text:
    Matthew BEVERLY v. STATE.
    8 Div. 701.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-987.

      Morris S. Dees, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard D. Melson, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

The defendant was indicted and convicted for the capital offense involving the intentional killing and robbery of Scott Deroo. Sentence was life imprisonment without parole.

The defendant was indicted under Section 13A-5-31(a)(2), Alabama Code 1975, defining the capital offense of “(r)obbery or attempts thereof when the victim is intentionally killed by the defendant.” The jury found the defendant “guilty of robbery in which the victim, Scott Deroo, was intentionally killed.” The defendant was not indicted and convicted under what is now Section 13A-5-40(a)(2), defining the capital offense of “(m)urder by the defendant during a robbery in the first degree or an attempt thereof committed by the defendant.” Section 13A-5-31 was repealed and replaced by Section 13A-5-40, effective July 1, 1981.

The indictment charged in pertinent part that the defendant

“feloniously took, to-wit: one (1) backpack and contents thereof, . .. the personal property of Scott Deroo, from his person and against his will, by violence to his person or by putting him in such fear as unwillingly to part with the same, and during the course of said robbery, the said Matthew L. Beverly, .. . did unlawfully and with malice aforethought intentionally kill the said Scott Deroo by shooting him with a rifle.”

The defendant contends that the evidence adduced at trial is insufficient to support the conviction. He argues with considerable skill and diligence that there was “absolutely no evidence offered showing the victim was robbed.”

Viewing the evidence and all inferences arising therefrom in a light most favorable to the State, we find that the prosecution completely and totally failed to prove that the defendant robbed Deroo of a backpack as alleged in the indictment.

The pertinent facts when considered most favorably towards the State reveal that on the tenth of April 1979 Melissa Hefner, age fifteen, and Scott Deroo, age nineteen, began hitchhiking from Superior, Wisconsin, to Tampa, Florida, to visit Deroo’s mother. The defendant and his two companions picked up the two hitchhikers in Birmingham, Alabama, between 8:00 and 9:00 that night. Ms. Hefner had with her a green duffle bag containing her clothing. Deroo carried his personal items in an orange backpack.

The two hitchhikers returned with the defendant and his friends to Huntsville, Alabama, upon the defendant’s offer of lodging for the night and because Deroo was unfamiliar with the way to Tampa from Birmingham. On the trip from Birmingham to Huntsville everyone smoked marijuana and drank beer. It is undisputed that “(a)t some point along the way, the duffle bag and orange backpack were placed in the trunk of the car to keep Appellant’s friend Bubba from having to hold the backpack in his lap.” (Appellee’s Brief, p. 5).

Norman (“Bubba”) Cook, Jr. testified:

“A. Sometime or other from the time we got to Birmingham and the time we got back (to Huntsville) we put it (the backpack) in the trunk somewhere, but I don’t remember where it was at.
“Q. Who did this, do you remember who placed the backpack in the trunk?
“A. No, I don’t.
“Q. Do you recall whose idea it was?
“A. No, but I imagine it could have been my idea because the backpack setting on my lap, but I’m not sure.
“Q. When you were in the backseat with Melissa and Scott and they had their belongings with them, wasn’t that uncomfortable?
“A. Do what?
“Q. Was that uncomfortable?
“A. Yes.
“Q. There might have been some grumbling about a lack of room back there?
“A. Yes, it’s possible.
“Q. Isn’t it true that you were the one who suggested that they put the bags and duffle bags in the trunk so you could have more room back there?
“A. I don’t remember exactly who said it.
“Q. But the pack was in your lap?
“A. Yes.
“Q. It was uncomfortable for you?
“A. Yes.”

The defendant’s other friend, Jerry Lee Francis, testified that on their return from Birmingham to Huntsville the backpack and the duffle bag were placed in the trunk when they “stopped off the interstate to use the bathroom.” He did not remember who placed this “stuff” in the trunk.

Arriving in Huntsville at approximately 1:00 a.m., the defendant drove to Bubba’s residence and asked Bubba if he had any .22 caliber shells. Bubba went in his residence and searched but was unable to find any. When Bubba returned and said he could not find them, Jerry said, “Well, I have some, I’ll give you a couple, I don’t have a box but I’ll give you a couple.”

Jerry and the defendant then got into the car where the hitchhikers had been waiting and drove to Jerry’s house. There, Jerry went into the house and returned and gave “six or seven bullets” to the defendant.

The defendant had made no mention of shooting Deroo to either Bubba or Jerry. Both Jerry and Bubba testified that the defendant had talked about shooting fish and “hunting and stuff and fishing” when they had been at Braham Springs earlier that day before they went to Birmingham and picked up the hitchhikers.

After receiving the bullets, the defendant returned to the car alone and drove off with the two hitchhikers still in the back seat of his automobile. Quoting from the Attorney General’s brief:

“After leaving his second friend’s house, Appellant drove in the dark down a little bush-lined dirt road past a white house into a field. Appellant stopped the car, told Melissa and Scott his radiator was overheating, and got out and opened the trunk of the car. Melissa heard sounds of Appellant moving things around in the car’s trunk; and then Appellant called out to Scott, ‘Could you come here and help me a minute.’
“Scott got out and walked to the back of the car and Melissa heard three shots. Appellant then got back in the car, tied Melissa’s hands behind her, and tied her feet. Appellant exited the car again, and Melissa heard another shot followed by a gurgling sound and the sounds of Appellant dragging something along the ground and rustling the bushes.
“Appellant then re-entered the car and raped Melissa after which he drove to a Tenneco Station with Melissa tied up and lying in the back seat.”

When the defendant attempted to leave the station, his car would not start. The defendant paid an attendant to drive them to a friend’s house where the defendant forced Melissa to spend the night.

The next morning the defendant drove his friend’s Toyota to the Tenneco Station where he retrieved Melissa’s duffle bag and Deroo’s backpack from the trunk of his car and placed them in the Toyota.

Again, from the brief of the Attorney General:

“They then drove on a little dirt road and parked, and Appellant began going through Scott Deroo’s backpack, removing all the contents and looking at them closely, including Scott Deroo’s wallet. Appellant then did the same with Melissa’s duffle bag. Appellant then replaced the items after wiping off any surfaces that might retain a fingerprint.
“Then they left, and arriving at an access ramp of an interstate highway, Appellant let Melissa out and gave her five dollars to call her mother.”

When the defendant drove away, Deroo’s backpack was in the back of the Toyota. Ms. Hefner was soon picked up by a passing State Trooper. The defendant was arrested at the friend’s house where he had forced her to spend the night.

Two days later Deroo’s body was found. On Deroo’s wrist was a watch and $31.39 was found in his right front pocket. Nothing else was found in his clothing. His backpack was later found near the spot where the defendant had released Ms. Hefner. Even later, Deroo’s social security card was found in the median of Highway 72.

The State proved that the murder weapon, a .22 caliber rifle, was purchased by the defendant in July of 1976.

The State also showed that a headband Deroo had in his back pocket when he was shot was found lying near the body at the shooting scene.

Under the indictment, the State had to prove robbery when the victim is intentionally killed. Section 13A-5-31(a)(2). As the trial judge instructed the jury, “By charging the Defendant under this category of a capital felony as it is described, the law casts upon the state the burden to prove beyond a reasonable doubt that the Defendant is guilty of the offense of robbery and of the offense of intentionally killing the victim of that robbery.”

The three essential elements of common law robbery are: (1) the felonious intent, (2) force or putting in fear as a means of effectuating the intent, and (3) by that means, taking and carrying away the personal property of another from his person or in his presence, all of these elements concurring in point of time. The violence or putting in fear must precede or be concomitant with the act by which possession of the property is acquired. Tunstill v. State, 33 Ala.App. 460, 463, 34 So.2d 857, cert. denied, 250 Ala. 421, 34 So.2d 859 (1948). Here, the State failed to prove that Deroo was deprived of his backpack by force or fear as charged in the indictment.

The issue presented was thoroughly explored by our Supreme Court in Thomas v. State, 91 Ala. 34, 9 So. 81 (1890). Thomas held that a robbery conviction could not be had on evidence showing that the accused obtained the possession of the property by fraud or artifice, and retained it by force or threats of violence. The specific holding of that case was:

“(W)e hold, . .. that violence or putting in fear, to constitute the essential factor in the crime of robbery, must precede, or be concomitant with, the taking of the property from the possession of the owner; and that no violence, no excitation of fear, resorted to merely for the purpose of keeping a possession already acquired, or of escaping after the possession has been acquired, will supply the element of force which is an essential ingredient of this offense.”
Thomas, 91 Ala. at 39, 9 So. 81.

“If force is relied on in proof of the charge, it must be the force by which another is deprived of, and the offender gains, the possession. If putting in fear is relied on, it must be the fear under duress of which the possession is parted with.” Thompson v. State, 24 Ala.App. 300, 305, 134 So. 679 (1931). “It is settled law in this State that the force or fear must precede or be concomitant with the taking; it cannot follow the taking, and no force or fear, however severe, which follows the taking, can make the offense committed robbery. It seems useless to argue this proposition further.” Thompson, 24 Ala.App. at 305, 134 So. 679. “If there be a taking by trick or connivance, and carrying away with felonious intent, but no violence or putting in fear, as a means of the caption of another’s property, there is larceny, but no robbery.” Ex parte Carson, 17 Ala.App. 345, 346, 85 So. 827 (1920). See also Root v. State, 247 Ala. 514, 25 So.2d 182 (1946); Annot. 93 A.L.R.3d 648 (1979). Compare Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962); Oliver v. State, 399 So.2d 941 (Ala.Cr.App.1981).

Our new Criminal Code significantly broadened the scope of common law robbery by adding new methods of committing that crime. Section 13A-8-41, 42, 43. Under these sections, the conduct in Thomas, supra, and the defendant’s conduct here might well be deemed to constitute robbery. Commentary following Section 13A-8-44. However, as we have emphasized, the defendant was charged and the jury was instructed on common law robbery since there was no statutory robbery in this state before January 1, 1980, and the Criminal Code. Douglass v. State, 21 Ala.App. 289, 291, 107 So. 791 (1926); Alabama Code Section 13A-1-11 (1975).

