that Swann began “ranting and raving” upon being asked whether he had been drinking, and had in his truck a flask with a substance resembling whiskey, the jury was authorized to find that Swann’s blood alcohol level was indicative of his being under the influence of alcohol.

Swann’s conviction of disorderly conduct, however, cannot stand. Section 13A-11-7, Code of Alabama 1975, which has been adopted by the City of Huntsville, provides the following:

“(a) A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
“(1) Engages in fighting or in violent tumultuous or threatening behavior; or
(2) Makes unreasonable noise; or
(3) In a public place uses abusive or obscene language or makes an obscene gesture; or
(4) Without lawful authority, disturbs any lawful assembly or meeting of persons; or
(5) Obstructs vehicular or pedestrian traffic, or a transportation facility; or
(6) Congregates with other person in a public place and refuses to comply with a lawful order of the police to disperse.
“(b) Disorderly conduct is a Class C misdemeanor.”

Subsections (2) (“unreasonable noise”) and (3) (“abusive or obscene language”) are the only provisions arguably relevant here. Although the City’s evidence proved defendant was “loud”, there was no testimony regarding whether the noise was unreasonable under the circumstances. Defendant’s conduct was therefore not shown to be in violation of subsection (2).

Subsection (3) has been interpreted narrowly to apply only to “fighting words”. Mosley v. City of Auburn, 428 So.2d 165 (Ala.Cr.App.1982). This Court has defined “fighting words”, in light of the United States Supreme Court decisions in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), and Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), as follows:

“(T)hey are those words which have a likelihood of causing a violent response by the person to whom they are addressed. They are words that by their very utterance provoke a swift physical retaliation and incite an immediate breach of the peace.”

Skelton v. City of Birmingham, 342 So.2d 933, 936-37 (Ala.Cr.App.), remanded, 342 So.2d 937 (Ala.1976).

The words found to be fighting words in Mosley, supra, were “Go ahead and hit me so I can kill your M-F-honky ass.” 428 So.2d at 166. The language deemed not to constitute fighting words when addressed to a police officer in Skel-ton was, “Are you big shits going to move or am I going to have to go around.” 342 So.2d at 934. In our judgment, defendant’s comment here, “This is some shit .... Damn you; you’re just doing this because I’m black. You’re bringing us back a hundred years”, did not contain a threat and did not have the likelihood of causing a violent response by the police officer to whom they were addressed. As we observed in Skelton, construing a similar Code provision:

“(T)he statute requires that the words be calculated to cause an immediate breach of the peace. It is not enough ... they merely arouse anger or resentment.” 342 So.2d at 937 (emphasis added).

While Swann’s language may have aroused the anger and resentment of Officer Green, we do not believe that it was calculated to provoke physical retaliation, especially in view of the probable training received by the officer in dealing with similar situations. See generally Annot., 14 A.L.R.4th 1252 (1982). The conviction for disorderly-conduct is therefore reversed and rendered.

AFFIRMED IN PART;

REVERSED AND RENDERED IN PART.

All Judges concur.


author: TYSON, Judge.

text:
    Robert Lee COPELAND, Jr., alias v. STATE.
    3 Div. 892.
    Court of Criminal Appeals of Alabama.
    April 24, 1984.
    Rehearing Denied May 22, 1984.
    Certiorari Denied Aug. 31, 1984 Alabama Supreme Court 83-970.

      Jack W. Wallace, Jr. of Duffey & Wallace, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Robert Lee Copeland, Jr. was indicted for (1) Theft of Property in the second degree, in violation of § 13A-8-4, Code of Alabama 1975; (2) Rape in the first degree, in violation of § 13A-6-61, Code of Alabama 1975, and; (3) Burglary in the first degree, in violation of § 13A-7-5, Code of Alabama 1975. The jury found him “guilty as charged in the indictment” on all three charges and the trial court sentenced him to five years’ imprisonment on the charge of Theft of Property in the second degree, twenty years on the charge of Rape in the first degree, and ten years on the charge of Burglary in the first degree, said sentences to run concurrently.

The prosecutrix testified that on August 5, 1982, she arrived home from work at approximately 4:45 p.m. Her husband was a school teacher in Brewton, Alabama, and was away from home during the week. She stated that when she came home from work, she took a shower and went to visit a friend. She stated that before she left home, she locked all of the windows and doors in the house. She returned home at approximately 11:00 p.m. and when she entered her bedroom she noticed that a pistol she kept under the nightstand was missing. She checked through the house and found a window broken in another bedroom. The spread on the bed in that room was ruffled and the curtain was drawn open. She stated that the screen on the broken window was missing.

