Ex parte Hunt

• Decision Date: 25 June 1999
• Citation: 744 So.2d 851
• Parties: Ex parte Teresa Lynn HUNT. Re Teresa Lynn Hunt v. State.
• Court: Alabama Supreme Court

744 So.2d 851

Ex parte Teresa Lynn HUNT.

Re Teresa Lynn Hunt v. State.

1971668.

Supreme Court of Alabama.

June 25, 1999.

David S. Furman of Law Offices of Daniel E. Boone, P.C., Florence, for petitioner.

Bill Pryor, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for respondent.

LYONS, Justice.

Teresa Lynn Hunt was convicted of forgery in the second degree, a violation of § 13A-9-3, Ala.Code 1975. The trial court sentenced her as a habitual offender to 15 years' imprisonment; it ordered that her sentence be split and served as one year of incarceration, with the remainder of 14 years suspended for two years of probation after completing the one-year sentence. The Court of Criminal Appeals, on May 8, 1998, affirmed her conviction by an unpublished memorandum. Hunt v. State, (No. CR-96-1769) 738 So.2d 934 (Ala. Crim.App.1998) (table). We granted Hunt's petition for certiorari review. We reverse the judgment of the Court of Criminal Appeals and render a judgment of acquittal.¹

The evidence at trial tended to show the following: On or about October 30, 1995, a burglary occurred at a business known as Rose Rentals in Lauderdale County. The burglars took approximately $40,000 in merchandise. The burglars also took check number 14128, which was blank, from Rose Rentals' checkbook. The State charged Hunt with forging check 14128 by making it payable to Tim Horton, a friend of hers, in the amount of $247.53 and by forging the drawer's signature as "Jim Sak." At Hunt's trial, the State presented evidence indicating that the check was cashed on November 3, 1995, at John's Shop Ezy store in Florence. The State also presented the testimony of James Sak. Sak testified that he was in charge of Rose Rentals' payroll and its personnel checks in November 1995, and that it was his signature that would have appeared on every one of Rose Rentals' payroll checks issued in that month. He testified that he signed all Rose Rentals checks as "James R. Sak," and not "Jim Sak." He stated that although the name "Jim Sak" appeared on the signature line of check 14128, that signature was not his and that he did not authorize Hunt or Horton to cash the check. He also stated that he did not know whether Hunt was involved in the forgery.

Next, the State called Dale Olive, an employee of Rose Rentals, to the stand. He testified that just a few days before the check was cashed he received a suspicious telephone call while at work. Then, the following occurred:

"Q. Will you tell the ladies and gentlemen of the jury the nature of that phone call and what if anything was said?

"[DEFENSE COUNSEL]: Objection, Your Honor, hearsay.

"THE COURT: Come up.

"(At this time a bench conference was held.)

"THE COURT: Overruled. You may answer. Do you need the question repeated?

"THE WITNESS: No, sir.

". . . .

"A.... I received a phone call, there was a female voice on the other end. She asked who signed the payroll checks, who made the payroll checks out and I told her Mr. Sak. And she said what was his first name and I said `Jim Sak.' And at that point she just hung up.

"Q. You cannot identify the person on the other end of that phone conversation?

"A. No, ma`am."

(R. 56-57.)

The State then called Tim Horton to the stand. Horton said that he had been indicted for the same offense as Hunt but that he had received leniency for testifying against Hunt. He testified that he was living with Hunt and her boyfriend, Timmy Dale Brewer, at the time of the crime. He said that he saw Hunt make a telephone call from their home to Rose Rentals and that Hunt told him that Jim Sak was the person who signed Rose Rentals' checks. He testified that Hunt then filled out check 14128 from Rose Rentals and that when she did she wrote the check to his order, in the amount of $247.53. He said that he cashed the check 30 to 45 minutes later at John's Shop Ezy.

The State's last witness was Officer Barry Brewer from the Florence Police Department. Officer Brewer investigated the burglary and the forgery of the stolen check. He testified that Hunt gave him several handwriting samples, which he said he submitted to the Department of Forensic Sciences for testing. During his testimony, the State entered into evidence, without objection, a report from the Department of Forensic Sciences. This report stated, in pertinent part:

"Laboratory examinations and comparisons revealed indications that the questioned entries on [check 14128] may have been written by the author of the Teresa L. Hunt handwriting standards. There are indications that the `Jim Sak' maker's signature may not represent the natural handwriting of the writer.

