text:
    Gary Wade WILLIAMS v. STATE of Alabama.
    8 Div. 940.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied June 1, 1984 Alabama Supreme Court 83-667.

      Fred B. Simpson and Fulton S. Hamilton, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Gary Wade Williams was indicted for the murder of one Sandra Sisk Phillips in violation of § 13A-6-2, Code of Alabama 1975. The jury found the appellant guilty as charged in the indictment and the trial judge sentenced him to life imprisonment in the penitentiary.

On June 24, 1982, the body of Sandra Sisk Phillips was found in a shallow grave in a field off Riverton Road in Madison County. The body was located with the assistance of Terry Metier. In the search for the body, the skull of the victim was accidently struck by a pick axe.

Brenda Phillips, the wife of the victim’s ex-husband, stated she was a bartender at the Red Lobster on March 4, 1981. That afternoon, she served several drinks to the victim and Beverly Metzler. The two of them left the Red Lobster together around dark.

Teresa Sisk, the victim’s sister, testified she last saw her sister at approximately 11:30 a.m. on March 4, 1981 at Cher’s Lounge in Huntsville. She admitted that her sister used drugs and was a prostitute at that time.

A few days before Sisk last saw the victim the appellant told her he needed to see her sister because she owed him $110 for drugs.

Barney Bynum, the appellant’s nephew, stated that he and the appellant went to Buster’s Lounge and met two girls. One of the girls was named Beverly whom he assumed was the appellant’s girlfriend. He did not know the other girl’s name. The four of them left Buster’s and the two girls rode together in Metzler’s car and he and the appellant rode together in his grandfather’s car. Before they left, the appellant gave the girls some money to get some wine and cheese. They then met at the Barclay Motel. There were no vacancies so the four of them got into the car Bynum was driving and went to the Travel Inn Motel where they rented Room 410.

At the room, they all drank some wine and the girls took some pills. A short time later, Bynum, and the girl whose name he did not know, engaged in sexual intercourse while the appellant and Metzler lay in the other bed.

When they started to leave, the girl became upset. The appellant told Bynum to take Metzler to her car because the girl wanted to talk to him. Bynum then took Metzler back to the Barclay Motel to pick up her car. They both then returned to the Travel Inn. He and Metzler went to Room 410 and the appellant said to give him a few more minutes. At this time, Bynum saw the girl sitting on one of the beds in the room. Bynum returned to his car and Metzler got in her car and left.

A short time later, a pickup truck drove up to the motel and a man got out and went into Room 410. Then the man, the girl and the appellant emerged from the room.

Bynum stated the girl was walking under her own power, but was being supported by the two men. The two men helped her into the truck and she and the man left. The last time Bynum saw the girl she was sitting upright in the cab of the truck. The appellant then got in the car with Bynum and they went home.

Dr. Josefino Aguilar testified he performed the autopsy on the body of Sandra Sisk Phillips on June 24, 1982. He stated that because of the length of time the body had been buried, he could not make a determination as to the cause of her death. He did not find any foreign missile inside the body and stated there was no evidence of blunt force trauma to the head. In his opinion, the victim could have been strangled, her throat could have been cut, she could have died of an overdose, or any number of things could have caused her death.

Beverly Metzler testified that she met the victim because both of them were dancers at a local club. On March 4, 1981, she met the victim at Cher’s Lounge around 11:30 a.m. The two then left Cher’s and went to the Red Lobster and began drinking.

While they were at the Red Lobster, she received a call from the appellant. Metzler admitted she had been a prostitute at this time and she knew the appellant because he was one of her customers. The appellant asked her to set Bynum up with a girl. The victim agreed to this plan so they left the Red Lobster and met the appellant and Bynum at Buster’s Lounge.

The four then went to the Travel Inn Motel. Once there, she, the appellant and the victim all took demerol. Then the appellant injected Metzler and the victim with additional drugs.

After the victim and Bynum had sex, the appellant asked Metzler and Bynum to leave because he wanted to talk to the victim. They went outside and waited in the car. A short time later, Metzler went back to the room. The appellant appeared at the door with his gun holstered. Metz-ler then went into the room to get her keys. She did not see the victim and the appellant told her she was in the bathroom.

The appellant then told Bynum and Metz-ler to go home because Bynum would be in trouble for being late. He said he had some friends coming to help him. Bynum then took her to her car and she went home.

Sometime before March 4, 1981, the appellant told Metzler that he wished to kill the victim because she owed him money for drugs. He asked her to set the victim up. Sometime after March 4, 1981, the appellant told Metzler that the victim was gone and he was not worried about the body being found. He threatened to kill her and her daughter if she said anything.

Metzler admitted she was the appellant’s mistress for a period of time. She stated she did not tell the authorities about the night of March 4 because she was scared of the appellant. She said she hated the appellant and wished he was dead or in prison and confessed she had had him shot.

John Hindman, III testified he was at his home on the night of March 4, 1981, when he received a call from the appellant. The appellant asked him to come to the Travel Inn Motel. When he arrived at the motel, the appellant emerged from the room with his gun holstered. Hindman went into the room and saw a body lying across the bed. He noticed blood around the nose area and saw track marks on the arm. When Hind-man attempted to look at the body which was covered by a sheet, the appellant told him not to look because the body was too messed up.

Hindman and the appellant carried the body outside and placed it on the floorboard of Hindman’s truck. The appellant then got into Bynum’s car and Hindman followed them to the appellant’s home.

The appellant then got in the truck with Hindman and they drove to Hindman’s house. There they picked up Terry Metzler and drove out to Riverton Road and buried the body. On the way to the area where the body was buried, the appellant threw a plastic bag off the bridge.

Hindman admitted he had made a deal with the district attorney in exchange for his testimony.

Terry Metier testified he was Hindman’s roommate during March of 1981. On the night of March 4, 1981, he and Hindman were watching television when Hindman received a telephone call. After the call, Hindman left and later returned with the appellant. The three of them went and buried the body.

On the way to the area where they buried the victim, the appellant told Metier he had killed the girl by hitting her on the nose because she had messed up a drug deal and he had gotten even with her.

Metier admitted he received Youthful Offender treatment in other cases in exchange for his testimony in this case.

The first defense witness was James Buttram, a toxicologist for the Department of Forensic Sciences. He received specimens of certain organs removed from the body of the victim and tested them for the presence of various drugs. He found methaqualone was present in several of the organs. In his opinion, the amount of the drug present in the body would probably be a lethal dose to a normal person. Buttram stated that if the drug was taken along with alcohol, the effect of the drug would be even greater. However, he did not test for the presence of alcohol in the body.

The appellant testified that on March 4, 1981, he called Metzler at her home and asked her to set up Bynum with a girl. He said he did not specifically request the victim.

He and Bynum met the girls around 7:30 p.m. at Buster’s Lounge. From there, the girls left in a separate car to pick up some wine and cheese and he and Bynum drove to the Barclay Motel. When the girls arrived, he told them there were no rooms available so they all got in Bynum’s car and went to the Travel Inn Motel and rented a room.

There, the girls took some pills and they all drank wine. After the victim and By-num had sex, they decided to leave. The victim became ill and asked the appellant to take care of her. The appellant then told Bynum to take Metzler to her car. After they left, the victim began vomiting, so he called Hindman to pick up the victim and take her home.

When Hindman arrived, he helped the victim to Hindman’s truck and she and Hindman left. At this time, the victim was alive and that was the last time he saw her. Then the appellant and Bynum went home.

The State put several witnesses on the stand who testified that the appellant had a bad reputation in the community.

The defense likewise put on several witnesses who testified to the appellant’s good reputation and to the poor reputation of Metier and Hindman.

I

The first issue which the appellant raises on appeal concerns several questions with reference to discovery.

A

Initially, the appellant asserts that he was entitled to examine the statements of three of the State’s witnesses, Beverly Metzler, Terry Metier and John Hindman, III, for purposes of impeachment during cross-examination of these witnesses.

“In Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. den. 290 Ala. 363, 276 So.2d 640, it was held;
‘The first requisite necessary to secure for inspection production of a ‘statement’ of a witness for use on cross-examination of the witness is that the statement must be one in writing prepared by him or prepared by another at his instance and signed by him or otherwise authenticated by him.’ ”

Beard v. State, 337 So.2d 1372 (Ala.Cr.App. 1976). See also Palerno v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959).

“A statement, memoranda, or notes, not read by the witness interviewed and not signed or authenticated by the witness cannot be considered evidence. Mabry v. State, 40 Ala.App.. 129, 110 So.2d 250. In this case, Harwood, J., writing for the court quoted with approval:
‘Perhaps the answer is best summarized in a statement by Cardozo, C.J., in People ex rel. Lemon v. Supreme Court of State of New York, 245 N.Y. 24, 156 N.E. 84, 85, 52 A.L.R. 200, wherein he observed:
‘Documents are not the subject to inspection for the mere reason that they will be useful in supplying a clew whereby evidence can be gathered. Documents to be subject to inspection must be evidence themselves.’ ”

Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. den. 290 Ala. 363, 276 So.2d 640 (1973).

During a recess in the trial, the trial judge allowed the appellant to examine the statements of these witnesses and to look at the notes of one of the detectives in the case concerning an interview he had with Beverly Metzler. Following the recess, defense counsel stated he had not had an opportunity to look at Hindman’s statement. At this point, the trial judge learned these statements had not been signed or otherwise authenticated by the witnesses and refused appellant further access to these statements. (R. 140).

In light of the fact that these statements were not properly authenticated by the witnesses, we do not find error in the trial judge’s ruling, not to allow the appellant to further examine these statements. Further, since the appellant had an opportunity to review these statements for a period of time, even though he was not entitled to the inspection of them, as a matter of right, we see no reason to assign error.

