Maddox v. State

• Decision Date: 15 July 1986
• Docket Number: 5 Div. 988
• Citation: 520 So.2d 143
• Parties: Walter MADDOX v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 143

520 So.2d 143

Walter MADDOX v. STATE.

5 Div. 988.

Court of Criminal Appeals of Alabama.

July 15, 1986.

Rehearing Denied Dec. 29, 1987.

Certiorari Denied Feb. 19, 1988

Alabama Supreme Court 87-427.

David Cromwell Johnson of Johnson & Cory, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen. and Beatrice E. Oliver, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

This appeal follows a conviction for the offense of bribery of a witness, in violation of § 13A-10-121(a)(1), Code of Alabama (1975), and sentence of five years' imprisonment. For the reasons outlined below, the conviction is due to be affirmed.

On June 10, 1982, the appellant's son, Richard Maddox, was arrested, charged, and subsequently convicted of the offense of trafficking in marijuana. The State's case against Richard Maddox was based, in part, on the testimony of David Windsor, Deputy Sheriff. ¹ Richard Maddox appealed his conviction and, while his case was pending on appeal, the acts which constitute the present offense took place.

During the appellant's trial, Deputy Sheriff David Windsor testified that, on four separate occasions, he was approached by the appellant and questioned about the testimony he gave at Richard Maddox's trial. The first conversation, according to Deputy Windsor, took place on the day of Richard Maddox's arraignment. According to Deputy Windsor, the appellant told him that he "needed to talk to somebody about getting some help for his son." Deputy Windsor testified that he instructed the appellant that he should talk to the district attorney or the sheriff because "I told him that he didn't need to talk to me."

The next conversation, according to Deputy Windsor, occurred on the last day of Richard Maddox's trial, after the jury had returned a guilty verdict. According to Deputy Windsor, the appellant came up to him and "extended his hand and shook hands and said he wanted to thank me for telling the truth." Deputy Windsor testified that the appellant wanted to know "how his son had been caught." Deputy Windsor explained to the appellant that "we didn't know who was going to be there," and the conversation ended.

On July 10, 1983, according to Deputy Windsor's testimony, he received a telephone call at his home from someone who stated that he wanted to sell some timber or pulpwood. Deputy Windsor testified that he initially thought that the caller had the wrong number, but then recognized the appellant's voice. Deputy Windsor explained that he told the caller to "hang on" because he had a "house full of company" and needed to change phones. Deputy Windsor stated that he went to the telephone in the bedroom and turned on a small cassette tape recorder before he resumed his conversation. ² During the course of the telephone conversation, Deputy Windsor and the appellant agreed to meet at a prearranged place on Tuesday, July 12, 1983. ³

Deputy Windsor explained that he had been told that the appellant might try to contact him and was cooperating with the Sheriff's Department in its investigation of the appellant. As a result of the investigation, Deputy Windsor was fitted with a "small transmitting device" so that he could simultaneously record and transmit any conversations which he might have with the appellant. Windsor testified that he met the appellant at the prearranged time and location, and together they drove to the Marble Valley Cemetery. At the cemetery, according to Windsor's testimony, two other police officers, Jimmy Abbott and Bob O'Conner, were stationed so that they could observe the meeting from a secluded position. Windsor testified that when they arrived at the cemetery, he and the appellant got out of the car, walked around to the rear of the car, and began to talk. ⁴

Windsor testified that, approximately three-quarters of the way through the conversation, the appellant took out a scrap piece of paper and wrote "Can you say anything that will help?" After talking for a little while longer, the appellant wrote "$5,000" on the paper and then underneath wrote "+ $5,000." At the bottom of the scrap of paper, the appellant wrote: "Did you go inside of [the] building?" According to Deputy Windsor, the appellant pointed first to the "$5,000" figure; then he pointed to the question, "Did you go inside the building?" and then the appellant pointed to the figure "+ $5,000."

