author: RILEY P. GREEN, Circuit Judge.

text:
    Billy R. HUTCHERSON v. STATE.
    8 Div. 744.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.

      Macon L. Weaver, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   RILEY P. GREEN, Circuit Judge.

Billy R. Hutcherson in a two count indictment was indicted for assault in the first degree and sodomy in the first degree. The jury found Hutcherson guilty of assault in the second degree and sexual abuse in the first degree. He received consecutive sentences of 10 years for the assault and five years for the sexual abuse.

At the end of the state’s case, the motion to exclude was denied. The motion for new trial raised the issue of the sufficiency of the evidence on the grounds that the testimony of the accomplice was uncorroborated and the testimony of the victim was contrary to the allegations of the indictment.

The prosecutrix, a sixteen-year-old female, who was not married to appellant Hutcherson, was in the company of Hutch-erson and John Mauk from 4:30 p.m. of January 22, 1982, until the early hours of January 23, 1982, in Huntsville. Around 12:30 a.m. they left the Sunshine Club in a car driven by Mauk. The victim and Mauk argued about her failure to provide a date for him. She stated that en route from the Sunshine Club she was cursed by Mauk, choked by Hutcherson, and forcibly returned to the car after she had gotten out and had begun to run away from them. Her testimony was that Mauk drove the car to a lonely dirt road near Gate 5 of Red-stone Arsenal. Hutcherson told her to undress, get on her knees and perform oral sex. Upon completion of the oral sex she was thrown against the car and some object which she could not identify was inserted into her anus. She could not identify the person who assaulted her. She then found herself lying on her back on the ground with Hutcherson choking her with his hands. The next thing she remembers is waking up on the ground in the rain, cold, bleeding and with a finger nearly cut off. She crawled to a nearby house, knocked on the door and an ambulance was summoned for her. She sustained a skull fracture, cuts about the head and body and a disfigured finger. She does not know who may have inflicted her serious injuries.

John Mauk was a codefendant who testified on behalf of the prosecution and who related the events leading to the injuries of the prosecutrix. He stated that when the car was stopped on the dirt road, Hutcher-son directed the girl to remove her clothes and the two engaged in oral sex. The witness then found some beer or whiskey on the rear seat of the car and had a drink. Next he saw the victim leaning against the car with her head on the hood with Hutch-erson’s hands on her head and neck while an act of anal intercourse was in progress. He walked away from the car and had a drink. When he returned he discovered the girl lying on her back on the ground with Hutcherson choking her. Hutcherson began to strike her with a rock and he pulled him off. Headlights appeared nearby and he and Hutcherson fled into a swamp. They later returned to the car and drove away, leaving the injured girl.

Billy Hutcherson testified in his own defense. He had known the prosecutrix for two weeks and they had engaged in previous acts of oral sex. When the car was stopped by Mauk, he and the victim relieved themselves near the car. While each was exposed he requested the girl to perform oral sex upon him. He claimed she performed the act without any force or threat. Hutcherson denied throwing her against the car or having anal intercourse with her. He claims that Mauk began cursing the girl again for the lack of a date and demanded she strip off her clothes; as she was removing them, she was hit by Mauk which caused her to fall across the hood of the car. At this time she swung and hit Hutcherson on his recently injured jaw. He lost his temper and threw her to the ground choking her for about forty-five seconds when he regained control of himself and got up. At this time Mauk began to kick her in the head and said he was going to kill her. Mauk then began to strike her with a rock until the headlights appeared down the road. They went into the swamp and later drove away leaving the victim on the ground with mud and blood over the upper part of her body.

I

Hutcherson asserts that the motion to exclude and the motion for new trial should have been' granted for lack of evidence corroborating the testimony of Mauk. Mauk was indicted for the same offense. Mauk’s presence at the scene is of itself insufficient to show complicity. Mauk denied participation. His case was later nol-prossed. The facts were conflicting. The question was one for the jury. Lewis v. State, 414 So.2d 135 (Ala.Cr.App.1982).

If Mauk was an accomplice, his testimony required corroboration. Ala.Code § 12-21-222 (1975). In our judgment Mauk’s testimony was corroborated by the testimony of the prosecutrix and the testimony of Hutcherson himself when he admitted choking her for at least forty-five seconds after throwing her to the ground. The testimony of the girl and Hutcherson certainly tends to connect Hutcherson with the assault crime and tends to incriminate him. Peoples v. State, 418 So.2d 935 (Ala.Cr.App.1982); Edwards v. State, 418 So.2d 232 (Ala.Cr,App.l982).

There was no error in the trial court’s overruling of Hutcherson’s motion to exclude or motion for new trial for lack of evidence corroborating the testimony of Mauk.

II

Hutcherson next argues that the court erred to reversal in submitting to the jury the lesser offenses of assault in the second degree and assault in the third degree.

At the conclusion of the initial oral charge of the court wherein the court properly and clearly defined the assault offenses of first degree, second degree and third degree, we find on page 191 of the record the following:

“THE COURT: Does the defendant have any exceptions to the charge?
“MR. PRICE: I’ve got a couple for the record. I object to the Court’s giving the charge of sodomy in the first degree on the grounds that the evidence did not support said charge, and that any sexual intercourse, if any did exist, was not the result of forcible compulsion. I object to the Court’s giving the charge as a lesser included offense of sexual abuse because it is not a lesser included offense, because the elements of sexual abuse are not necessarily included in the elements of sodomy in the first degree.
“And I would object to the Court’s giving the charge on the combination of Section 13A-6-20(a)(l) and 13A-6-20(a)(2) because the defendant is only charged under 13A-6-20(a)(2), and the jury would have to find the defendant had the specific intent to disfigure to find him guilty of assault in the first degree.
“THE COURT: Mr. Gardner, any exceptions to the charge?
“MR. GARDNER: No exceptions to the charge.
“THE COURT: All right, thank you.”

The jury returned to the courtroom and requested further instructions on the degrees of an assault. The trial court again defined the three degrees of an assault and on page 199 of the record we have the following:

“THE COURT: Any questions or exceptions by the defendant?
“MR. PRICE: None by the defendant.
“MR. GARDNER: None for the State.”

There was no exception to the oral charge by the court submitting to the jury the issue of lesser degrees of an assault in the first degree. There were no requested instructions by Hutcherson. Failure to object or except constituted a waiver of any defect in the charge.

There was a reasonable theory under the conflicting evidence to support a lesser assault offense. The trial court committed no error in charging the jury on assault in the second degree. Myers v. State, 401 So.2d 288 (Ala.Cr.App.1981). There was evidence which if believed by the jury beyond a reasonable doubt would support a verdict of assault in the second degree. Within the meanings of the assault statutes, a skull fracture is a “serious physical injury”; choking someone for at least forty-five seconds to the point where the victim does not remember anything certainly constitutes a “physical injury.” There is no merit in the contention of Hutcherson that the elements of assault in the second degree were eliminated by the jury verdict finding him not guilty of assault in the first degree.

Hutcherson did not argue in brief that the trial court erred in charging the jury concerning § 13A-6-20(a)(l), Code of Alabama 1975, and § 13A-6-20(a)(2), when the indictment charged an assault under § 13A-6-20(a)(2). There would be no basis for assignment of error, for the defendant could not complain of instructions relative to one offense where the verdict of the jury is for a lesser offense. 7 Ala.Digest, Criminal Law, Key No. 1172.8.

Ill

Hutcherson insists the trial court committed error to reversal in charging the jury that sexual abuse in the first degree was a lesser included offense of sodomy in the first degree.

Sodomy requires deviate sexual intercourse. Sexual abuse requires sexual contact which is defined in § 13A-6-60(3), Code of Alabama 1975, as:

“(3) SEXUAL CONTACT. Any touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party.”

The court in Parker v. State, 406 So.2d 1036 (Ala.Cr.App.1981), indicated that the phrase “or other intimate parts is used to expand the protection of the statute and to avoid narrow judicial construction of the sexual abuse statutes. It was stated therein:

“In our judgment, the determination of which areas are intimate is properly a question of law to be resolved by the trial court. Common use of the English language would indicate that the term ‘intimate parts,’ in the context of the statute, refers to any part of the body which a reasonable person would consider private with respect to touching by another.”

The Commentary following § 13A-6-66 provides in part as follows:

“Section 13A-6-66 provides felony penalties for ‘sexual contact’ under circumstances generally corresponding to that required for first degree rape, Section 13A-6-61, and first degree sodomy Section 13A-6-63.”

There was evidence before the jury of an act of oral sex and anal intercourse between the prosecutrix and Hutcherson. Under the conflicting evidence before the jury, the prosecution was entitled to have the jury instructed on sexual abuse in the first degree as a lesser offense of sodomy in the first degree.

IV

The issue of consent, force and intent to gratify the sexual desire of either was for the jury under the evidence. In determining whether the State presented a prima facie case, the evidence is considered in its light most favorable to the state. Wilson v. State, 428 So.2d 197 (Ala.Cr.App. 1983). Under the circumstances of this case, the evidence, if believed by the jury, is sufficient beyond a reasonable doubt to support a conviction of sexual abuse in the first degree.

The motion of Hutcherson to exclude the evidence for the failure to make out a pri-ma facie case was properly denied. The motion of Hutcherson for a new trial on the ground of insufficient evidence was properly denied.

Hutcherson received a fair trial. He has been represented throughout by competent, skilled and experienced counsel serving by appointment. The judgment and conviction by the Madison Circuit Court should be affirmed.

