Mayberry v. State

• Decision Date: 20 April 1982
• Docket Number: 3 Div. 404
• Citation: 419 So.2d 262
• Parties: James A. MAYBERRY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 262

419 So.2d 262

James A. MAYBERRY v. STATE.

3 Div. 404.

Court of Criminal Appeals of Alabama.

April 20, 1982.

Rehearing Denied May 18, 1982.

Certiorari Denied, Sept. 17, 1982 Alabama Supreme Court 81-730.

Maury D. Smith, Sterling G. Culpepper, Jr., and David R. Boyd of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain & James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

DeCARLO, Judge.

Appellant was indicted, convicted, and sentenced to thirteen months imprisonment for inciting Cecil Dupree to violate the Ethics Act. More specifically, he was found guilty, under § 13-9-40, Code of Alabama 1975, of inciting Dupree, the president of an independent telephone company regulated by the Public Service Commission [hereinafter "P. S. C."], to provide a prostitute for Ralph McLemore, Executive Director of the P. S. C., in violation of § 36-25-12, Code of Alabama 1975. The latter section provides, in pertinent part, the following:

"No person shall offer or give to a member or employee of a governmental agency, board, or commission that regulates a business with which such person is associated ... anything of value ... while the member or employee is associated with the regulatory agency, board or commission. Expenses associated with social entertainment afforded members and employees shall not be deemed a thing of value within the meaning of this section."

On June 25, 1979, appellant was an employee of South Central Bell Telephone Company [hereinafter "Bell"]. His title was "Industry Relations Manager" and his duties were to act as Bell's liaison with the independent telephone companies operating in the State. Appellant was also a partner in Grayford Electronics Company, which marketed a telephone line testing device, called a "looperback" system, to independent telephone companies. Grayford is not regulated by the P. S. C.

On the same date, Cecil Dupree was the president of GraCeba Total Communications, an independent telephone company located in Ashford, Alabama, and regulated by the P. S. C. In September of 1978, GraCeba bought a looperback system from Grayford Electronics. Later in April of 1979, Grayford was negotiating the sale of another looperback system to customers in Florida, and needed a place to demonstrate the device. Appellant asked Cecil Dupree to allow Grayford to use GraCeba's facilities for the demonstration and Dupree agreed.

Prior to June 25, 1979, appellant and Dupree had discussed the fact that Ralph McLemore would be coming to Alabama as the executive director of the P. S. C. Dupree testified that, in an effort to get to know the man with whom he would be dealing in the future, he attempted to discover McLemore's personal habits and concluded that McLemore had "a liking for women." Dupree suggested to appellant that the two of them "fix up Mr. Mac ... with a lady friend." Later, appellant called Dupree to say that McLemore had been asking when they (appellant and Dupree) were going to "fix him up" and "arrange a party."

On June 25, 1979 Dupree reserved a suite for McLemore at the Ramada Inn in Montgomery. That evening McLemore, appellant, Dupree and two women had drinks together in McLemore's room. Appellant, Dupree and one of the women then departed, leaving McLemore and the other woman alone. McLemore's female companion for the evening stated that Cecil Dupree gave her $100. and told her to "make Mr. McLemore happy." She testified that she took the money, spent the night with McLemore, and had sexual relations with him.

Appellant saw Dupree the following day and inquired how much the previous night had cost. Dupree testified that he told appellant "$200," and that appellant then wrote a check on the Grayford account payable to GraCeba in the amount of $250. and said that he (appellant) wanted to pay Dupree something for the help and goodwill GraCeba had extended to Grayford on the looperback demonstration for the Florida customers. Appellant stubbed the check "Engr. Exp.," which he testified meant "engineering expense."

Appellant's defense was that he had no knowledge that a prostitute had been provided for McLemore, and that he was merely helping Dupree with legitimate entertainment expenses in return for the favor extended by Dupree to Grayford Electronics.

The State's theory of the case was that appellant's inciting Dupree to furnish the prostitute for McLemore was part of a larger scheme, or conspiracy with Dupree and others, to influence the P. S. C. in its decision on a pending telephone rate increase request. The State's conspiracy theory was based on the following premises: (1) appellant was a friend and business acquaintance of one Larry Seab, an accountant who specialized in doing cost studies for independent telephone companies; (2) appellant convinced McLemore that the P. S. C. should hire Seab as a witness to testify during the telephone rate proceeding; (3) McLemore recommended that the P. S. C. hire Seab; (4) Seab was subsequently hired by the P. S. C. with public funds as an "expert witness to present the case for the consumer" pursuant to § 37-1-18, Code of Alabama 1975; (5) Seab's testimony was in favor of a rate increase; and (6) the P. S. C. granted Bell a sixteen million-dollar rate hike.