“(A) conviction based upon a record wholly devoid of any evidence of a crucial element of the offense charged is constitutionally infirm.” Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979); Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). The Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d. 368 (1970); Frederick v. State, 20 Ala.App. 336, 102 So. 146 (1924).

Upon the record evidence adduced at trial, no rational trier of fact could have found proof of guilt of the crime charged in the indictment beyond a reasonable doubt. Even the circumstantial evidence of this case does not pass the test of Dolvin v. State, 391 So.2d 133 (Ala.1979), and Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). The deficiency in this particular case is not a mere insufficiency of the evidence but rather the total lack of proof of all the essential elements of common law robbery as charged in the indictment. For this reason, we have no choice but to reverse the judgment of the trial court and remand this cause.

REVERSED AND REMANDED.

All Judges concur.


source: Caselaw Access Project

author: HUBERT TAYLOR, Judge.

license: Public Domain

text:
    Floyd Leon WATSON, alias v. STATE.
    2 Div. 327.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 2, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-1074.

      William S. Poole, Jr., Demopolis, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Burglary in the first degree; sentence, life imprisonment without parole (habitual offender).

The facts surrounding this conviction have been the subject of several prosecutions, both State and Federal. The companion case in State court is Tombrello v. State, 421 So.2d 1319 (Ala.Cr.App.1982), and a related Federal case is United States v. Tombrello, 666 F.2d 485 (11th Cir.1982). The following facts set out by the Court of Appeals for the Eleventh Circuit also summarize the State’s evidence in the instant case:

“On October 27, 1980, [appellant’s co-defendant Sam] Tombrello telephoned an acquaintance, ‘Red’ Gore, seeking assistance in planning a series of burglaries in Alabama. To achieve this purpose, Tom-brello asked Gore’s help in locating someone in the Chicago area skilled in safe cracking and disarming burglar alarms. Unfortunately for Tombrello, Gore, who was already in trouble with law enforcement officials promptly reported the conversation to the FBI. The next day, on October 29,1980, Robert Martin, a special employee of the FBI posing as a member of the ‘Chicago syndicate,’ called Tom-brello to offer his support in the upcoming enterprise. Martin agreed to the monitoring and recording of the conversation. Tombrello, unaware of the caller’s true identity, offered to fly to Chicago the next day to meet with his new partners. On October 29,1980, Tombrello met in a hotel room at the Chicago airport with Martin and FBI Agent Robert Pecoraro and told of his plans to rob the store and residence of Thomas Summer-ville in Eutaw, Alabama. On the following day, October 30,1980, Tombrello, who had returned to Alabama, again received a phone call from Martin and discussed the plan. On November 5, 1980, the group met again in Alabama. FBI Agent John Dolan and appellant'Watson attended this meeting and Watson was introduced as the ‘mastermind’ of the robbery of the Summerville home and store. All the details were worked out at this time. Everyone agreed that the robbery would take place the following day, November 6, 1980, and that Tombrello and Watson would procure the necessary guns. On November 6, 1980, Wright joined the band and provided two pistols which were to be used in procuring the cooperation of the Summervilles. At this session, it was agreed that one of the FBI agents would enter the residence first and then summon the others when the way was clear. While enroute to the Summerville home, Tombrello assured his Chicago associates that the theft would net $250,000.00 in cash as well as diamonds and gold. The conspirators also agreed that the loot should be ‘fenced’ in Chicago. Upon arrival at the scene, everything went according to plan, except when the call came and the appellants arrived in the house they found themselves surrounded by well-armed FBI agents.
“The conspirators, apparently abandoning the original idea of forcefully cracking the safe, needed Thomas Summer-ville’s aid in providing the combination. To this end, they discussed torturing Mrs. Summerville as a means of securing his cooperation.”

Appellant claimed that he and Tombrello were entrapped and never intended to burglarize the Summerville home. The entire purpose was an elaborate ruse to get money from Chicago syndicate men.

Tombrello testified that he had been led to believe by Red Gore that the syndicate people would advance him a great deal of cash if he could convince them he had planned a crime which required “front money.” Tombrello claimed that he and appellant pretended to have planned the Sum-merville burglary and they “talked big” in order to impress the Chicago mobsters.

Also, appellant insisted that he did not know Tombrello was armed when they entered the Summerville residence.

I

Appellant argues that he should have had court appointed counsel with at least five years’ criminal law experience, according to § 13A-5-54, Code of Alabama 1975, since his potential sentence was life imprisonment without parole.

Section 13A-5-54, concerning capital offenses, requires that experienced counsel be appointed for “[e]ach person indicted for an offense punishable under the provisions of this article.” Because appellant was not indicted for a capital felony and was not subject to a possible death sentence, the statute has no application to him. Thatch v. State, 432 So.2d 8 (Ala.Cr.App.1983); Curtis v. State, 424 So.2d 679 (Ala.Cr.App.1982).

II

Appellant maintains that he was denied the effective assistance of counsel by his first attorney’s inattention to his defense and by his second attorney’s lack of time to prepare for trial. Regarding the latter claim, he asserts that his Sixth Amendment rights were violated by the trial court’s failure to grant a motion for continuance. The following sequence of events is noteworthy:

March 16, 1981 — Honorable Robert E. Upchurch was appointed to represent appellant.
May 1981 — Upchurch sat in on the trial of appellant’s co-defendant, Sam Tom-brello, and heard all the testimony in the case.
September 1981 — Appellant filed a grievance with the Alabama State Bar Association against Upchurch, alleging that the attorney had not conferred with him in jail often enough, or filed any pre-trial motions on his behalf.
November 1981 — Appellant filed a pro-se motion for continuance and requested that new counsel be appointed to represent him.
December 1, 1981- — Honorable William H. Traeger was appointed co-counsel, along with existing counsel, to represent appellant.
December 2-4, 1981 — The following motions, signed by both Upchurch and Traeger, were filed in appellant’s behalf:
1) Motion for continuance;
2) for change of venue;
3) for discovery and inspection;
4) to dismiss indictment;
5) to prohibit jury dispersal;
6) to suppress acts or declarations made by co-defendants;
7) to hire an expert to examine tape-recorded conversations;
8) to quash indictment;
9) for disclosure of impeaching information.

Appellant’s first allegation, that Mr. Upchurch was ineffective because he did not confer often enough with appellant in jail or file any pre-trial motions, does not establish incompetency of counsel. As this court observed in Bass v. State, 417 So.2d 582, 585 (Ala.Cr.App.), cert. denied, 417 So.2d 588 (Ala.1982):

“[T]here is no rule stating that trial counsel’s failure to file pre-trial motions constitutes per se inadequacy of representation. The failure to act must cause the trial to be reduced to a farce, sham, or mockery of justice.”

Similarly, counsels failure to visit his client in jail as often as the client would like does not mean that the attorney is ineffective. The failure to confer with the prisoner must cause the trial to become a “farce, sham, or mockery,” due to, for example, the attorney’s ignorance of the facts or omission to assert possible defenses. In this case, Mr. Upchurch’s decision to attend the trial of his client’s co-defendant demonstrated a high degree of concern and diligence.

The record in the instant case also reveals that Mr. Upchurch kept in touch with the attorney representing appellant in the federal prosecution, another indication of preparation for his client’s defense. Thus, the allegations of incompetency are not supported by the record.

Likewise, the record reflects that appellant’s attorneys had sufficient time to prepare for trial and no abuse on part of the trial court in denying the motion for continuance. In response to the argument that Mr. Traeger did not have time to review the voluminous transcripts of the co-defendant’s trial or the federal prosecution, the judge observed that Mr. Upchurch had the opportunity to familiarize himself with both proceedings. Moreover, Mr. Traeger stated to the court that he had read the transcripts “two or three times.” In reply to the contention that Traeger had not analyzed the F.B.I.-taped conversations with the appellant, the trial court noted that Upchurch had not only heard the tapes but had obtained transcribed copies of the recordings.

The trial judge acknowledged the difficulties existing between appellant and Mr. Upchurch, as evidenced by the grievance filed by appellant against Upchurch, but he concluded that appellant’s interests would best be served by leaving Upchurch on the case. The trial court gave appellant the benefit of Upchurch’s familiarity with the evidence presented in the companion cases while at the same time creating a buffer between appellant and Upchurch by appointing Traeger. This step was efficient and commendable. A review of the transcript for the three-day trial indicates that appellant’s attorneys were diligent and resourceful. They conducted a vigorous defense by cross-examining the State’s witnesses in detail and by calling witnesses for the defense. Accordingly, there was no abuse of discretion in the trial court’s denial of the motion for continuance. See Childers v. State, 389 So.2d 193 (Ala.Cr.App.1980); Wilson v. State, 384 So.2d 1243 (Ala.Cr.App.1980).

III

Appellant contends that the trial court erred by not granting a continuance to enable him to have a defense expert examine the tape recordings. He also argues that the tapes should not have been admitted because: 1) the recordings were not the originals; 2) a proper predicate for their introduction was not established; 3) the speakers on the tape were not correctly identified and the jury was not cautioned as to the reliability of the identification; and 4) certain racial slurs made by appellant should have been deleted from the recordings.

It is unnecessary to discuss these individual claims of error because a reading of the record as a whole indicates that the error, if any, of admitting the tapes was harmless. A.R.A.P. 45. Every element of the State’s case was overwhelmingly proved by evidence other than the tape recordings. See Harris v. State, 428 So.2d 121 (Ala.Cr.App.1981), affirmed, 428 So.2d 124 (Ala.1983).

Live testimony from the F.B.I. witnesses sufficiently established appellant’s intent and predisposition to commit the crime of burglary, as well as the fact that appellant “knowingly and unlawfully enter[ed] ... a dwelling . . . and he or another participant in the crime [was] armed with ... a deadly weapon.” Ala.Code § 13A-7-5 (1975). Compare United States v. Tombrello, 666 F.2d at 491 (“In view of the mountain of unimpeachable and thoroughly incriminating evidence, the admission of the tapes, even if error, was certainly harmless.”).