The foregoing opinion was prepared by Hon. RILEY P. GREEN, Circuit Judge, temporarily on duty on the court pursuant to § 12-2-30(b)(6), Code of Alabama 1975; the court has adopted his opinion as its own.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Presiding Judge.

license: Public Domain

text:
    Phillip Lee PRICHARD v. STATE.
    1 Div. 685.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.

      Paul D. Brown, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

Phillip Lee Prichard (Pritchett), the appellant, pled guilty to three indictments charging three different offenses of burglary in the third degree. On appeal, Prichard objects to the trial judge’s refusal to credit him with the time he spent incarcerated pending trial for each offense.

Prichard was sentenced in the first case to three years’ imprisonment (to serve one year with the remaining two years suspended). It was only for this offense that the judge credited Prichard with his nine months and twenty-one days jail time. In each of the other two cases, Prichard was sentenced to three years’ imprisonment to serve one year imprisonment consecutive with the first case with the remaining two years suspended. Prichard argues that he should have been credited with his jail time in each of the three burglary cases. We disagree.

The statute does not anticipate the present issue. Alabama Code Section 15-18-5 (1975) provides: “Upon conviction and imprisonment for any felony or misdemean- or, the sentencing court shall order that the convicted person be credited with all his actual time spent incarcerated pending trial for such offense.” This statute does not suggest that the offender should receive credit for the same jail time more than once. This would be the effect if we upheld Prichard’s argument and ordered that his jail time of nine months and twenty-one days be credited against each of the three sentences he received. Here, Prichard was in jail waiting trial on three separate and distinct crimes. Each burglary involved a different building.

The judgment of the circuit court is affirmed,

AFFIRMED.

All Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Lonnie FLOWERS v. STATE.
    3 Div. 714.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.

      Johnny Hardwick, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   HUBERT TAYLOR, Judge.

Appellant, Lonnie Flowers, was convicted of violating § 20-2-75, Code of Alabama 1975, which deals with the distribution of drug related objects. He was sentenced to one year in jail and fined $2000.

Flowers raises several issues concerning the constitutionality of the statute under which he was indicted. We feel that these issues have been adequately resolved by Gasser v. Morgan, 498 F.Supp. 1154 (N.D.Ala.1980), and merit no further discussion.

Flowers does, however, raise an interesting question concerning the form of his indictment. The indictment included references to, or names of, particular objects alleged to be illegal. Specifically, the indictment referred to various items as a “cocaine kit,” a “coke spoon,” and a “power hitter.” These references appear to be con-clusory labels adopted by the State and used to refer to particular items found in Flowers’s possession.

A motion was made to strike this language from the indictment as being prejudicial. The motion was denied. We are persuaded that the names or labels used by the State created a prejudicial atmosphere against Flowers. However, we are equally persuaded that the error was cured in the trial judge’s oral instruction to the jury. The indictment could easily have used such words as “apparatus,” “device,” or “appliance” in much the same way as those words are used when the indictment is for the possession of a still. See § 15-8-150(70), Code of Alabama 1975. That instruction was as follows:

“[T]he fact that there is an indictment is not any evidence, and not to be considered by you as evidence. And the fact that this Indictment characterizes or calls something a particular word, a cocaine kit, the fact that it is set out in there does not make it a cocaine kit. Or the fact that some characterization in this Indictment, the fact that it is written or typed out in here is not any evidence that it is in fact what it is laid out here to be. Whether it is in fact a drug related object must come from that witness stand, and the State must prove that to you from the evidence beyond a reasonable doubt. What is said in this Indictment is not evidence.”

Thus, it was left to the jury to determine as a factual matter the proper identity and use of the items mentioned in the indictment.

We would caution the State against using similar language in future indictments under this statute. We would view unfavorably that kind of practice.

The judgment of the lower court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Robert FLOWERS v. STATE.
    3 Div. 731.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.

      Johnny Hardwick, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and George Hardesty, Jr., Asst. Atty. Gen., for appéllee.
   HUBERT TAYLOR, Judge.

Appellant was convicted of selling drug related objects and received a sentence of one year in the county jail, suspended for a year, and was fined $2000.

Appellant contends that the statute under which he was convicted is unconstitutional. This issue was decided in Gasser v. Morgan, 498 F.Supp. 1154 (N.D.Ala.1980), and is without merit. Additionally, the appellant failed to raise this issue at trial and, therefore, it cannot be considered on appeal. Moore v. State, 415 So.2d 1210 (Ala.Cr.App.1982).

Appellant also contends that the trial court, on its own motion, should have entered a judgment of acquittal at the close of the State’s case since the appellant was not represented by counsel at trial. The record indicates, however, that this motion was made and denied.

We find no error. The judgment of the lower court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Willie J. CHILLOUS v. STATE.
    3 Div. 779.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.

      Billy F. Foxworth, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Willie J. Chillous, the appellant, was indicted and convicted for theft in the first degree. Sentence was fifteen years’ imprisonment. On appeal, Chillous argues that he was entrapped into committing the theft.

I

In order to deter street crimes such as purse snatchings, muggings, and robberies, the Montgomery Police Department formed a Decoy Squad and placed it in operation in downtown Montgomery. On August 20, 1982, the decoy officer was a female who was carrying a purse from which money was protruding. The decoy was stationed outside an ABC store and was dressed like a bum, doused with alcohol, and “feigning drunkenness.”

There was evidence that Chillous and his brother “had been hanging around the parking lot for some period of time.” An unidentified male bumped into the decoy and then went and talked to Chillous and his brother. The three men returned to the decoy. The unidentified male asked the decoy to give him “a dollar for a meal” and told Chillous to “get it and we’ll split it.” Chillous then took the money from the decoy’s purse.

In an almost identical factual situation, the accused was found to have been “entrapped as a matter of law” in State v. Casper, 417 So.2d 263 (Fla.Dist.Ct.App.1982). However, upon those same facts involving the use of a police decoy, a sister appellate court in Florida has reached the opposite conclusion and held that the issue of entrapment was for the jury. State v. Cruz, 426 So.2d 1308 (Fla.Dist.Ct.App.1983). This direct conflict between these eases was recognized in State v. Holliday, 431 So.2d 309 (Fla.Dist.Ct.App.1983), and the issue was certified to the state supreme court.

The governing principles were collected in United States v. Tobias, 662 F.2d 381, 384-85 (5th Cir.1981), cert. denied, 457 U.S. 1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982):

“ ‘(W)hen entrapment is at issue, the focal point of the inquiry is on the predisposition of the defendant.’ United States v. Webster, 649 F.2d 346 at 348 (5th Cir.1981) (en banc); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637,36 L.Ed.2d 366 (1973); United States v. Reyes, 645 F.2d 285 (5th Cir.1981). Thus, a defendant who wishes to assert an entrapment defense must initially come forward with evidence ‘that the Government’s conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it.’ United States v. Dickens, 524 F.2d 441, 444 (5th Cir.1975), cert. denied, 425 U.S. 994, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976) (quoting United States v. Mosley, 496 F.2d 1012, 1014 (5th Cir.1974). Once the defendant has carried this burden, the government must, if it is to prevail, prove beyond a reasonable doubt that the defendant was predisposed to commit the crime charged. United States v. Dickens.
“ ‘A prosecution cannot be defeated merely because a government agent has provided the accused with the opportunity or facilities for the commission of the crime.’ United States v. Williams, 613 F.2d 560, 562 (5th Cir.1980) (citing United States v. Dickens, 524 F.2d 441 (5th Cir.1975), cert. denied, 425 U.S. 994, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976)). ‘It is only when the government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.’ United States v. Bussell, 411 U.S. 423, 436, 93 S.Ct. 1637, 1645, 36 L.Ed.2d 366 (1973).”

See also Tyson v. State, 361 So.2d 1182 (Ala.Cr.App.1978).

On this record we cannot say that Chillous was entrapped. Here, the police provided an opportunity for Chillous to commit a crime, but there is not even the contention that he was approached or encouraged by the police to do so. “(T)he defense of entrapment is not established simply because government agents ‘afford opportunities or facilities for the commission of the offense’, Sorrells v. United States, supra, 287 U.S. [435] at 441, 53 S.Ct. [210] at 212 [77 L.Ed. 413] or engage in ‘deceit’, United States v. Russell, 411 U.S. 423, 435-36, 93 S.Ct. 1637, 1644-45, 36 L.Ed.2d 366 (1973). The legal defense of entrapment is not established whenever a defendant is caught by a ruse.” United States v. Myers, 692 F.2d 823, 835 (2nd Cir.1982) (involving the Abscam operation). Thus, as in Cruz, supra, there is a question of fact for the jury to decide as to whether Chillous was predisposed to commit the offense. “A prosecution may not be defeated because the government provides the accused with the opportunity to commit the crimes charged.” Tobias, 662 F.2d at 385.

“ ‘Entrapment as a matter of law is established only where the testimony is undisputed that a person having no predisposition to commit offenses of the kind complained of was induced to do so by the trickery, persuasion, or fraud of ■ a Government agent.’ ... Solicitation alone, however, does not establish entrapment, nor is it illegitimate for the Government to set a ‘trap for the unwary criminal.’ ” United States v. Rippy, 606 F.2d 1150, 1154-55 (D.C.Cir.1979) (footnotes omitted).

