Ivey v. State
| Decision Date | 06 July 2001 |
| Citation | 821 So.2d 937 |
| Parties | Garfield W. IVEY v. STATE of Alabama. |
| Court | Alabama Supreme Court |
Albert C. Bowen, Jr., of Beddow, Erban & Bowen, P.A., Birmingham; and Barry A. Ragsdale of Ivey & Ragsdale, Birmingham, for appellant.
Bill Pryor, atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for appellee.
Gregg P. Leslie, Lucy Dalglish, and Daniel R. Bischof, Arlington, Virginia; and Gilbert E. Johnston, Jr., of Johnston, Barton, Proctor & Powell, L.L.P., Birmingham, for amicus curiae Reporters Committee for Freedom of the Press.
On Transfer from the Court of Criminal Appeals
Garfield W. Ivey was convicted of criminal defamation, a violation of § 13A-11-163, Ala.Code 1975, and tampering with a witness, a violation of § 13A-10-124, Ala. Code 1975. On each count, he was sentenced to a term of six months' imprisonment and was fined $500. The trial judge directed that the sentences run concurrently, but stated that Ivey would serve only 30 days of that sentence in jail. Ivey appealed to the Court of Criminal Appeals. The judges of the Court of Criminal Appeals recused themselves, and the case was transferred to this Court. We conclude that the trial court erred in denying Ivey's motions for a judgment of acquittal on the charge of criminal defamation and on the charge of tampering with a witness. As to both charges, we reverse the judgment of conviction and render a judgment of acquittal. Our decision in this case is based entirely on a holding that the criminal-defamation statute does not comply with the United States Constitution and on the right of a defendant, under the Alabama Constitution of 1901, to a trial in the county where the offense was committed. Because of this disposition, this opinion cannot and should not be viewed as vindication of Ivey's version of the evidence.
On September 11, 1998, Melissa Myers commenced a civil action in the Mobile Circuit Court, alleging that Steve Windom, a state senator and nominee of the Republican Party for the office of Lieutenant Governor, had "solicited and engaged the services of [Myers] for the purposes of obtaining sex and sexual services in exchange for money" and that Windom had "violently and physically abused, attacked, struck, slapped, physically restrained and injured [Myers] against her will." The complaint also included allegations of rape, forcible sodomy, and sexual assault and battery. Myers requested compensatory and punitive damages of an unspecified amount.
A press release that contained information about Myers's lawsuit against Windom was released to the media. A videotape of Myers's statement regarding the allegations of her lawsuit was given to Jodi Brooks of a Mobile television station. Portions of the videotape were televised by the Mobile television station on September 15, 1998, during its nightly news broadcast. In response, Windom held a press conference denying Myers's allegations; in that press conference he stated that Myers had been paid by the Alabama Trial Lawyers' Association ("ATLA") and Ivey to fabricate the story on which the complaint was based. On that same day, Myers appeared in the Mobile County Circuit Court for a probation-revocation hearing on a prior conviction and was immediately jailed. Attorney General Bill Pryor appointed a special prosecutor, Tommy Chapman, in November 1998, to investigate the circumstances surrounding Myers's lawsuit. Later that month, Myers, who was still in jail on a probation violation, recanted her allegations against Windom and was immediately released from jail.
Chapman presented the case to the Mobile County grand jury, and in August 1999 the grand jury returned an indictment charging Ivey and Wes Chappell, an investigator Ivey had hired to research Myers's allegations, with bribery of a witness, conspiracy to bribe a witness, tampering with a witness, and criminal defamation. All of the circuit judges in Mobile County recused themselves, except Judge Edward McDermott, who was appointed to preside over the case. However, the State filed a motion asking Judge McDermott to recuse; he then recused himself from the case. Judge Charles Partin of Baldwin County was appointed to preside over the case.