IV

Appellant insists that his motion for a new trial should have been granted because the evidence established that he was entrapped into committing the burglary.

The legal principles pertaining to the defense of entrapment were summarized as follows in Johnson v. State, 291 Ala. 639, 640, 285 So.2d 723 (1973):

“Entrapment occurs when State officers or persons under their control, incite, induce, lure, or instigate a person into committing a criminal offense, which that person would not have otherwise committed, and had no intention of committing.”

The defense is not available when State agents merely provide an opportunity for the commission of an offense to an individual who already has the requisite criminal intent or predisposition to commit the charged offense. Jackson v. State, 384 So.2d 134 (Ala.Cr.App.1979), cert. quashed, 384 So.2d 140 (Ala.1980); Tyson v. State, 361 So.2d 1182 (Ala.Cr.App.1978).

Appellant contends that entrapment was shown by evidence that. F.B.I. employee Robert Martin conceived the scheme for the Summerville burglary and later ordered appellant to enter the Summerville house. However, the uncontradicted evidence derived from the recorded conversations with F.B.I. agents posing as gangsters, as well as the live testimony of the agents themselves, established that appellant had been “casing” the Summerville home for months. Moreover, Martin’s “order” or “invitation” for appellant to enter the Summerville house was all part of the prearranged plan to burglarize the premises.

The fact that appellant and his witnesses denied their intent to consummate the burglary presented a jury question. When there is a contradiction in the evidence, the defense of entrapment should be resolved by the jury. Tyson v. State, supra; Johnson v. State, supra; Demmon v. State, 46 Ala.App. 652, 248 So.2d 147 (1971). There was ample testimony indicating appellant’s predisposition to commit the crime charged, and the jury’s verdict was fully supported by the evidence on this issue.

V

Burglary in the first degree is defined in § 13A-7-5, Code of Alabama 1975, as follows:

“(a) A person commits the crime of burglary in the first degree if he knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein, and, if, in effecting entry or while in the dwelling or in immediate flight therefrom, he or another participant in the crime:
(1) Is armed with explosives or a deadly weapon; or
(2) Causes physical injury to any person who is not a participant in the crime; or
(3) Uses or threatens the immediate use of a dangerous instrument.” (Emphasis added.)

Contending that the statute requires a defendant’s knowledge of his co-defendant’s possession of a weapon, appellant based his defense at trial, in part, on the argument that he was neither armed nor aware that his co-defendant Tombrello had a weapon when they entered the Summerville residence. Appellant therefore excepted to the following instruction given by the trial court:

“As I explained to you, it is not necessary in the indictment for the State to prove that the defendant had knowledge that a participant had a deadly weapon. That is not one of the elements. So, it is not necessary for the State to prove knowledge on the part of the defendant that a participant was armed with a deadly weapon. So, the three elements are as I gave you; that Floyd Leon Watson knowingly and unlawfully entered the dwelling of Thomas Summerville; second, in doing so, he acted with the intent to commit a crime within that dwelling, that is theft; third, that the participant was armed with a deadly weapon and the participant, being Sam Tombrello, was armed with a pistol. So, those are the three elements of burglary in the first degree.”

In our judgment, the trial court’s charge was a correct statement of the law. Alabama’s burglary statutes are virtually identical to the language found in New York Penal Law §§ 140.30 and 140.25 (McKinney Supps.1981 and 1982), which are, in turn, based on the Model Penal Code § 221.1 (Proposed Official Draft 1962).

Under New York law, “lack of knowledge that [a defendant’s] co-participant was armed is never a defense to ... burglary.” People v. Mann, 102 Misc.2d 1101, 424 N.Y.S.2d 1022, 1023 (N.Y.Sup.Ct.1980) (quoting N.Y. Penal Law § 140.25 (McKinney Supp. 1982) (Practice Commentaries at 47-48)).

Likewise, under the Texas burglary statutes, which are also derived from the Model Penal Code, burglary is a second degree felony unless one of three aggravating circumstances is present, including the fact that “any party to the offense is armed with explosives or a deadly weapon.” Tex. Penal Code Ann. § 30.02 (Vernon 1974). The commentary to § 30.02 points out that even if a defendant “takes precautions to ensure that other parties to the burglary are unarmed and nonviolent,” he will, nevertheless, be guilty of first degree burglary if, in fact, any participant is so armed. Tex.Penal Code Ann. § 30.02 (Vernon 1974) (Commentary at 144).

We believe the New York and Texas constructions of the burglary statutes are persuasive not only because the laws of those jurisdictions are derived from the Model Penal Code, as are Alabama’s, but also because, as the commentary to our own statute notes:

“Burglary in the first degree, § 13A-7-5, is intended to conserve human life and not merely property. The section . .. recognizes the inherent danger- to human life ... when occurring under the life endangering circumstances enumerated.” Ala.Code § 13A-7-5 through 13A-7-7 Commentary at 145.

When one burglar has a weapon, “the inherent danger to human life” is increased whether or not his fellow burglars are aware that he is armed.

This court’s holding in Mallory v. State, 437 So.2d 595 (Ala.Cr.App.1983), construing § 13A-8-41 (first degree robbery) and § 13A-2-23 (complicity) to require knowledge on the part of one robber that his confederate is armed, is not in conflict with this decision. Although the result in Mallory may be at odds, from a practical standpoint, with the decision reached here, the difference stems from the wording used by the legislature in defining the two offenses.

A person is guilty of first degree robbery if he uses or threatens the use of force against his victim and he is armed with a deadly weapon. In order for a non-armed fellow robber to be guilty of the first degree offense, therefore, he must be held accountable under principles of complicity, which require “intent” and “knowledge.” See § 13A-2-23 (Commentary).

In drafting the first degree burglary statute, on the other hand, the legislature specifically imposed criminal liability, independently of the complicity statute, for all “participants" in the offense. Thus, we must conclude that the legislature intended to hold non-armed burglars to a higher standard of liability for the actions of their partners in crime than non-armed robbers. If this result is logically inconsistent, the remedy is with the legislative rather than the judicial branch of government.

VI

Appellant contends that testimony from one of the State’s witnesses regarding razor blades, which were removed from Tombrello at the scene, was improper. He maintains that since the indictment charged the use of a pistol as a deadly weapon in the burglary, the mention of razor blades was irrelevant and inflammatory. From the record:

“Q. All right, sir. I believe you’ve already testified about taking the razor blades from Mr. Tombrello.
“A. Yes, those came from Mr. Tombrel-lo?
“Q. And where, on Mr. Tombrello, were they?
“MR. TRAEGER: Judge, we’re going to object to that as not having anything whatsoever to do with his case being— It’s highly inflammatory. He’s not being charged with possession of a razor blade. This has nothing to do with this particular defendant. We find that prejudicial to this defendant.
“THE COURT: Approach the bench.
“(Whereupon, the attorneys approached the bench.)
“THE COURT: State your objection for the record.
“MR. TRAEGER: We object to any mention of any razor blades found in Sam Tombrello’s wallet as being highly prejudicial and inflammatory as to this particular defendant. There is no testimony that came from this defendant. There is nothing to show that this defendant had any knowledge of their existence or any connection to them. The defendant is not charged with possession of razor blades. The only charge with which he has is burglary in the first degree, which he is charged with entering a building, knowing or possessing a .25 caliber weapon, not razor blades. He’s been charged with going in to commit a theft, not to do anything .with any razor blades. We object as being highly inflammatory and irrelevant. to this particular defendant.
“THE COURT: Overrule the objection.”

As the foregoing excerpt from the transcript demonstrates, the objection here was untimely. To be timely, an objection must be interposed as soon as the ground for the objection becomes apparent. Wynn v. State, 423 So.2d 294 (Ala.Cr.App.1982); Etheridge v. State, 414 So.2d 157 (Ala.Cr.App.1982).

Unless an objection comes before the question is answered, the trial court will not be put in error for overruling the objection if there has been no motion to exclude the answer. Streeter v. State, 406 So.2d 1024 (Ala.Cr.App.), cert. denied, 406 So.2d 1029 (Ala.1981).

VII

Appellant maintains that the cumulative effect of several comments made by the trial court during the cross-examination of a State’s witness was to support the credibility of the witness.

We have examined each instance complained of and we have found, first, that there were no objections to the court’s statements and, second, that the comments were either casual remarks addressed to counsel and not to the jury, see Carpenter v. State, 400 So.2d 417 (Ala.Cr.App.), cert. denied, 400 So.2d 427 (Ala.1981), or that they were explanations by the trial judge of the reasons for his ruling, see Cooper v. State, 393 So.2d 495 (Ala.Cr.App.1981). None of the remarks was prejudicial to the appellant.

VIII

Appellant claims that the District Attorney made six improper and prejudicial statements during closing argument. On four of these statements there was no objection by the defense, on one there was no adverse ruling by the trial court, and on the remaining statement the ruling was proper since the argument was a reply in kind to summation by the defense. See Proctor v. State, 391 So.2d 1092, 1094 (Ala.Cr.App.1980).

IX

Immediately before closing arguments by the attorneys, appellant blurted out, “Your Honor, I would like to be on the record that I was not allowed to take a lie detector test before this case.” The trial judge responded, “You’re going to be held in contempt of court, Mr. Watson. You’re not allowed to address ■ the court. That manner is improper.”

Appellant contends that the comments by the trial court were too harsh and prejudiced him before the jury. We note, first, that there was no objection to the court’s statement and, further, that “[i]t is the right and duty of the court in the administration of the law to maintain its dignity, and to this end exercise its power to preserve an orderly procedure, and to punish for an offense against it.” Sims v. State, 146 Ala. 109, 41 So. 413, 415 (1906). We find no error here.

X

After the jury delivered its verdict to the court, appellant requested that the jury be polled. Appellant insists that the polling procedure used by the trial court reflected improprieties in the jury’s deliberations and a misunderstanding of the trial court’s instructions, thereby requiring a new trial.

