Bright v. State

• Decision Date: 28 January 1986
• Docket Number: 7 Div. 429
• Citation: 485 So.2d 398
• Parties: Roy C. BRIGHT, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 398

485 So.2d 398

Roy C. BRIGHT, Jr. v. STATE.

7 Div. 429.

Court of Criminal Appeals of Alabama.

Jan. 28, 1986.

Rehearing Denied Feb. 25, 1986.

Edward Cunningham, Gadsden, for appellant.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

BOWEN, Presiding Judge.

Roy C. Bright, Jr., the appellant, Glen E. Hammett, and John Marcel Olive were jointly indicted for theft of property in the first degree and criminal conspiracy in the second degree. All three defendants were tried together. Bright was convicted of conspiracy, sentenced to two years' imprisonment, and granted probation. Restitution was ordered in the amount of $15,343. Hammett was convicted of theft. After Olive testified against his co-defendants, the charges against him were dismissed on motion of the State.

I

Bright argues that, where three alleged conspirators are tried jointly and two are acquitted of conspiracy, the third conspirator must also be acquitted as a matter of law. We disagree.

Alabama Code 1975, § 13A-4-3(d)(1), states, "It is no defense to a prosecution for criminal conspiracy that: (1) The person, or persons, with whom defendant is alleged to have conspired has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or is immune from prosecution."

The defendant relies upon Berness v. State, 40 Ala.App. 198, 201-02, 113 So.2d 178, 180, cert. denied, 269 Ala. 694, 113 So.2d 183 (1958). There, the Alabama Court of Appeals stated:

"The majority rule is that if a nolle prosequi is entered as to one of two persons accused of conspiracy the other must be discharged, since it requires more than one person to commit the crime of conspiracy. 14 Am.Jur.Crim.Law, Sec. 303, p. 970, and cases cited. See also Jones v. State, 16 Ala.App. 477, 79 So. 151.

"But where the offense charged, though perpetrated by one act, is several as well as joint, a nol. pros. may be allowed as to one or more persons indicted jointly and a trial had on the merits as to the others. Jones v. State, supra."

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"But even where the offense charged is conspiracy, the general rule seems to be that so long as the disposition of the case against a co-conspirator does not remove the basis for a charge of conspiracy, a single defendant may be prosecuted and convicted of the offense. See citations of authority, in the Annotation 'Disposition of Case against Co-Conspirator' 97 A.L.R. 1312."

The Commentary to § 13A-4-3 makes it clear that, to the extent Berness conflicts with that section, the law as stated in Berness is changed:

"Subdivision (d)(1) is consistent with the general principle which applies to parties to offenses that acquittal or lack of prosecution of the main offender is immaterial in the prosecution of the accessorial offender. E.g., United States v. Provenzano, 334 F.2d 678 (3rd Cir.), cert. denied, 379 U.S. 947 [85 S.Ct. 440, 13 L.Ed.2d 544] (1964) (principal need not be tried, convicted, or even identified). People ex rel. Guido v. Calkins, [9 N.Y.2d 77, 211 N.Y.S.2d 166], 172 N.E.2d 549 (1961). The same principle should apply to coconspirators. It is not essential that two persons be convicted of conspiracy, but only that at least two conspired to commit some unlawful act. Kleihege v. State, 177 N.E. 60 (Ind.1931). And see New York Penal Law § 20.05(2); Proposed New Federal Criminal Code § 1004(4); Proposed Revision Texas Penal Code § 15.02(c). This may change Alabama law. Hill v. State, 210 Ala. 221, 97 So. 639 (1923) (In prosecution for murder pursuant to conspiracy acquittal of one coconspiractor patently irrelevant.) Cf. Berness v. State, 40 Ala.App. 198, 113 So.2d 178 (1958) (Nolle prosequi of one of two coconspirators requires discharge of other, since conspiracy requires more than one person.)."

See also United States v. Espinosa-Cerpa, 630 F.2d 328 (5th Cir.1980).

Bright is not due to be discharged and his motion for a judgment of acquittal was properly denied.