She testified that she attempted to call her husband in Brewton, but could not reach him. She said at that time she decided to leave the house. She went to the front door and when she opened the door a black male grabbed her by the hair. She stated that she struggled to get away and then saw he had a gun in his hand. She stated that the man was wearing dark shorts with a light trim and black sneakers. She further stated that the man had a muscular build and a bad body odor. She said that the man asked her who she had been trying to telephone. She said he pushed her to the floor, she grabbed the gun, and he told her to let go of the gun or he would kill her.

The prosecutrix testified that the man then made her get up and pulled her by the hair to the bedroom where the window had been broken. He told her to take her clothes off and to get on the bed. She did and the man took his clothes off and forced her to have sexual intercourse with him. She stated that during this entire encounter, the intruder had pantyhose pulled over his head as a mask. She stated that when the encounter was over the man told her to cover her face with the pillow and that if she did not do what he said he would kill her. She said that he then got dressed and left by the front door. She stated that at this time she cheeked the house to make sure he had gone and called her husband in Brewton. She said that when her husband arrived home from Brewton she called the police.

The prosecutrix testified that she and her husband provided a list of record albums, which were missing from their collection, to the police. She identified a pair of tennis shoes which she said matched the shoes worn by her attacker. She also identified a hat found in the bedroom where the attack had taken place. She stated that this hat did not belong to her husband. She stated that she could not identify the appellant as her attacker.

Officer George Gantt of the Montgomery Police Department testified that he obtained head and pubic hair samples from the prosecutrix, her husband, and the appellant. These samples were submitted to Tom Hopen with the Alabama Department of Forensic Sciences.

Investigator Billy Wayne Smith of the Montgomery Police Department served a search warrant on the appellant’s house and found record albums, wrapped in a blanket, under the bed in the appellant’s bedroom.

Dennis Blair of the Montgomery Police Department testified that he found a hat in the bedroom of the prosecutrix’s home. He stated that he sent this hat to the Alabama Department of Forensic Sciences for analysis. He also assisted in the search of the appellant’s home, where he found a pair of black tennis shoes and a number of dark shorts with light trim. He stated that several pairs of cut off pantyhose were found throughout the appellant’s house. He identified a number of record albums which were found wrapped in a quilt in the back bedroom of the appellant’s home.

The prosecutrix’s husband testified that he received a telephone call from his wife on August 5, 1982, at 11:40 p.m. She told him that the house had been broken into and she had been raped. He testified that he arrived in Montgomery around 1:00 a.m., stopped at a Seven-Eleven store to call his wife again, and during the telephone call told her to call the police. He stated that he reported the record albums that were missing, gave the police a list, and identified the record albums found in the appellant’s home as those taken from his home.

Tom Hopen of the Alabama Department of Forensic Sciences testified that he had received hair samples of the prosecutrix, her husband, and the appellant from Officer Gantt. He also testified that he received a hat and found hair samples in the hat. He stated that the hair samples found in the hat did not come from the prosecu-trix or her husband. He further stated that his comparison could not distinguish between the hair samples from the appellant and those found in the hat.

Officer J.T. Hunt of the Montgomery Police Department testified that on July 2, 1982, he had encountered the appellant, at approximately 1:15 a.m., jogging in the Southlawn/English Village area. The appellant identified himself at that time as Tracy Flowers and had no identification on him. He stated that one week later he also saw the appellant in an orange Dodge Colt automobile. He stated that on this occasion he saw a white sailor hat in the appellant’s car. He said that the hat found in the prosecutrix’s home was “very similar, if not the same one” as he had previously seen in the appellant’s car.