B

Secondly, the appellant contends the trial judge erred because he failed to conduct an in camera inspection, as required by Ex Parte Pate, 415 So.2d 1140 (Ala.1981), to determine if the statements made by Metz-ler, Metier and Hindman were inconsistent with their testimonies during trial, and whether the appellant’s trial would be fundamentally unfair unless these statements were provided to defense counsel.

The most important aspect we must point out that distinguishes the Pate case from the one at bar, is that in Pate, the Alabama Supreme Court specifically states that the statements involved had been authenticated by the witnesses. As we have previously stated, the statements in this case were not signed or otherwise authenticated by the witnesses.

While in Cooks, supra, we recommended that an in camera inspection be held when doubt exists whether there was a “statement”, such was not the case here.

From our examination of this record, we can find no evidence that these statements had been properly authenticated. Therefore, we find no error in the trial judge’s refusal to conduct an in camera inspection of the statements.

c

The appellant maintains the trial judge should have allowed discovery of the criminal histories of Metzler, Metier, and Hindman. This issue has previously been decided by this court. In Wright v. State, 424 So.2d 684 (Ala.Cr.App.1982), cert. den. 424 So.2d 684 (Ala.1983), we stated:

“There is also no absolute right to disclosure of the criminal records of the State’s witnesses, see Mack v. State, 375 So.2d 476, 486 (Ala.Cr.App.1978), affirmed, 375 So.2d 504 (Ala.1979), vacated on other grounds, 448 U.S. 903, 100 S.Ct. 3044, 65 L.Ed.2d 1134 (1980), on remand, 405 So.2d 700 (Ala.), reversed on other grounds, 405 So.2d 701 (Ala.Cr.App.1981), and authorities cited therein.”

The trial judge did not abuse his discretion in denying the appellant’s request for the production of this information.

D

Lastly, appellant asserts he was denied equal protection and due process of law, guaranteed by the United States Constitution, because the trial judge denied him the opportunity to discover certain items when other defendants in other cases in this state have been allowed discovery of those items.

First of all, “[tjhere is no constitutional right to discovery in a criminal ease.” Wright v. State, supra. See also Reed v. State, 407 So.2d 153 (Ala.Cr.App.1980), reversed on other grounds 407 So.2d 162 (Ala.1981); Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666 (1972).

Secondly, discovery is a matter which is left to the sound discretion of the trial judge. In Re Bryan, 645 F.2d 331 (5th Cir.1981); Oliver v. State, 399 So.2d 941 (Ala.Cr.App.1981).

Since there is no absolute right to discovery and discovery is within the trial judge’s discretion, the scope of discovery will vary depending upon the particular circumstances involved in each case. Merely because this appellant may have been denied discovery of certain items which other defendants have been allowed to discover does not constitute a sound reason for reversal.

Furthermore, from our examination of the record, the trial judge in this case was most lenient in granting discovery. As the trial judge stated on page 14 of the record, the appellant was allowed to inspect many items which he was not entitled to as a matter of right. We do not find that the trial judge abused his discretion by denying discovery of certain items in this ease.

Therefore, we do not believe this issue rises to the status of constitutional magnitude so as to offend the equal protection and due process clauses of the United States Constitution (Fourteenth Amendment).

II

The appellant argues that the x-rays of the victim were not properly authenticated and should not have been admitted into evidence because the person who actually made the x-rays did not testify at trial.

“In Austin v. State, 354 So.2d 40, 42 (Ala.Cr.App.1977), cert. denied, 354 So.2d 44 (Ala.1978), we quoted with approval Gamble, McElroy’s Alabama Evidence § 254.01(3) (3rd ed. 1977), which discusses the authentication necessary to properly admit into evidence a business record:
‘In order to properly authenticate a business record, any witness (frequently the custodian of the record) must testify: ‘that the document now exhibited to him is a record of the business; that he knows the method (i.e., the standard operating procedure) used in the business of making records of the kind now exhibited to him; and that it was the regular practice of the business to make records of such kind and to make them at the time of the event recorded or within such specified period thereafter as could be found by the trier of fact to be reasonable.’
“Once the above predicate is laid, the record is admissible even though the maker or entrant has no personal knowledge of the truth of the matter recorded. Meriwether v. Crown Investment Corporation, 289 Ala. 504, 268 So.2d 780 (1972); Speigle v. Chrysler Credit Corporation, 56 Ala.App. 469, 323 So.2d 360, cert. denied, 295 Ala. 420, 323 So.2d 367 (1975); McElroy’s § 254.01(2).”

Coleman v. State, 423 So.2d 276 (Ala.Cr.App.), cert. denied, 423 So.2d 276 (Ala.1982).

In the case at bar, Dr. Wayne Mitchell testified he is the radiologist supervisor at Decatur General Hospital and is the custodian of the x-ray records of the radiology department. He stated the x-ray records of the victim were under his control and he identified those records in court. He further stated that the x-rays of the victim were made in the ordinary course of business, and it is the regular business of his department to make and preserve such records. The x-rays of the victim have become a permanent part of her record at the hospital and were under his care and custody from the time they were made until the present.

We find the State laid the proper predicate for the admission of these x-rays into evidence and that they were properly authenticated by Mitchell. Therefore, the x-rays were properly admitted into evidence under the business records exception to the hearsay rule. Coleman v. State, supra.

Ill

The appellant’s contention that the trial judge improperly refused to give several of the appellant’s written requested charges is without merit.

“The refusal of a charge, though a correct statement of law, shall not be cause for a reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s general charge or in charges given at the request of parties.”

Ala.Code § 12-16-13 (1975). See also Campbell v. State, 423 So.2d 284 (Ala.Cr. App.), cert. denied, 423 So.2d 284 (Ala.1982); Lambeth v. State, 380 So.2d 923 (Ala.1979).

We have reviewed the refused charges and find that they were fully covered in the trial court’s oral charge to the jury. Therefore, there is no basis of error to reversal on this issue.

IV

The appellant’s contention that there was insufficient evidence presented at trial to support a conviction is without merit.

We agree with the appellant that his conviction was based solely on circumstantial evidence. However, whether there was sufficient evidence to sustain a conviction was a question for the jury. Wicker v. State, 433 So.2d 1190 (Ala.Cr.App.1983).

We have reviewed the record and have set out the evidence elicited at trial. This evidence was sufficient for the jury to conclude, by fair inference, that the appellant was guilty of the offense charged. This court will not substitute its judgment for that of the jury unless we find it to be wrong and unjust. Wicker, supra. We do not find it to be so in this case. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1979); Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.1979).

V

The appellant urges the trial judge committed reversible error when he refused to allow defense witness, Ben Giles Tipton, Jr., to testify about an alleged prior inconsistent statement of prosecution witness Terry Metier.

During the direct examination of Tipton, the following occurred:

“Q Did you have a conversation with Terry Metier about John Hindman and Gary Williams?
“A Yes, sir.
“Q Did Terry Metier tell you anything about Gary Williams?
“A Yes, sir.
“Q What did he tell you?
“MR. MORGAN: Objection, Your Hon- or. That’s hearsay.
“MR. SIMPSON: Prior inconsistent statements.
“THE COURT: Come up here just a moment.
“(The following occurred at the Bench:)
“THE COURT: Did you ask Terry Metier this question?
“MR. MAUNEY: Yes, sir.
“THE COURT: What did you ask him?
“MR. SIMPSON: I asked him, as I recall, if he was—
“MR. CRAMER: Now, wait. You asked him if he saw—
“MR. MORGAN: Your Honor, could we have this outside the presence of the jury?
“THE COURT: Ladies and Gentlemen, step into the jury room just a minute while we resolve this matter.
“(The following occurred out of the presence and hearing of the jury:)
“MR. SIMPSON: Judge, it is my best recollection that I asked Terry Metier if he knew Ben Tipton and if he had had a conversation with Ben Tipton about this defendant.
“MR. CRAMER: You asked him if he had seen Ben Tipton in the District Attorney’s office last Thursday and if they had any conversation with each other at that time:
“MR. SIMPSON: It is my recollection that I asked him if he had a conversation with Ben Tipton, which conversation was oral.
“MR. CRAMER: In the District Attorney’s office, Fred.
“MR. SIMPSON: It seems like to me that I asked the question.”
“THE COURT: You didn’t ask Terry Metier what his statement was or anything, did you?
“MR. SIMPSON: Judge, I’m trying to remember what I did ask. I know I went into the question of Ben Tipton for the purpose of putting this young man on, and the best recollection that I have is that I did ask him if he had a conversation with Ben Tipton concerning this defendant.
“THE COURT: And he said he didn’t. Is that what he said?
“MR. CRAMER: He said he saw him in the District Attorney’s office Thursday when he came down from being with his probation officer.
“THE COURT: I think that in order to do that you have to lay a predicate with the witness Terry Metier and that predicate is as follows: State when it was, where it was, the person to whom it was made, and the substance of the statement. I don’t believe you have done that. I don’t recall any testimony or any question that you asked Terry Metier if he made a statement in substance to this fellow. I don’t believe you did that. Do you disagree?
. “MR. SIMPSON: Judge, I am trying to give you my best recollection. I wouldn’t mislead the Court.
“THE COURT: I have no recollection of your asking that question. Then this would not be admissible, this prior inconsistent statement, since you haven’t asked Terry Metier if he made such a statement. Okay? Are you ready to proceed?
“MR. SIMPSON: Yes, Sir.” (R. 724-726)

From the above excerpt from the record, it is clear the trial judge did not believe defense counsel had laid the proper predicate during the cross-examination of Metier which would justify the admission of the testimony of Tipton. However, the following portion of the record convinces us defense counsel did lay the proper predicate during his cross-examination of Metier.

“Q Had you talked to Ben Tipton about it up in the jail?
“A No, sir.
“Q Had you talked to Ben Tipton up in the jail and told him that you and John were putting it off on Gary?
“A No, sir.” (R. 649)

While we believe the trial judge should have allowed Tipton to testify concerning the alleged prior inconsistent statement, we do not find his refusal to be reversible error for two reasons.