"Comparisons of the endorsement on [check 14128] with the submitted standards were inconclusive. Examination of the handwriting characteristics comprising the endorsement revealed indications that this handwriting may not represent the natural handwriting of the writer."

The State then rested its case, and the trial court excused the jury.

At that time, Hunt's counsel moved for a judgment of acquittal and moved to exclude Horton's testimony, on the basis that under § 12-21-222, Ala.Code 1975, a felony conviction cannot be had on the testimony of an accomplice, unless that evidence is corroborated by other evidence tending to connect the defendant to the crime. Hunt's counsel asked the trial court to hold that, as a matter of law, Horton was an accomplice. Hunt's counsel argued that under Alabama caselaw the trial court was required to subtract Horton's testimony from the sum of the evidence and then to determine whether the State had presented any evidence tending to link Hunt to the crime. Hunt's counsel contended that the testimony regarding the telephone call by a person with a female voice was insufficient to link Hunt to the crime and, therefore, that Hunt was entitled to a judgment of acquittal.

The trial court then questioned Hunt's counsel:

"THE COURT: Following your line of reasoning, Mr. Rushing, what about the forensic sciences [report] that said it might have been her signature? What would be your response to [the report that] it might have been her handwriting?

"[DEFENSE COUNSEL]: I would say the report also said it may not represent the natural handwriting of the writer and the endorsement, it says, may not represent the natural handwriting of the writer. I would say that a report—

"THE COURT: May or may not.

"[DEFENSE COUNSEL]:—may or may not, it's very inconclusive and would not be enough evidence in and of itself.

"THE COURT: And again, I don't know that that would be determinative for or against the defendant or the State. I was just curious what your reaction would be if it narrowed down to that being the link [that provided the corroboration]—if that was the State's only shot. Excuse me, I didn't mean to interrupt.

"[DEFENSE COUNSEL]: That's all right. There's several other cases that have held that if the evidence merely raises a conjecture, surmise, speculation or suspicion then that would not be considered corroboration and I would make that motion at this time, Your Honor."

The trial court then denied the motion for a judgment of acquittal.

After the court held a hearing on a motion in limine made by Hunt, the jury returned, and Hunt began her case-in-chief. She called only one witness, her boyfriend, Timmy Brewer. Brewer testified that he was living with Hunt during October and November 1995 and that Horton lived with them "off and on" during that time. Contrary to Horton's testimony, however, Brewer said that Hunt took no part in the crime. According to Brewer, Horton was the person who made the telephone call to Rose Rentals to get the name of the payroll clerk. Brewer testified that he filled out the "top part" of the check, meaning the name of the payee and the amount, and that Horton signed the name "Jim Sak" on the signature line. Brewer said that he understood that, by his testimony, he was confessing to a crime and that he might be required to serve additional jail time (he was already serving a sentence of life imprisonment based on convictions of several other crimes; this fact apparently explains why he was not prosecuted as an accomplice) or to pay restitution for his participation in the crime.

The State called one rebuttal witness, Gordon Harris, who was an officer at the Lauderdale County Detention Center, where Timmy Brewer was incarcerated. He testified that during an interview he overheard Brewer tell the prosecutor that neither Brewer nor Hunt had anything to do with the forgery.

After the jury found her guilty, Hunt moved for a judgment of acquittal or, in the alternative, for a new trial, on the grounds that (1) the court had erred in denying her motion for a judgment of acquittal at the conclusion of the State's case-in-chief and (2) that the trial court had erred in overruling her objection to the testimony of Dale Olive on the basis that it was inadmissible hearsay.² After the trial court denied her motion, she appealed to the Court of Criminal Appeals.

In its unpublished memorandum, the Court of Criminal Appeals held that Olive's testimony was admissible hearsay because it fell within the res gestae exception to the hearsay rule. The Court of Criminal Appeals also held that the trial court did not err in denying Hunt's motion for a judgment of acquittal at the end of the State's case-in-chief, because, it held, the State did present sufficient evidence to corroborate Horton's testimony. In so holding, the Court of Criminal Appeals relied on the following: (1) the testimony of Dale Olive, who stated that a female telephoned Rose Rentals and acquired the name "Jim Sak"; (2) the testimony of Hunt's boyfriend, Timmy Brewer, who stated that Hunt had lived with Brewer and Horton; and (3) the handwriting evaluation by the Department of Forensic Sciences, which, the Court of Criminal Appeals said, "did not rule out Hunt as a perpetrator of the crime ... [and] does not prove or disprove her...