To establish entrapment as a matter of law, “the evidence must clearly have indicated that a government agent originated the criminal design; that the agent implanted in. the mind of an innocent person the disposition to commit the offense; and that the defendant then committed the criminal act at the urging of the government agent.” United States v. Shaw, 570 F.2d 770, 772 (8th Cir.1978).

Here, the police employed no inducement which would create a risk of causing an otherwise unpredisposed person to commit the crime charged. United States v. Burkley, 591 F.2d 903 (D.C.Cir.1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1516, 59 L.Ed.2d 782 (1979). By “predisposed” is meant that the accused is “presently ready and willing to commit the crime .... (T)he predisposition which must be shown by the prosecution is a ‘state of mind which readily responds to the opportunity furnished by the officer or his agent to commit the forbidden act for which the accused is charged.’” Burkley, 591 F.2d at 916. “(P)redisposition is, by definition, ‘the defendant’s state of mind and inclinations before his initial exposure to government agents.’ United States v. Kaminski, 703 F.2d 1004, 1008 (7th Cir.1983).

It is recognized that “(c)learly, one way of proving predisposition is to show that the defendant responded affirmatively to less than compelling inducement by the government agent.” Burkley, 591 F.2d at 916. “Prompt acquiescence shows predisposition” to commit the crime. Myers, 692 F.2d at 842. The evidence in this case authorizes the reasonable inference that the unidentified male, Chillous and his brother planned the theft while in the parking lot and that when this same man told Chillous to “get it”, Chillous responded positively and without hesitation.

Here, the police decoy only provided Chil-lous with the opportunity to commit the theft. Other than the mere opportunity, no persuasion or encouragement was employed. “There is no prohibition against the police using decoys to present the opportunity to those intending or willing to commit a crime.” Cruz, 426 So.2d at 1310. “(A)rtifice and stratagem may be employed to catch those engaged in criminal enterprises.” United States v. French, 683 F.2d 1189, 1194 (8th Cir.), cert. denied, - U.S. -, 103 S.Ct. 304, 74 L.Ed.2d 284 (1982). See also United States v. Sam Goody, Inc., 506 F.Supp. 380 (E.D.N.Y.1981) (involving F.B.I. “sting” operations).

Based on the above principles, it is the finding of this Court that Chillous was not entrapped as a matter of law, and his motion to exclude the State’s evidence was properly denied.

II

The State’s evidence that Chillous promptly and affirmatively responded, Kaminski, 703 F.2d at 1008; Burkley, 591 F.2d at 916, and readily acquiesced in the commission of the crime, Casper, 417 So.2d at 265, constitutes sufficient proof of Chillous’ criminal disposition to allow the issue of entrapment to be decided by the jury.

Our review of the record convinces this Court that the judgment of the Circuit Court is due to be affirmed.

AFFIRMED.

All Judges concur.


text:
    Damon Andrew THOMPSON v. STATE.
    4 Div. 172.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Charles N. Reese, Daleville, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Damon Andrew Thompson, the appellant, pled guilty to the offense of manslaughter involving the killing of Pat Bryant. Sentence was fifteen years’ imprisonment.

In establishing the voluntary and intelligent nature of the guilty plea, the trial judge erroneously informed Thompson that “the minimum sentence is one year and one day; the maximum is ten.” Manslaughter is a class C felony. Alabama Code Section 13A-6-3 (1975). The sentence for a class C felony is “not more than 10 years or less than 1 year and 1 day” Section 13A-5-6(a)(3), except that when a firearm is used in the commission of that felony, the sentence is “not less than 10 years.” Section 13A-5-6(a)(5). In Smith v. State, 6 Div. 977 (Ala.Cr.App.1983), cert. denied, (Ms. 82-998, November 4, 1983) (Ala.1983), this Court held that the term of imprisonment for manslaughter in which a deadly weapon was used is ten years. The trial judge should have advised Thompson that he could only be sentenced to ten years’ imprisonment. An accused has a constitutional right to be informed of the minimum and maximum sentence. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

The trial judge also mistakenly sentenced Thompson to a term of imprisonment in excess of that authorized by statute. Smith, supra.

The Attorney General, in brief, concedes that the requirements of Boykin have not been satisfied. The judgment of the circuit court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


text:
    Dennis CAPPS v. STATE.
    4 Div. 185.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    M. Ashley McKathan of Powell & Powell, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   HUBERT TAYLOR, Judge.

Appellant was convicted of theft in the first degree and sentenced to ten years and a day.

The issue raised on appeal is whether the court committed error by allowing the State to alter a diagram that, although not introduced into evidence, had been used to illustrate the testimony of prior witnesses. The State made use of a blackboard during its case in chief to illustrate testimony concerning the relative positions of roads and buildings. The drawing was not purported to be to scale and no distances were indicated. The State’s third witness indicated that a building was closer to a road than it appeared to be on the drawing. The State then moved the relative position of the building on the blackboard diagram. Appellant objected.

Although this issue has not been addressed by our courts in a direct manner, the case of Crocker v. Lee, 261 Ala. 439, 74 So.2d 429 (1954), provides a useful insight. There the court said:

“The use of a map, drawing, or plat for purposes of illustration must be distinguished from its admission in evidence. In the latter case the instrument possesses within itself evidential characteristics tending to estáblish a particular fact. In the former case the testimony of the witness is the evidence and the map or diagram is merely an aid to its understanding. [Citations omitted.] It may be noted that some Alabama decisions have seemingly failed to utilize such a distinction. ... Concededly, a witness’s statement ‘here’ or ‘there’ plus a nonarticulat-ed indication of a point on a map or diagram, may be of such significance to determine the verdict of the jury, but to the reviewing court such words are utterly devoid of meaning. This type of situation may result even when the map is included in the record.... But when the testimony becomes so entwined with the illustration that a reference to the latter is necessary to understand the former, it is also the duty of the court on proper objection or motion to preserve the right of a party to an adequate record for appellate review.”

In the case sub judice, the testimony of the State’s first two witnesses was of such a nature that it could not be understood without the use of the diagram. The nature and character of the frequent use of the first diagram compelled its introduction into evidence, although never formally offered. Payne v. Jones, 284 Ala. 196, 224 So.2d 230 (1969).

It is our opinion that once a diagram has been heavily relied upon and is necessary for an understanding of prior testimony, it should not be altered. However, when a diagram is drawn by freehand in the presence of the jury, with instructions that the drawing is not meant to be an exact representation, or if that fact can be easily ascertained by common observation, it will not be considered error to alter the diagram.

In the present case, the relative locations of various buildings and roads were important elements of the trial. If the drawings had been of such a type that the jury was likely to afford them great verity, their alteration might have been reversible error. Since the drawings were made in the presence of the jury, they knew the circumstances of their making and could give them such verity as they deserved. The alteration of the drawings, therefore, would not be error.

Appellant’s other issues do not merit consideration.

The judgment of the lower court is due to be affirmed.

AFFIRMED.

BOWEN, P.J., and TYSON and HARRIS, JJ., concur.

SAM W. TAYLOR, J., concurs in result only.


text:
    Bobbie Ann Blackmon BAKER v. STATE.
    4 Div. 199.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Mark Vaughan, Elba and Thomas E. Haigh, Enterprise, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Bobbie Ann Blackmon Baker, the appellant, was indicted for the murder of her twenty-one-month-old son. A jury convicted her of manslaughter. The trial judge sentenced her to twenty-five years’ imprisonment under Alabama Code Section 13A-5-6(a)(5) (1975). Three issues are raised on appeal.

I

The indictment charged that Baker caused the death of her child “by beating, and/or striking, and/or shaking, on or about the head ... with her hands and/or fists, and/or other instruments, to which are unknown to the Grand Jury.” Baker objected to the admission of testimony and photographs which tended to show abuse to other portions of the child’s body besides his head and neck.

The evidence of abuse to the other parts of the child’s body was properly admitted.

“In a prosecution for murder, evidence of recent abuse to the child by the accused is admissible to show ‘intent, motive or scienter.’ Layne v. State, 54 Ala.App. 529, 534, 310 So.2d 249 (1975). Acts of hostility, cruelty and abuse by the accused toward his homicide victim may be proved by the State for the purpose of showing motive and intent. Akers v. State, 399 So.2d 929, 931 (Ala.Cr.App. 1981); White v. State, 380 So.2d 348, 349 (Ala.Cr.App.1980); Carroll v. State, 370 So.2d 749, 759 (Ala.Cr.App.), cert. denied, 370 So.2d 761 (Ala.1979). This is ‘another of the primary exceptions to the general rule excluding evidence of other crimes.’ G. Gamble, McElroy’s Alabama Evidence, Sections 70.01(12)(c) and (e) (3rd ed. 1977).” Phelps v. State, 435 So.2d 158, 163 (Ala.Cr.App.1983).

See also Smith v. State (Ms. 6 Div. 977, May 31, 1983), (Ala.Cr.App.), cert. denied, (Ms. 82-998, November 4,1983) (Ala.1983).

II •

The evidence shows that Baker beat or slapped her son about the head with her hands or fists. The issue is whether hands or fists may be considered a “deadly weapon” for sentencing purposes under Alabama Code Section 13A-5-6(a)(5) (1975). We find that hands or fists may properly be considered a deadly weapon for sentencing purposes depending upon the manner and subject of their use.

