Ex parte Stewart

• Decision Date: 19 November 2004
• Citation: 900 So.2d 475
• Parties: Ex parte Mike STEWART. (In re Maurice Ray Webster, Mike Stewart, and Bill Greer v. State of Alabama).
• Court: Alabama Supreme Court

900 So.2d 475

Ex parte Mike STEWART.

(In re Maurice Ray Webster, Mike Stewart, and Bill Greer v. State of Alabama).

1031360.

Supreme Court of Alabama.

November 19, 2004.

Charles H. Pullen, Huntsville, for petitioner.

Troy King, atty. gen., and Michael B. Billingsley and Stephanie N. Morman, asst. attys. gen., for respondent.

BROWN, Justice.

Mike Stewart, a former county commissioner for Marshall County, was convicted, along with Maurice Ray Webster and another former county commissioner, Bill Greer, of violating the State ethics law, Ala.Code 1975, § 36-25-1 et seq. Specifically, a jury found Stewart guilty of intentionally using his official position to unlawfully obtain personal gain by hiring Webster, a contractor, to perform road-construction work in his district in return for monetary payments from Webster, in violation of Ala.Code 1975, § 36-25-5. The trial court sentenced Stewart to five years' imprisonment and ordered him to pay a $1,000 fine.

On March 26, 2004, the Court of Criminal Appeals affirmed Stewart's, Webster's, and Greer's convictions. Webster v. State, 900 So.2d 460 (Ala.Crim.App.2004). On August 25, 2004, we granted Stewart's petition for certiorari review to determine whether the Court of Criminal Appeals erred in holding that the State had produced the corroborating evidence required by Ala.Code 1975, XX-XX-XXX.¹ We reverse the judgment of the Court of Criminal Appeals and render a judgment of acquittal for Stewart.

Facts and Procedural History

Stewart and Greer, also a former county commissioner for Marshall County, were convicted of violating the ethics law by using their positions as county commissioners to hire Webster to perform road-construction work in their respective districts in return for Webster's paying them a portion of the profit he made on the work. Webster was convicted of offering things of value for the purpose of influencing official action, a violation of Ala.Code 1975, § 36-25-7(a), and, as an accomplice, of using an official position or office for personal gain, a violation of Ala.Code 1975, § 36-25-5(a). The three men were tried together; the Court of Criminal Appeals consolidated their appeals and upheld their convictions. Webster, supra.

Standard of Review

The Court of Criminal Appeals correctly stated the standard of review in this case:

"Initially, we note that `"[i]n determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution."' Ballenger v. State, 720 So.2d 1033, 1034 (Ala. Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App. 1984), aff'd, 471 So.2d 493 (Ala.1985). `"The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt."' Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O'Neal v. State, 602 So.2d 462, 464 (Ala. Crim.App.1992). `"When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision."' Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala. Crim.App.1990). `The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.' Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978)."

Webster, 900 So.2d at 463.

Analysis

In rejecting Stewart's argument that his conviction was based on the uncorroborated accomplice testimony of Elton Sims, who was also a former county commissioner for Marshall County, the Court of Criminal Appeals found that the corroborating evidence offered by the State was "minimally sufficient" under Alabama law to allow submission to the jury of the charge against Stewart. 900 So.2d at 468. We disagree.

Alabama Code 1975, § 12-21-222, provides: "A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient."

"The Court of Criminal Appeals, explaining [§ 12-21-222], has written:

"`The formula applying the rule requires that evidence of the accomplice must first be "subtracted" and then, if upon the review of all other evidence before the court at the time of the motion, there is found to be sufficient incriminating evidence which would tend to connect the defendant with the commission of the offense, sufficient corroboration exists. Craig v. State, [376 So.2d 803, (Ala.Crim.App.), writ denied, 376 So.2d 807 (Ala.1979)]; Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973). However, the corroborative evidence need not refer to any statement or fact testified to by the accomplice. Neither must it be strong [or] sufficient of itself to support a conviction. The probative value of the evidence need only legitimately tend to connect the accused with the crime and need not directly do so. Further, corroborative evidence need not directly confirm any particular fact [or] affirm each and every material fact testified to by the accomplice. Corroboration may be proven by circumstantial evidence alone. Craig, supra.'