The prosecutrix was allowed, over the appellant’s objection, to introduce a woman who also testified that she, too, had been raped. She stated that this attack took place at approximately 3:00 a.m. on August 5, 1982. She testified that she also lived in the same area as the prosecutrix, and the appellant, which is the Southlawn/English Village area. She testified that she came home that night at about 1:00 a.m. and went straight to bed. She said that she was awakened a short time later by a black male of muscular build and masked with a pantyhose over his face. She said that the man was naked when she first saw him. She said that the man had a butcher knife in his hand, that he took her clothes off of her, and then forced her to have sexual intercourse with him. She said that after he had intercourse with her, he placed a pillow over her face. She said that he then had sexual intercourse several more times. She stated that she asked him to let her go to the bathroom and when she came out of the bathroom he was dressed. She said that he left through the front door. She stated that the man had entered her home through a front bedroom window, where the screen had been removed and the window broken. She stated that she then called her parents and the police department. She further testified that the street where the appellant lives is two blocks from her house.

Officer J.T. Roy of the Montgomery Police Department testified that he had obtained the aluminum screen from this woman’s house and gave it to T.R. Shanks.

T.R. Shanks testified that he took latent fingerprints from the aluminum screen. He stated that these prints came from the outer and inner portions of the screen. He further stated that these fingerprints matched those of the appellant.

The appellant testified that he did not know the prosecutrix, nor had he ever seen her before. He said that on the night of August 5, 1982, he was at home. He said that at about 10:00 p.m. a Paul Marzette came to his house and stayed until a little after 11:00 p.m. He further testified that his wife arrived home from work at about 11:15 p.m. and that they talked for a while, then went to bed. He stated that he did not leave his house that night.

Paul Marzette corroborated the appellant’s alibi. The appellant’s wife stated that after she arrived home the appellant did not leave the house.

I

The appellant argues on appeal that the trial court erred in failing to suppress testimony of a prior similar crime.

It is established in Alabama that admission of evidence of other or collateral crimes may not be used as substantive evidence of guilt of the defendant. C. Gamble, McElroy’s Alabama Evidence, § 69.01 (3rd ed. 1977); Lewis v. State, 399 So.2d 907 (Ala.Cr.App.1981); Breen v. State, 349 So.2d 113 (Ala.Cr.App.1977). However, there are several exceptions to this general rule. One such exception to this rule, which is applicable in this case, is the identity exception. In order for a collateral crime to be admissible under the identity exception, the crime must have been committed “in the same novel and peculiar manner” as the crime for which the accused is now charged. C. Gamble, McElroy’s Alabama Evidence, § 69.01(8) (3rd ed. 1977); Smith v. State, 409 So.2d 455 (Ala.Cr.App.1981); Breen v. State, supra. Also, the “identity exception to the general exclusionary rule only becomes applicable when the identity of the person who committed the now-charged crime is in issue.” C. Gamble, McElroy’s Alabama Evidence, § 69.01(8) (3rd ed. 1977); Thomas v. State, 409 So.2d 955 (Ala.Cr.App.1981). There have been a plethora of cases in Alabama dealing with the identity exception, many of which have held that crimes were so similar that they can be said to be the work of a single individual, thus serving the purpose of identifying the accused. See, e.g., Smith v. State, supra; Thomas v. State, supra; Hayes v. State, 384 So.2d 623 (Ala.Cr.App.1979), cert. quashed, 384 So.2d 627 (Ala.1980); Breen v. State, supra.

In the present case, the appellant’s identity was placed in issue by his alibi defense. Thomas v. State, supra; Williams v. State, 350 So.2d 708 (Ala.1977). The similarities between the prior rape and the rape the appellant is now charged with easily meet the standard for admission of collateral crimes. In particular, the two incidents were committed in the same neighborhood, in fact, on the same street. The attacks were both late at night, when the women were home alone. In both instances, the attacker entered the home by breaking through a bedroom window. He had on a stocking mask and brandished a weapon. He was described by both women as having a bad body odor and to be of a muscular build. He made both women cover their faces with a pillow after having sexual intercourse with them. In both instances the women were threatened with bodily harm. Hogue v. State, 54 Ala.App. 682, 312 So.2d 86 (1975).

When the facts of these two instances are compared with the facts of the foregoing Alabama cases, the circumstances may be said to be more than sufficient to justify admission of the collateral crime. The testimony was clearly relevant to the issue of the appellant’s identity. Moreover, the trial court charged the jury that the evidence was to be used only for the limited purpose of showing identity both before the testimony was allowed and in his oral charge to the jury. There was no error committed by the trial court on this issue.

II

The appellant contends that the trial court erred in admitting evidence recovered in a search of the appellant’s home. Specifically, he argues that the search warrant and supporting affidavit are insufficient.