From the above premises, the prosecution argued for the conclusion that Seab gave false testimony and Seab's employment was due, in general, to appellant's attempts to "ingratiate himself with members, staff and employees of the P. S. C.," and in particular to the improper inducement (furnishing a prostitute) to McLemore. Then, based on its contention that it had shown a conspiracy, the State sought to introduce evidence of collateral offenses not charged in the indictment (specifically, illegal campaign contributions to two P. S. C. candidates one year earlier) in order to prove appellant's attempt to improperly influence the Public Service Commissioners themselves.

Over appellant's objections of irrelevancy, the trial court allowed the evidence relating to Larry Seab and the two illegal campaign contributions to P. S. C. candidates on the grounds that all the transactions were part of a conspiracy to exert improper influence on the P. S. C. and were admissible to prove appellant's motive to commit the crime charged in the indictment.

I

Appellant contends that his demurrer to the indictment should have been sustained because, under a strict construction of § 36-25-12, supra, furnishing prostitutes is an example of the "expenses associated with social entertainment" specifically excluded from the prohibition of the statute.

While it is true that penal statutes must be strictly construed, McDonald v. State, 32 Ala.App. 606, 28 So.2d 805 (1947), the construction should not defeat the obvious intent of the legislature, Walton v. State, 62 Ala. 197 (1878), or destroy the spirit and force of the law the legislature intended to enact, American Tobacco Co. v. Werckmeister, 207 U.S. 284, 28 S.Ct. 72, 52 L.Ed. 208 (1907).

In addition, in construing a statute the court must, if possible, avoid a construction which would render the statute in conflict with other statutes. State v. Martin, 160 Ala. 190, 48 So. 847 (1909); Bell v. Mar-Mill Steel & Supply Co., Civ.App., 54 Ala.App. 432, 309 So.2d 471 (1975).

At the time the Ethics Act, including § 36-25-12, was enacted, another statute prohibited enticing or using a female for the purpose of prostitution. Ala.Code § 13-7-2 (1975) (formerly Ala.Code T. 14, § 3 (1940)). Thus, construing the Ethics Act to permit furnishing a prostitute for "social entertainment" would be at odds with the legislative intent, as expressed in § 13-7-2, supra, to prohibit the same conduct.

We therefore find that the legislature did not intend to exempt payments to a prostitute as "expenses associated with social entertainment," and appellant's demurrer on this ground was correctly overruled.

II

Appellant argues that the State should have been estopped to indict him because he was induced to give incriminating grand jury testimony by the district attorney's promise not to prosecute him. Appellant claims the promise not to prosecute was implicit in the following pre-indictment statements made to him by the district attorney:

"You [appellant] are either going to be a defendant or a witness."

"We're not after you; we're after McLemore."

"If [you] quit playing games with us about the whores that were furnished to McLemore, [then you] could be a witness for the State."

The State did not deny that the above statements were made. It contended, however, that the comments were not offers of immunity and did not work an estoppel because appellant did not rely on them in deciding to testify. The State points out that appellant appeared before the grand jury only after Miranda warnings and advice of counsel; his decision to testify was not therefore prompted by his reliance on the claimed promise not to prosecute. Alabama has not embraced the estoppel theory to uphold non-statutory grants of immunity. See Gipson v. State, 375 So.2d 504 (Ala.Cr.App.1978), affirmed, 375 So.2d 514 (Ala.1979). See also Yarber v. State, 375 So.2d 1212 (Ala.Cr.App.1977), reversed on other grounds, 375 So.2d 1229 (Ala.1978), on remand, 375 So.2d 1231 (Ala.Cr.App.1978), reversed, 375 So.2d 1231 (Ala.1979), on remand, 375 So.2d 1236 (Ala.Cr.App.1979). Furthermore, even under the estoppel theory, there must be an explicit immunity agreement upon which the accused relies. See People v. Brunner, 32 Cal.App.3d 908, 108 Cal.Rptr. 501 (1973).

In the present case, we do not find that the district attorney's remarks amounted to an unambiguous offer of immunity or, taken in light of subsequent Miranda warnings to the appellant, could have prompted any reliance that appellant would not be prosecuted. We therefore hold that the State was not estopped to indict or prosecute the appellant.

III

Appellant insists...