Britain v. State

• Decision Date: 08 September 1987
• Docket Number: 1 Div. 399
• Citation: 518 So.2d 198
• Parties: John E. BRITAIN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 198

518 So.2d 198

John E. BRITAIN v. STATE.

1 Div. 399.

Court of Criminal Appeals of Alabama.

Sept. 8, 1987.

Rehearing Denied Oct. 13, 1987.

Certiorari Denied Dec. 23, 1987

Alabama Supreme Court 87-56.

Thomas M. Haas and N. Ruth Haas, Mobile, for appellant.

Don Siegelman, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

John E. Britain was the maintenance supervisor for the Alabama State Docks in Mobile. He was indicted and convicted for two violations of the Alabama Ethics Act, § 36-25-5, Code of Alabama 1975. In each case, he was sentenced to five years' imprisonment, fined $5000, and ordered to pay $25 to the Alabama Crime Victims Compensation Fund. He was also convicted of second degree theft of property by deception in violation of § 13A-8-4, sentenced to ten years' imprisonment, and ordered to pay $1000 in restitution to the State Docks and $25 to the Crime Victims Compensation Fund. The sentences in the ethics violation cases were ordered to run concurrently with the sentence in the theft case.

I

The defendant's motion for judgment of acquittal was properly denied because the State presented a prima facie case of each crime charged.

The substance of Counts I and III was that the defendant caused invoices for topsoil, dirt, and shells to be submitted to and paid by the State Docks when those materials were actually delivered to the defendant's residence for his personal use. There was testimony that the defendant was the supervisor of the maintenance department at the State Docks and that he had the authority to order and sign for materials in an unlimited dollar amount. John L. Maples, the owner of a hauling company that did business with the State Docks, testified that in the latter part of 1983 or the early part of 1984 his company delivered "three to five" truckloads of topsoil and "three to five" truckloads of clam shells to the defendant's residence. The price of the dirt was between $150 and $200 per load. The shells were around $300 per load. Maples testified that the defendant did not pay for this material but told him "to just make up some invoices as we normally do with the State Docks and send them down there at various increments dated various different dates and he would sign the tickets accordingly." The different dates were "so that [the invoices] would blend in with the actual materials that were ordered for the State Docks." Maples testified that "we were requested to make up some bogus invoices and send them to the State Docks for payment." He stated that he was paid by the State Docks for the loads delivered to the defendant's residence.

Maples' testimony was corroborated by that of David Cannon and Bobby Broglen, truck drivers for Maples Hauling Company. Cannon testified that during the latter part of 1982 and in 1983 he delivered three truckloads of topsoil and one load of shells to the defendant's residence. The defendant was present on two of these deliveries. He stated that, on instruction from Mr. Maples, "the next time that we would take a load down [to the State Docks], we would take two or three extra tickets with us and get them signed. And we kept doing this until we got all the tickets signed to take care of the amount of dirt that was sent to his home." Cannon testified that the defendant signed several tickets.

Broglen testified that in late 1983 he delivered one load of shells to the defendant's home. The defendant was home when the shells were delivered.

Howard McKenzie, the assistant director of the Alabama Ethics Commission, testified that the statements of economic interest filed by the defendant for 1982 and 1983 did not indicate that the defendant had received any shells or dirt from Maples Hauling.

Although the State did prove that the defendant did sign a number of invoices showing the delivery of "base clay" by Maples Hauling Company to the State Docks, there was absolutely no proof of which invoices were "bogus" and for the material actually delivered to the defendant's residence. Although there was no documentary proof that the defendant signed any "bogus" invoice, there is considerable circumstantial evidence to support that factual finding.

However, since no count of the indictment specifically charged the defendant with actually signing a false invoice, the State was not required to prove that the defendant actually signed a false invoice as an element of proof that he used his official position for personal gain or that he was guilty of theft by deception.

Count II charged that the defendant used his official position as maintenance supervisor to obtain the labor and services of State Docks employees under his supervision for his direct personal financial gain.