We have carefully reviewed the polling procedure and we find no improprieties suggested. Instead, we commend the trial court for its able handling of the jury’s uncertainty and sending them back for further deliberations once they indicated that the original verdict was not unanimous.

XI

At the hearing to determine whether appellant should be sentenced as a habitual offender, the State introduced records of a 1959 Indiana conviction for robbery, three Texas convictions for robbery in 1965, and a 1961 Alabama conviction for assault with intent to rob, all carrying penalties of greater than one year. The trial court admitted proof of the Indiana and Alabama convictions, but ruled the Texas convictions inadmissible for lack of proper certification.

The court determined, however, that appellant’s own testimony during the trial provided proof of the Texas convictions. Finding that appellant had been previously convicted of three prior felonies, the trial judge then sentenced him to life imprisonment without parole under § 13A-5-9(c)(3), Code of Alabama 1975.

Appellant claims that in spite of his admission of the prior convictions, the State was required to prove that he had been represented by counsel at the time of the Texas convictions. However, once a defendant admits prior felony convictions, they are proved for purposes of the Habitual Felony Offender Act. Peoples v. State, 415 So.2d 1230, 1231 (Ala.Cr.App.1982); Smith v. State, 409 So.2d 455, 459 (Ala.Cr.App.1981); Douglas v. State, 406 So.2d 1051, 1052 (Ala.Cr.App.), cert. denied, 406 So.2d 1053 (Ala.1981).

As the Supreme Court observed in Donahay v. State, 287 Ala. 716, 255 So.2d 599 (1971):

“[W]hen a defendant, through his own counsel, freely admits his conviction of a crime, unless he qualifies his admission, he admits all of the ingredients needed to prove the conviction of the crime... . By his act of admitting the prior conviction, we think the defendant relieved the State from the burden of proving any of the matters that ordinarily would attend establishing the prior conviction.” 287 Ala. at 718, 255 So.2d 599 (quoted in Nilson v. State, 412 So.2d 1262, 1263 (Ala.Cr.App.1982)).

XII

The Habitual Felony Offender Act does not impose cruel and unusual punishment, McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901); Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981); and it is not an ex post facto law, Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948); Williams v. State, 393 So.2d 492 (Ala.Cr.App.1981).

The judgment and conviction by the Greene Circuit Court is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    James JENNINGS, Jr. v. STATE of Alabama.
    6 Div. 950.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 2, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-1089.
    Daniel W. Wainseott of Dinsmore, Waites & Stovall, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

James Jennings, Jr., was indicted for rape in the first degree in violation of § 13A-6-61, Code of Alabama 1975. The jury found the appellant guilty “as charged in the indictment” and the trial judge set sentence at twenty years’ imprisonment in the penitentiary.

The prosecutrix testified that she was employed at University Hospital in Birmingham in February, 1981, and worked the 11:00 p.m. to 7:00 a.m. shift. On the night of February 4,1981, at approximately 10:55 p.m., the prosecutrix parked her car about a block and a half from the hospital and started walking toward the hospital with her purse and books in her hands. When she got to the overpass between the VA hospital and University Hospital, she heard someone running behind her. She turned around and saw a black male running toward her so she dropped her purse and her books and began to run. The black male grabbed her, she screamed and they began to struggle. As they were struggling, a black hatchback car pulled beside them and the passenger door was open. The driver of the car, another black male, grabbed her hair and she was pushed into the floorboard of the car. Once inside the car, the man in the passenger seat put a knife to her throat. They drove off and then put her in the back floorboard. They drove around for about twenty to thirty minutes and when they stopped, the back seat was put down.

The prosecutrix’s clothes were removed and both of the black males had sexual relations with the prosecutrix twice. They then let the victim out of the car at the U-Totem in Tarrant City. The prosecutrix lost a hair clip and an earring in the car.

As the car was driving away, the prosecu-trix obtained the tag number. She then called the police and officers from the Birmingham, Tarrant City and the University of Alabama at Birmingham Police Departments talked with her. The prosecutrix gave the police the car’s tag number, her remaining earring and told them the car had a small steering wheel and plastic on the windows.

Approximately one week later, a friend came and picked up the prosecutrix at school and the two went to a downtown parking lot. When they arrived, she saw the car that she rode in the night that she was raped. Her father and brothers were there also. A short while later, three black males walked to the car and her brothers and father started fighting with the men. The victim left to find a policeman and then returned. The police who came there asked if these were the men who raped her and the prosecutrix said no because she was afraid.

However, the next morning the prosecu-trix went to the police station to view two lineups. She picked out one man in each of the lineups and testified these two men were the ones who raped her. She positively identified the appellant, in court, as the man who grabbed her, put her in the car, held the knife to her throat and raped her.

Dr. Carl Moore, a resident at University Hospital testified he was in the conference room at the VA Hospital around 11:00 p.m. on February 4, 1981. About that time, he heard someone scream and he went to the window. He said the screams were coming from the crosswalk between the two hospitals and he called the police.

Lieutenant Dan Strunk of the University of Alabama at Birmingham Police testified he went to the overpass between 'the hospitals on the night of February 4, 1981, because someone had reported hearing screams coming from that area. It appeared that someone had been kidnapped because a purse and books were found at the scene. The purse belonged to the prose-cutrix who they learned was employed at University Hospital.

Strunk went back to the police station. About an hour and one-half later, Strunk received a call to go to a U-Totem in Tar-rant City. When he arrived, he found the prosecutrix sitting in a Birmingham police ear. She appeared upset and distraught and her clothes and hair were mussed. The prosecutrix said she was bruised and said her head hurt.

Sergeant Ann Ballard of the Birmingham Police Department conducted the lineup on February 11, 1981. She stated that the prosecutrix viewed both lineups and picked out the appellant in one of these. All of the persons in the lineup were black males and dressed alike, and were of similar height and weight.

Barney Waites of the University of Alabama at Birmingham Police Department stated he went to a downtown parking lot on February 10, 1981. He saw a black Vega Hatchback. It had a small steering wheel and plastic on the windows. The tag number matched the one the prosecutrix had given the police. The car was impounded and the owner was determined to be Edward Earl Dunkins. Both Dunkins and the appellant were at the scene that night, along with the prosecutrix’s father and brothers.

Jimmy Steve Brown, an evidence technician with the Birmingham Police Department, conducted a search of the impounded vehicle. An earring, which matched the earring the prosecutrix earlier gave to the police, was found inside the car along with a hair clip.

Two witnesses testified as to the good reputation of the appellant in the community-

The appellant testified he knew Dunkins but was not with him on the-night of February 4, 1981, and denied any involvement in the rape. He said he was at home with his mother, father and a cousin.

On February 10,1981, the appellant, Dun-kins and Dunkins’ brother went to a movie downtown. When they returned to Dun-kins’ car, one of the tires was flat. Then the prosecutrix’s brothers and father jumped him, beat him and stayed until the police came. He stated he was not given his rights and was threatened after he was taken into custody.

James Jennings, Sr., testified that his son was at home on the night of Tuesday, February 4,1981, with him and his wife. However, February 4 was on a Wednesday night, but Jennings said the appellant was at home that night too.

Barney Waites testified he interviewed the appellant on the night of February 10, 1981. The appellant was given his Miranda rights and was given no threats, nor promises or hopes of reward or other inducements to give a statement. The appellant told Waites that he was with Dunkins on the night of February 4, 1981, but that Dunkins dropped him off before the rape occurred. Ricky Dunkins told the appellant that Edward Earl Dunkins picked up someone at the airport and the two of them picked up a white girl on the street in Southside and took her to Tarrant City where they raped her. The appellant never told Waites that he was with his mother and father at home on the night of February 4, 1981. He said he was at his sister’s house.

I

The appellant contends the State was allowed to introduce immaterial evidence to bolster the prosecutrix’s testimony. The evidence the appellant complains of concerns testimony by the prosecutrix that she picked out Edward Earl Dunkins from a lineup.

We fail to see how this could be considered immaterial evidence. The prosecu-trix testified that she was raped by two black males. It was certainly proper to allow her to testify that she selected Dun-kins from a lineup. The car used on the night of the rape belonged to Dunkins, and he was with the appellant on the night they were apprehended in downtown Birmingham.

Furthermore, we fail to see how this harmed the appellant’s case. The prosecu-trix’s identification did not point to the guilt or innocence of the appellant, but to Dunkins’ guilt. The jury certainly would have learned of the identity of Dunkins later in the trial as evidence was presented that Dunkins owned the car which carried the tag number that the prosecutrix gave to the police. The appellant himself told the jury that Dunkins had committed the rape in question.

Therefore, the trial judge did not err by allowing the prosecutrix to testify that she picked out Dunkins from a lineup. McLoyd v. State, 373 So.2d 1175 (Ala.Cr.App.1979), cert. denied, 373 So.2d 1185 (Ala.1979).

II

The appellant argues his motion to exclude should have been granted because the State did not provide sufficient evidence to connect him with this crime.

We do not agree. The prosecutrix identified the appellant in a pre-trial lineup and made a positive in-court identification. Her identification was based on her eye-witness view of the appellant on the night in question. She certainly was able to get a good look at the appellant while she was being abducted and while she was being raped.

The lineup was conducted one week after the rape occurred. No suggestions were made to the prosecutrix as to whom she should choose. She was positive of her identification both at the lineup and also at trial. Altman v. State, 399 So.2d 928 (Ala.Cr.App.1981).

Therefore, we hold that the prosecutrix’s identification was reliable and was sufficient to connect the appellant with the offense charged, i.e., the rape at issue.

The appellant also urges that evidence of an alibi created a reasonable doubt as to his guilt. The appellant’s alibi was that he was at home on the night of the rape with his parents and a cousin. Only his father testified concerning his alibi. His father stated he was sure his son was home on Tuesday, February 4,1981. When it was pointed out that February 4 was a Wednesday, the father stated he was sure his son was home on that night also.

Furthermore, there was evidence that the appellant told police he was at his sister’s house on the night of the rape, not at his parents’ home.