In Stewart v. State, 405 So.2d 402, 405 (Ala.Cr.App.1981), this Court, through Judge Tyson, specifically held that “there is no limitation expressed in Section 13A-1-2(11) which would prevent human fists from being considered a ‘deadly weapon’ under appropriate circumstances.” We specifically held that “the use of an adult man’s fists to beat a seventeen month (old) child may appropriately allow those fists to be classified as a deadly weapon or a dangerous instrument.” Stewart, 405 So.2d at 405. See also Helton v. State, 372 So.2d 390, 393 (Ala.Cr.App.1979).

The forensic pathologist testified that the infant died of “multiple blunt injuries to the head.” Under these circumstances, we find that the trial judge did not abuse his discretion in finding that Baker’s hands or fists were deadly weapons for purposes of sentencing.

Ill

As this Court explained in Smith v. State (Ms. 6 Div. 977, May 31, 1983), - So.2d - (Ala.Cr.App.), cert. denied, (Ms. 82-998, November 4, 1983), -So.2d(Ala.1983), ten years is the only sentence available under Alabama Code Section 13A-5-6(a)(5) (1975) for manslaughter (a Class C felony under Section 13A-6-3) in which a deadly weapon was used. Consequently, the judgment of the circuit court is affirmed but the cause is remanded for proper sentencing.

AFFIRMED; REMANDED FOR PROPER SENTENCING.

All Judges concur.


text:
    Nathan SMITH v. STATE.
    4 Div. 226.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.

      Julius H. Hunter, Jr., Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Nathan Smith, the appellant, pled guilty to burglary in the third degree and was sentenced to ten years’ imprisonment. His conviction must be reversed because his plea of guilty was not entered in compliance with Boykin v. Alabama, 895 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). For this reason, the Attorney General has declined to file a brief. Boykin requires that an accused must be informed of the maximum and minimum possible sentence “as an absolute constitutional prerequisite to acceptance of a guilty plea.” Carter v. State, 291 Ala. 83, 85, 277 So.2d 896 (1973).

The judgment of the circuit court is reversed and this cause is remanded for further proceedings.

REVERSED AND REMANDED.

All Judges concur.


author: SAM W. TAYLOR, Judge.

text:
    James H. HOYETT v. STATE.
    5 Div. 799.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.

      Charles R. Gillenwaters, Alexander City, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., and T.A. Harding Fendley, Montgomery, for ap-pellee.
   SAM W. TAYLOR, Judge.

James H. Hoyett, who was convicted of possession of a short-barreled shotgun and sentenced to five years’ imprisonment, asserts two grounds on this appeal: He challenges the chain of custody of the shotgun and he challenges remarks made by the prosecution during summation.

I

Section 13A-11-63, Code of Alabama 1975, states in pertinent part that:

“A person who possesses, obtains, receives, sells, or uses a short-barreled rifle or a short-barreled shotgun is guilty of a Class C felony.... ”

Section 13A-11-62, defines a short-barreled shotgun as a shotgun with a barrel less than 18 inches in length and it defines a short-barreled rifle as being one with a barrel less than 16 inches in length. The appellant in this case was also charged with possession of a shotgun whose manufacturer’s number or other identification had been changed, altered, removed, or obliterated in violation of § 13A-11-64. At trial, the state nol-prossed the latter charge.

State’s evidence tended to show that Officers Ware and Berry responded to a call regarding a man with a shotgun. They observed the appellant, Mr. Hoyett, leaving a “shot house” on “R” Street in Alexander City, Alabama. When appellant Hoyett recognized the police car, he threw the gun over in the bushes. The gun was immediately retrieved from the bushes by the officers and taken into custody along with appellant.

The weapon in question was sawed off to a length of 13V4 inches. In addition serial numbers had been filed away one-half inch above the loading point of the gun and one inch and a half below the pump portion on the underside. At trial, the officers testified that the gun had been locked up in the evidence locker at the police station, to which several officers had the keys, since that time. After Officer Ware testified that the weapon was the same one and in the same condition as it had been wjhen he got it, the court admitted the gun into evidence. Officer Berry’s testimony was to the same effect. The defense was a general denial.

The appellant contends that proof of a chain of custody is essential to the introduction of an object into evidence, citing as his authority, Alabama Criminal Trial Practice, Chiarkas, Sec. 20 — 44 p. 250 (1981). Appellant relies heavily on Mauldlin v. State, 402 So.2d 1106 (Ala.Cr.App.1981), which clearly sets out the law concerning chain of custody. Applying those rules to this instance, however, fails to bring us to the conclusion urged by appellant. The evidence in this case as to the identity and condition of the shotgun was that it was the same gun and had been kept under lock and key in the evidence locker shared by Officer Ware and two other officers. This object was readily identifiable because of the unique alterations made in its condition— the sawing off of the barrel and the filing off of the serial numbers.

The object of the inquiry into the chain of custody is to seek to establish a reasonable probability that the object is not substantially different from the way it was at some point in the past. In very few cases can it be demonstrated that there is no possibility of tampering with the evidence. The trial court in this case found that there was reasonable probability that the shotgun in question was the same as it was when seized by Officer Ware on July 16, 1982. We see no reason to treat this as error.

II

At trial, the following occurred:

“Q: All right. Now, if you would, Officer Ware, if you would take this shotgun and show me where I think — I believe you said the serial number had been removed. If you would, please show me where that had been removed, please, sir.
“A: Right there.
“Q: Right there.
“THE COURT: For the record, I think it would be well to state in words a description of the point on a weapon that’s been indicated.
“Q: Officer Ware, if you would, describe for the court and the court reporter where the serial number had been obliterated on this weapon.
“A: Right where it’s been filed. That’s where they usually are.
“Q: Are you indicating this spot right here?
“A: That’s right.
“MR. ANDERTON: For the record, let us state that the serial number apparently has been filed away some half an inch above the loading point of this weapon and approximately an inch and a half below the pump portion of the weapon on the underside of the weapon.
“THE COURT: Ladies and gentlemen of the jury, I’m going to instruct you that what counsel says is not evidence in this case. The statement just made by counsel was simply attempting on his part to state for the record the point on the weapon that had been indicated.
“MR. DENSON: We move for a mistrial ...”

We feel the foregoing statement by counsel was a result of a misunderstanding by the witness of the instructions by the court to describe the place on the weapon where the serial numbers were obliterated. If the remarks were improper, the impropriety was dispensed with by the court’s immediate curative instruction.

In summation, the deputy district attorney stated, “I will submit to you if ya’ll come back with a verdict of not guilty of possession of a short-barreled shotgun, that this man is going to walk out and do it again. Lock your door, cover your head.” An objection to this was sustained and the court immediately directed the jury to disregard the remark. This prompt action by the court served to eradicate any prejudicial effect. In Woods v. State, 344 So.2d 1225 (Ala.Cr.App.1976), writ quashed, 344 So.2d 1230 (Ala.1977), this court stated:

“If the trial court acts promptly to impress upon the jury that improper questions and improper statements are not to be considered by them in their deliberation the prejudicial effect of such remarks is removed. Gavin v. State, 52 Ala.App. 469, 294 So.2d 169; White v. State, 40 Ala.App. 378, 114 So.2d 325; Sparks v. State, 37 Ala.App. 631, 75 So.2d 96; Pelham v. State, 23 Ala.App. 359,125 So. 688.”

Accordingly, the judgment in this case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Cedric RAMSEY v. STATE.
    6 Div. 796.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.

      Orson L. Johnson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   SAM W. TAYLOR, Judge.

Appellant, Cedric Ramsey, was indicted for robbery in the third degree. He was convicted of theft in the first degree and sentenced to seven years’ imprisonment. On appeal he raises three issues.

I

Appellant first contends that the in-court identification of him by the victim was tainted by an unduly suggestive pretrial photographic array. A hearing on appellant’s motion to suppress the in-court identification was held and testimony taken. The testimony was in conflict on the question of whether the victim, Jorge La-zarte, knew that a picture of the man who had been caught with his car in Greenwood, Mississippi (the appellant) was one of the pictures in the photographic array. In a series of cases which includes Jones v. State, 415 So.2d 1233 (Ala.Cr.App.1982), this court has held that the fact “that a person is actually told the suspect’s photograph is among other pictures, although generally inadvisable, does not contaminate the identification proceeding.” Since we find that the identification procedure is not “suggestive,” then the motion to suppress is due to be denied. Phillips v. State, 409 So.2d 918 (Ala.Cr.App.1981); Branch v. Estelle, 631 F.2d 1229 (5th Cir.1980).

II

Appellant contends the court erred in permitting Sergeant Hurst to testify that Lazarte had selected appellant’s photograph from a photographic line-up a short time after the alleged robbery. In Abercrombie v. State, 382 .So.2d 614 (Ala.Cr.App.1980), cert. denied, 382 So.2d 616 (Ala.1980), Judge Bowen stated that “[t]he fact that a third person observed another identify the defendant is ‘an independent fact to which the witness . .. could testify just as to any other fact.’ ” Ferguson v. State, 401 So.2d 204 (Ala.Cr.App.1981).

Thus, the court did not err in permitting this testimony.

III

The third issue appellant raises on appeal is whether or not the trial court erred when it instructed the jury that first degree theft was a lesser included offense of robbery in the third degree.

Alabama law is clear:

“[T]o be a lesser included offense of one charged in an indictment, the lesser offense must be one that is necessarily included, in all of its essential elements, in the greater offense charged.” Payne v. State, 391 So.2d 140 (Ala.Cr.App.1980), cert. denied, 391 So.2d 146 (Ala.1980), on remand 421 So.2d 1303 (Ala.Cr.App.1982), writ quashed, 421 So.2d 1306 (Ala.1982).