Two employees of the State Docks testified that the defendant was their supervisor and that they worked on the defendant's boat or home while they were being paid for working at the State Docks. Roy Cox testified that he worked on the construction of the defendant's shrimp boat and boat slip from 1981 through 1984. James King testified that he worked on the defendant's boat and house during the years from 1981 to 1983. This testimony presented a prima facie case of the violation of the State Ethics Act charged in Count II of the indictment.

A third state employee, John Hobbs, also testified. However, Hobbs testified that when he worked at the defendant's residence in 1979, 1980, or 1981 he was not paid by the State Docks because he would take vacation time or accumulated leave time. Hobbs' testimony did not establish any violation of the State Ethics Act.

The fact that some of the State's evidence was contradictory and conflicting does not negate the fact that the State did present a prima facie case of each crime charged in the indictment.

" 'The effect of contradictory and inconsistent statements goes to the credibility of the witness and is a question for the jury.' Magro v. State, 384 So.2d 871, 874 (Ala.Cr.App.), cert. denied, Ex parte Magro, 384 So.2d 875 (Ala.1980). '[A] jury may believe part of the evidence of a witness and reject part.' ... 'Inconsistencies and contradictions in the testimony of a witness do not make it inherently improbable.' ... 'The inconsistencies may impair the credibility of the witness and reduce the weight of the testimony, but they do not destroy the probative force of the testimony as a matter of law.' Jones v. State, 469 So.2d 713, 716-17 (Ala.Cr.App.1985)." Yeager v. State, 500 So.2d 1260, 1263 (Ala.Cr.App.1986).

II

The trial judge properly charged the jury that, with regard to Count III of the indictment charging theft by deception of "money or checks the property of the Alabama State Docks," they could consider "any acts that occurred subsequent to October 1 of 1979."

The statute of limitations for theft is three years, § 15-3-1, Code of Alabama 1975, unless the prosecution is "for conversion of the state ... revenue," in which case the statute of limitations is six years. § 15-3-3.

Violation of the Alabama Ethics Act is a felony, § 36-25-27(a), to which applies the three-year statute of limitations applicable to felonies in general. § 15-3-1.

The indictment was returned in October of 1985. This tolled the statute of limitations. § 15-3-7. As set out in Issue I, there was sufficient evidence of the defendant's criminal activities in 1982, 1983, and 1984 alone to sustain convictions for all three counts in the indictment.

III

The trial judge properly denied the defendant's request for a mistrial. State's witness Roy Cox, a State Docks employee, testified that, after the investigation into the defendant's criminal activities began, the defendant told him "to do [his] job and keep [his] mouth shut or somebody else could be found floating in the river." The trial judge overruled defense counsel's objection that "[t]here is no charge of this sort of thing in this case," but directed the prosecutor to "lay a predicate as to time."

When Cox testified that the statement was made "in the latter part of '81," the trial judge "sustain[ed] the objection to the statement about the river because of the time factor" and instructed the jury to disregard that threat.

Defense counsel requested a mistrial which the trial judge denied "because the Court had required the State to lay a predicate and sustained the objection and instructed the Jury to disregard it and I don't feel that it is not capable of being put out of the Jury's mind. And I think they have been sufficiently instructed." There was no objection to the judge's instructions or request for further instruction.

"A crucial assumption underlying that system [of trial by jury] is that juries will follow the instructions given them by the trial judge. Were this not so, it would be pointless for a trial court to instruct a jury, and even more pointless for an appellate court to reverse a criminal conviction because the jury was improperly instructed." Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713 (1979). "The 'rule'--indeed, the premise upon which the system of jury trials functions under the American Judicial System--is that juries can be trusted to follow the trial court's instructions." Id., 442 U.S. at 74, n. 7, 99 S.Ct. at 2140, n. 7. See also Francis v. Franklin, 471 U.S. 307, 325, n. 9, 105 S.Ct. 1965, 1976, n. 9, 85 L.Ed.2d 344 (1985). "The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process." Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987).

It must be presumed that the jury followed the judge's instructions. Kennedy v. State, 472 So.2d 1092, 1105 (Ala.Cr.App.1984), affirmed, Ex parte Kennedy, 472 So.2d 1106 (Ala.), cert. denied, ...