For aught that appears in the record, at no time during the trial or prior to trial was the supporting affidavit and search warrant placed into evidence. Nor have they been made a part of the record in this cause.

It is well established in Alabama that “[a]n affidavit and search warrant not contained in the record on appeal cannot be considered on review of the trial court’s ruling as to its sufficiency or any of the underlying circumstances supporting the warrant.” Barbosa v. State, 331 So.2d 811 (Ala.Cr.App.1976); Turner v. State, 380 So.2d 393 (Ala.Cr.App.1980); Thomas v. State, 383 So.2d 214 (Ala.Cr.App.1980); Lewis v. State, 426 So.2d 932 (Ala.Cr.App.1982), cert. denied, 426 So.2d 938 (Ala.1983). Moreover, it is the law in Alabama that “the appellant and his counsel have the duty to check the record and insure its correctness before submitting it on appeal.” Tyus v. State, 347 So.2d 1377 (Ala.Cr.App.), cert. denied, 347 So.2d 1384 (Ala.1977); Pope v. State, 387 So.2d 300 (Ala.Cr.App.1980); Hollins v. State, 415 So.2d 1249 (Ala.Cr.App.1982).

There has been no error established by this record on this issue.

Ill

The appellant contends that the trial court committed reversible error allowing the state to nol pros charges against him, thereby denying him the right to a preliminary hearing. Specifically, the appellant contends that he has an absolute right to a preliminary hearing pursuant to § 15-11-1, Code of Alabama 1975.

The appellant was arrested and filed a timely request for a preliminary hearing, which was granted. The preliminary hearing was continued several times, the last time on motion by the state because their witnesses failed to appear. The state then moved to nol pros the charges. Subsequently, the appellant was indicted by the grand jury.

It has long been the law in Alabama that a defendant “does not have an absolute right to a preliminary hearing.” Duncan v. State, 369 So.2d 885 (Ala.Cr.App.1979); Potts v. State, 426 So.2d 886 (Ala.Cr.App.1982), affirmed, 426 So.2d 896 (Ala.1983). Furthermore, it is not necessary to have a preliminary hearing to satisfy the requirements for due process. Queor v. State, 278 Ala. 10, 174 So.2d 687 (1965); Scaife v. State, 337 So.2d 146 (Ala.Cr.App.1976); Duncan v. State, supra. Moreover, “[o]nce an accused has been indicted, no grounds for reversible error exist when the accused’s demand for a preliminary hearing is not satisfied.” Duncan v. State, supra; Potts v. State, supra. Therefore, we hold that the appellant’s rights have not been abridged in this instance.

IV

The appellant’s final contention is that the trial court committed error in overruling the appellant’s demurrer to the indictment charging first degree rape. The appellant specifically contends that the indictment was insufficient because it tracks the language of the statute.

An indictment which follows the language of a statute is sufficient to apprise the appellant of the charges against him, and to allow him to prepare a defense. Boyington v. State, 227 So.2d 807, 809 (Ala.Cr.App.1969); Frye v. State, 369 So.2d 892 (Ala.Cr.App.1979); Brown v. State, 392 So.2d 1248 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1266 (Ala.1981); Wilder v. State, 401 So.2d 151 (Ala.Cr.App.), cert. denied, 401 So.2d 167 (Ala.1981), cert. denied, 454 U.S. 1057, 102 S.Ct. 606, 70 L.Ed.2d 595 (1981). In this case, the indictment for first degree rape followed the language of § 13A-6-61, Code of Alabama 1975. After a thorough review of the indictment and the language of the statute, we find that such language is sufficient to apprise the appellant of the charge against him and, therefore, the trial court committed no error.

We have reviewed the entire record in this cause and find no error therein.

Therefore, the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: TORBERT, Chief Justice. BEATTY, Justice

text:
    Ex parte Robert Lee COPELAND. (In re Robert Lee Copeland, Jr., alias v. State of Alabama).
    83-970.
    Supreme Court of Alabama.
    Aug. 31, 1984.
    Jack W. Wallace, Jr., Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   TORBERT, Chief Justice.

WRIT DENIED.

MADDOX, JONES and SHORES, JJ., concur.

BEATTY, J., concurs specially.