Robbery in the third degree is outlined in § 13A-8-43, Code of Alabama 1975, as follows:

“A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical power of resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.” (Emphasis added.)

By its very definition, the crime of robbery in the third degree necessarily includes the crime of theft plus the element of force or threat of force, as outlined above.

The offense of theft in Alabama unifies several common law offenses, including larceny (See Commentary to §§ 13A-8-2 through 13A-8-5, Code of Alabama 1975), and traditionally larceny was a lesser included offense of robbery.

As indicated in 67 Am.Jur.2d Robbery § 7 (1973),

“Robbery is usually regarded as an aggravated form of larceny. Indeed, robbery has been defined as a compound larceny, composed of the crime of larceny from the person with the aggravation of force, actual or constructive, used in the taking. Accordingly, in most jurisdictions, larceny is an included offense, and a conviction for larceny may be had under a charge of robbery.”

Alabama’s statute dealing with lesser included offenses, § 13A-1-9, Code of Alabama 1975, states in pertinent part as follows:

“A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
“(1) It is established by the same or fewer than all'the facts required to establish the commission of the offense charged. ... ”

This statute defines a lesser included offense in terms of the necessary elements that must be proven rather than the possible degree of punishment that may be imposed. Thus we find it is irrelevant in determining the merit of appellant’s issue that third degree robbery is a class C felony while theft in the first degree is a class B felony.

An examination of the case law in this area, a literal interpretation of the language of § 13A-1-9, and common sense all lead to the conclusion that the trial court properly instructed the jury that theft is a lesser included offense of robbery.

In light of the foregoing, this case is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Terry Louis ROBERSON v. STATE of Alabama.
    8 Div. 965.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.

      Lucy Fay Malone of Lemaster, Smith & Malone, Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen. and T.A. Harding Fendley, Montgomery, for ap-pellee.
   TYSON, Judge.

Terry Louis Roberson appeals from the denial of a Petition for Writ of Error Cor-am Nobis by the Circuit Court of Lauder-dale County, which following a full hearing on the merits of Roberson’s allegations, denied the petition as being without merit.

In the petition, Roberson sought to set aside his original convictions on first degree kidnapping and conspiracy to commit murder, which were originally settled in circuit court, based upon his plea of guilty to each charge after consultation with his counsel and with the District Attorney, who proposed a settlement.

The trial court accepted this settlement of a 20 year and one day sentence plus a 3 year sentence after first carefully going over each of appellant’s constitutional rights with him, pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and Carter v. State, 291 Ala. 83, 277 So.2d 896 (1973).

Thereafter, the appellant perfected an appeal to this court from this guilty plea proceeding and this was affirmed by this court on June 28, 1982, Roberson v. State, [Ms. 8 Div. 628] without opinion.

This record is on file with this court and has been reviewed by this court again along with the appeal from the denial of the coram nobis proceedings. This record contains a complete “Ireland Form” which shows full advice to the appellant by his counsel and the court as to his constitutional rights before entering the guilty pleas in question. This comes from the opinion by Mr. Justice Almon, then Almon, J., of this court in Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971).

I

The issue before this court is whether or not the trial court properly denied the appellant’s Petition for Error Coram Nobis which asserted that he did not understandingly and intelligently enter his guilty pleas. We find, as did the trial court below, that the appellant was not only thoroughly, adequately and competently represented by his original trial counsel, the Honorable Doug Evans, who conferred with the appellant, interrogated the witnesses as requested by the appellant and, in fact, informed the appellant of the minimum and maximum punishment for the crimes charged. He further entered negotiations with the District Attorney’s office and worked out a settlement of 20 years and one day in one case and 3 years in the second, both of these being based upon negotiations with the office of the District Attorney. These matters were not only explained by Mr. Evans to the appellant, but also gone over in open court and the appellant was properly advised as to each of his constitutional rights under Boykin v. Alabama and Carter v. State, supra. The trial court made specific inquiry and ascertained that the appellant was pleading guilty based upon his full understanding of the terms of the settlement and his agreement to this.

Moreover, this record establishes that before the appellant had been originally interrogated by the arresting officers, he was given a proper Miranda v. Arizona warning, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and thereafter gave a full statement admitting his involvement in the kidnapping of Mrs. Rose Robertson and locking her in the trunk of the automobile and that he had been hired by a Mr. Vaughn to help with this kidnapping. His statement was shown to him by counsel before any agreement was made in open court to settle any charges and the appellant understandingly and intelligently pled guilty in open court to these charges.

We find, therefore, that appellant’s contentions are utterly without legal merit, and that he has fallen far short of establishing that he was denied the “reasonably effective” assistance of counsel standard as required by law. Trammell v. State, 420 So.2d 855 (Ala.Cr.App.1982) and authorities therein cited. See also Clency v. State, 442 So.2d 148 (Ala.Cr.App.1983).

We have carefully examined this record and find the trial court’s denial of this petition was entirely proper.

This appellant, like so many others, who routinely aver following conviction and unsuccessful appeal that their trial counsel was “ineffective and inadequate,” must remember the words of our Supreme Court speaking through Mr. Justice Coleman in Mills v. State, 275 Ala. 217, 153 So.2d 650 (1963) as follows:

“Conviction of a client does not prove lack of either zeal or skill on the part of counsel.”

We find no error and the judgment denying this coram nobis petition is due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Katherine CARAVASIOS, Petitioner, v. M.W. SPATES CONSTRUCTION COMPANY, and Old Republic Insurance Company, Respondents.
    No. 62245.
    Supreme Court of Florida.
    Sept. 29, 1983.
    Rehearing Denied Jan. 12, 1984.
    Paul Siegel of Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, Miami, for petitioner.
    John F. McMath, Miami, for respondents.
   PER CURIAM.

Katherine Caravasios, a workers’ compensation claimant, petitions for review of the decision of the Third District Court of Appeal in Caravasios v. M. W. Spates Construction Co., 414 So.2d 245 (Fla. 3d DCA 1982). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioner suffered a compensable injury on December 24, 1975, and was paid compensation and medical benefits by her employer’s carrier, Old Republic Insurance Company. Subsequently, petitioner and her husband sued third-party tort-feasors for negligence in causing her injuries. Allegations by the husband included the incurring of past and future medical expenses. The jury rendered a verdict in the amount of $160,000 for petitioner and nothing for the estate of the husband who died during litigation. Petitioner settled for $150,000 to avoid an appeal. Old Republic moved for its statutory share pursuant to a notice of lien filed under section 440.-39(3)(a), Florida Statutes (1975), and was awarded fifty per cent of all monies it had paid, including penalties and interest, and fifty per cent of future benefits to be paid by Old Republic. Petitioner’s request for attorney’s fees for resisting the action was denied.

Petitioner appealed, protesting the denial of fees and the fifty per cent award of past and future medical benefits, including the award for professional medical services and reimbursement for penalties and interest. The court affirmed the fee denial, citing Universal Engineering Corp. v. Cartier, 380 So.2d 1160 (Fla. 3d DCA 1980), but reversed that portion of the trial court’s order awarding reimbursement for penalties and interest the carrier was required to pay because of its dilatory payment of claims. Appellate counsel was awarded a fee under the authority of Ohio Casualty Group v. Parrish, 350 So.2d 466 (Fla.1977), for success in having the order so modified. Petitioner contends that the instant case conflicts with Parrish on the issue of the propriety of an attorney’s fee award when an employer or carrier unsuccessfully asserts a lien in the circuit court under section 440.39(3)(a), and that Parrish was interpreted incorrectly in Cartier.

A careful reading of the statutes and case law controlling this issue supports the result reached by the district court below. All parties agree that nothing in section 440.39, Florida Statutes (1975), permits the trial court to award claimant attorney’s fees. See Insurance Company of Texas v. Rainey, 86 So.2d 447 (Fla.1956). Thus, if authorization for the award of attorney’s fees is to be found, it must be in section 440.34, Florida Statutes (1975). That section provides in pertinent part:

(1) If the employer or carrier shall file notice of controversy as provided in s. 440.20, or shall decline to pay a claim on or before the 21st day after they have notice of same, or shall otherwise resist unsuccessfully the payment of compensation, and the injured person shall have employed an attorney at law in the successful prosecution of the claim, there shall, in addition to the award for compensation be awarded reasonable attorney’s fee, to be approved by the judge of industrial claims which may be paid direct to the attorney for the claimant in a lump sum. If any proceedings are had for review of any claim, award or compensation order before any court, the court may allow or increase the attorney’s fees, in its discretion, which fees shall be in addition to the compensation paid the claimant, and shall be paid as the court may direct.

(Emphasis supplied.)

The plain language of the statute provides for an award of attorney’s fees in two, and only two, situations: (1) In an original proceeding to compel carrier to render benefits due on a valid claim, the judge of industrial claims has power to award attorney’s fees. (2) If any appeal is taken from a claim, award or compensation order, the appellate court may grant attorney’s fees in connection with that appeal.' The rule of statutory construction inclusio unius est exclusio alterius clearly demonstrates that the award of attorney’s fees is not authorized for trial proceedings such as the one now before us.