First, defense counsel should have asked the trial judge to allow the court reporter to read back the pertinent portion of Metier’s testimony. The trial of this case consists of five volumes of transcript, and certainly the trial judge could not be expected to rely on his memory as to each detail about which each witness testified. Had defense counsel requested the court reporter to read back the testimony at issue, the question could have been answered immediately and this issue would not be before this court on appeal.

Secondly, as the State points out in its brief, the case is very similar to Ex Parte Harris, 428 So.2d 124 (Ala.1983), in which the Alabama Supreme Court held, “[wjhen the evidence of the defendant’s guilt is strong, the defendant must show that the trial court’s error was prejudicial.” (Citations omitted).

In Harris, supra, that Alabama Supreme Court stated that the admission of the testimony of a prosecution witness concerning the existence of a prior inconsistent statement of another witness was not reversible error because ‘the admission of the prior inconsistent statement did not supply the jury any new information, but merely attacked [the witness’] credibility at trial, and was in no way damaging to this appellant.’ (quoting from this court’s opinion in Harris v. State, 428 So.2d 121 (Ala.Cr.App. 1981). The harmless error rule, Rule 45, A.R.A.P. was applied.

In the case before us, we are dealing with the exclusion rather than the admission of such testimony. However, we do not believe that Tipton’s testimony would have supplied the jury with new information. The jury had already heard that Metier had been granted youthful offender status in exchange for his testimony. Further, the credibility of Metier’s testimony was already in question because a member of the Huntsville Police force had testified that Metier’s reputation for truth and veracity was bad and that he would not believe him under oath.

As we stated earlier in the opinion, the evidence of the appellant’s guilt was substantial. The appellant has failed to convince us the exclusion of Tipton’s testimony prejudiced him to any extent. This issue is one to which the harmless error rule can be properly applied.

Therefore, the exclusion of Tipton’s testimony did not deny the appellant a fair trial. Rule 45, A.R.A.P.

VI

The appellant alleges that the prosecutor’s conduct during the course of the trial created a prejudicial atmosphere and denied him the right to a fair and impartial trial. The appellant refers to instances in which the prosecution (1) made offers to introduce evidence during the cross-examination by defense counsel of several state witnesses, (2) commented about the appellant’s manner of dress, (3) introduced into evidence a photograph of the victim in front of a Christmas tree, (4) questioned several witnesses about other crimes in which the appellant allegedly was involved, and (5) commented about the guilt of the appellant.

We must analyze each of these instances, individually and collectively, to determine whether the appellant was prejudiced by the prosecution’s conduct.

During the cross-examination of several State witnesses by defense counsel, the prosecutor offered to introduce into evidence statements of certain witnesses and the results of examinations made by Dr. Buttram and Dr. Aguilar and their reports. The appellant has no grounds for complaint about the prosecutor’s action because defense counsel had continuously referred to the items during his examination of the witnesses. Further, the trial judge told the prosecutor that cross-examination by the opposing party was not the proper time to offer evidence for admission and the trial judge did not allow these items to be admitted into evidence.

Following this prosecutor’s question to one of the State’s witnesses as to whether the appellant usually wore a coat and tie outside the courtroom, the trial judge promptly told the jury the appellant was free to wear anything he wants. The trial judge’s instruction certainly removed any prejudicial inferences the jury could have drawn from the question.

There was nothing inflammatory or improper about the State’s introduction of the photograph of the victim. It was used only to assist the witnesses in the identification of the victim. Ellenburg v. State, 353 So.2d 810 (Ala.Cr.App.1977).

Testimony, elicited by the prosecutor concerning the appellant’s alleged involvement in another murder, a theft and a scheme to kill his wife, was not improper. Defense counsel opened up these matters during his examination and therefore these matters were properly within the scope of the prosecutor’s examination.

VII

During the closing argument by the prosecutor, the following occurred:

“MR. CRAMER: I prosecute Gary Wade Williams with enthusiasm because I am convinced he killed Sandra Phillips that night. I am convinced he is a killer and I am convinced he could do it again.
“MR. MAUNEY: We object to what the District Attorney is convinced of. That is not proper argument.
“THE COURT: Sustained.” (R. 908)

This court has long condemned the practice of attorneys expressing their personal views as to the guilt or innocence of the defendant to the jury during arguments. Knighten v. State, 35 Ala.App. 524, 49 So.2d 789 (1950); McColston v. State, 20 Ala.App. 591, 104 So. 347 (1925); Gilbert v. State, 19 Ala.App. 104, 95 So. 502 (1923); Woods v. State, 19 Ala.App. 299, 97 So. 179 (1923); Mitchell v. State, 50 Ala.App. 121, 277 So.2d 395 (1973).

However, when the improper argument is a mere expression of opinion based on the evidence and does not injuriously affect the substantial rights of the defendant, then there is no error for reversal. Mitchell v. State, supra; Gilbert v. State, supra; Gardner v. State, 17 Ala.App. 589, 87 So. 885 (1920), 205 Ala. 60, 87 So. 888 (1920); Tucker v. State, 28 Ala.App. 492, 188 So. 276 (1939); Cranmore v. State, 41 Ala.App. 276, 129 So.2d 121 (1961).

In light of the fact the prosecutor stated, “I am convinced ... ”, his statement constitutes an expression of his opinion based on the evidence presented at trial. We find that the appellant was not prejudiced by this remark.

Furthermore, had we found this remark to be prejudicial to the appellant, it still would not constitute a cause for reversal. Even though the appellant contends the trial judge should have given curative instructions, we do not believe this was necessary here. First of all, the appellant failed to ask the trial judge to so instruct the jury. Secondly, the trial judge immediately sustained defense counsel’s objection to the prosecutor’s remark. Any prejudicial effect of this statement was eradicated by the trial judge’s prompt action. Downs v. State, 45 Ala.App. 415, 231 So.2d 336 (1969); Carroll v. State, 440 So.2d 343 (Ala.Cr.App.) and cases cited therein, cert. denied, 440 So.2d 343 (Ala.1983).

It is clear to this court, after reviewing the record, that the prosecutor’s conduct during trial did not create a prejudicial atmosphere which would have denied the appellant a fair and impartial trial.

This record is free of error. Therefore, the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Presiding Judge.

license: Public Domain

text:
    David H. ROBERTS v. STATE.
    8 Div. 874.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied June 1, 1984 Alabama Supreme Court 83-806.

      J. Stephen Salter of Groenendyke & Salter, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

David Horace Roberts was indicted and convicted for trafficking in cocaine. Sentence was three years’ imprisonment and a fine of $50,000. On appeal Roberts argues that the State’s evidence is insufficient to connect him with the cocaine and to support a conviction.

Roberts waived his right to a jury and was tried by a judge. The circumstantial evidence presented by the State is more than adequate to prove his guilt beyond a reasonable doubt.

As part of a continuing investigation into the cocaine traffic in Morgan County, the residence at 421 Oak Street in Decatur had been under surveillance. Morgan County Deputy Sheriff Walter Price obtained a warrant to search that residence, averring that the residence was “under the domain and control of David Roberts and Mike Partain.”

The residence actually belonged to Eleanor Rambridge, Roberts’ elderly relative who was confined in a medical facility. Roberts “cared after” her home. The cable television service was listed in Roberts' name. However, Elizabeth Roberts had been declared Ms. Rambridge’s legal guardian and was the custodian of the property at 421 Oak Street.

Roberts’ family owned and operated the Roberts Catfish Lodge in Hartselle. Roberts worked there and “stayed there quite frequently and a good bit of the time” in an apartment unit at the lodge.

Mike Partain lived at the residence “part-time” and stayed there “maybe a little bit more” than Roberts. There was no testimony that any of Roberts’ clothing was found in the residence.

The search warrant was obtained and executed on Monday, April 5, 1982. The investigation of Roberts had been going on since 1978. On either the previous Friday or Saturday evening, Roberts’ Cadillac had been observed parked at the residence during a “spot check” by investigating officers. The officers had observed “a lot of people come and go” from the residence.

On Monday morning around 9:30 surveillance was established. At that time Par-tain’s car was observed but Roberts’ Cadillac was not. Partain left around 11:00 that morning and did not return.

The officers continued their observation of the residence until 3:30 that afternoon when the surveillance was broken off. When the officers returned fifteen or twenty minutes later, they observed Roberts’ Cadillac parked in front. No one saw Roberts enter or leave the residence. The Cadillac was driven away and was stopped within two or three blocks. Roberts was driving. He was given a copy of the search warrant and agreed to return with the officers to the residence.

Roberts opened the door to the residence and “went straight to the location of the marijuana upon entry into the residence.” Decatur Police Sergeant Edgar Taylor testified that Roberts walked to an ottoman and said “something to the effect of ‘Here it is’, or T will show you where it is’, or T will show you what I got.’ ” Roberts opened the ottoman, revealing a small quantity of marijuana inside.

Deputy Price testified that approximately one-quarter pound of marijuana was found in a bedroom and that Roberts “must have said something about this marijuana being his, too.” Drug paraphernalia found in the residence included a “cocaine snorting device”, a screen wire of the type “commonly used to sift cocaine”, a piece of laboratory equipment commonly used for “freebasing” cocaine, and a hypodermic syringe. Two Valium tablets were found on Roberts. One Methaqualone (Quaalude) tablet was found in a bowl on top of the refrigerator.

The cocaine which is the basis of Roberts’ conviction was found by Sergeant Taylor in a “leather briefcase, folder-type thing.” While the other officers were searching the residence, Sergeant Taylor stayed with Roberts in the living room. Roberts was sitting on the sofa when Taylor began to examine a leather case on the coffee table. The Sergeant became suspicious when he felt a “lump” inside the case and observed Roberts’ reaction. Roberts “had a very vivid reaction and appeared shocked.” Taylor testified that Roberts appeared “scared, worried, concerned, maybe even shocked; ... his eyes widened, his lips seemed to tighten a bit.” Taylor stated, “I thought there would be something in there just from his reaction.”

