Smitherman v. State

• Decision Date: 08 September 1987
• Docket Number: 1 Div. 450
• Parties: Mark SMITHERMAN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1050

521 So.2d 1050

Mark SMITHERMAN v. STATE.

1 Div. 450.

Court of Criminal Appeals of Alabama.

Sept. 8, 1987.

Rehearing Denied Oct. 13, 1987.

Richard D. Horne of Hess, Atchison & Horne, Mobile, for appellant.

Don Siegelman, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

This is an appeal from the denial of a coram nobis petition. In October of 1984, Mark Smitherman was convicted for the sale of a controlled substance and sentenced to seven years' imprisonment.

At trial, the main witness for the State was Farris Springfield, a former Baldwin County undercover narcotics investigator. Springfield testified that he arranged a marijuana buy from one Thomas King on July 2, 1983, at Rick's Lounge in Gulf Shores. King owned this lounge and the defendant worked there as the head cook. Springfield gave King $50 and was told to return the next day for delivery of the drugs. When Officer Springfield returned, King told the defendant to get the marijuana. Then Springfield and the defendant went outside where the defendant retrieved a bag of marijuana from a vehicle, handed it to Springfield, and said, "Don't get caught," and "If you need more, come back."

The defendant testified in his own defense and admitted that he knew Thomas King and that he had been in Rick's Lounge on the day in question. However, he denied that he had transferred any controlled substance to Springfield. In his closing argument to the jury, the prosecutor accurately summarized the case when he stated, "It either happened or it didn't happen. Somebody's lying. And that's the bottom line on the case. Either Mr. Smitherman is lying or Farris Springfield is lying." King was tried before the defendant and was acquitted.

The defendant's conviction was affirmed by this Court without published opinion on April 23, 1985. Smitherman v. State, 474 So.2d 204 (Ala.Cr.App.1985). A writ of certiorari was denied by the Alabama Supreme Court on August 23, 1985. Thereafter, the defendant retained different counsel and in June of 1986, petitioned the Baldwin County Circuit Court for a writ of error coram nobis, claiming that he was entitled to a new trial on the grounds of newly discovered evidence, suppression by the prosecution of exculpatory material, and the ineffectiveness of trial counsel. Following an extensive hearing, the circuit court denied the writ. This appeal is from that denial.

I Newly Discovered Evidence

The defendant argues that he is entitled to a new trial because of newly discovered evidence impeaching Springfield's credibility. For purposes of clarity, we have divided this evidence into four categories:

1. Information obtained from City of Creola Police Chief Frank Hammonds: After Officer Springfield resigned from the Baldwin County Sheriff's Office he was employed as a patrol officer for the City of Creola from June of 1984 until January of 1985. The defendant was tried during that period, on October 2, 1984.

At the coram nobis hearing, Chief Hammonds testified that he received "complaints on Officer Springfield's stopping and searching vehicles without probable cause," reprimanded Springfield twice about his conduct on routine traffic stops, and discovered that Springfield had lied on two occasions in relation to court cases.

On his employment applications for Baldwin County and the City of Creola, Springfield falsely claimed to have received specialized training in various law enforcement fields and inaccurately represented the terms of employment in prior positions.

Chief Hammonds testified that Springfield threatened to "set him up" by planting drugs in his car if Hammonds gave him a bad service rating. Hammonds was not sure whether this "threat" was made before or after Smitherman's trial.

In January of 1985, Chief Hammonds gave Springfield his choice of resigning or being fired. Springfield resigned. Then, in March of 1985, Springfield was arrested for DUI in Boaz, Alabama, and falsely represented to the local authorities that he was a Creola police officer.

2. Information from the FBI: Prior to Smitherman's trial, Springfield was the subject of an FBI investigation stemming from a complaint that he had attempted to suborn a witness in a narcotics case. FBI Agent Gerald Shockley testified that, although he later determined that there was no substance to the complaint, he formed the opinion that Springfield was not credible.