“This court will not disturb a verdict of conviction on the grounds of insufficiency of the evidence, ‘unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this court that it was wrong and unjust.’ ”

Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.1979).

This court is not so convinced. There was sufficient legal evidence in this case from which the jury could and did by fair inference, find the appellant guilty of rape in the first degree. The jury properly resolved this issue. Harris v. State, 333 So.2d 871 (Ala.Cr.App.1976).

Ill

The appellant argues that the use of the word “rape” by the prosecutrix during her testimony was reversible error.

We can find no objection by defense counsel in the record as to the State’s use of the word “rape” and the appellant has failed to point one out to us on this review. “Matters not objected to at the trial level cannot be considered for the first time on appeal.” Moore v. State, 415 So.2d 1210, 1217 (Ala.Cr.App.1982).

Therefore, for the reasons stated above, the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: SAM W. TAYLOR, Judge.

text:
    Robert A. PEOPLES v. STATE.
    7 Div. 110.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 16, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-1166.

      Robert H. King of King & King, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   SAM W. TAYLOR, Judge.

The appellant’s probation was revoked and a two-year prison sentence placed into effect. This is an appeal from that revocation of probation.

Appellant had pleaded guilty to burglary and grand larceny. He was sentenced to two years’ imprisonment but that sentence was suspended. Ninety days of his sentence was required to be served in the county jail and upon release the appellant was to be on supervised probation for a period of three years. The probation is understood to have begun on September 9, 1979 and was to have concluded on September 9, 1982.

After appellant was placed on probation, a charge was brought against him for forging or altering a drug prescription and he was placed in the Jacksonville, Alabama, jail. The judge who had originally placed the appellant on probation, thereupon had a warrant of arrest issued from the court directing the appellant’s arrest and requiring him to be brought before the court to show cause why his probation should not be revoked. The arrest warrant was not executed until October 25,1982. The appellant made bond three days later and a revocation hearing was held on December 16, 1982. At hearing the appellant was represented by counsel. Testimony at that hearing established that two officers of the Jacksonville Police Department served two warrants on the appellant on the evening of July 11, 1982, and at that time discovered him to be in possession of marijuana. The court revoked the appellant’s probation on the grounds of violation of the Alabama Uniformed Controlled Substances Act, and the sentence of imprisonment was put into effect.

I

Appellant first contends that the trial court lost jurisdiction because the arrest warrant was not served on the appellant until the expiration of the probationary period. To follow the argument of appellant on this point to its logical conclusion would be to say that a probationer could leave the state and violate the terms of his probation without retribution if he did not come back until his original probationary term was concluded. This was surely not the purpose of the Legislature when it enacted the probation provisions of the Alabama Code nor was it the purpose of this court in writing Wilson v. State, 417 So.2d 627 (Ala.Cr.App.1982). As a practical matter, the running of the period of probation must be considered tolled when a warrant of arrest for violation of probation is issued by the court or when, in the language of § 15-22-54, Code of Alabama 1975, “... a written statement by said probation officer setting forth that the probationer has, in his judgment, violated the conditions of probation ...” shall have been delivered to an officer with power of arrest, together with the request of the probation officer that the probationer be arrested. Even the failure to execute the arrest warrant until the expiration of the period of probation would not render that warrant invalid under § 15-22-54 of the Code.

II

Appellant next contends that the trial court lost jurisdiction over the probation of the appellant since the probation period ended before the revocation hearing was held.

In this case, the probation revocation hearing was not held until December 16, 1982, after an October 25 arrest on a warrant issued on July 23. If revocation proceedings had not been initiated, the probation of the appellant would have concluded on September 9, 1982. Again, we hold that the issuance of the warrant of arrest for violation of probation tolled the running of the probationary period. Failure to hold the hearing until after the originally intended expiration date of the probationary term does not deprive the court of jurisdiction. To hold otherwise would invite probationers to leave this state until after the term of their probation and then return here with impunity. Certainly such a result was not intended.

III

The record does not include an itemization of the reasons set forth by the probation officer as grounds for revocation. The transcript of the revocation hearing shows that counsel for the appellant and the court discussed in some detail four charges of new criminal activity. The second charge, possession of marijuana, is the only one upon which the court based its decision to revoke probation. Evidently charge # 1 had to do with the forgery or altering of a prescription. Charge # 3 related to intimidating a witness. No evidence was offered on charge # 4, another charge of possession of marijuana. The court granted a motion to exclude from consideration charges 1, 3 and 4.

All this is apparent from pages 28 and 29 of the reporter’s transcript. Evidently there was also a contention that the appellant'had been found guilty of some offense in Calhoun County on April 2, 1981, (R 29), but there was no legally acceptable proof made as to that, and the court declined to permit the conviction to be proved by hearsay. We must conclude that there was a report such as required by § 15-22-54, Code of Alabama 1975, since all parties proceeded on the basis of a report itemizing charges. The court stated on page 33 of the transcript:

“Mr. Peoples, from the evidence that has been offered here today, this Court is reasonably satisfied by the evidence that you have been in possession of marijuana by the evidence offered to this Court.
“You have several other charges against you that have been a complete failure to prove, [sic] and this Court is not considering those. But I am going to consider the testimony of the officers that testified in here that the substance that they had, from their experience, was marijuana. For that reason, I am going to revoke your probation. So there will be an Order entered to that effect. Go with the Sheriff.”

In addition, it is apparent that the minimal due process requirements of Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975) and Hill v. State, 350 So.2d 716 (Ala.Cr.App.1977), have been met by the trial court in this case.

For the reasons stated above, this judgment should be, and hereby is, affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Billy Ray JONES v. STATE.
    8 Div. 687.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 2, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-1081.

      John F. Porter, Livingston, and Ralph Grider, Scottsboro, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence to life imprisonment for murder. A jury found this appellant guilty as charged in an indictment with intentionally causing “the death of another person, Frances Neely, by shooting her with a pistol, in violation of Section 13A-6-2 of the Code of Alabama, subsequent to . .. the effective date of said Section 13A of the Code of Alabama.” The court fixed defendant’s punishment at imprisonment for life and sentenced him accordingly.

By reason of defendant’s indigency, he was represented by trial counsel appointed to defend him and who continued to represent him until he was sentenced, at which time defendant gave notice that he would appeal the judgment of conviction and sentence. The court then advised him that it would promptly appoint different counsel to represent him on appeal from counsel who had represented him on the trial, which the court did and which appointed counsel timely filed a motion for a new trial and represented defendant on the hearing of said motion, at which considerable testimony was taken. The trial court overruled the motion for a new trial, which ruling constitutes one of the issues presented on appeal.

No issue is presented by appellant as to whether the evidence was sufficient to present a jury question as to defendant’s guilt. Furthermore, appellant presents no issue on appeal as to the sufficiency or the weight of the evidence as to defendant’s guilt. However, as two of the issues presented by appellant could reasonably be affected by the sufficiency or the strength of the evidence as to defendant’s guilt, we will give a brief resume of the evidence pertaining directly to his guilt or innocence.

At about 3:45 P.M. on December 14, 1981, the victim was killed while in her home at Paint Rock, Alabama. A neighbor had heard a shot, and soon thereafter another neighbor of the victim entered the victim’s house and saw that she had been recently killed, that there was much blood on and about her body and signs of considerable violence. Law enforcement authorities were speedily alerted. The first officer to arrive at the scene was Deputy Sheriff Freddy Hall, who observed some onlookers and told them to move back from the premises, and then he secured the scene, including the inside of the house and parts of the outside and adjacent areas, to prevent any entrance or exit. He learned that an ambulance had been called and was informed by ambulance attendants that they had been in the house. Mr. Brent Wheeler of the Alabama Department of Forensic Sciences testified that he took part in the investigation of the residence of the victim on the night after she was killed and that he recovered a bullet from the “sub-flooring” in the northwest room of the house of an “approximate 44 caliber,” which he identified as an exhibit on the trial and which was admitted in evidence. He said that in his opinion the bullet was one that could be fired only from a “Smith & Wesson 44 special or 44 Magnum.”

Numerous photographs were taken of the residence of the victim, the interior of the house and many objects therein, including the body of the victim that showed what appears to be a bullet wound that penetrated the upper part of her chest and several marks and crushing wounds on her head, which according to the testimony of one or more expert witnesses, resulted in the fracture of her skull. According to the undisputed evidence, the body of the victim was lying on a door of the house which had been pulled down from its hinges and was largely covered with blood, and underneath the upper part of her body there was a hole in the door immediately above a hole in the flooring directly above the place where the bullet referred to above was found. According to further undisputed evidence, the defendant lived with his wife in a mobile home or trailer within a short distance of the residence of the victim, and he was at his home part of the day of her death.

The witness who first found the body of the victim testified that as she entered the victim’s house she heard a noise that sounded like a gunshot and saw someone wearing a mask run by her and out of a back door. She said the person was bent over and was under six feet tall. She could not identify the person as the defendant. Police Officer Edward Cain, Jr., who had been assigned to the canine unit, testified that he and his dog, Dozer, arrived at the scene of the crime, that his dog followed several trails from the victim’s backyard and that one of these trails led to the mobile home of the defendant, but upon reaching such property the officer’s dog became more interested in other dogs than in tracking and trailing. A neighbor of the victim and of the defendant testified that some time between 9:30 and 11:30 A.M. of the day of the homicide, she saw defendant walking down the street wearing blue jeans, a black football jacket, and tennis shoes, and that she saw him again at the time the sirens were heard relative to the homicide and he drove from his home very fast and that she afterwards saw him in the victim’s yard that night, and he told her then that when he left his house that afternoon he had changed direction from which he had started and had turned around, because “they” would not let him go in the direction he had headed. She further testified that he said “This is terrible to happen in your own back door ... this makes me sick at my stomach; I’m going to go home” and then he left. She said that he was wearing different clothes from the clothes he was wearing during the morning of that day, that he had on a red windbreaker and baseball cap. Another witness testified she saw the defendant on the morning of December 14 and then he was wearing tennis shoes and that she saw him that night in the yard of the victim’s house and that he then had changed his footwear from tennis shoes to slippers.