BEATTY, Justice

(concurring specially):

While I concur in the denial of this writ, I wish to point out that the cases concerning a defendant’s right to a preliminary hearing under § 15-11-1, Code of 1975, including the present case, have all failed to analyze § 15-11-1 with reference to its historical framework. These opinions show a lack of appreciation for the distinction between the process of arrest based upon indictment and the process of arrest based upon affidavit and warrant, and they ignore what appears to be the legislature’s no doubt well-intended but poorly drafted effort to accommodate these two.

The present case also raises, in my mind, the question of whether the prosecutor’s power to nol-pros criminal charges can be reconciled with § 15-11-1. While that issue was not properly before the Court of Criminal Appeals, cf. Duncan v. State, 369 So.2d 885 (Ala.Crim.App.1979) (noting that “[w]hether an accused, armed with § 15-11-1, could obtain a mandamus to compel the trial judge to grant that absolute right [to a preliminary hearing] is not in issue”), it is a question which, when properly presented, should be given careful consideration. But see Hammond v. State, 354 So.2d 280 (Ala.Crim.App.), cert. quashed, 354 So.2d 294 (Ala.1977), cert. denied, 439 U.S. 823, 99 S.Ct. 91, 58 L.Ed.2d 115 (1978) (holding without discussion and without even mentioning § 15-11-1 that the defendant was not “denied a constitutional right when the State nol-prossed the charges in the county court immediately prior to his preliminary hearing and then proceeded in circuit court by way of indictment.”).

      . Nobis v. State, 401 So.2d 191 (Ala.Crim.App.), cert. denied, 401 So.2d 204 (Ala.1981); Duncan v. State, 369 So.2d 885 (Ala.Crim.App.1979). See also Ex parte Potts, 426 So.2d 896 (Ala.1983).

      . Section 15-11-1 provides: "Every person charged with and arrested for a felony before his indictment shall have an absolute right to a preliminary hearing on said charge upon such person’s demand within 30 days following said arrest; provided, that such person's failure or refusal to appear for such preliminary hearing or his absence from the state at the time of the setting for the preliminary hearing shall not delay or invalidate an indictment pursuant to said charge.”


author: PATTERSON, Judge.

text:
    Charles Herman ANDERSON v. STATE.
    8 Div. 62.
    Court of Criminal Appeals of Alabama.
    May 8, 1984.
    Rehearing Denied June 12, 1984.
    Certiorari Denied Aug. 24, 1984 Alabama Supreme Court 83-1068.
    Jenifer C. Holt, Scottsboro, for appellant.

      Charles A. Graddick, Atty. Gen. and Fred F. Bell, Asst. Atty. Gen., for appellee.
   PATTERSON, Judge.

Appellant Charles Herman Anderson was indicted for first degree burglary by a Jackson County grand jury. He pled guilty to an amended indictment for second degree burglary and was sentenced under the Habitual Felony Offender Act to life imprisonment. Two issues are raised on appeal.

I.

Anderson first claims that his sentence was so disproportionate to his crime that it constituted cruel and unusual punishment and thus was violative of the Eighth and Fourteenth Amendments of the United States Constitution. Appellant cites the case of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), as authority for his claim.

Proportionality of sentence is certainly a vital constitutional guarantee. In Solem v. Helm, supra, the Supreme Court pointed out that no single criterion can be used to identify a disproportionate criminal sentence. The determination is one that must be made on a case-by-case basis. Some of the criteria that the Court suggested be used by an appellate court reviewing proportionality are the seriousness of the offense, the harshness of the penalty, and the penalties imposed on other criminals in the same jurisdiction.

Using these standards, we can come to no other conclusion except that appellant’s sentence was indeed proportional to his crime.

Anderson’s offense was serious. The colloquy in this case shows that he broke into a house through a screened window with the intent to steal; at the time he made his forced entry, the dwelling was occupied. The record reveals that this was appellant’s third felony offense. His other two crimes also involved burglary.

At his hearing, Anderson was fully informed by the lower court of the possible maximum and minimum sentences he could receive if he pled guilty. He was also aware that the State recommended that he receive a sentence of life imprisonment.

The constitutionality of Alabama’s Habitual Felony Offender statute has been upheld numerous times, (see Ala. Digest, Criminal Law, Key No. 1201.5 and cases cited therein), and as the Supreme Court of the United States has pointed out, “... a state is justified in punishing a recidivist more severely than it punishes a first offender.” Solem v. Helm, supra.