The case law on this point is consistent with the plain language of the statute. In State ex rel. Hartford Accident & Indemnity Co. v. Johnson, 118 So.2d 223 (Fla.1959),' this Court construed a virtually identical predecessor to this statute as allowing awards of attorney’s fees only for proceedings before the Industrial Commission or for appellate proceedings seeking review of a claim, award or compensation order. Johnson had brought an original proceeding in circuit court seeking a rule nisi directing the carrier to show cause why the award made by the Industrial Commission should not be paid. Because the proceeding was original in the circuit court, not appellate, Johnson was not entitled to recover attorney’s fees.

Nor is Ohio Casualty Group v. Parrish in any way contradictory of this construction of the statute. There the carrier sought to review an existing equitable distribution order to modify it to conform with a new version of the workers’ compensation law. Such review is expressly contemplated as triggering the potential award of attorney’s fees.

In Universal Engineering Corp. v. Cartier, the Third District Court of Appeal correctly summarized the statute and case law: “Thus, only a judge of industrial claims may award attorney’s fees in an original proceeding. A court may award a fee only where it reviews a claim.” (Emphasis in original.)

There is no question that Caravasios is entitled to recover attorney’s fees for the appeal of the equitable distribution order. It is equally clear that, under the statute, she is not entitled to attorney’s fees for the original proceedings in the trial court. Petitioner advances strong policy arguments supporting an award of attorney’s fees in equitable distribution proceedings in light of the purpose behind granting attorney’s fees in appellate proceedings. However, if a change in this state of affairs is necessary, it must come from the legislature and not from judicial expansion of a statute plain on its face.

The district court having adequately addressed the issues petitioner raises relating to the medical expenses and professional medical services, we approve the court’s disposition of those points; accordingly, the decision of the district court is approved on all issues.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, McDonald, EHRLICH and SHAW, JJ., concur.

ADKINS, J., dissents.

      . In all claims or actions at law against a third party tort-feasor, the employee, or his dependents, or those entitled by law to sue in the event he is deceased, shall sue for the employee individually, and for the use and benefit of the employer if a self-insurer, or employer’s insur-anee carrier, in the event compensation benefits are claimed or paid, and such suit may be brought in the name of the employee or his dependents or those entitled by law to sue in the event he is deceased, as plaintiff or, at the option of such plaintiff may be brought in the name of such plaintiff and for the use and benefit of the employer or insurance carrier, as the case may be. Upon suit being filed the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which said notice • shall be recorded and the same shall constitute a lien upon any judgment recovered to the extent that the court may determine to be their pro rata share for compensation benefits paid or to be paid under the provisions of this law. The employer or carrier shall recover 50 per cent of what it has paid and future benefits to be paid unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. The burden of proof will be upon the employee. Such proration shall be made by the judge of the trial court upon application therefor and notice to the adverse party. Notice of suit being filed and notice of payment of compensation benefits shall be served upon the compensation carrier and upon all parties to the suit or their attorneys of record.


author: EHRLICH, Justice. ALDERMAN, Chief Justice,

text:
    Royal Mack SUMMERVILLE, Petitioner, v. STATE of Florida, Respondent.
    No. 61761.
    Supreme Court of Florida.
    Oct. 13, 1983.
    Rehearing Denied Jan. 12, 1984.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., and Marlyn J. Altman and Robert L. Bogen, Asst. Attys. Gen., West Palm Beach, for respondent.
   EHRLICH, Justice.

Petitioner seeks review of a denial of habeas corpus. Summerville v. State, 408 So.2d 836 (Fla. 4th DCA 1982). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution, based on conflict between the First District Court of Appeal, Carson v. Bishop, 378 So.2d 882 (Fla. 1st DCA 1979), and the Fourth District, State v. Sylvester, 401 So.2d 1123 (Fla. 4th DCA 1981).

This case presents us with the same issue as Miller v. Toles, 442 So.2d 177 (Fla.1983), which issued today. For the reasons set forth in Miller, we grant the writ of habeas corpus and quash the opinion of the court below.

It is so ordered.

ADKINS, BOYD, OVERTON and SHAW, JJ., concur.

ALDERMAN, C.J., dissents with an opinion, in which McDONALD, J., concurs.

ALDERMAN, Chief Justice,

dissenting. For the reasons stated in my dissent in Miller v. Toles, 442 So.2d 177, (Fla. Oct. 13, 1983), I dissent. I would deny review. Alternatively, I would approve the decision of the District Court of Appeal, Fourth District.

McDONALD, J., concurs.


author: EHRLICH, Judge.

text:
    Thomas Dewey POPE, Appellant, v. STATE of Florida, Appellee.
    No. 62064.
    Supreme Court of Florida.
    Oct. 27, 1983.
    Rehearing Denied Jan. 11, 1984.

      Michael D. Gelety, Sp. Public Defender, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen. and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   EHRLICH, Judge.

This is an appeal from conviction of three counts of murder in the first degree. The jury recommended and the trial judge imposed life sentences for two of the murders and a sentence of death for the third. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. We affirm the convictions and the sentences.

On January 19, 1981, the bodies of A1 Doranz and Caesar Di Russo were discovered in an apartment rented to Kristine Walters. Both had been dead several days but Di Russo’s body was in a more advanced state of decomposition than Doranz’s. Both victims had been shot, Doranz three times and Di Russo five times. A spent .22 caliber shell casing was found under Di Russo’s body. Three days later,, the body of Kristine Walters was found floating in a canal. She had been shot six times with exploding ammunition, her skull was fractured and she had been thrown into the canal while still breathing.

All three victims had been shot with exploding ammunition, so ballistics comparison was impossible. However, parts of an AR-7 rifle were found in the canal near Walters’s body and the spent shell casing under Di Russo’s body had been fired from an AR-7 weapon.

Investigation led to appellant’s girlfriend, Susan Eckard, and ultimately police were able to show that Doranz purchased an AR-7 rifle for Pope shortly before the murder. Eckard and Pope admitted being with Doranz and Walters at Walters’s apartment on Friday night, the night Doranz and Di Russo were killed. Eckard later testified that Pope had arranged a drug deal with Doranz and Di Russo. She stated that she and Pope left Walters’s apartment to visit Clarence “Buddy” Lagle and to pick up some hamburgers. They then returned to the apartment where Pope and Doranz convinced Walters to go with Eckard to the apartment where Pope had been staying.

Later that same night, Pope arrived at his apartment and told the women there had been trouble and that Doranz had been injured but that it was best for Walters to stay away from him for a while. Eckard said she knew that Di Russo and Doranz were dead, and that she had known Pope intended to kill them at this point. The next day, Walters checked into a nearby motel, where Pope supplied her with quaa-ludes and cocaine. On Sunday, Pope told Walters he would take her to see Doranz. Eckard testified that Pope had told her that he knew he had to get rid of Walters but that he regretted it because he had become fond of her. According to Eckard, Pope described Walters’s murder when he returned and said the gun had broken when he beat Walters over the head with it. The next day Eckard went with Pope to the scene of the crime to collect fragments of the broken stock and to look for the missing trigger assembly and receiver.

Buddy Lagle told the police he had made a silencer for the AR-7 rifle at Pope’s request. Because Lagle planned to leave the jurisdiction to take a job on a ship in the Virgin Islands, he was deposed on videotape pursuant to an order granting the state’s motion to perpetuate testimony. When the state was unable to produce him at trial, the videotape was admitted into evidence.

Pope was convicted of three counts of first degree murder. The jury recommended a life sentence for the murders of Doranz and Di Russo and death for Walters’s murder. The state indicated its agreement with that recommendation, and the trial court imposed sentence accordingly-

Pope challenges his convictions on two grounds: The videotaped deposition should not have been admitted into evidence because the state did not prove Lagle’s unavailability at the time of trial and the evidence produced at trial was insufficient to sustain conviction.

Florida Rule of Criminal Procedure 3.190(j) authorizes taking a deposition to perpetuate testimony when a material witness will be unavailable for trial. Appellant does not allege any error in the granting of the motion to take the deposition or in the manner of its taking. Rather, appellant focuses on subsection six of the rule, which states, “No deposition shall be used or read in the evidence when the attendance of the witness can be procured.” Fla. R.Crim.P. 3.190(j)(6).

Appellant argues that the state failed to sustain its burden of proof that the deponent, Clarence “Buddy” Lagle, was unavailable at the time of the trial. During the deposition, Lagle had discussed his plans for leaving the jurisdiction of the trial court, but represented that he would be available to appear in person at the trial. Prior to trial, the defense attorney, Mr. Eber, filed a motion to exclude the deposition. The state’s attorney, Mr. Garfield, offered as evidence of Lagle’s unavailability a memorandum from his secretary stating that she had telephoned the captain of the ship on which Lagle was thought to be working and had discovered he was no longer employed there and the captain had no idea of his present whereabouts. The state offered no other factual evidence of any attempt to locate Lagle, nor did the state issue a subpoena for him. Nonetheless, the colloquy in the pretrial motion to suppress continued:

THE COURT: Have you both tried to locate him?

MR. GARFIELD: Yes, sir.

THE COURT: Is he available?

MR. GARFIELD: No, sir.

MR. EBER: If I may reply very briefly, I have no reason to doubt that this fellow is not available now, but last week was the first time the State tried to contact that man in many months.