According to the testimony of State Investigator Sgt. Louis Mewbourn, he and three other officers went to the mobile home of defendant on the night of December 14,1981, after he had been at the scene of the crime, and found the defendant, defendant’s wife and young daughter at home. He went to question the defendant and view his home and its contents. He apprised the defendant of his mission. The defendant was cooperative and readily gave his permission for the officer to search his home. He was fully advised of all of his constitutional rights and freely answered questions as to his whereabouts the day of the homicide, after voluntarily signing a waiver of rights form. He was asked by the officers to let them see his .44 caliber pistol. He replied that he had previously owned a .44 caliber pistol but that two years before he and his stepbrother had gone target shooting down by the river with the pistol, that his stepbrother dropped the pistol into the river, that they tried to find it but could not do so. Defendant stated that he had sat around the house for most of the day on December 14, that his wife had gone to Huntsville that morning and returned about noon, that he decided to go deer hunting and took his 30-30 rifle with him and did not return until about 4:00 or 4:30 P.M. and that upon returning home he heard the sirens. He said he attempted to drive to a store but could not get through to it and turned around and went in the opposite direction to a store in Paint Rock, where he was informed that Mrs. Neely had been killed or was shot.

On the late afternoon or evening of December 15, the day after Mrs. Neely was killed, an officer went to the home of the defendant and asked him and his wife to come to Scottsboro to be there questioned in an official office. They agreed to do so. In the course of the interrogation in Scotts-boro, defendant signed a written permission for his house and premises to be again searched and delivered to them the key to the house. A search of the house was made that night. Among other items, a pair of tennis shoes that “were damp and looked like something that had come out of the washing machine” were found and introduced in evidence. They found some fingernail clippings within the bag of the carpet sweeper, which were also introduced in evidence, along with some fingernail clippers that were in the mobile home. On the agitator of the clothes-washing machine in the mobile home, which was introduced in evidence, there was a “red spot which appeared to be blood” according to the testimony of a witness. In addition, “scrapings that were characterized as blood stain” were found in the washing machine and introduced in evidence, as well as four “spent cartridges and one (1) live 44 Remington Magnum shell.”

Defendant’s testimony consisted of an outright denial of his presence in the house of the victim and of any connection whatever with her death. His testimony was substantially in accordance with what he had told investigating officers as narrated above as to his whereabouts on the day of the homicide. His testimony in material respects was corroborated by the testimony of his wife. She said that he had previously owned a pistol but that it had been a long time since she had seen it.

The evidence on behalf of the State and on behalf of the defendant, consisting of nearly seven hundred transcript pages, was extremely rambling. The State introduced sixty-four exhibits; defendant introduced eight exhibits. Many of the witnesses were extraordinarily loquacious. It is difficult to summarize the evidence within reasonable space. We have attempted a condensation of that part of the evidence that is material to the issues raised on appeal, which we now consider and in doing so supplement our summary of the evidence by referring to some of the evidence that has been thus far omitted in order to avoid a repetition thereof. Our discussion of the issues is in the order presented in appellant’s brief.

I.

Appellant’s first contention for reversal is based on some of the testimony of Boyd Dewayne Adkins, a witness for the State who at the time of the trial was serving an eight-year sentence in the Jackson County Jail for burglary. He had testified as to a highly incriminating statement that he said the defendant made to him while they were both confined in the Jackson County Jail, which incriminating statement was to the effect that he (defendant) didn’t mean to kill Mrs. Neely, that he only meant to have intercourse with her and that he “panicked.” After giving such testimony on direct examination, he testified that Officer Freddy Hall brought him to the office of the attorney for the State who was questioning him as a witness and his testimony continued as follows:

“Q. And you came into my office, I believe?
“A. Yes I did.
“Q. And we had a conversation in regard to this testimony, did we not?
“A. Yes, we did.
“Q. And I believe at that time you also asked me that if you came forward and testified could I help you in some regard—
“A. Yes, I did.
“Q. —Did that not happen?
“A. Yes, sir.
“Q. I want you to tell the jury exactly what I told you on that occasion?
“A. You told me if I was willing to take a polygraph test based on my testimony and pass it, that you would get me early parole in Florida where I would have a job.
“Q. Okay; and then subsequent to that, did you travel to Huntsville?
“A. Yes, I did.
“Q. And who did you go with?
“A. I went with Mr. Freddy Hall and—
“Q. The gentleman seated oyer here that—
“A. Yes, sir.
“Q. —Works in my office?
“A. Yes, sir.
“Q. And while there, did you make a polygraph test?
“A. Yes, I did.
“MR. DUKE: You may ask.
“CROSS-EXAMINATION
“BY MR. HARALSON:
“Q. You are lying through your teeth, aren’t you, Adkins?
“A. No, sir, I’m not.
“Q. You made a jail-house deal — and you are convicted of burglary — you remember, I’ve seen you back there. You know that I’ve been in and out of there several times, don’t you?
“A. Yes, sir, you have.
“Q. Do you remember I asked you how long you were in for?
“A. Yes, sir.
“Q. And you said, ‘A long time’ — do you remember that conversation—
“A. Yes, sir.
“Q. —About a week or ten days ago — ?
“A. Yes, sir.
“Q. And suddenly on March 15, after you say this man, who if he did it would have been foolish to do what you say he did, but if he did it you say he just started spilling his guts to you a little at a time in the cell back here, is that what you want this jury to believe?
“A. That’s what I said.
“Q. And you want out bad, don’t you, Dewayne?
“A. I took a polygraph test to prove I was telling the truth.
“Q. Well, there’s ways of beating a polygraph test and you know that as well as I do, is that not correct?
“A. I do not know.
“Q. Okay; so, you made a jail-house deal right here at the last minute to save this case for the D.A., didn’t you?
“A. No.”

Soon thereafter, the witness concluded his testimony, and then the court was in recess until the following morning, and promptly after the court reconvened in the case, the following occurred:

“MR. HARALSON: We move for a mistrial, Your Honor, on the grounds that the witness, Dewayne Adkins, made reference to having taken a polygraph test which was not responsive to any question asked by anybody that I heard and it’s been ruled in Flurry v. State, [52 Ala.App. 64], 289 So.2d 632 (1973), it’s a 1973 case—
“THE COURT: What’s that citation again?
“MR. HARALSON: 289 So.2d 632.
“THE COURT: How do you spell that Flurry?
“MR. HARALSON: F-L-U-R-R-Y.
“THE COURT: All right.
“MR. HARALSON: That polygraph results or examinations are not admissible in evidence.
“THE COURT: All right. Overruled. Bring the jury in.”

As shown by Flurry v. State and numerous other authorities cited by appellant, before and after Flurry, results of lie detector tests are not admissible in evidence. However, our attention is not called to any authority in which it is held that the injection into evidence of the results of lie detector tests requires or justifies a‘mistrial. We do not condone the injection of the matter into the case by the State, but we are not convinced that error prejudicial to defendant resulted from the court’s denial of defendant’s motion for a mistrial.

Two other issues raised on appeal pertain to that part of the testimony of Boyd Dewayne Adkins we have just discussed, and we will refer to it again in our discussion of such other two issues.

II.

In his caption to this issue, appellant states:

“The trial court erred in denying the defendant’s motion for a new trial. The evidence produced by the defendant upon hearing on its motion for new trial established that the witness, Boyd Adkins, was acting as an arm of the State when the alleged confession was given to him by the accused."

The following is ground 21 of defendant’s motion for a new trial:

“The court erred in allowing the witness, David Boyd Adkins [sic], to testify concerning the alleged confession given to him by the Defendant in that any such alleged confession was elicited from the Defendant in violation of his Sixth Amendment right to counsel. The witness had become an agent of the State in reporting the alleged conversations which he had with the Defendant to law enforcement officers and other agents of the State. The facts surrounding the witness’ reporting to law enforcement officers of the alleged conversations could not have been discovered with reasonable diligence by the Defendant since the Defendant was not afforded the names of the witnesses to be called by the State during the trial.”

Defendant attempted to support ground 21 of his motion for a new trial partly by the testimony of Adkins. The motion for a new trial was heard on May 5, 1982, about one month after this appellant had been sentenced in the instant case. In the early part of the testimony of Adkins on the motion for a new trial, he testified:

“Q. Do you recall being indicted for the offense of murder?
“A. Yes, sir.
“Q. All right; and on the 17th of February of 1982 was that charge nol prossed on motion of the State?
“A. Yes it was.
“Q. Mr. Adkins, how long have you been incarcerated in the Jackson County Jail?
“A. Nine months today.
“Q. Nine months?
“A. Yes, sir.
'“Q. You were incarcerated back in December and January and February and March?
“A. Yes I was.
“Q. On any occasion has the Defendant in this case, Billy Ray Jones, talked with you?
“A. Yes, around January [1982], Sometime in January.
“Q. The first part of January?
“A. Yes, Billy Ray and I we spent time playing cards through the feeder hole and playing checkers.
“Q. All right; you all were friends, would you say that?
“A. We talked, yes.
“Q. All right; do you recall when you first started talking with him?
“A. Right after I was put out in the hall to paint the jail as trustie [sic].
“Q. All right; when was that?
“A. That was around — somewhere around the middle of January.
“Q. The middle of January?
“A. Yes sir.

According to further testimony of the witness, defendant made no incriminating statement in the hearing of the witness the first time defendant talked with him. The defendant then stated that he was being framed. However, according to the witness, on the second occasion that defendant talked with the witness about his case, the defendant made the incriminating statement, or confession as it is called by appellant, to the effect that he did not mean to kill the victim, etc. The witness stated that said incriminating statement or confession was made to him the “end of January or the first of February.” His testimony as to the sequential relation among the incriminating statement, his communication of the incriminating statement to any person connected with the prosecution, and the nolle prosequi of the murder charge against him is not as definite as it should be. However, in the last of his testimony on the motion for a new trial, he testified on cross-examination by State’s counsel:

“BY MR. DUKE:
“Q. I just got one question, Dewayne. The agreement that we made, of course, it’s in the record but it had absolutely nothing to do with the murder charge, is that correct?
“A. That’s correct. The agreement that we made Dwight [sic, but evidently this should be ‘, Dwight,’ as the attorney asking the question was District Attorney Dwight Duke], was on March the 15th and the murder charge was nol prossed, February the 17th. It was before I’d even talked to you on this.”