Taylor opened the leather folder and found $1800 in cash which Roberts admitted was his and for which he was given a receipt. Two clear plastic sandwich bags of cocaine were discovered inside a white envelope with the preprinted address in the lefthand corner of “J.M. Seafood Company, Post Office Box A in Birmingham, and specializing in fresh and frozen seafood, wholesale.” This envelope was found inside a pocket of the folder. The total weight of this cocaine was 32.37 grams or 1.4 ounces. Roberts denied any knowledge of the presence of the cocaine.

Also inside the leather folder or briefcase were found insurance policy statements and related documents for Roberts Catfish Restaurant, a premium invoice for the same insurance policy, Roberts’ birth certificate, and Roberts’ passport application with a departure date of April 2nd — two days after the search was conducted. After the search was completed, Roberts said to the officers, “Ya’ll must think I’m a big drug dealer or something.”

At trial, Roberts did not present any defense. On appeal, he argues that, although the circumstances are “suspicious”, the “objective” facts do not establish his connection with the residence or the leather case.

In reviewing the issue of the sufficiency of the evidence to support a conviction, this Court must accept as true the evidence presented by the State, view the evidence in the light most favorable to the prosecution, and accord the State all legitimate inferences therefrom. Johnson v. State, 378 So.2d 1164, 1169 (Ala.Cr.App.), cert. quashed, Ex parte Johnson, 378 So.2d 1173 (Ala.1979); Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.1978), cert. denied, Ex parte Cumbo, 368 So.2d 877 (Ala.1979).

In a prosecution for the possession of a controlled substance, “(t)he State must introduce additional evidence (other than mere presence) from which the defendant’s unlawful possession of the contraband could be inferred in order to support a conviction. See 57 A.L.R.3d 1319. Knowledge of the presence of the controlled substance by the defendant must also be established beyond a reasonable doubt. Temple v. State, 366 So.2d 740 (Ala.Cr. App.1978).” Ex parte Story, 435 So.2d 1365, 1366 (Ala.1983). The accused’s guilty knowledge of the presence of the contraband may be established “by evidence of acts, or conduct of the accused, from which it may be fairly inferred that he knew of the existence of the narcotics at the place where they were found.” Temple, 366 So.2d at 741. The inference of knowledge must be natural and rational. “When the existence of a fact is sought to be established by proving another fact, the fact so proven must be a fact from which the existence of the fact sought to be proven can be naturally and rationally inferred or presumed.” Batson v. Birmingham Trust & Savings Co., 241 Ala. 629, 632, 4 So.2d 307, 310 (1941) (emphasis in original). See also Ex parte Campbell, 439 So.2d 723 (Ala.1983).

Here, the fact that the cocaine was found in a leather case containing a substantial amount of currency which Roberts admitted belonged to him, insurance policies and documents connected with the family business where Roberts was employed, Roberts’ birth certificate, and his application for a passport with a departure date in the very near future supplies a natural and reasonable inference that Roberts knew the cocaine was in the case and supports a rational conclusion of constructive possession.

Roberts’ recent possession of the leather case can be logically and reasonably inferred from the facts that he was observed outside the residence in which the case was found, from the nature of the personal and business papers contained in the case, and, most significantly, from the large amount of cash found therein. It is hardly reasonable or natural that an individual will leave $1800 in cash in an unsecured case lying on a coffee table in the living room of a residence to which he claims little if any connection or to which any number of people have access. In drawing the inferences of knowledge and possession, we have considered Roberts’ reaction when Sergeant Taylor began his examination of the leather case. Annot. 56 A.L.R.3d 948, Section 6 (1974). The facts and circumstances support a finding of constructive possession. Compare Cox v. State, 367 So.2d 535 (Ala.Cr.App.1978), cert. denied, Ex parte Cox, 367 So.2d 542 (Ala.1979) (proof that person was in possession of a writing generally warrants a finding or presumption that such person knew the contents of said writing). Here, there exists a rational connection between the facts proved — the cocaine in the same case with Roberts’ business and personal documents and papers and money — and the ultimate facts presumed — his knowledge and control of the cocaine. Here, the inference of knowledge and control, on the basis of human experience and with the application of common sense, is a probable and natural explanation of the facts proven, and logically flows from those facts. See 29 Am. Jur.2d Evidence Section 162 (1967). “It is a logical and reasonable deduction from the evidence and is not supposition or conjecture.” Thomas v. State, 363 So.2d 1020, 1022 (Ala.Cr.App.1978). We find the evidence sufficient to support the conviction. Mitchell v. State, 395 So.2d 124 (Ala.Cr. App.1980), cert. denied, 395 So.2d 127 (Ala.1981). The trier of fact is “under a duty to draw whatever permissible inferences it may from circumstantial evidence and to base its verdict on whatever permissible inferences it chooses to draw.” Gullatt v. State, 409 So.2d 466, 472 (Ala.Cr.App.1981). It has been recognized that, where the accused was in nonexclusive possession of the premises, the fact that the drugs were found among or near the defendant’s personal belongings may constitute a circumstance sufficient to link him with the possession of the drugs. 56 A.L.R.3d 948, Section 10, citing People v. Mateo, 171 Cal. App.2d 850, 341 P.2d 768 (1959) (drugs found in suitcase containing recently dated receipt).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Alonzo YEARBY, alias Alonzo Eugene Sutton v. STATE.
    6 Div. 469.
    Court of Criminal Appeals of Alabama.
    April 24, 1984.
    Rehearing Denied May 22, 1984.

      Charles A. Graddick, Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Alonzo Yearby, the appellant, was indicted and convicted for child abuse. Sentence was nine years’ imprisonment. This appeal is dismissed because there was no timely notice of appeal.

The judgment entry was January 28, 1984. A “motion to reduce sentence” was filed February 9th and denied February 24th. Notice of appeal was given March 15th — forty-seven days after the judgment entry.

The notice of appeal must be filed “within 42 days (6 weeks) after pronouncement of the sentence.” A.R.A.P. 4(b)(1). Here, the notice was filed five days late.

“If a motion in arrest of judgment, motion for new trial, or motion for judgment of acquittal has been filed within 30 days from pronouncement of the sentence, an appeal may be taken within 42 days (six weeks) after the denial or overruling of the motion.” A.R.A.P. 4(b)(1). A “motion to reduce sentence” is not a “motion in arrest of judgment, motion for new trial, or motion for judgment of acquittal” and does not expand the time limit for filing a notice of appeal.

This appeal is dismissed on authority of A.R.A.P. 2(a)(1) which provides: “An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”

APPEAL DISMISSED.

All Judges concur.


author: TYSON, Judge.

text:
    John YARBROUGH v. STATE of Alabama.
    8 Div. 994.
    Court of Criminal Appeals of Alabama.
    April 24, 1984.
    Rehearing Denied May 22, 1984.

      John Mark McDaniel and Marc Sandlin, Huntsville, for appellant.
    Charles A. Graddiek, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

John Yarbrough was indicted for the sale of Pentazocine in violation of the Alabama Controlled Substances Act. The jury found the appellant guilty as charged and the trial judge sentenced him to six years in the penitentiary.

On August 29, 1982, Earnest Turney, an undercover narcotics agent with the Madison County Sheriffs Office, went to 584 Binford Court and purchased one Talwin tablet from the appellant for $8.00.

I

The appellant’s first contention concerns the chain of custody of the Talwin tablet. The record clearly indicates Turney gave the tablet to Lt. Hennessy the morning after he purchased it from the appellant. Hennessy kept it in his possession until he sent one-half of it to Martha Odom for analysis. A proper chain of custody was proven at trial. The State sufficiently established that the Talwin tablet was in substantially the same condition as it was when it was purchased. Slaughter v. State, 411 So.2d 819 (Ala.Cr.App.1982); Sterling v. State, 421 So.2d 1375 (Ala.Cr.App.1982).

II

The second issue the appellant raises is the sufficiency of the evidence. It is clear from this record that there was sufficient evidence from which the jury could conclude, by fair inference, that the appellant was guilty of the offense charged. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978).

Ill

In the third issue, the appellant complains that he was not allowed to confront and cross-examine a confidential informant who was at the scene when Tur-ney purchased the Talwin tablet.

The confidential informant in this case was not even present during the sale of the Talwin tablet. He remained outside during this time. Furthermore, he did not testify in this case and did not give Turney any information which was used as evidence against the appellant. The only evidence of the informant’s presence at the scene was elicited by the appellant. The State was not required to reveal the identity of the informant. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Self v. State, 420 So.2d 798 (Ala.1982).

We find no error and this case is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Rudolph CHAPMAN, Jr. v. STATE.
    4 Div. 253.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.

      Albert L. Johnson, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Rudolph Chapman, Jr., was found guilty by a jury of burglary in the third degree and was sentenced to imprisonment for fifteen years upon a sentence hearing at which, after he had been given due notice that the State would proceed against him under the Habitual Felony Offenders Act, it was proved he had been previously convicted of three felonies.

Appellant’s first contention for a reversal is that there was no “penetration of the space within the building by some part of the body of defendant, or an accomplice of the defendant, or by an instrument inserted for the purpose of perpetrating” a crime in the building. We disagree with appellant in his conclusion as to the evidence as a whole. No eyewitness testified as to any entry into the building, but the undisputed evidence shows that the incident upon which the indictment was based activated the burglar alarm. In addition, and more importantly, an investigator of the Phenix City Police Department testified that soon after the burglar alarm was first heard, he went to the scene, observed where “4 or 5 screws had been removed from the building and the sheet metal had been pried back by hand” and “obtained a palm print from outside of the building and also several latent prints from the inside of the building where the metal had overlapped the other pieces of metal.” He further said that he turned the known print card of defendant and the latent “prints that I had taken that night over to Captain Harbart.” Captain Aubrey Harbart of the Phenix City Police Department testified as a fingerprint identification expert that there “were 12 points of comparison on the latent prints that were comparable with the known print of Mr. Chapman.” The evidence is not as clear and definite on the point as it should be, but it is sufficient, in our opinion, to constitute substantial evidence that one or more fingers of defendant were inside the building at or about the time the burglar alarm was sounded.