Florida Rule of Criminal Procedure 3.190(j)(6) requires more than a perfunctory attempt to contact a witness whose testimony has been perpetuated. While the question of how far a party must go to satisfy the requirements of the rule will be susceptible to different answers depending on the circumstances of each case, the party offering the deposition must show it Has exercised due diligence in its search. See, e.g., Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Palmieri v. State, 411 So.2d 985 (Fla. 3d DCA 1982); Layton v. State, 348 So.2d 1242 (Fla. 1st DCA 1977); Outlaw v. State, 269 So.2d 403 (Fla. 4th DCA 1972), cert. denied, 273 So.2d 80 (Fla.1973). However, defense counsel’s statement that he had no reason to doubt Lagle’s unavailability foreclosed the trial court’s inquiry into the matter and the state’s opportunity to present any other evidence it may have had which would have conclusively shown the exercise of due diligence. A party may not invite error and then be heard to complain of that error on appeal. Behar v. Southeast Banks Trust Co., 374 So.2d 572 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 202 (Fla.1980). We therefore find no merit in this point of appellant’s appeal.

A thorough review of the record reveals that appellant’s second point, the insufficiency of the evidence to sustain the convictions, is likewise without merit. We therefore affirm the convictions.

Appellant also challenges the imposition of the death penalty for the murder of Kristine Walters. Pope urges as error the trial court’s failure to find mitigation in a psychiatrist’s unrebutted testimony that Pope suffered from post-traumatic stress syndrome as a result of his combat experience in Yiet Nam. The law is clear that the trial court must consider all evidence offered in mitigation. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). The transcript of court proceedings and the trial court’s discussion of the evidence in the sentencing order show the serious consideration the court gave to the issue. So long as all the evidence is considered, the trial judge’s determination of lack of mitigation will stand absent a palpable abuse of discretion. Daugherty v. State, 419 So.2d 1067 (Fla.1982), cert. denied, - U.S. -, 103 S.Ct. 1236, 75 L.Ed.2d 469 (1983); Riley v. State, 413 So.2d 1173 (Fla.), cert. denied, - U.S. -, 103 S.Ct. 317, 74 L.Ed.2d 294 (1982); Smith v. State, 407 So.2d 894 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982).

The trial court did find a mitigating factor in Pope’s honorable service as a United States Marine in the Viet Nam war. In contrast, the court found four aggravating circumstances. First, the defendant had been convicted of another capital felony, the murders of Donranz and Di Russo. King v. State, 390 So.2d 315 (Fla.1980), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981); Lucas v. State, 376 So.2d 1149 (Fla.1979). Second, the capital felony was committed for the purpose of avoiding or preventing lawful arrest. The defendant’s own statements to Susan Eck-árd as well as the circumstances surrounding the murder show, beyond a reasonable doubt, that this was the sole motive for the murder. Jones v. State, 411 So.2d 165 (Fla.), cert. denied, - U.S. -, 103 S.Ct. 189, 74 L.Ed.2d 153 (1982); Riley v. State, 366 So.2d 19 (Fla.1978), cert. denied, - U.S. -, 103 S.Ct. 317, 74 L.Ed.2d 294 (1982). Third, the capital felony was committed in a cold, calculated and premeditated manner. Susan Eckard’s testimony about Pope’s discussions of the murder with her prior to the killing supports beyond a reasonable doubt the finding of premeditation as required by this statutory aggravating factor. See, e.g., Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982); Combs v. State, 403 So.2d 418 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982). Fourth, the capital felony was especially heinous, atrocious or cruel. The medical examiner’s testimony at trial revealed that the pattern of gun-shot wounds on Walter’s body revealed, without indicating the sequence of shots, that she had been shot from the rear, had attempted to flee the attack, and had been shot twice with the gun pressed close to her abdomen. The wounds caused by the explosion of the bullets at impact would have been extraordinarily painful without causing unconsciousness or death. When this had failed to kill her, she had been clubbed over the head with the gun barrel. When the gun barrel broke before the murderous end had been achieved, the defendant dragged his still-living victim to the canal where he threw her to drown. The evidence of conscious psychological and physical suffering is clear from the medical examiner’s testimony and supports a finding that this murder was heinous, atrocious and cruel to an extent greater than that inherent in all murders. See, e.g., Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979); State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). We find no merit to appellant’s assignment of error to the finding of any of these factors.

The trial court, in finding the murder especially heinous atrocious or cruel commented that “the Defendant has [not] shown any remorse, having elected to steadfastly deny his guilt.” This proposition merits some discussion. We agree that Sired v. State, 399 So.2d 964 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982), as cited by the trial court, stands for the proposition that lack of remorse may be considered in finding that a murder was especially heinous, atrocious and cruel. However, in that case the trial court inferred lack of remorse from an examination of the defendant’s own statements about the crime. To equate a defendant’s not-guilty plea with lack of remorse which may be considered in weighing an aggravating circumstance in support of imposition of the death penalty would in effect punish the defendant for exercising rights of due process.

Furthermore, this misapplication of this earlier case has called to our attention a basic contradiction between the consideration of lack of remorse in the context of this particular aggravating factor and all other considerations appropriate to this factor. An especially heinous, atrocious or cruel homicide is one which is “accompanied by such additional acts as to set the crime apart from the norm of capital felonies.” State v. Dixon, 283 So.2d at 9. This definition focuses on the manner in which the crime was accomplished — on the act itself— rather than on the perpetrator of the act. However, the definition continues, describing an especially heinous, atrocious or cruel crime as “the conscienceless or pitiless crime which is unnecessarily torturous of the victim.” Id. While still focusing on the crime and experience of the victim, this definition also tended to focus attention on the mindset of the murderer — his con-sciencelessness or pitilessness. This aspect of the aggravating factor was recognized in the jury instructions adopted by this Court in 1975.

“Heinous” means extremely wicked or shockingly evil.
“Atrocious” means outrageously wicked and vile.
“Cruel” means designed to inflict a high degree of pain; utter indifference to, or enjoyment of, the suffering of others; pitiless.

Standard Jury Instructions in Criminal Cases, 78 (1975) (emphasis added.) Because juries were invited to consider evidence tending to show a lack of pity, lack of remorse came to be considered relevant to the4.determination under this aggravating factor.

In 1981 the Supreme Court adopted a completely revised set of Standard Jury Instructions in Criminal Cases, “intended as a definitive statement of the law on which a trial jury is required to be instructed.” Notes on the Scope, Organization and Use of These Instructions, Florida Standard Jury Instructions in Criminal Cases xxi (1981). The new jury instruction on finding a homicide to be especially heinous, atrocious or cruel now reads: “The crime for which the defendant is to be sentenced was especially wicked, evil, atrocious or cruel.” No further definitions of the terms are offered, nor is the defendant’s mindset ever at issue. Thus, we find any consideration of defendant’s remorse extraneous to the question of whether the murder of which he was convicted was especially heinous, atrocious or cruel.

Excluding this issue accords with this Court’s exclusion of other issues from consideration under this factor. Events occurring after death, no matter how revealing of depravity and cruelty, are not relevant to the atrocity of the homicide. See e.g., Simmons v. State, 419 So.2d 316 (Fla.1982) (burning of victim’s body); Blair v. State, 406 So.2d 1103 (Fla.1981) (burying wife’s body in backyard patio area); Halliwell v. State, 323 So.2d 557 (Fla.1975) (dismemberment of body after death).

On the other hand, lack of remorse has not been considered in those situations where there were no independent grounds for finding the murder especially heinous, atrocious or cruel. Where death has been instantaneously inflicted on an unsuspecting victim, or where the manner in which the victim was murdered has not exceeded the atrocity and cruelty inherent in any murder, this aspect of the aggravating factor has not been found to apply, regardless of the defendant’s mental and emotional perceptions of the event. See, e.g., Odom v. State, 403 So.2d 936 (Fla.1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982); Lewis v. State, 398 So.2d 432 (Fla.1981).

We have held that lack of remorse is not an aggravating factor in and of itself. McCampbell v. State, 421 So.2d 1072 (Fla.1982). Its use as additional evidence of an especially heinous, atrocious or cruel manner of killing only when the facts of the crime support the finding of that aggravating factor without reference to remorse is, at best, redundant and unnecessary. Unfortunately, remorse is an active emotion and its absence, therefore, can be measured or inferred only from negative evidence. This invites the sort of mistake which occurred in the case now before us — inferring lack of remorse from the exercise of constitutional rights. This sort of mistake may, in an extreme case, raise a question as to whether the defendant has been denied some measure of due process, thus mandating a remand for reconsideration of the sentence. For these reasons, we hold that henceforth lack of remorse should have no place in the consideration of aggravating factors. Any convincing evidence of remorse may properly be considered in mitigation of the sentence, but absence of remorse should not be weighed either as an aggravating factor nor as an enhancement of an aggravating factor.

On the facts before us, we find the applicability of this aggravating factor was proved beyond a reasonable doubt without regard to Pope’s remorse or lack thereof. We find the sentence of death to have been properly imposed.

It is so ordered.

BOYD, OVERTON, McDONALD and SHAW, JJ., concur.

ALDERMAN, C.J., and ADKINS, J., concur in result only.

      . Additionally, although the specific issue was not raised on appeal, we have searched the record and find the imposition of life sentences for the murders of Doranz and Di Russo to be appropriate. We therefore affirm these sentences.