On the motion for a new trial defendant called as witnesses persons connected with the prosecution, but no witness testified in effect that Boyd Adkins had been authorized or requested by any official, officer, or agent of the State to attempt to procure incriminating information from the defendant. The closest to evidence thereof is to be found in the testimony of Investigator J.C. Ferrell, of the Jackson County Sheriff’s Department, as follows:

“Q. After receiving the information on the first occasion in January, did you report this to the D.A.?
“A. I went and asked Dwight could we use the testimony of Dewayne [Boyd Dewayne Adkins] and told him basically what he had said.
“Q. All right; did you give Dewayne any instructions about going back and listening to Billy Ray and report anything else that he said to you?
“A. I told Dewayne that I wouldn’t tell him to go back because I didn’t know if that would contaminate the evidence but I also said that if he tells you anything, especially about the gun, that I would like to know about it, but I’m not asking you to do it.
“Q. All right; but you told him that if he tells you anything especially about the gun, that you would like to know about it?
“A. Yes, sir.
“Q. Did you talk with him on any other occasion?
“A. Dewayne?
“Q. Yes, sir.
“A. Dewayne was out — he would talk everyday to us.
“Q. All right; let me be more specific then. Did you ever talk with him again about Billy Ray Jones?
“A. The next time was the note that he handed me.
“Q. All right; did you have another conversation with him other than the note after that?
“A. I asked him would he testify and he said no, I can’t.
“Q. All right; did you ever talk to him again after that?
“A. No.
“Q. Did he ever tell you anything about the gun?
“A. No.”

The only authorities cited by appellant in support of the issue now under consideration are Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and Beatty v. United States, 377 F.2d 181 (5 Cir.1967). No principle of law is set forth in Powell that accords with the second contention of appellant. Powell stands resolutely for the proposition that the appellants’ judgments of conviction and sentence to death were reversible because of the failure of the State of Alabama to provide them with the assistance of counsel for their defense, in violation of the Sixth Amendment to the Constitution of the United States. The only similarity between that case and the instant case is to be found in the fact that the trials of the defendants in the cited case and the trial of the defendant in the instant case were in the same town and that the defendants in the cited cases were arrested and taken off the train in the same town as the occurrence of all of the circumstances in the instant case. Powell and its companion cases are inapposite. Massiah v. State, supra, is to the point urged by appellant in the second issue presented by him, in that Massiah stands for the proposition that the Sixth Amendment right to counsel of an indicted accused is violated by action of officers of the prosecuting sovereign in obtaining surreptitiously through an informer an incriminating statement from the accused without benefit of counsel. According to the undisputed evidence, no such action occurred in the instant case.

Beatty v. United States, does not support appellant’s contention. In affirming the judgment of the trial court, the United States Circuit Court of Appeals, Fifth Circuit, after fully considering Massiah v. United States, concluded its opinion at 377 F.2d 191, as follows:

“Government agents are not required to turn a deaf ear at the first sign that an accused is going to voluntarily admit his wrongdoing. If the accused voluntarily desires to talk about his illegal activities, government agents are not compelled to excuse themselves but they may listen with impunity. However, we wish to emphasize again that government officers are forbidden to contact and induce or encourage an accused to talk in order to obtain, procure or elicit information from him at a time when he is entitled to counsel, but his counsel is not present.”

Our conclusion is that the testimony of Boyd Dewayne Adkins relative to the incriminating statement or confession of defendant was correctly allowed in evidence.

III.

Appellant urges that the trial court erred in allowing twelve photographs of the body of the victim to be introduced in evidence. He does not refer to the pictures as “gruesome” but as evidence that “could do nothing but arouse and inflame the jury’s senses against the one accused of inflicting those wounds.” Apparently both parties are in agreement that gruesomeness standing alone is not a sufficient reason for the exclusion of relevant photographs even though they may tend to inflame the jury. Hurst v. State, Ala.Cr.App., 397 So.2d 203 (1981), writ denied, Ex parte Hurst, 397 So.2d 208 (Ala.1981). The ease chiefly relied upon by appellant is Rollings v. State, 160 Ala. 82, 49 So. 329 (1909), in which at 160 Ala. 89, 49 So. 329 it was held that the saddle of the horse the victim of an alleged homicide was riding and the suspenders he was wearing at the time he' was killed, as well as the tobacco, keys and ring found on his person, were erroneously introduced in evidence as they afforded no evidence of violence and “had no tendency to show how, by whom, or in what manner deceased was killed.” Furthermore, in that case, there was no issue as to the identity of the defendant as the killer of the deceased, while in the instant case it was the principal issue from the beginning of the trial and became the sole issue before the trial ended. The photographs were properly in evidence.

IV.

The fourth issue presented by appellant is thus captioned in his brief: “THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT’S MOTION FOR A CHANGE OF VENUE BECAUSE OF PRE-TRIAL PUBLICITY.” There was considerable pretrial publicity, which is to be expected in a case such as this case. However, there is no contention that there was anything unfair about the publicity. Existence of widespread publicity does not in and of itself indicate that an accused cannot obtain a fair trial. Botsford v. State, 54 Ala.App. 482, 309 So.2d 835 (1974), cert. denied, 293 Ala. 745, 309 So.2d 844; Jenkins v. State, Ala.Cr.App., 339 So.2d 133 (1976), cert. denied, 339 So.2d 137 (Ala.1976); McLaren v. State, Ala.Cr.App., 353 So.2d 24 (1977), cert. denied, 353 So.2d 35 (Ala.1977); McCray v. State, Ala.Cr.App., 395 So.2d 1057 (1980), cert. denied, 395 So.2d 1062 (Ala.1981). No evidence was presented as to whether defendant could obtain a fair trial. There is nothing to indicate that the trial court abused the sound discretion vested in it in denying defendant’s motion for a change of venue. Its ruling in that respect does not constitute reversible error.

V.

Appellant contends that the trial court erred “in failing to grant the defendant’s motion for a new trial based on his not being afforded adequate counsel at trial.” Appellant divides this particular contention into two separate parts, which we will now discuss under the respective headings of A and B, in treatment of appellant’s separate and several reasons why the court should have granted defendant’s motion for a new trial based upon ground 23 thereof as follows:

“The Defendant, during the trial of this cause, was not afforded adequate counsel in violation of his Sixth Amendment right to counsel during trial in that trial counsel defense of the indictment in this matter rendered the trial a farce and mockery of justice, thereby requiring a new trial to be granted to the Defendant.”

The two separate and several parts of defendant’s fifth contention are directed at the allegations contained in ground 21 of defendant’s motion for a new trial, which we quoted in II above. Both parts of appellant’s fifth contention pertain to the testimony of Boyd Dewayne Adkins, which we consider again in connection with appellant’s fifth contention.

A.

Appellant asserts: “Defense counsel’s failure to object to this testimony [the testimony of Boyd Dewayne Adkins to the effect that he had taken a polygraph test hereinbefore discussed] prejudiced the Defendant’s case to the point that it was incurable by their motion the next day for a mistrial.” We do not understand the rationale of the conclusion in appellant’s brief we have just quoted. Nevertheless, we are persuaded that defendant’s trial counsel cannot justifiably be charged with inadequate or ineffective representation in what they did or omitted at the time Adkins was being questioned by the State as to what defendant had told him. We have set forth enough, we think, in II above to show that in the light of all the circumstances, defendant’s counsel could not be properly blamed for not objecting to the line of questions by State’s counsel as to what transpired between the witness and State’s counsel after the witness had been brought to the office of State’s counsel relative to what the witness said had been told him by the defendant. It is to be noted that the first part of his testimony as to what transpired between him and the attorney for the State and Officer Freddy Hall tended to lead one to believe that defendant would be helped thereby in connection with the then existing status of the witness as a previous law violator. In no question propounded by the State was the word “polygraph” used. The word first came in an answer of the witness to a question asked him by State’s counsel. It seems reasonable to us that it was not unreasonable for defendant’s counsel to have withheld any objection, motion to exclude, or motion for a mistrial at that time, until the particular inquiry had been completed. Furthermore, it is to be noted that it is far from certain and clear at that time that the witness passed the test satisfactorily. At any rate, it appears that promptly after the witness had said that a polygraph test had been taken by him, counsel for defendant proceeded with strong cross-examination of the witness that was calculated to shake the confidence of the jury in the credibility of the witness. Although the overall result turned out to be unfavorable to defendant, it cannot be said with certainty that, had it not been for other circumstances in the case, the fact that the witness was induced to testify on behalf of the State on the subject by reason of promise of help from the State as to getting him an “early parole in Florida” where he would have a job, would not have been of great benefit to defendant.

B.

In another part of defendant’s fifth contention, he argues that “Defense counsel failed to call witnesses from the Jackson County Jail to impeach the testimony of Boyd Dewayne Adkins as per his [sic, but which we construe as if it were ‘defendant’s’] request. Said witnesses’ names were forwarded by the Defendant to his attorneys (R. 736).” We quote the pertinent part of the cited page of the record wherein the defendant testified on the motion for new trial as follows:

“After the testimony of Boyd Adkins, I asked them to subpoena several people that I had did approximately two months time with in the back bull pen, which I had been around them quite more than I had anyone else and I wanted them to come forward and state if I had ever at any time even discussed my case or even said anything at all about an act of violence toward Mrs. Neely or anything.
“Q. Did you provide your counsel with names?
“A. Yes, sir, I did.”

We seriously question the admissibility of any negative testimony by persons other than Adkins to the effect that the defendant had never made any incriminating statements to them.