Appellant insists also that there was no substantial evidence to the effect that any entry by him into the building was “with intent to commit a crime therein,” which is a requisite of burglary in the third degree. Alabama Criminal Code, § 13A-7-7(a). Defendant emphatically denied in his own testimony that he had any criminal intent in going to the particular building, a building owned by Earl McQuinn Van Service, by whom defendant was employed and for whom defendant had been working for about six weeks. He testified he had left some money in the building and that an emergency had arisen by an opportunity he had that night to rent a desirable apartment and he returned to the building for some money of his own he had left in the building. It is not for us to say that he intended to commit a crime within the building, but the circumstance that when he was first questioned as to any connection with the cause of the activation of the burglar alarm he denied any knowledge thereof and the additional circumstance that he fled from the scene constitute substantial circumstantial evidence of his guilt of the essential element of an “intent to commit a crime” within the building.

The two issues considered above are the only issues presented in appellant’s brief. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: PATTERSON, Judge.

text:
    Loren SPOONER v. STATE.
    5 Div. 857.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Robert B. Reneau of Reneau & Reneau, Wetumpka, for appellant.
    Charles A. Graddick, Atty. Gen., and Louis C. Colley, Asst. Atty. Gen., for appel-lee.
   PATTERSON, Judge.

Spooner appeals the summary dismissal of his pro se petition for writ of habeas corpus challenging the constitutionality of a disciplinary proceeding which resulted in the loss of four months’ good time. In his petition, Spooner specifically asserted that the institutional officers took disciplinary action against him without providing him with a constitutionally sufficient statement of the reasons for their actions and the evidence upon which they relied. Spoon-er’s petition was dismissed upon the State’s motion. Attached to this motion was a copy of the Disciplinary Report and an unsworn statement of the arresting officer. The “Committee findings & reasons” recited in the Disciplinary Report are as follows:

“GUILTY, by the Arresting Officer’s statement and the facts surrounding the charge. It was presented to the board that inmate Spooner was not in the area of assignment. The board, therefore, determined Spooner to be guilty [sic].”

In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court held that due process requires that an inmate involved in a prison disciplinary proceeding must be provided with a written statement by the factfinders as to the evidence relied upon and the reasons for the disciplinary action taken. Id. at 565, 94 S.Ct. at 2979. The written statement protects the inmate from possible collateral consequences based on a misunderstanding of the nature of the original proceeding and from arbitrary action by prison officials and enables him to “propound his own cause” subsequent to the hearing. Id. at 565, 94 S.Ct. at 2979.

This court has observed this Wolff standard in determining statements similar to the instant one to fall short of the inmate’s minimal procedural due process rights. In Barker v. State, 437 So.2d 1375 (Ala.Crim.App.1983), we found the following statement by a disciplinary board to be in violation of Wolff: “Inmate plead not guilty. Based on arresting officer’s statement and evidence found, inmate was found guilty.” In Barnhill v. State, 439 So.2d 822 (Ala. Crim.App.1983), the following statement was likewise deemed insufficient: “[The arresting officers] both stated the same as in the above charges. Committee found inmate guilty.” Finally, in Martin v. State, 449 So.2d 801 (Ala.Crim.App.1984), this court adjudged the following findings of the committee to be procedurally deficient: “In closed session and on secret ballot the board finds inmate Martin guilty as charged. This decision was based on the statement of the arresting officer and the amount of time involved. Inmate Martin did not have permission from the Director to leave his authorized sponsor and residence.”

We fail to see any difference between these inadequate statements and the statement of Spooner’s disciplinary board. The board in the instant case likewise failed to specify the facts in the officer’s report upon which it relied. Due process requires more than a boilerplate sentence which could be applied in every case; otherwise the concerns of Wolff would not be protected.

The Attorney General contends that the arresting officer’s statement attached to the State’s motion to dismiss is incorporated by reference into the board’s report and hence provides a sufficient written statement. This court disagrees. Even if the board’s statement incorporates the officer’s report, such adoption does not satisfy Wolff. This general finding by the board does not ensure that prison officials will act fairly. Nor will this finding protect the prisoner against subsequent collateral effects resting upon misunderstanding of the initial decision. The report in and of itself should contain a meaningful statement setting forth the essential facts relied upon.

Therefore, the trial court’s judgment dismissing Spooner’s petition is hereby set aside and vacated and this cause is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

All the Judges concur.

      . The copy of the Disciplinary Report in the record is illegible. At the request of this Court, the Elmore County Circuit Clerk forwarded the legible original exhibit.


author: HARRIS, Judge.

text:
    Gregory Joseph LEDET, alias v. STATE.
    6 Div. 150.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Ralph I. Knowles, Jr. and Joseph G. Pierce of Drake, Knowles & Pierce, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and H. William Wasden, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

On July 23, 1982, the Tuscaloosa County Grand Jury indicted appellant, Gregory Joseph Ledet, for unlawful possession of ly-sergic acid diethylamide (LSD). On January 27, 1983, he was found guilty of the charge and he was sentenced to seven years’ imprisonment in the state penitentiary-

On April 7, 1982, between 8:00 a.m. and 9:00 a.m., an informant, known to the police to be reliable, supplied information that appellant would be in possession of LSD and that he would be traveling to Broadm-oor Apartments in Tuscaloosa within an hour for the purpose of selling the drug. The informant supplied a physical description of appellant, a description of the car he would be driving and gave the police two addresses which were likely points of departure. The police verified this information within the hour through reports from other sources and through personal knowledge.

Officers Dyer and Samaniego proceeded to Broadmoor Apartments, hoping to intercept appellant en route while the drugs were still in his possession. They spotted him driving the yellow Chevrolet Chevette as predicted and stopped him a block away from the Broadmoor Apartment complex. Appellant got out of the ear and Dyer advised him of his Miranda rights while Samaniego searched the car. Samaniego found vegetable matter which he believed to be marijuana, but a patdown of appellant failed to yield the LSD which the officers expected to find. Because they were standing on a public road in morning traffic and because LSD is generally stored on small slips of blotter paper capable of being hidden in many places, the officers determined that a strip search of appellant was necessary, and so they took him to the West Alabama Narcotic Squad office with them. There a field test on the vegetable matter confirmed that the sample contained marijuana and a blotter paper containing twelve dosage units of LSD was found in appellant’s wallet in a clear plastic bag. When Dyer found the blotter paper he asked appellant what it was and appellant replied that it was LSD. Appellant also said that he used talwin, marijuana, and LSD.

Officer Samaniego testified that LSD is a very dangerous hallucinogenic drug with unpredictable effects on an individual and that it can be absorbed through the skin simply by touching the substance.

Appellant emphasizes on appeal that he is not questioning the informant’s reliability or the authority of the police officers to stop and search appellant. He does contend, however, that the officers had no justification for taking him into custody and transporting him back to their office for a more thorough search.

At the outset it must be noted that “[t]he question of whether a search or seizure is constitutionally reasonable is not to be determined from fixed rules, but must be determined from the facts of each case.” Burnett v. State, 340 So.2d 40 (Ala.Cr.App.1976) citing Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). In assessing the facts of a case the governmental interest in effective law enforcement must be balanced against official intrusion upon a private citizen’s right to be free from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sterling v. State, 421 So.2d 1375 (Ala.Cr.App.1982).

In Terry v. Ohio, supra, at 21, the Court enunciated the following standard:

“The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?”

Thus, we examine the facts available to Officers Dyer and Samaniego when they made the determination that they should transport appellant to their offices for a further and more thorough search of his person. They were in possession of information from several reliable sources that appellant was known to sell drugs, that a white male called Greg and meeting appellant’s description had sold LSD to an undercover narcotics agent at Broadmoor Apartments within the previous month, and that appellant was then en route to make an LSD sale and was within a block of his destination, and a substance thought to be marijuana was found in the car he was driving.

Based on the cumulative import of the foregoing facts we believe these officers were justified in concluding that appellant had LSD secreted in his car or on his person. Given the additional facts that LSD is a substance easily hidden and that it is dangerous not only to ingest but to touch, we believe that the officers were justified in concluding that an offense was being committed and that further investigation in the form of a more thorough search of appellant’s person, away from public view, was necessary. Terry v. Ohio, supra; Sterling, supra.

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

AFFIRMED.

All the Judges concur.


author: TAYLOR, Judge.

text:
    Toni Smith MINOR v. STATE.
    6 Div. 347.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Samuel H. Sanders, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for ap-pellee.
   TAYLOR, Judge.

Appellant Toni Smith Minor appeals her conviction of criminal possession of a forged instrument in the second degree, in violation of Ala.Code § 13A-9-3 (1975). She was sentenced to 18 years’ imprisonment, applying the Alabama Habitual Felony Offenders Act, Ala.Code § 13A-5-9 (1975).

The state’s evidence tended to show that a pick-up truck belonging to one Robert L. Howell was stolen along with certain of his personal possessions inside the truck, including his chain saw and checkbook. The checkbook was for an account belonging to Mr. and Mrs. Howell. The checks in the book were blank at the time of the theft of the truck. Mr. Howell notified the bank of the theft.