      . In 1979 an additional aggravating factor was added to those which could be considered in imposing the death penalty:
      (i) The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.
      Fla.Stat. 921.141(5)(i) (1979). This factor not only takes into consideration the mental and emotional attitudes of the murderer, it narrowly limits those attitudes which may be weighed in the sentencing process. The language of the jury instruction on this factor is identical to that in the statute.


text:
    Raymond Lee DRAKE, Appellant, v. STATE of Florida, Appellee.
    No. 62185.
    Supreme Court of Florida.
    Oct. 27, 1983.
    Rehearing Denied Jan. 11, 1984.

      Jerry Hill, Public Defender and W.C. McLain, Asst. Public Defender, Chief, Capital Appeals, Tenth Judicial Circuit, Bartow, for appellant.
    Jim Smith, Atty. Gen. and William E. Taylor, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

Drake appeals his conviction and sentence of death for the first-degree premeditated murder of Odette Reeder following his second trial, the first conviction having been reversed in Drake v. State, 400 So.2d 1217 (Fla.1981). We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and again reverse.

Late in November of 1977, Drake met Reeder at the Crown Lounge in Clearwater. At about 11 p.m. Reeder left the bar with Drake, indicating to friends that she would return in a few minutes. Her friends never saw her alive again. Her badly decomposed and nearly nude body was discovered some six weeks later. A bra had been used to tie her hands behind her back. There were eight stab wounds in the lower chest and abdomen. The body’s advanced state of decomposition made it impossible to rule out other possible causes of death.

When Drake, a parolee, became a suspect, Detective Pondakos and Sergeant Coleman approached him at his work site and requested that he go to the sheriff’s office for questioning. Drake acquiesced and, upon his arrival, was taken to the Crimes Against Persons office. He was given Miranda warnings and told that the sheriff’s department was conducting a homicide investigation in which he was a suspect. Drake at first denied having been at the Crown Lounge and ever having seen Odette Reed-er. When confronted with the statement that he had been seen leaving the lounge with Reeder, he said they left together for the purpose of smoking marijuana. At this point in the interrogation, Drake requested to see his attorney. Pondakos testified that he attempted unsuccessfully to make contact with the attorney, calling three times over a half-hour period. Pondakos and Coleman then continued to question Drake, but he refused to answer. They did persuade him, however, to agree to repeat on tape the matters of which he had already spoken. The inquiry was not so limited. During the questioning he was told that he had left something at the scene of the crime and that he should try to think of what the item might be. Drake paused briefly before answering that he could not have left anything since he had not been there. The state was allowed, over objection, to introduce the tape into evidence and to elicit testimony from Detective Pondakos that the pause showed Drake was thinking about what the overlooked item could be. The state also was allowed to introduce evidence that Drake was on parole at the time of the crime. The jury found Drake guilty as charged and recommended the death sentence, which the trial court imposed.

Drake argues that, according to Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), it was error to allow into evidence his taped statement. He explicitly requested that the interrogation cease and that he be allowed to consult with counsel. Under Edwards, further police-initiated interrogation could not be voluntary. The state argues that since Drake was not in custody pursuant to Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), Edwards is inapplicable. Alternatively, the state argues that even if Drake was in custody, his statement was voluntary.

Our previous Drake opinion noted “a technical violation of the Miranda rule when Drake’s statements to Detective Pon-dakos were admitted.” 400 So.2d at 1220. Implicitly then, and explicitly now, we find Drake’s situation distinguishable from that in Mathiason. In that case, about twenty-five days after the burglary, the suspect responded to a message to call the police and went on his own to the state patrol office after working hours. He was told specifically that he was not under arrest. Within five minutes after arriving at the office, the defendant admitted to stealing property. He was advised of his Miranda rights, and the officer who had been questioning him took a taped confession. At the conclusion of the taping the defendant was told that he was not under arrest and was free to return to his job and family. His entire stay at the state patrol office lasted about half an hour.

Drake, on the other hand, was asked to leave his work in the middle of the day to accompany the officers to the sheriff’s office. Early during the course of the questioning he admitted to smoking marijuana with Reeder after having falsely denied being with her the night of her disappearance. Detective Pondakos subsequently notified Drake’s parole officer of the narcotics violation and the homicide investigation and arrested Drake the same day without allowing him to leave. Drake apparently felt concern about the course the interrogation was taking, since he requested a lawyer and refused to answer additional questions. He remained silent until asked if he would answer on tape the same questions he had already answered. Detective Pondakos did not honor his agreement. Although the detective testified that Drake was probably free to leave at the time of the interrogation, there is nothing in the record to show that this option was ever made clear to Drake. On the contrary, although Detective Pondakos testified that he did not want to use the parole violation “as a tool to keep him there,” the fact that Drake had told Pondakos of the narcotics violation is a factor bearing on Drake’s state of mind at the time he gave the statement.

The station-house setting of an interrogation does not automatically transform an otherwise noncustodial interrogation into a custodial interrogation. Mathia-son. Yet, an interrogation at a station house at the request of the police is inherently more coercive than an interrogation in another less suggestive setting, and it is a factor that should be considered in evaluating the totality of the circumstances of a given case. We find that, under the circumstances as they existed at the time Drake submitted to the taped questioning, a reasonable person would have believed that his freedom of action was restricted in a significant way. Especially persuasive is the fact that Drake’s request to discontinue further interrogation without his attorney went unheeded. Such a turn of events would certainly give a reasonable person a sense of confinement.

The burden of proving the volun-tariness of a statement is on the state. State v. Chorpenning, 294 So.2d 54 (Fla. 2d DCA 1974). There is no factual basis to support the state’s argument that Drake’s statement was voluntary. Once Drake had expressed his desire to have counsel, the only permissible additional inquiry would be to clarify an equivocal request. Nash v. Estelle, 597 F.2d 513 (5th Cir.), cert. denied, 444 U.S. 981, 100 S.Ct. 485, 62 L.Ed.2d 409 (1979). Drake’s request was unequivocal, and Edwards applies to prohibit further police-initiated interrogation before furnishing counsel. Instead, the police misled Drake into submitting to additional interrogation by the promise that no new ground would be covered. This arrangement was impermissible reinterrogation under Edwards, since Drake had clearly asserted his right to counsel. When the detective did not receive the hoped-for inculpatory response, he took the position, and testified before the jury, that Drake’s pause meant that he was thinking about what item was left at the scene of the crime. We find such a conclusion unwarranted and unduly suggestive. The taped interrogation was involuntary and its introduction was extremely prejudicial to the defendant’s case in light of the fact that the prosecutor used the interrogation to argue before the jury that Drake’s pause was an indication that Drake was lying. As we have said before, “[w]hen the error affects a constitutional right of the defendant, the reviewing court may not find it harmless ‘if there is a reasonable possibility that the error may have contributed to the accused’s conviction or if the error may not be found harmless beyond a reasonable doubt.’ ” Palmes v. State, 397 So.2d 648, 654 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981) (quoting Nowlin v. State, 346 So.2d 1020, 1024 (Fla.1977)). Such error may be treated as harmless where there is overwhelming evidence of guilt. Jones v. State, 332 So.2d 615, 619 (Fla.1976). The circumstantial evidence in the present case is less than overwhelming. We find therefore that another trial is the only way the defect can be cured.

We hereby reverse Drake’s first-degree murder conviction and remand to the circuit court for a new trial, thereby making unnecessary a ruling on Drake’s other points on appeal.

We note that the trial court permitted the jury to hear that Drake was on parole, and that a witness answered in the affirmative as to his knowledge of the nature of the crime for which Drake was on parole. The witness expressed his “concern [therefore] for the safety of the victim in this case.” While relevant evidence should not be excluded merely because it points to the commission of a separate crime, Williams v. State, 143 So.2d 484 (Fla.1962), it must be relevant to a material issue other than propensity or bad character. In our prior reversal of Drake’s conviction, we found the evidence of previous crimes irrelevant to show either identity or motive. The state again argues motive and also that this evidence was relevant to show that Reeder, who knew Drake was a parolee, would not voluntarily accompany him in his car alone and therefore must have been kidnapped. We also fail to find this latter theory of relevance persuasive. That Reed-er knew Drake was on parole has no logical or legal relevance as to whether she would get in the car, particularly since she had voluntarily accompanied him into the parking lot with knowledge of his parole status.

In the event Drake is reconvict-ed, we make two additional observations about the aggravating circumstances. Paragraph 4 of the trial court’s findings of fact and conclusions of law reflects impermissible consideration of a nonstatutory aggravating factor:

4. The crime for which the Defendant is sentenced was without regard to human feeling by dumping in a rural area, disrobed, with the weather elements and animals to further act upon the body.

Only statutory aggravating factors may be considered. Miller v. State, 373 So.2d 882 (Fla.1979). In addition there is insufficient basis in the present record for the paragraph 5 finding that the crime was committed in a cold, calculated, and premeditated manner so as to fall within the purview of section 921.141(5)(i), Florida Statutes (1981). See Mann v. State, 420 So.2d 578 (Fla.1982); Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982).

Reversed and remanded to the circuit court for a new trial in accordance with this opinion.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, McDonald, EHRLICH and SHAW, JJ., concur.

ADKINS, J., dissents.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . “In determining ‘custody,’ the majority of courts have utilized an objective test ... whether, under the circumstances, a reasonable person would have believed he was in custody.” Williams v. State, 403 So.2d 453, 455 (Fla. 1st DCA 1981) (citations omitted). We adopt this approach of the First District Court of Appeal.

      . We do recognize, however, that Drake’s statements made prior to his request for an attorney are admissible.

      . The jury was given instructions on premeditated murder and felony murder, with kidnapping as the underlying felony.