The sentence imposed on appellant falls within the limits set by § 13A-5-9, Code of Alabama 1975, which reads in pertinent part as follows:

“(b) In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, he must be punished as follows:
“(2) On conviction of a Class B Felony, he must be punished by imprisonment for life or for any term of not more than 99 years but not less than 15 years .... ”

In addition, we have considered Anderson’s sentence in light of his prior record and the severity of the instant offense and we must conclude that his punishment was indeed proportionate to his crime. See Jackson v. State, 440 So.2d 1181 (Ala.Cr.App.1983). Thus, appellant’s first issue is without merit.

II.

The second issue appellant raises is whether or not he was denied his right to effective assistance of counsel. He claims that his trial attorneys’ failure to request change of venue or to inform him of his right to change of venue based on prejudicial pretrial publicity resulted in a denial of his Sixth Amendment right.

We must begin by noting that the copies of newspaper articles dealing with the case attached to appellant’s brief are not part of the record before this court. See Ala. Digest, Appeal and Error, Key No. 714(5), and cases cited therein.

Evidence of prejudicial pretrial publicity could become part of the record if appellant obtained an evidentiary hearing following the grant by the circuit court of a petition for writ of error coram nobis.

However, we may not consider any “exhibits” as part of the record merely because they are annexed to appellant’s brief.

Even if the record did show evidence of widespread pretrial publicity, such evidence standing alone does not entitle appellant to a change of venue. There must be a showing that pretrial publicity resulted in actual prejudice to appellant, Dolvin v. State, 391 So.2d 666 (Ala.Cr.App.1979), aff'd, 391 So.2d 677 (Ala.1980), and we have no evidence to that effect before us whatsoever.

The standard this court must use in reviewing the claim of ineffective assistance of counsel is “whether the proceedings were rendered a farce or mockery of justice”, Harris v. State, 367 So.2d 524 (Ala.Cr.App.1978), cert denied, 367 So.2d 534 (Ala.1979); Woodyard v. State, 428 So.2d 136 (Ala.Cr.App.1982), aff'd, Ex parte Woodyard, 428 So.2d 138 (Ala.1983), cert denied, — U.S. —, 103 S.Ct. 3120, 77 L.Ed.2d 1373 (1983).

We have carefully reviewed the transcript of the colloquy held in this case, and we can find only affirmative evidence that appellant’s plea was voluntarily and intelligently entered. When asked by the trial court whether he was satisfied with the services and advice given to him by his trial lawyers, the appellant replied “Yes, sir”.

Based on a careful consideration of the record in this case, we conclude that the judgment of the lower court must be affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Ricky Allen SHERER v. STATE.
    3 Div. 935.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied July 17, 1984.
    Certiorari Denied Sept. 21, 1984 Alabama Supreme Court 83-1216.

      Jack W. Wallace, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Debra Jean Williams Brown, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

On a trial by jury, Ricky Allen Sherer was convicted on each of three indictments charging him with receiving stolen property in the first degree and sentenced to imprisonment for three years in each case, the sentences to run concurrently. The consolidation was ordered in the absence of defendant and his attorney and without the consent of either, on a motion by the State that the cases be consolidated. Appellant contends that the consolidation “without first granting the Defendant an opportunity to be heard” constituted prejudicial error. The contention was timely presented by defendant as disclosed by the following portion of the transcript:

“MR. WALLACE [Defendant’s attorney]: Your Honor, the State has made a motion to consolidate the cases for the trial and in the State’s motion, the State asks for a hearing on the matter and the Court granted the motion without a hearing and we object. Number 1, we have grounds to be heard and number 2, we do not feel the procedure purports [comports] with the Alabama Criminal Rules of Procedure. And we make an offering to the Court that in this particular case, so much of what the Defendant would offer in testimony and the defense is going to be very largely depend on the evidence presented by the State in each case, and that in one or two of these cases, I feel like the Defendant would not testify or offer any evidence but in one or two of these three cases, if they were not consolidated for the trial, the Defendant might be able to testify. “THE COURT: Your witnesses are the same in all three cases?
“MR. GUY [Attorney for the State]: Yes, sir. It was part of the same common plan or scheme. Selling trucks to undercover agents. In one instance, we have him present with another person, his father, selling the truck, and the other instance, he came down to sell some more at the time they were trying to serve him with a warrant.
“THE COURT: The Court finds under the circumstances, and the Court has reviewed the trial but first of all, I granted the motion without the hearing. First of all, the Court felt that a hearing wasn’t necessary in that the Court made a determination independently that all of these cases involved the same scheme of events. And, the Court feels that the Defendant would not be prejudiced in any way by consolidating all three cases and trying them at the same time since the witnesses are the same, same line of transactions, and basically the same factual situation. The Court, upon considering all of that, granted his motion to consolidate. After listening to you, the Court finds there is no reason or no good reason to overturn that order or set that order aside. So, the motion is denied.”