3. Information from the District Attorney: Agent Shockley testified that his doubts about Officer Springfield's truthfulness were based, in part, upon a statement made to him by Thomas B. Norton, the District Attorney of Baldwin County at the time of the defendant's indictment and trial. Agent Shockley testified that Norton stated that "he did not intend to take any cases to trial wherein Springfield was a material witness," and that "if he had had to go to trial with [Springfield], he would have dismissed the charges, but if a person was to come in and plead guilty he would go forward with it." According to Shockley, these statements were made approximately two months before the defendant's trial.

Norton testified that, before he left the District Attorney's Office, he "no longer had faith or confidence in Mr. Springfield" and that it was "totally possible" that he told Agent Shockley that he would not prosecute any more cases in which Springfield was the chief witness. Norton testified his "impression" was that this conversation occurred after he was appointed to the office of circuit judge on October 1, 1984. However, he admitted that "[w]henever that conversation took place, yes, I certainly said that."

4. Information concerning Steve Alverson: The defendant also claims that he is entitled to a new trial on the basis of the newly discovered evidence of a "deal" between District Attorney Norton and one Steve Alverson. Springfield had arrested both the defendant and Thomas King on related drug charges. District Attorney Norton had the drug charges against Alverson "dropped" when Alverson agreed not to testify against Officer Springfield at King's trial. Norton testified that Alverson was prepared to "say bad things about Farris Springfield." By "bad things," Norton meant things that he did not believe to be true at that time. Norton stated that, at that time, he did not believe that the "bad things" were true and questioned Alverson's credibility. However, because he was concerned about the jury's perception of Springfield, he made a deal to nol-pros Alverson's charges if Alverson would agree not to testify against Springfield in King's trial.

Apparently, for it is not clear from the record, the "bad things" in Alverson's testimony concerned Springfield's abuse of alcohol and drugs and his entrapment tactics. Norton stated that this agreement was not an attempt to prevent "the truth from coming out about the undercover agent, Mr. Springfield."

In denying the coram nobis petition, the circuit court judge entered the following written order:

"This writ has been presented to the Court on testimony taken ore tenus, affidavits, evidence introduced and arguments and briefs of the attorneys. The Court finds that most of what is claimed to be newly discovered evidence was generally known by the attorneys who were representing the three defendants, Mark Smitherman, Steve Jones and T.K. King, prior to the trials of these three defendants; that the two cases tried by this court which were Mark Smitherman and Steve Jones, the character of Farris Springfield was attacked on the basis of his frequent use of narcotics and alcohol. Much of the newly discovered evidence testified to by Chief Hammond of the Creola Police Department occurred subsequent to the trial of October 2, 1984 and was based upon the Chief's testimony alone. Its admissibility in the trial would be doubtful. Practically all of the testimony concerning newly discovered evidence and the attack on the character of Farris Springfield came from defendants and parties who he had arrested during his undercover work with the Baldwin County Sheriff's Office and the attorneys who represented those defendants.

"The statement made by the former District Attorney Tom Norton to Special Agent Shockley of the F.B.I. did not reveal the basis of the District Attorney's statement concerning the credibility of Springfield nor did Shockley reveal from his investigations any matters which would have affected the credibility of Springfield.

"In regards to the alleged negotiated settlement with Steve Alverson and his attorney E.E. Ball, the Court is of the opinion that even if Alverson had testified as suggested, it would only have been cumulative testimony presented at the trial and would not have influenced the jury verdict.

"The Court finds that Mark Smitherman was adequately represented during the course of his trial.

"There were witnesses who testified to the good character of Springfield and his excellent investigatory abilities including Special Agent Roberts of the F.B.I. who had worked with him and a District Attorney from North East Alabama who was familiar with his work in that area as a law enforcement officer. Springfield's military record was introduced which revealed that he was a good soldier and that he had received several commendations for his work in law enforcement."

This order is due to be affirmed for the following reasons:

The rules regarding whether alleged newly discovered evidence entitles a petitioner to a new trial are strict and exacting. In order to receive a new trial the petitioner must show: "(1) That the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since trial; (3) that it could not have been discovered before trial by the exercise of due diligence; (4) that it is material to the issue; and (5) that it is not merely cumulative or impeaching." Taylor v. State, 266 Ala. 618, 620, 97 So.2d 802, 804 (1957); Bland...