Ex parte Burton

• Decision Date: 28 July 2000
• Parties: Ex parte Angela BURTON. (Re Angela Burton v. State).
• Court: Alabama Supreme Court

783 So.2d 887

Ex parte Angela BURTON.

(Re Angela Burton v. State).

1981604.

Supreme Court of Alabama.

July 28, 2000.

As Modified on Denial of Rehearing November 3, 2000.

Joseph G. Pierce, Tuscaloosa, for petitioner.

Bill Pryor, atty. gen., and Stephanie N. Morman, asst. atty. gen., for respondent.

PER CURIAM.

Angela Burton was convicted of "hindering prosecution in the first degree," a crime defined by § 13A-10-43, Ala.Code 1975, and was sentenced to 17 years' imprisonment. The Court of Criminal Appeals affirmed. Burton v. State, 783 So.2d 874 (Ala.Crim.App.1999). We granted Burton's petition for certiorari review. She argues that the trial court should have granted her motion for a judgment of acquittal and that the Court of Criminal Appeals erred in holding that the State had proved a prima facie case of the specific charge set out in the indictment against her. We agree. We reverse the judgment of the Court of Criminal Appeals and render a judgment of acquittal.

Facts

Burton's conviction was based on her allegedly rendering criminal assistance to her sister, Felicia Scott, and her sister's boyfriend, Frederic Polion, following the murder of Carethia Curry. Curry was nine months pregnant when she was shot twice in the head after having her stomach cut open and her baby taken out. Burton's indictment read as follows:

"The Grand Jury of said County charge that before the finding of this Indictment, ANGELA BURTON, whose name is otherwise unknown to the Grand Jury, did render criminal assistance to Felicia¹ Scott, alias Felicia Burton, alias Felicia Polion and/or Frederic² Polion, alias Fred Polion, by intentionally hindering the apprehension, prosecution, conviction, or punishment of Felicia Scott, alias Felicia Burton, alias Felicia Polion and/or Frederic Polion, alias Fred Polion for conduct constituting a Murder or a Class A or B felony, to wit: Murder, in that said defendant did prevent or obstruct, by means of deception, law enforcement officers and investigators, and/or the Tuscaloosa County, Alabama, Grand Jury, investigating the disappearance of Carethia Curry, from performing an act that might aid in the discovery or apprehension of the said Felicia Scott, alias Felicia Burton, alias Felicia Polion and/or Frederic Polion, alias Fred Polion, to wit: locating the body of Carethia Curry, in violation of Section 13A-10-43 of the Code of Alabama."

The testimony in this case was extensive; it is summarized here. Carolyn O'Neal, Curry's mother, testified that on January 31, 1996, she and Curry had gone shopping for baby clothes with Felicia Scott. O'Neal testified that Curry and Scott discussed going to get pizza and that Scott commented that the "two pregnant women" (referring to herself and Curry) were going to eat pizza. O'Neal testified that Burton was there but made no comment about her sister's statement because Burton was arguing with her boyfriend, Anthony Rowser. Later that day, Scott picked up Curry so they could go eat pizza.

On February 1, 1996, Scott told O'Neal that she had dropped Curry off at home the evening before, at 8:30 p.m., and that after that she (Scott) had been in Birmingham having her baby. O'Neal testified that she knew Scott had had a hysterectomy and could not have any more children. O'Neal telephoned the police and reported that Scott and Polion had kidnapped her daughter. On February 5, 1996, when O'Neal learned that Scott had come home with a baby, she telephoned the police and told them she believed Scott had her daughter's baby and that her daughter was still missing.

Officer Toni Everett testified that on February 5, 1996, she went to Polion and Scott's residence. Upon seeing a newborn infant, she inquired as to whether the baby belonged to Curry. Scott and Polion told Everett that the baby was their baby. Officer Everett testified that she took a statement from Burton on February 7, 1996. She testified that Burton told her that Scott, Polion, Scott's two boys, and the new baby had come to Burton's home in Birmingham about 11:00 a.m. on February 1, 1996, that they left the next day, and that she did not know where Scott was.