Rule 15.3, Alabama Rules of Criminal Procedure, provides:

“(a) JOINDER. Two or more offenses may be joined in an indictment, information, or complaint, if they:
“(i) Are the same or similar character; or
“(ii) Are based on the same conduct or are otherwise connected in their commission; or
“(iii) Are alleged to have been part of a common scheme or plan.
“Offenses shall not be joined in the same count of an indictment or information. Felonies and misdemeanors may be joined in separate counts of the same indictment or information.
“(b) CONSOLIDATION. If a defendant has been charged in separate indictments, informations, or complaints, the court, on its own initiative or on motion of either party, may, not later than seven days prior to trial, order that the charges be tried together if the offenses could have been joined in a single indictment, information, or complaint. Proceedings thereafter shall be the same as if the prosecution initially had been under a single indictment, information, or complaint. However, the court shall not order that the offenses be tried together without first providing the defendant and the prosecutor an opportunity to be heard.”

From the above, it is to be observed that the order of the trial court “without first providing the defendant ... an opportunity to be heard” was in violation of Rule 15.3(b). Nevertheless, after the mistake of the trial court in this respect, a colloquy occurred between the trial court and defendant’s attorney in which defendant was given an opportunity to convince the trial court that the cases should not be consolidated for trial. It is clear therefrom that the ruling of the trial court granting the State’s motion to consolidate would have been the same if there had been compliance with Rule 15.3(b). In this circumstance, no injury to defendant is shown by the court’s action in its premature grant of the State’s motion to consolidate, before defendant was given an opportunity to be heard, it being shown by the transcript and the language of Rule 15.3 that the trial court was justified in determining that the three indictments met all of the other requirements for consolidation set forth in Rule 15.3. Although the action of the court in granting the motion to consolidate before defendant was afforded an opportunity to be heard thereon was erroneous, it did not constitute reversible error.

Appellant’s second contention for reversal is directed exclusively at one of the cases, CC-83-638, in which the property allegedly stolen was described as a “1981 Buick Automobile ... of the value of $11,000.00, the property of Ewel E. Garrett.” It is argued in the brief of counsel for appellant that there was a material variance between the indictment and the evidence as to the ownership and the description of the automobile. In considering the question of whether there was a material variance, we noted at the outset that the evidence presented'by the State is not as definite and specific as it should be on the point. The only witness testifying as to the ownership and description of the property was Angela Michelle Garrett Jones, a resident of Decatur, Alabama, who testified on direct examination in pertinent part as follows:

“Q. During that time, were you an owner of an Oldsmobile Cutlass? Buick Oldsmobile Cutlass [sic].
“A. My father owns [sic] the car but he gave it to me for a gift. Yes.
“Q. Okay. Can you describe that car for us?
“A. It’s an ’81 Cutlass Olds Supreme. It’s light jade stone.
“Q. Okay. I’d like for you to, if you would, to take a look at what has been marked as State’s Exhibit Number Two Seven and Nine for identification purposes only, and ask you do you recognize the car in that or in those pictures? “A. That’s my car.
“Q. Is that your car?
“A. Yes. That’s my car.”

State’s Exhibits Two, Seven, and Nine were introduced in evidence, but the transcript does not include copies of the exhibits. The transcript shows that the parties understood, even if we do not, that the father of the witness Angela Michelle Garrett Jones, was Ewel Garrett, who was named in the indictment as the owner of the automobile. This is disclosed by the court reporter’s transcript of argument of defendant’s counsel, which states in pertinent part:

“The proof is that an Oldsmobile was stolen and that the — while the title of the automobile still lies in [Ewel] Garrett, the car is in the actual possession and control of his daughter and it was at the time of the theft.”