Ivey moved to dismiss the charge of criminal defamation, alleging that Alabama's criminal-defamation statute, § 13A-11-163, Ala.Code 1975, was unconstitutional. Ivey also moved to dismiss the entire indictment on the basis of prosecutorial misconduct. He alleged that Chapman had told the attorneys for ATLA that the criminal prosecution could be avoided if a civil action Windom had initiated, seeking damages from the ATLA in the amount of $500,000, was settled. The trial court denied Ivey's motion to dismiss the criminal-defamation charge and his motion to dismiss the entire indictment for prosecutorial misconduct.
A jury trial commenced on the charges against Ivey and Chappell. At the close of the State's evidence, Ivey moved for a judgment of acquittal, arguing that as to all counts the evidence was insufficient; that the State had failed to produce evidence indicating that Mobile County was the proper venue for the trial of the charge of tampering with a witness; and that § 13A-11-163 was unconstitutional. The trial court denied the motion. However, the court ruled that Myers's civil complaint against Windom and the press release that was distributed to the news media were subject to the absolute privilege accorded matters involved in a judicial proceeding and that this evidence could not be used as a basis for the criminal-defamation count. Thus, the only evidence remaining to be used as a basis for the criminal-defamation count was the videotape of Myers's statement. Additionally, the trial court dismissed the charge of conspiracy to commit bribery.
Ivey renewed his motion for a judgment of acquittal, at the close of the presentation of his case. The court denied that motion and submitted the case to the jury. As to the defendant Chappell, the jury returned a verdict of not guilty with respect to all of the charges against him. As to Ivey, the jury returned a not-guilty verdict as to the charge of bribery of a witness, but on the charges of tampering with a witness and criminal defamation it returned a verdict of guilty. The trial court entered a judgment on the verdict. Ivey filed a renewed motion for a judgment of acquittal, which the trial court denied. Ivey filed a motion for a new trial, which the trial court denied. Ivey appealed.
Ivey argues (1) that Alabama's criminal-defamation statute, § 13A-11-163, Ala. Code 1975, is unconstitutional; (2) that the State failed to produce sufficient evidence on the charges of witness tampering and criminal defamation; (3) that the State failed to prove that Mobile County was the proper venue for the charge of witness tampering; (4) that the trial court erred in denying Ivey's motion for a new trial; and (5) that the indictment against Ivey should have been dismissed because of prosecutorial misconduct.
Ivey argues that Alabama's criminal-defamation statute is unconstitutional because, he argues, it does not comport with the law of defamation adopted by the United States Supreme Court in Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). Ivey contends that § 13A-11-163 fails to require a showing of "actual malice" when the alleged victim is a public official or public figure. Ivey claims that because this statute is unconstitutional, his conviction should be reversed. The State argues, however, that § 13A-11-163 is not unconstitutional and that Ivey's speech is not within the bounds of the First Amendment.1 Section 13A-11-163, Ala.Code 1975, reads:
"Any person who writes, prints or speaks of and concerning any woman, falsely imputing to her a want of chastity; and any person who speaks, writes or prints of and concerning another any accusation falsely and maliciously importing the commission by such person of a felony or any other indictable offense involving moral turpitude shall, on conviction, be punished by fine not exceeding $500.00 and imprisonment in the county jail, or sentenced to hard labor for the county, not exceeding six months, one or both, at the discretion of the jury."
In Garrison v. Louisiana, supra, the United States Supreme Court held that the requirement of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)—that a defamation action based on the alleged defamation of a public figure requires a showing of "actual malice" (as defined in New York Times)— also applies to a prosecution for criminal defamation. In Garrison, a Louisiana district attorney made statements during a press conference concerning a refusal by the judges of the criminal district court to approve funds that would allow the district attorney's staff to investigate commercial vice. In those statements, the district attorney attributed the large backlog of pending criminal cases to laziness on the part of the judges and to the judges' taking excessive vacations. The district attorney was charged under Louisiana's criminal-defamation statute and was convicted. In reversing the Louisiana Supreme Court's judgment upholding the conviction, the Supreme Court stated:
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