Windsor testified that the conversation lasted approximately eighteen minutes. At the beginning of the conversation, the appellant referred to the possibility of selling some timber and pulpwood to Windsor. Deputy Windsor interrupted the discussion concerning timber and asked: "[Y]ou didn't call me to sell me no timber, now what can I do?" The appellant replied, "I thought you were aware of the situation and you wanted to handle the situation like it should be handled." The appellant then explained to Deputy Windsor that he thought a "few lies" were told at the Richard Maddox trial and that "if the truth were told, it would help the situation." When Deputy Windsor informed the appellant that he had already told the truth at trial, the appellant replied, "Well, was that the truth?" The appellant told Windsor that it was his "understanding" that the search of the greenhouse would have been illegal if Windsor had testified that he had gone inside the greenhouse before he obtained the search warrant. Windsor reiterated that his trial testimony was to the contrary and asked the appellant what he wanted him to do. The appellant replied, "Well, I thought that was understood. I don't want to get caught in no trap."

At this point the conversation ended, and, according to Windsor, as they started to leave, Investigator Abbott and Bob O'Conner "came out of the woods and told us to get out of the car," and the following occurred:

"[David Windsor]: Mr. Maddox was sitting in the passenger seat, and he reached in his pocket and grabbed the paper he had been writing on, grabbed it out of his pocket and tore it in half.

"I lunged over in the seat and grabbed his hands. And at that time, when I grabbed his hands, Bob O'Conner opened the car door and was telling him to get out of the car. And as he was getting out of the car one hand came free from my grasp and he put half of the paper in his mouth. I got the other half out of his hand.

"Q [State's attorney]: What, if anything, occurred concerning the half that he stuck in his mouth?

"A As I got out of the car and went around the car I saw Jimmy Abbott get the other half of the paper out of Mr. Maddox's mouth.

"Q What were the circumstances surrounding him getting that piece of paper out of his mouth? Could you describe where everybody was and what was happening during that sequence?

"A Well, they had gotten Mr. Maddox out of the passenger side door of my car and, like I said, I had half of the paper in my hand.

"I got out and went around the car. And as I went around the car Jimmy Abbott removed the paper from Mr. Maddox's--the other half of the paper--from Mr. Maddox's mouth and then patted him down to see if he had any weapons on him."

Deputy Windsor identified the two scraps of paper. According to Deputy Windsor, one of the scraps was the piece of paper which he retrieved from the appellant's hand and the other piece was identified as the "other half of the paper that Investigator Abbott removed from Mr. Maddox's mouth."

I

The appellant was convicted of the offense of bribery of a witness, in violation of § 13A-10-121(a)(1), Code of Alabama (1975), which provides as follows:

"A person commits the crime of bribing a witness if he offers, confers or agrees to confer anything of value upon a witness or a person he believes will be called as a witness in any official proceeding with intent to corruptly influence the testimony of that person."

According to the appellant, the State did not prove that he intended to "corruptly influence" Deputy Windsor's testimony and also did not prove that Deputy Windsor was a "witness." For the reasons discussed below, neither of these contentions has merit.

(a)

The appellant argues that the State did not prove that he intended to "corruptly influence" the testimony of Deputy Windsor because the evidence merely showed that he wanted Windsor to "re-examine and reconsider his [earlier] trial statements" and simply "tell the truth." In support of his position, the appellant cites certain federal court cases and cases from other jurisdictions. In response, the State cites Ex parte Montgomery, 244 Ala. 91, 12 So.2d 314 (1943).

Although Ex parte Montgomery, supra, involves a disbarment proceeding and not a criminal prosecution, the case contains language which is pertinent to an analysis of the facts as presented in the instant case. ⁵ The appellant in Ex parte Montgomery argued that his actions did not constitute the offense of bribery because, he argued, he

"only participated [in the activity] in an effort to induce the sheriff to perform a legal duty which he should have done without compensation; that bribery contemplates a corrupt act in that respect; that it is not corrupt to pay a sheriff to perform a legal duty which he refused to do without compensation, though the sheriff may be corrupt in so demanding." 244 Ala. at 96, 12 So.2d at 317.

The Alabama Supreme Court in Ex parte Montgomery first noted that "corruption is an element of the offense [of bribery]," but then reasoned that if the sheriff's act of receiving the compensation was corrupt, then the appellant's act of giving the compensation "must also be treated as corrupt." Id. The court in Ex parte Montgomery then stated as follows:

"A public officer is guilty of bribery if he accepts compensation for doing an act which is no more than he was legally bound to do. [Citations omitted].

"We do not wish to say that the sheriff in fact acted corruptly. He is not here on trial. But the testimony of the petitioner is to the effect that he was corrupt, and that petitioner was a...