Although what evidence we have to consider tends to show that the automobile was owned by the daughter instead of the father at the time it was stolen, it does not establish with certainty the legal ownership thereof in either as distinguished from the other, and we cannot say with reasonable certainty that there was a material variance between the indictment and the evidence as to which of the two owned the automobile at the precise moment it was stolen.

As to the claimed variance between the indictment as to the make of the automobile and the evidence as to the make of the automobile, the transcript is not clear. It tends to show it was actually an Oldsmobile and not a Buick, but there remains some doubt in view of the question asked the witness on direct examination, ‘During that time, were you an owner of an Oldsmobile Cutlass? Buick Oldsmobile Cutlass.”

Notwithstanding the ambiguity in the evidence as to whether the automobile alleged to have been stolen in CC-83-638 was a Buick, as alleged in the indictment, or, on the other hand was an Oldsmobile, as the evidence seems to preponderate, we are convinced that whatever variance there was in this respect was not substantially injurious to defendant and did not mislead him in making his defense to the indictment charging him with the felonious receipt of a “1981 Buick Automobile.”

“For a variance to be material, it must be misleading or substantially injurious to the accused in making his defense. Blackmon v. State, 46 Ala.App. 274, 240 So.2d 696, cert. denied, 286 Ala. 733, 246 So.2d 699 (1970). It is sufficient to prove so much of the indictment as shows the accused committed the substantial offense specified therein. Rogers v. State, 3 So.2d 19 (Ala.Cr.App.1977), cert. denied, 353 So.2d 24 (Ala.1977).”
Tyson v. State, Ala.Cr.App., 361 So.2d 1182, 1188 (1978)

As a final contention for reversal in one of the cases, appellant says that the trial court erred in denying defendant’s motion for a judgment of acquittal on the ground of a failure to prove a prima facie case in CC-83-639. He attempts to base his contention on the principle that for a defendant to be guilty of the crime of disposing of stolen property, he must have in some manner been in possession of the property. According to the testimony of Jerry Hodges, an employee of the Alabama Department of Public Safety, there was a telephone conversation during the early morning of February 25, 1983, with an unknown person as follows:

“The individual asked if T.J. [the undercover name for an investigator of the Alabama Department of Public Safety] was there and I said no, he is not here right now. Can I help you? He said, tell him I have got two cars at the Days’ Inn and I need to get in touch with him. And then he stated that I’ve got to get out of here because there are police all over the place.”

Prior to the testimony of Jerry Hodges quoted above, investigator Doug Nelson, employed by the Alabama Bureau of Investigation, had testified that on February 10, 1983, he was engaged in an undercover assignment to purchase stolen automobiles. He introduced himself to defendant and other members of defendant’s family as “T.J. Douglass,” and by that name engaged in a relation with defendant that eventuated in a purchase by the witness from defendant of a stolen Ford truck, the truck that constituted the motor vehicle allegedly stolen in case CC-83-640.

The undisputed evidence shows that promptly after a telephone conversation of February 25, 1983, between Jerry Hodges and the person who had asked for “T.J.,” Ms. Marietta Prevost, a certified latent fingerprint examiner employed by Alabama Bureau of Investigation, went to Days Inn at Hope Hull, Alabama, where she reported to Captain Don Kimbrough, who explained to her which automobiles he wanted processed for fingerprints and instructed her to take some latent fingerprints from a room in the motel. At that time, according to the undisputed evidence, the defendant was not there. Ms. Prevost testified that as to many of the latent fingerprints she lifted, particularly as to fingerprints taken from the room and contents thereof at Days Inn, the prints were the fingerprints of a person other than Ricky Sherer. However, she also testified that she lifted some latent fingerprints that were determined to have been Ricky Sherer’s fingerprints from one, and probably both, of the automobiles she was called upon to examine at Days Inn; whether from the one upon which the indictment in CC-83-638 or the indictment in CC-83-639 is based, we are unable to determine with certainty. Nevertheless, the evidence is reasonably clear that the person responsible for the presence of either of the two automobiles at Days Inn at that time was not working alone in such activity but was acting in cooperation with the individual who was responsible for the presence of the other automobile at Days Inn at that time. We conclude therefrom that there was substantial evidence that appellant possessed the automobile that formed the basis for the indictment in CC-83-639, either as a principal or as an aider or abettor to one who had manual possession thereof. As a consequence, our conclusion is that the trial court was not in error in denying defendant’s motion for a judgment of acquittal in case CC-83-639.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.