II

Bright is correct in his contention that his conviction was had on the uncorroborated testimony of an accomplice and that the prosecution failed to properly prove the existence of a conspiracy.

The indictment charged in effect that Bright, Hammett, and Olive engaged in a conspiracy to steal or unlawfully obtain from the Baptist Memorial Hospital of Gadsden (hereinafter designated as the Hospital) the silver residue and by-products resulting from the development of x-ray film.

Jerry Baker was the associate director of the Hospital and was, as such, the defendant's supervisor. The defendant was the chief x-ray technologist at the Hospital. Co-defendant Hammett was the chief x-ray technologist at the Boaz-Albertville Hospital and co-defendant Olive was the assistant chief. Hammett and Olive were partners in Independent Silver Reclaimers (ISR) which dealt in the reclamation of silver from old x-ray films and from the process of developing the film.

As chief technologist, the defendant "was responsible for handling whatever arrangements that could be made in disposing of silver flake or old film or whatever." The defendant introduced Hammett to Assistant Director Baker. The Hospital, with the approval of its officers, entered into an agreement with Hammett whereby the Hospital would receive silver bars from ISR in return for the x-ray by-products collected from the Hospital by ISR.

Assistant Director Baker testified that the defendant was responsible for all of the x-ray by-products and the transactions with Hammett. It was the defendant's responsibility to insure that the Hospital received all of the silver it was due from ISR. The defendant and the assistant chief x-ray technologist at the Hospital were the only ones with access to the silver recovery unit of the x-ray developing processor.

Larry Waefler was an auditor for the State Medicaid Quality Control Unit of the Attorney General's Office. He audited the Hospital's records, reviewed the records of ISR, and concluded that the Hospital should have received 2,826.23 troy ounces of silver in addition to what it actually received from ISR. In February of 1983, the Hospital sold Hammett the 2,549 ounces of silver it had amassed during 1981-82 for $40,000. Waefler's review showed that "there were pick ups from Baptist Memorial Hospital that Roy Bodine was ultimately credited with." Waefler testified that the records of ISR showed "a total of 18 transactions with Baptist Memorial Hospital and 14 of them were closely arrayed with documents and transactions with Roy Bodine, either consecutive [receipt] numbers or on the same day with different numbers but reflecting the same day as the transaction." In some cases the transactions "were exactly the same" with regard to the type and amount of silver residue collected by ISR from the Hospital and Bodine.

Waefler testified that a diligent search of public records (tax, social security, public safety) failed to uncover any existence of Roy Bodine. He stated that an expert analysis and comparison of the defendant's handwriting with the signatures of Bodine revealed that Bodine's handwriting was not done by the defendant.

The State's evidence showed that ISR purchased silver from both the Hospital and Bodine and that Hammett handled both accounts.

Larry Lennon was employed by ISR in 1981. He testified that on one occasion he went with Hammett to collect some used x-ray film from the Hospital. Although it was customary to keep "pick-up records" when silver was collected, on this occasion the film was not weighed and the Hospital was not given a receipt. Lennon testified that the defendant told Hammett that they "would get the weights straightened out later."

Jack Thompson operated MIF Refining and acquired ISR in July of 1983. He testified, over objection, that Hammett told him that Hammett had a "special relationship" with Roy Bodine and that if Thompson wanted to maintain that relationship Hammett might possibly handle that. Later, Hammett told Thompson that "Roy Bodine and a Mr. Roy Bright at the Baptist Hospital in Gadsden were one and the same individual."

Mike Alredge worked for MIF but had previously been employed by ISR. In an attempt to obtain new customers for MIF he attempted to locate, but was unable to find, Roy Bodine.

Co-defendant Olive testified as a prosecution witness that when Hammett told the defendant "how good the returns were going to be ... he [defendant] decided that he wanted part of it." Hammett told Olive that he was going to give the defendant "a split." Hammett and Olive "came up with" the name "Roy Bodine" because they needed records. Olive testified that all the transactions with Bodine...