"Mills v. State, 408 So.2d 187, 191 (Ala.Crim.App.1981).

"The Court of Criminal Appeals has also added the following caveats to the rule:

"`"The tendency of the corroborative evidence to connect [the] accused with the crime, or with the commission thereof, must be independent, and without the aid, of any testimony of the accomplice; the corroborative evidence may not depend for its weight and probative value on the testimony of the accomplice, and it is insufficient if it tends to connect [the] accused with the offense only when given direction or interpreted by, and read in conjunction with, the testimony of the accomplice." 23 C.J.S. Criminal Law, Section 812(b) (1961).'

"Mills v. State, 408 So.2d at 191-92."

"`"`[E]vidence which merely raises a conjecture, surmise, speculation, or suspicion that [the] accused is the guilty person is not ... sufficiently corroborative of the testimony of an accomplice to warrant a conviction.' 23 C.J.S. Criminal Law, Section 812(5)(b)." Staton v. State, 397 So.2d 227, 232 (Ala.Crim.App.1981).'

"Steele v. State, 512 So.2d 142, 143-44 (Ala.Crim.App.1987)."

Ex parte Hunt, 744 So.2d 851, 858-59 (Ala. 1999).

Sims, the accomplice in this case, testified at trial pursuant to a plea agreement that provided that in exchange for testifying he would plead guilty to two felony charges and be placed on five years' probation. At trial, Sims testified that Greer suggested that Sims use Webster's business, Webster Construction Company, to complete road projects in Sims's district. Greer told Sims that he "could probably do a little better with Mr. Webster than ... with the other contractors" and that when he made that statement Greer rubbed his fingers together, which Sims understood to mean that he could receive some "monetary value" if he used Webster's business for road projects in his district.

Sims soon began using Webster Construction Company on road projects in his district. Sims testified that he and Webster would set a price on the project and "then anything above the price that we set that the purchase order was made for, I would get 50 percent above that and he would keep 50 percent above that."

According to Sims, on one occasion he and Greer paid Webster for a nonexistent road-construction project. Sims testified that he submitted a requisition and work order for the nonexistent project and that he had the County issue a $3,000 check made payable to Webster, although Webster actually did no work for the money. Sims testified that he, Webster, and Greer then split the $3,000.

Sims also testified that, after he had used Webster Construction Company for road-construction projects in his district for a period of time, Greer approached him and told him to start using the name Bill Runyans instead of Webster on requisition orders, because Webster's name had appeared too often in the County's computer records. Sims thus began using the name Runyans, but the projects were still being completed by Webster Construction Company and the money for the projects was still being paid to Webster.

Sims's testimony never directly implicated Stewart in the payment scheme involving Sims, Greer, and Webster. As the Court of Criminal Appeals noted:

"Sims testified that at one point he was present when Greer told Stewart that he should use Webster Construction Company for his projects. Sims stated that at no point during that conversation did Greer tell Stewart that he could receive money for using Webster Construction Company, but that Webster had told [Sims] at some point that the arrangement he had with Sims `was the way he dealt with the county,' i.e., that he would set a price and then share with the commissioner whatever profit he made over that price. . . . Sims testified that he had no knowledge of Stewart's ever receiving any money from Webster for any road projects done in Stewart's district, and that Stewart had never told him that he had received money from Webster."

Webster, 900 So.2d at 464-65 (footnote omitted). Moreover, at trial, Sims was asked the following questions:

"[Defense counsel:] You didn't testify anything about Mike Stewart getting any kickbacks, bribes, payoffs from Maurice Webster did you? You didn't give any testimony to that effect did you?

"[Sims:] No,

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