Investigator Michael Hearing testified that he first spoke to Burton when she gave a statement to Officer Everett on February 7, 1996, and that he spoke to her again on February 10, 1996. He testified that Burton told him Scott arrived at her house at 2:00 or 3:00 a.m. on February 1, 1996. Hearing testified that a search of Burton's storage facility on March 25, 1996, revealed an incomplete set of sheets carrying a logo of a musical group known as New Kids on the Block. He later discovered that the missing sheet matched the sheet that Curry's body was wrapped in when it was found. He testified that he obtained Burton's telephone records in late April 1999, and they showed that she had made 24 calls to Lee Curtis Turner, Jr., Burton's ex-boyfriend. Hearing testified that Burton told him that Polion had telephoned her several times from his home asking her to call Birmingham area hospitals to see if she could find Scott, and that she had made calls to several hospitals looking for Scott.³ Burton's telephone records did not reflect that these calls were made on February 1, 1996. Hearing testified that there was no evidence that Burton knew where Curry's body was disposed of.

Lee Curtis Turner, Jr., testified that Burton called him on February 1, 1996, at approximately 10:00 p.m. and pleaded with him to come over.⁴ When he arrived, he said, Burton told him that Scott and Polion had arrived at her home unexpectedly with a newborn they said was their baby, and that she showed him the baby. Turner testified that Burton had told him on prior occasions that Scott could not have children. He testified that Burton told him that Scott had told Burton she needed to hide the body of a man she had killed after he had tried to rape her. He testified that Burton told him she thought Scott was joking so she asked to see the body. Turner testified that Burton told him Scott opened the trunk of Polion's car and showed Burton the body of Curry, which Burton said had been cut wide open and the baby removed from it. Turner testified that in April 1996, when he was contacted by members of the Tuscaloosa Police Department Homicide Unit, he contacted Burton and that she asked him not to tell the police anything about what she had told him, but that he could tell the police that he saw the baby and that she had said she did not know whose baby it was.

Anthony Rowser testified before the grand jury in Burton's case. He testified that Burton had told him that Scott could not have children, that Scott had told Burton that she had killed Curry, that Scott told Burton that Scott went to the house of a friend, Jerry Davis,⁵ to get rid of the body, and that Scott had bought the garbage can used for disposing of the body from a WalMart store. Rowser recanted this testimony at trial. He testified that he had made up the story he reported to the police, while he was in jail, and that he had testified falsely to the grand jury because he was upset with Burton over a harassment warrant she had sworn against him.

On her appeal to the Court of Criminal Appeals, Burton raised two arguments: (1) that the trial court erred in denying her motion for a judgment of acquittal; and (2) that the trial court erred in admitting into evidence photographs of Curry's mutilated body. The Court of Criminal Appeals affirmed. She raises only that first issue on certiorari review in this Court.

Standard of Review

"Appellate courts are limited in reviewing a trial court's denial of a motion for judgment of acquittal grounded on insufficiency." McFarland v. State, 581 So.2d 1249, 1253 (Ala.Crim.App.1991). "The standard of review in determining sufficiency of evidence is whether evidence existed at the time of [the defendant's] motion for acquittal was made, from which the jury could by fair inference find the [defendant] guilty." Linzy v. State, 455 So.2d 260, 261 (Ala.Crim.App.1984) (citing Stewart v. State, 350 So.2d 764 (Ala.Crim. App.1977), and Hayes v. State, 395 So.2d 127 (Ala.Crim.App.), writ denied, 395 So.2d 150 (Ala.1981)). In determining the sufficiency of the evidence, we view the evidence in the light most favorable to the State. Linzy, supra.

Discussion

Burton moved for a judgment of acquittal at the close of the State's case, and she renewed her motion after the defense had rested. She contends that the State failed to make out a prima facie case of the hindering-prosecution charge set out in her indictment. Section 13A-10-43(a), Ala.Code 1975, sets out the elements of the offense known as "hindering prosecution in the first degree":

"(a) A person commits the crime of hindering prosecution in the first degree if with the intent to hinder the apprehension, prosecution, conviction or punishment of another for conduct constituting a murder or a Class A or B felony, he renders criminal assistance to such person."

Thus, in order to convict on the hindering-prosecution charge, the State had to prove that Burton rendered criminal assistance to a person whose conduct had constituted murder or a Class A or B felony, and that she rendered that criminal assistance with the intent to hinder the apprehension, prosecution, conviction, or punishment of that person. Section 13A-10-42, Ala.Code 1975, lists five acts that constitute "criminal assistance." The indictment charged Burton with the act set out in subsection (4) of § 13A-10-42, which provides that a person renders criminal assistance to another person if he or she "[p]revents or obstructs, by means of force, deception or intimidation, anyone except a trespasser from performing an act that might aid in the discovery or apprehension of such person...." Thus, under the indictment brought against her, and pursuant to § 13A-10-42(4), Burton could have rendered the criminal assistance charged only if she prevented or obstructed...