The day after the theft, some persons in a pick-up truck presented one of the Howells’ checks, made out to the appellant, at a drive-in teller's window, together with the appellant’s driver’s license. The teller checked and ascertained that there was a problem in regard to these checks, and the people in the truck drove away, leaving the check and the license. The same day, the appellant presented another check from this checkbook to be cashed at a teller window of the Carraway branch of the First Alabama Bank in Birmingham. She was only able to offer her social security card for identification. The teller ascertained that the checks had been stolen and called a security officer, who took the appellant into custody, together with the check made out to her.

At trial, Mr. Howell testified that the handwriting on these two checks, state’s exhibits 1 and 2, made payable to the appellant, was not his handwriting nor his wife’s. He said that he had not caused these checks to be made out or issued. He did not recognize the handwriting. One check was turned over to Mr. Thomas, a person in charge of bank security, and was identified at trial by the teller as the same check that was presented to her that day. She testified that the check as shown her in court was in substantially the same condition as when presented to her at the bank by the appellant.

The drive-in teller who took the other check identified both the check and the appellant’s driver’s license as being the ones that were presented to her and testified they were in substantially the same condition as they were when they were presented to her and in her possession.

Appellant’s defense was she had received the check marked state’s exhibit 1 as pay for prostituting herself. She said she had lost her driver’s license some time ago and that she just wanted to see if the check was good. She admitted to three previous grand larceny convictions.

Section 13A-9-3, Code of Alabama 1975, states:

“(a) A person commits the crime of forgery in the second degree if, with intent to defraud, he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:
“(1) A deed, will, codicil, contract, assignment or a check, draft, note or other commercial instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status....”

Section 13A-9-6 provides that:

“(a) A person commits the crime of criminal possession of a forged instrument in the second degree if he possesses or utters any forged instrument of a kind specified in Section 13A-9-3 with knowledge that it is forged and with intent to defraud....”

I

Appellant contends that the court, as part of its oral charge, should have charged on the lesser offense of criminal possession of a forged instrument in the third degree, referring to “a written instrument.” All the evidence in this case indicates that the instrument whose possession was charged was a check. Even if the court had been called on to rule on this issue, which it was not, no error would have been committed by not charging on third degree criminal possession of a forged instrument.

II

Minor asserts that the checks and the driver’s license were improperly admitted into evidence as not authenticated. This contention is not supported by the record.

III

Appellant next contends that the state failed to prove that the checks in question were forged. The testimony of the owners recited above was sufficient with the checks themselves to prove that the checks had been forged.

IV

With regard to her sentencing, Minor contends that in the application of the Habitual Felony Offenders Act two convictions occurring in the same court at the same time should be considered one conviction. This issue was considered in Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), and decided adversely to the position of appellant. The trial court correctly sentenced her under the Habitual Felony Offenders Act.

V

Appellant contends that the Habitual Felony Offenders Act as applied to her is unconstitutional on the grounds that it is violative of the principles enunciated in Solem v. Helm, — U.S.-, 103 S.Ct. 3001, 77 L.Ed.2d 637, (1983). Our Habitual Felony Offenders Act, § 13A-5-9, Code of Alabama 1975, has withstood attack on constitutional grounds in numerous cases. The appellant in this case was not sentenced to life without parole. The minimum sentence she could receive was 15 years. She was sentenced to 18 years for her fourth felony conviction. We are convinced that this sentence violates neither the letter nor the spirit of Solem v. Helm, supra.

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge. '

text:
    Belton G. JACKSON v. STATE.
    6 Div. 389.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.

      J. Robert Bentley, Oneonta, for appellant.
    Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge. '

Belton Grady Jackson, the appellant, was charged in separate indictments with the theft of automobile hubcaps from Steven-sons & Sons Used Cars and Thompson Motors, Inc. The indictments were consolidated for trial and Jackson was convicted in each case. Sentences were two years’ and three years’ imprisonment respectively. On appeal, Jackson argues that his convictions are based on the uncorroborated testimony of an accomplice.

William Eugene Cole testified that while driving home after midnight he stopped for an automobile on the side of the road. It was Jackson’s car and Jackson asked Cole to take him and his two friends to Oneonta. In Oneonta they went to three used car lots. Cole would drive away and return while two of the men stole the hubcaps. Jackson remained in Cole’s car. Although he may not have known what was happening at the first used car lot, there is little doubt that he knew exactly what was going to happen at the last two stops. Cole testified that he “didn’t know what was going on until some time after this all started”, and that he “argued about it, but after that, [he] did go along with it.”

At the last car lot, Cole saw Jackson’s two friends running from the car lot. They did not return to his car and Cole drove Jackson back to Birmingham to a place where Jackson said they could sell the hubcaps. They went to a man’s house, Jackson took the hubcaps in and returned with some money. Cole then drove them to a motel, waited while Jackson got a room, and then left. Cole admitted that he had been indicted for the theft of these same hubcaps and it was stipulated that there was a plea bargain agreement.

Oneonta Police Officer Charles Harper observed a black Ford with “two young guys in it” about the time the thefts occurred. He saw Jackson and Cole in the car. Shortly thereafter he saw Jackson’s brother, Adam, “coming across the parking lot [of Thompson Motors] with hubcaps in his hands, in a big stack of them.” Harper caught Adam with the hubcaps but never found the other thief that night.

Early the next morning, Officer Harper found Jackson at the motel in Birmingham where Cole had left him. At this time, Jackson’s brother was the only individual in custody.

The trial judge overruled Jackson’s motion to exclude with the following comments:

“[I]f I understand the rule on corroboration that you cannot convict the defendant under the uncorroborated testimony of an accomplice. Of course, the question then gets to the point: what is corroboration. Of course, you have an independent witness that testified in this case that placed the defendant in an automobile in the vicinity of the place where the alleged crime occurred. You have also got testimony other than that stated by the — that placed the defendant in the motel or found him in the motel, which, regardless of how strong it is, it would be, in the opinion of this Court, corroborative in nature to make a jury question out of it. I’m going to overrule your objection.”

Here, we find that Cole’s testimony was corroborated. This Court set forth the legal principles governing this issue in Kimmons v. State, 343 So.2d 542 (Ala.Crim.App.1977). Our Supreme Court summarized them in Senn v. State, 344 So.2d 192, 193 (Ala.1977):

“Being seen in the company of an accomplice in close proximity in time and place to the commission of a crime is not in itself always sufficient corroboration to meet our statutory requirements. Tidwell v. State, 37 Ala.App. 228, 66 So.2d 845 (1953, per Harwood, J.). On the other hand, if the accused and accomplice are seen together in unusual places and in close proximity in time and place to the scene of the crime, which was committed at an unusual hour, the requirements of corroboration may be met. Tidwell, supra.” (Emphasis in original.)

Here, in conjunction with the facts of association and proximity, the testimony of the accomplice is corroborated by the unusual place and unusual hour of this association. Senn, supra; Kimmons, supra. The corroboration of an accomplice may be shown by circumstantial evidence. Mathis v. State, 414 So.2d 151, 155-56 (Ala.Crim.App. 1982); Tidwell v. State, 23 Ala.App. 409, 410, 126 So. 186 (1930).

The fact that Jackson was found in the motel where Cole stated that he left him is one type of corroborative evidence because it constitutes, a fact and circumstance ascertained in checking up on the accomplice’s version of the affair which tends to support the truth of the accomplice’s testimony. Slayton v. State, 234 Ala. 9, 11, 173 So. 645 (1937). However, this is not the type of corroboration that tends to connect the accused with the crime and is not the type of legal corroboration required by Alabama Code § 12-21-222 (1975) (“A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient”). “Evidence which merely tends to confirm the general credibility of an accomplice, as distinguished from confirming the accomplice in such a way as to connect accused with the commission of the crime, is insufficient as corroboration.” 23 C.J.S. Criminal Law § 812(2)(b) (1961).

Here, the corroborative evidence was not strong, yet it was sufficient. “[Cjorroborative evidence need not be strong, nor sufficient of itself to support a ' conviction, the criterion being that it legitimately tend to connect the accused with the offense.” Andrews v. State, 370 So.2d 320, 322 (Ala.Crim.App.), cert. denied, Ex parte Andrews, 370 So.2d 323 (Ala.1979). See also McCoy v. State, 397 So.2d 577 (Ala.Crim.App.), cert. denied, Ex parte McCoy, 397 So.2d 589 (Ala.1981); Craig v. State, 376 So.2d 803 (Ala.Crim.App.), cert. denied, 376 So.2d 807 (Ala.1979).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Paul GOSSETT v. STATE.
    7 Div. 206.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.

      Cecil M. Matthews, Albertville, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

On October 6, 1982, the Cherokee County Grand Jury returned an indictment against appellant, Paul Gossett, charging him with obtaining or attempting to obtain a controlled substance by the forgery or alteration of a prescription, in violation of Section 20-2-70, Code of Alabama (1975). On May 12, 1983, appellant was found guilty of the offense charged and was sentenced to three years’ imprisonment in the state penitentiary under the provisions of Alabama’s Habitual Felony Offender Statute.

On September 14, 1982, appellant consulted Dr. Pierre Desrosiers, a physician, and complained of abdominal pain. Dr. Desrosiers prescribed phenophen II for the pain as well as medication for what he suspected was an underlying urinary tract infection or kidney stone. Appellant’s wife was present and she was given the prescriptions. When the couple returned to their home she gave the prescriptions to appellant’s mother.

On September 16, 1982, appellant’s mother drove him to the drugstore to fill the prescriptions. Appellant entered Dean’s Pharmacy and handed a prescription to Judy Crane, an employee of the pharmacy, who gave the prescription to Diane But-tram, the pharmacist. Ms. Buttram noted that beneath a prescription for phenophen II was a prescription for preludin, a narcotic, written across a slash mark at the bottom of the page, in a different color ink and in a different handwriting. Ms. But-tram telephoned Dr. Desrosiers, and upon discovering that he had not written the prescription for preludin, she called the Cherokee County Sheriff’s Office. Ms. Buttram identified appellant in court as the individual who attempted to get the forged prescription filled.