We conclude our consideration of Issue V presented by appellant by observing that the transcript shows that the trial court did not overlook any of the grounds of the motion for a new trial, including particularly ground 23 as to the question of adequate representation by defendant’s counsel. The court made it known, in admirable fashion, after argument of counsel as to the motion for a new trial, that it gave consideration to each and every ground of the motion. As to No. 23, the court said:

“Number 23: The Defendant, during the trial of this cause, was not afforded adequate counsel in violation of his Sixth Amendment right to counsel during the trial in that trial counsel defense of the indictment in this matter rendered the trial a farce and mockery of justice, thereby requiring a new trial to be granted to the Defendant. The Court has heard the evidence in support of that ground and in addition presided over the trial and it was the judgment of the Court that the Defendant did receive good representation. The attorneys that were appointed to represent the Defendant well prepared the case and it was well presented, and that motion is overruled.”

The trial court was in a better position than are we to observe the handling of the case by counsel for defendant. We find no basis in the record proper or transcript before us to cause us to disagree with the trial court on the point.

VI.

As a final contention for a reversal, appellant says,

“The sentence of the Defendant constitutes cruel and unusual punishment.”

He cites no authority whatever for such contention. The contention is without merit and needs no discussion.

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.

      . He made clear his passionate desire by the use of a well known vulgarism.


author: BOWEN, Presiding Judge.

text:
    Willie C. JEMISON v. STATE.
    6 Div. 135.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.
    Rehearing Denied Aug. 30, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-1255.

      William H. Manasco, Carbon Hill, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

The defendant was indicted and convicted for the first degree robbery of Lee Ann Morgan in violation of Alabama Code Section 13A-8-41 (1975). He was sentenced as an habitual offender to life without parole. Seven issues are raised on appeal.

I

The trial judge did not deny the defendant due process of law by refusing too accept a guilty plea negotiated between the defendant and the district attorney. A trial judge is under no duty to accept a defendant’s plea of guilty. James v. State, 380 So.2d 995, 998 (Ala.Cr.App.1979), cert. denied, Ex parte James, 380 So.2d 999 (Ala.1980). See also United States v. Escobar Noble, 653 F.2d 34, 36-7 (1st Cir.1981); Frank v. Blackburn, 646 F.2d 873 (5th Cir.1980), cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 123 (1981); In re Yielding, 599 F.2d 251 (8th Cir.1979). Yarber v. State, 437 So.2d 1330 (Ala.1983), has no application.

II

The defendant, with six prior felony convictions, was properly sentenced under Alabama’s Habitual Felony Offender Act (Alabama Code Section 13A-5-9 (1975)) rather than this State’s capital punishment act (Alabama Code Sections 13A-5-39 through 59). The defendant was not charged with a capital offense. Although life imprisonment without parole is a possible punishment in a prosecution under the Death Penalty Act, that act specifically applies only to capital offenses as defined in Alabama Code Section 13A-5-39(l).

III

The Habitual Offender Act has withstood a number of constitutional attacks involving due process generally, Thomas v. State, 395 So.2d 1105, 1108 (Ala.Cr.App.1981); usurpation of executive power by the judiciary, Thompson v. State, 405 So.2d 717, 720 (Ala.Cr.App.), cert. denied, Ex parte Thompson, 405 So.2d 721 (Ala.1981); equal protection, Murphy v. State, 399 So.2d 340, 346 (Ala.Cr.App.), cert. denied, 399 So.2d 347 (Ala.1981); lack of provisions for mitigating circumstances, Holley v. State, 397 So.2d 211, 214-15 (Ala.Cr.App.), cert. denied, 397 So.2d 217 (Ala.1981); and cruel and unusual punishment, Serritt v. State, 401 So.2d 248, 251 (Ala.Cr.App.), cert. denied, 401 So.2d 251 (Ala.1981). The statute is not unconstitutional because it requires mandatory sentencing. Miliner v. State, 414 So.2d 133 (Ala.Cr.App.1981); Holley, supra.

IV

The defendant’s confession was voluntarily and intelligently entered and properly admitted at trial. The law enforcement officer’s statement that he would let the courts know that the defendant helped in the investigation did not constitute an improper inducement. Bennett v. State, 409 So.2d 936, 939-940 (Ala.Cr.App.1981), cert. denied, 457 U.S. 1137, 102 S.Ct. 2968, 73 L.Ed.2d 1356 (1982); Moss v. State, 347 So.2d 569, 571-72 (Ala.Cr.App.1977).

V

The defendant’s motion for a change of venue based on three newspaper articles and the fact that he had “a previous lawsuit consisting of (his) medical problems” (a federal civil rights action against the imprisoning authorities in the county) was properly denied as no actual jury prejudice was demonstrated. Ex parte Dolvin, 391 So.2d 677, 680 (Ala.1980).

VI

The trial judge properly refused to allow defense counsel to impeach Henry Paige, a co-conspirator and witness for the State, by the testimony of Randy Garrett as to what Kevin Taylor, the third co-conspirator, had said that Paige had said. Garrett’s testimony would have been that Taylor told him that Taylor and Paige had plotted to frame the defendant. The trial judge properly held that a statement made by a co-defendant to a third party was inadmissible as hearsay. Bush v. State, 282 Ala. 134, 209 So.2d 416 (1968). “(I)t is not permissible to permit a witness to testify as to statements which another person told him the witness being impeached had said.” 98 C.J.S. Witnesses, Section 614 (1957). Such statements constitute hearsay. Brinks v. State, 44 Ala.App. 601, 217 So.2d 813 (1968), cert. denied, 283 Ala. 712, 217 So.2d 820 (1969).

VII

The failure of the trial judge to give the defendant’s requested instructions is not properly preserved for review. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), cert. granted, Ex parte Allen, 414 So.2d 993 (Ala.1982). Additionally, we note that none of the charges were in the proper form and that ground alone would constitute a sufficient basis for their refusal.

We have answered all the issues raised on appeal. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: J. EDWARD TEASE, Circuit Judge.

text:
    Rodney RICHBURG v. STATE.
    6 Div. 820.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.
    Rehearing Denied Aug. 30, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-1234.

      James M. Jolly, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   J. EDWARD TEASE, Circuit Judge.

Appellant was convicted by a Jefferson County Jury of the offense of theft of property in the first degree and sentenced to a term of seven years.

The evidence revealed that the sixty-nine year old prosecuting witness, Grace Spano, was the victim of a purse snatching in September of 1980. In addition to her testimony, the State presented Birmingham police officer, Sergeant C.F. Hoehn. The prosecuting witness testified about the incident itself and made an in-court identification of the appellant. Officer Hoehn testified that during his investigation he showed the prosecuting witness several photographs of suspects from which she identified the appellant as being the thief.

On appeal, appellant contends that the evidence was insufficient to support the jury’s verdict, and that the trial court erred in overruling appellant’s motion to exclude at the close of the State’s evidence. Without further comment, we find these contentions are without merit.

Appellant next contends that the trial court erred in overruling appellant’s motion for a mistrial based on certain unresponsive statements of the prosecuting witness.

The record reveals the following:

“Q. (By Mr. Jolly, Appellant’s Attorney) All right, now where did you next see Rodney Richburg?
“A. (Mrs. Spano) I saw him at the hearing. The last time I saw him was in the hearing and before the hearing started he came with a gang of other prisoners and I told Sgt. Hoehn, I said, ‘That’s the boy that robbed me.’
“MR. JOLLY: We object to this, Your Honor.
“MR. COLEE (District Attorney): He asked her when she saw him.
“MR. JOLLY: Well, I didn’t ask her about being with other prisoners and other things, and I clearly think we are entitled to a mistrial in this case.
“THE COURT: Well, I overrule your motion. It was your question. I overrule.”

Clearly, a portion of the witness’s answer would have been subject to exclusion on proper motion of the defendant. However, no such motion was made. Consequently, any objection was waived. C. Gamble, McElroy’s Alabama Evidence, § 121.08 (3d ed. 1977); Ivory v. State, 237 Ala. 344, 186 So. 460 (1939).

We do not find that the unresponsive portion of the witness’s answer was so prejudicial to the defendant as to require the granting of defendant’s “motion” for mistrial.

With certain recognized exceptions, the granting of a mistrial is a matter within the discretion of the trial court. Duncan v. City of Birmingham, 384 So.2d 1232 (Ala.Cr.App.1980).

Appellant further contends that the trial court erred to reversal by allowing into evidence the group of photographs from which the victim first identified the appellant.

Defendant offered an alibi defense in this case. Consequently, Mrs. Spano’s identification of defendant was a material issue in the case because her testimony was all that connected the defendant to the crime. Cross examination of Mrs. Spano attempted to show that her identification of the defendant was based upon insufficient opportunity to view his face and other characteristics. Due to the inference of mistaken identity raised by cross examination, the trial court properly received the evidence of the photographic display to rebut such inference. Carlisle v. State, 371 So.2d 975, 977-78 (Ala.Cr.App.1979); Farley v. State, 406 So.2d 1045 (Ala.Cr.App.), writ denied, 406 So.2d 1050 (Ala.1981).

With reference to the group of photographs received into evidence, appellant asserts that such photographs carried an obvious implication of prior arrests. However, the photographs bear no markings or “cut lines” which connote prior police contact with defendant. In Farley v. State, supra, this court, quoting from Gross v. State, 395 So.2d 485 (Ala.Cr.App.1981), wrote:

“However, we do not consider mere photographs used by the police in apprehending the defendant, as those in this case, to be subject to the same objections as are mug shots, simply because the police had the defendant’s photograph in their possession before his arrest or capture.... Mere evidence of the use and possession of defendant’s photograph by the police prior to the defendant’s apprehension does not convey to the jury the same offensive and prejudicial connotations which are present in the introduction of a mug shot.”

After considering each contention raised by appellant, we find no reversible error. Therefore, the judgment of the lower court is affirmed.

The foregoing opinion was prepared by the Honorable J. EDWARD TEASE, Circuit Judge, temporarily on duty on the court pursuant to § 12-2-30(6), Code of Alabama 1975.

AFFIRMED.

All the Judges concur.