Appellant alleges that it was error for the trial court to deny his motion to exclude State’s evidence, since the State failed to make out a prima facie case against him. Specifically, appellant contends that the State failed to demonstrate that he had the necessary intent to commit the crime charged, i.e., that he “knowingly” uttered or published as true the altered or forged prescription.

It is the law in Alabama, however, that one possessing a forged instrument and applying it to his own use is presumed, in the absence of satisfactory explanation to the jury, to have forged it or to have been privy to its forgery. Johnson v. State, 412 So.2d 822 (Ala.Crim.App.1981); Terrell v. State, 34 Ala.App. 262, 38 So.2d 604 (1949). Thus, the State in adducing evidence that the prescription was forged or altered, that it was made out to appellant and that appellant presented the prescription to the pharmacy to be filled, made out a prima facie case against him on the crime charged.

Appellant also contends that the trial court erred in refusing his oral request for a jury instruction. This was not preserved for our review, since the defense did not submit a written requested charge concerning the matter. E.g., Travis v. State, 397 So.2d 256, cert. denied 397 So.2d 265 (Ala.Crim.App.1981); Yates v. State, 390 So.2d 32 (Ala.Crim.App.1980).

Lastly, appellant argues that the jury verdict should be reversed as contrary to and against the great weight of the evidence.

The Court of Criminal Appeals must review evidence before it in the light most favorable to the State and must not substitute its judgment for that of the jury when reviewing sufficiency of the evidence to convict. Gullatt v. State, 409 So.2d 466 (Ala.Crim.App.1981); Crumpton v. State, 402 So.2d 1081 (Ala.Crim.App.), cert. denied 402 So.2d 1088 (1981).

We find that in the case before us there was ample legal evidence from which the jury could, by fair inference, find the accused guilty of the crime charged, and we will not overturn the jury’s verdict. Hughes v. State, 412 So.2d 296 (Ala.Crim.App.1982).

We have carefully searched the record for errors injurious to the substantial rights of the appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


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    Willie James HUGHLEY, alias v. STATE of Alabama.
    7 Div. 213.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Walden M. Buttram of Finlayson & But-tram, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Willie James Hughley was indicted for the intentional killing of his wife, Mary Etta Aaron Hughley, in violation of § 13A-6-2. Hughley was found guilty of murder by the jury, and the trial judge set sentence at life imprisonment in the penitentiary.

We pretermit a statement of the evidence because of error which occurred during the trial court’s oral charge.

I

The following portion of the record is taken from the trial court’s oral charge to the jury.

“I would further charge you, ladies and gentlemen of the jury, that a person commits the crime of Murder if he causes the death of another person and in performing the act or acts which causes the death of the person, he intends to kill that person; or: if, under the circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person.” (R. 85).

Defense counsel objected to this charge on “reckless murder” because the indictment charged “intentional murder”. We must reverse this case on the grounds set out in Ex Parte Washington, [1984] 448 So.2d 404 (Ala.1984). In that opinion, the Alabama Supreme Court held that an accused has a right to be informed of the charges against him, and that it is error for the trial judge to charge on “reckless murder” unless the indictment specifically contains a “reckless murder” charge. See also Dawson v. State [1984] 449 So.2d 800 (Ala.Cr.App.1984).

Therefore, for the reasons shown, this cause is due to be reversed and remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


text:
    James Ray McDONALD v. STATE.
    6 Div. 861 (82-436).
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
   ON RETURN TO REMAND

TAYLOR, Judge.

Appellant James Ray McDonald was convicted of buying, receiving or concealing stolen property by a Jefferson County jury and was sentenced to 10 years’ imprisonment in the penitentiary. He appealed and his conviction was affirmed in McDonald v. State, 349 So.2d 100 (Ala.Crim.App.), cert. denied, 349 So.2d 102 (Ala.1977). Appellant McDonald then petitioned for a writ of error coram nobis, alleging as grounds for a new trial, newly discovered evidence. An evidentiary hearing on his coram nobis petition was held in 1982 and it was denied. The Court of Criminal Appeals issued an opinion affirming the trial court’s action denying the petition, 347 So.2d 1337. McDonald’s application for rehearing was denied in 1983 but his petition for writ of certiorari was granted by the Alabama Supreme Court. The Supreme Court, 437 So.2d' 1342, reversed the Court of Criminal Appeals and the trial court, and adopted the dissenting opinion of Judge Harris of this court as its opinion. The case was remanded to the trial court to hold a hearing to ascertain whether McDonald was entitled to a new trial. The hearing was held and the trial court determined that appellant was not entitled to a new trial. We now have this case on “return to remand.” Appellant contends the trial court erred in denying him a new trial.

The alleged newly discovered evidence presented at the hearing after the case was remanded was the testimony of one John Hare. Hare testified that he was the person who had stolen the automobile which McDonald was convicted of buying, receiving or concealing. He stated that since the statute of limitations on prosecuting him for this crime had expired, he was testifying in this case on McDonald’s behalf. He admitted to several prior convictions — for grand larceny, violating the Alabama Controlled Substances Act, and escape.

After hearing all the testimony, Judge Jasper stated in the record:

“This cause coming on to be heard after remand from the Alabama Court of Criminal Appeals on September 23, 1983. An evidentiary hearing was conducted as mandated by the Court of Criminal Appeals to determine the credibility and admissibility of the alleged newly discovered evidence and further to determine whether the appellant is entitled to a new trial. After conducting such hearing and reviewing the transcript of the original trial and the first hearing of coram nobis and further reviewing the affidavit submitted by the defendant, this Court is of the opinion that the petition for writ of error coram nobis should be and is hereby denied for the following reasons:
“(1) The affidavit of John E. Hare and his subsequent testimony ore tenus on said September 23, 1983, this Court finds that John E. Hare is not credible; that his testimony is unbelievable. In the opinion of this Court, he has been sufficiently impeached. I cannot help but remark that according to said testimony, he came forth after the statute of limitations had run. Regardless of the statute of limitations having run, his lengthy criminal record and his close association with the defendant, James Ray McDonald, leaves his testimony as unbelievable.
“(2) The affidavit of Tommy Frank Hare also is not credible. This Court is satisfied he has been sufficiently impeached and his close association with the defendant shows his bias.
“(3) I must remark that any affidavit of Dorothy Hare, mother of Tommy Frank Hare and John E. Hare, is not credible, regardless of what John E. Hare may have told her. She was available during the hearing and did not testify-
“(4) The affidavit of Annette Wells does not add to or detract from the original evidence. Had it been known at the time of the trial of this cause, it would not have affected the verdict, in the opinion of this court.
“(5) The affidavit of the Honorable Arthur Parker is credible; however, it cannot be determined as newly discovered evidence.
“(6) The affidavit of Rubinelle S. Singleton cannot be considered as newly discovered evidence as it was within the knowledge of the defendant at the time of the trial of this cause.
“(7) The affidavit of the Honorable J. Wilson Dinsmore states nothing more than hearsay as related to him by John E. Hare. In comparing the affidavit of said Mr. Dinsmore and the testimony of John E. Hare, Hare states that the communication was by telephone. Whereas, •the affidavit stated that the communication was personal am aware that Mr. Dinsmore testified in open Court that Mr. Hare had called him at the time of the communication.
“(8) It is the opinion of this Court that had both John E. Hare and Tommy Frank Hare testified at the time of this cause on behalf of the defendant, James Ray McDonald, that both witnesses would have been impeached and the same result would be reached a jury verdict against the defendant.
“(9) In reviewing the transcript, the testimony of Officer Haynes and Officer Atkinson as being eye witness identification of the defendant in this cause; both placed the defendant as the driver of the Chevrolet that was stopped by Officer Haynes, the same result, in the opinion of this Court, would have been reached by the jury.
“In none of the affidavits nor in the testimony of John E. Hare were the details of the stopping of the Chevrolet shown as those brought out by Officer Haynes in his testimony.
“It is, therefore, ORDERED, ADJUDGED and DECREED that the petition for writ of error coram nobis be and is hereby denied.”

The granting of a new trial on the basis of newly discovered evidence “rests in the sound discretion of the trial court and depends largely on the credibility of the new evidence.” Robinson v. State, 389 So.2d 144 (Ala.Crim.App.) cert. denied, 389 So.2d 151 (Ala.1980). The trial court is the factfinder in a hearing on a motion for new trial. One condition of the trial court's granting a new trial on the basis of newly discovered evidence is that the court must believe the evidence presented at the hearing. Seibert v. State, 343 So.2d 788 (Ala.1977). Considering the guidelines for judging newly discovered evidence as set forth in Zuck v. State, 325 So.2d 531 (1975), and Seibert, supra, we find that the trial court did not err in its conclusion denying appellant's motion for new trial.

OPINION EXTENDED; AFFIRMED.

All the Judges concur.


text:
    Wanda BUSBEE v. STATE.
    6 Div. 274.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied June 1, 1984 Alabama Supreme Court 83-659.
    C. Harry Green, Hamilton, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane Lecroy Brannan, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Wanda Busbee’s conviction for the manslaughter of Rodney Watkins is reversed because it is based on no more than speculation, surmise and conjecture.

The State proved that seven-month-old Rodney Watkins died in July of 1981 from the “inappropriate ingestion or administration” of the prescription drugs Amitripty-line and Doxepin. The State proved that J.C. Busbee, his wife Faye, and his daughter Wanda kept Rodney and other children in their home for neighbors as a day care service. The State proved that Amitripty-line and Doxepin were in the Busbees’ residence. Viewing the State’s case in its most favorable light, the State presented enough circumstantial evidence to support a finding that someone in the Busbee household — either J.C., Faye, or Wanda, or all or any combination of those three individuals — killed Rodney by giving him drugs. However, the State utterly and totally failed to present evidence as to the killer’s specific identity.

Kathy Watkins had four children: Rodney (seven months), Misty (two years), Chasity (two years), and Danny (seven years). Because she was working, she left her children with Faye Busbee at the Busbees’ home. Around July 1st, Rodney became ill after staying at the Busbees’. Mrs. Watkins took him to the doctor and kept him at home with her during her July 4th vacation. When she returned to work on July 6th, Faye came to Mrs. Watkins’ home and got her children to keep them for the first time since Rodney had been sick. Later that morning, Wanda came in the plant where Mrs. Watkins worked and told her that Rodney was sick and that she (Wanda) and J.C. had all the children in the truck. Wanda told Mrs. Watkins that Faye “was working at Sonic.”

Rodney was taken to the doctor and then kept at home on July 7th and 8th. He “seemed to be getting better.” On Friday, the 10th of July, Mrs. Watkins decided to return to work since Rodney “seemed all right.” As usual, Faye came and got the children. Sometime after nine that morning, Mrs. Watkins received a call from J.C. telling her that Rodney “was spitting up blood and that he was dying.” Faye and Wanda then came to the plant and got Mrs. Watkins. Wanda was holding “Rodney because Faye was driving.” The child was rushed to the hospital, then taken by helicopter to the Children’s Hospital in Birmingham where he died on July 13th.

After Rodney’s death, Misty had pneumonia and was taken to a hospital in Mississippi. Danny and Chasity continued to stay at the Busbees’ while Mrs. Watkins worked. They also “got sick” but were never “diagnosed as taking any of this kind of medicine that Rodney was diagnosed as taking.”

Linda Lou Harrison had an eleven-month-old daughter, Tabatha Darlene. She asked Faye to keep Darlene and her older daughter, Shay, because she was working — until she “got laid off” in June or July of 1981. “Most of the time” when Mrs. Harrison took her children to Faye, Wanda “was there until she got ready to go to school.” During that summer Wanda was home. Mrs. Harrison testified “when I called Faye to ask her to keep the kids about every time I went up there Wanda was there.”

On August 17, 1981, Mrs. Harrison arranged with Faye to keep Darlene. When Mrs. Harrison arrived at the Busbee residence at nine that morning, Faye “was already gone and J.C. and Wanda was there.” When she returned about 4:30 that afternoon, J.C., Faye, and Wanda were present. Wanda brought the infant to Mrs. Harrison. “J. C. asked her (Wanda) why did she pick Darlene up and bring her to me and she said because I was there.” Immediately Mrs. Harrison knew something was wrong with her child because she was shaking and would not wake up. Mrs. Harrison took her daughter to a doctor. Then, after the child kept having “seizures”, Mrs. Harrison took her to a hospital where “they said she had been drugged or bug sprayed.” Darlene was sent to another hospital in Memphis where the child received treatment and recovered.

Ann Couch was a registered nurse with the Marion County Health Department. On July 23, 1981, she talked with J.C. and Wanda at their house as part of a “home study or investigation.” At this time, Faye was in the hospital. However, the record does not show why. Nurse Couch returned on the 27th because “(i)t had been reported to me that those children — one had died and the other was sick and Faye was in the hospital, also, at that time.” She was conducting a home evaluation: “looking at (the) level of housekeeping, had they prepared meals, type of water, had they sprayed recently, or painted recently.” On her second visit, J.C. brought her the drugs present in the residence. Among the drugs were the types that caused Rodney’s death. These drugs apparently belonged to J.C.

The Busbees had kept Mrs. Angela Wright’s son Adam since 1979 when he was five months old. Faye “primarily took care of the children” at that time. In the summer of 1981, Mrs. Wright’s other son, Shane, was sixteen weeks old and the Bus-bees were keeping both children. Faye “primarily took care of the children” during that time. Wanda was in school part of the time but did not go after January, 1981. During the first week in July of 1981, Mrs. Wright went back to work and the Busbees started sitting with her children again. “A week before July 21st” she was “called home because Shane was sick.” On Tuesday she was again called: “They told me he was sick and had the same thing that Rodney had and he was dying.” Faye called and when Mrs. Wright arrived to get Shane, J.C., Faye, and Wanda were there. The child looked “fine” at the doctor’s office. However, Mrs. Wright stayed home with Shane for the rest of the week. The next Monday, “the twentieth or twenty-first”, Mrs. Wright returned to work and left Shane with J.C., Faye, and Wanda. Later, Faye called and told her “to come get Shane that he had turned black.” Wanda was holding Shane when Mrs. Wright arrived. Faye drove Mrs. Wright and her son to the doctor. The child was then transported by helicopter to the Children’s Hospital in Birmingham, where he recovered. Amitriptyline and Doxepin were found in the child’s system. This is all the testimony the State presented which could conceivably connect the defendant to this horrible crime'.

When the State rested, defense counsel moved for a directed verdict of acquittal which the trial judge denied without comment. The defendant presented no evidence in her behalf. At sentencing, when asked if she had anything to say, the defendant stated that she was not guilty.

The State’s evidence in this case simply does not pass the test for determining the sufficiency of circumstantial evidence set forth in Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979), and approved in Dolvin v. State, 391 So.2d 129 (Ala.Cr.App.1979), reversed on other grounds, 391 So.2d 133 (Ala.1980). After reading the transcript of the evidence, this Court cannot say who killed Rodney or administered the drugs to the other children.

There is no proven motive. J.C., Faye, and Wanda each had the opportunity and means to commit the crime. Other than the bare fact that the suspects are members of one family, there is no evidence of a conspiracy. Here, there is simply no evidence from which a jury might reasonably have excluded every hypothesis except that of guilty beyond a reasonable doubt.

Since there were others who had both the means and the opportunity, this is not a case where the accused must have been the killer. Thompson v. State, 364 So.2d 681 (Ala.Cr.App.1976), cert. quashed as improvidently granted, 364 So.2d 682 (Ala.1977), appeal after remand, 364 So.2d 683 (Ala.Cr.App.), cert. denied, 364 So.2d 687 (Ala.1978). The State’s evidence does not show who was the actual killer or killers. Here, there was not any combination of circumstances which warrants a finding of guilt. “No matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown to be guilty, by that full measure of proof which the law requires.” Ex parte Acree, 63 Ala. 234 (1879); Cumbo, 368 So.2d at 875.

This Court is bound by the written record presented on appeal. In this case, all that record does is cast suspicion on not one but three people. The crime committed was vile and shocking, yet we are left wondering who was the killer or killers. The evidence in this case points no more to Wanda than it does to J.C. or Faye.

We find the Attorney General’s argument unsound:

“All material circumstances in evidence point to the guilt of Wanda Busby and exclude any reasonable hypothesis except that of her guilt. The evidence is so strong and cogent as to show the defendant’s guilt to a moral certainty. Faye and J.C. Busby had kept children for years without incident. It was only after Wanda dropped out of school and Faye went to work, leaving Wanda with the children, that any child in their care was poisoned. Wanda’s guilty knowledge that the children were poisoned was apparent from the testimony of Linda Lou Harrison. While Mrs. Harrison was talking with J.C. and Faye, Wanda brought baby Tabatha and gave her to Mrs. Harrison. J.C. asked Wanda why she had done that and Wanda said, ‘Because she was here.’ The baby was having convulsions, throwing her head back and shaking, and yet Wanda did not acknowledge the child’s illness.
“It was always Faye or J.C. who noticed that the children were sick and telephoned their mothers. Even though Wanda kept them while Faye worked, she never reported their illnesses to their mothers. The jury reasonably inferred that it was Wanda who wanted the children to die. It should also be noted that Faye was hospitalized shortly after the children.”
(Attorney General’s Brief, pp. 13-14).

The facts show that the Busbees had been keeping children since 1979, that the difficulty developed in the summer of 1981 and that Wanda did not go to school after January 1981. The record does not show when Faye went to work, the only evidence of that being that Faye was not present when Wanda told Mrs. Watkins that Rodney was sick on July 6th; and that on August 17, 1981, when Mrs. Harrison brought Darlene to the Busbees’, Faye “was already gone.” There is no evidence where she had gone or exactly when she returned, although the record does show that she was home around 4:30 that afternoon when Mrs. Harrison returned to get her child.

Although Faye was not present when Mrs. Watkins got Rodney on July 6th, she was at the house when Mrs. Harrison got her sick daughter (August 17, 1981) and Mrs. Wright got her sick son (July 21st). J.C. was present all the time. Even when Wanda was attending school, she had access to the children before she went to school In the morning, and, presumedly, after she returned home in the afternoon. The record does not show when or how long Faye worked, although there is an inference that she could have been working some of the time in question. More significantly, the evidence does show that Wanda, Faye, and J.C. were all home when Mrs. Harrison and Mrs. Wright came to the Bus-bee residence to get their sick children.

Mrs. Harrison’s testimony does not display “Wanda’s guilty knowledge that the children were poisoned.” Wanda only brought the infant to her mother, there being no indication whether or not Wanda knew the infant was sick and certainly no indication that Wanda knew the child had been poisoned. The inference from the record is not that Wanda kept the children for whatever period Faye worked, but that Wanda and J.C. kept the children. At no time is there evidence that Wanda was alone in the house with the children.

Although there was no testimony as to Wanda’s age in the record, the order transferring her from juvenile court to circuit court for treatment as an adult shows that she was born December 7, 1963, which would make her 17 in the summer of 1981.

The prosecutor failed to present evidence which would reveal Wanda Busbee’s participation in Rodney’s killing. The fact that the jury convicted her only of manslaughter, although she had been indicted for murder, is perhaps an indication of the dilemma the jury faced when confronted with the insufficient evidence. The motion for judgment of acquittal was due to be granted because of the insufficiency of the evidence to convict. The judgment of the circuit court is reversed and rendered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

REVERSED AND RENDERED.

All Judges concur.