Taite v. State

• Decision Date: 23 April 2010
• Docket Number: Alabama Supreme Court 1090599.,CR-07-2246.
• Citation: 48 So.3d 1
• Parties: Towanda TAITE v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

48 So.3d 1

Towanda TAITE

v.STATE of Alabama.

CR-07-2246.

Alabama Supreme Court 1090599.

Court of Criminal Appeals of Alabama.

Nov. 13, 2009.

Rehearing Denied Jan. 22, 2010.

Certiorari Denied April 23, 2010

Joseph L. Fitzpatrick, Jr., Montgomery, for appellant.

Troy King, atty. gen., and Stephanie E. Reiland, asst. atty. gen., for appellee.

WELCH, Judge.

This appeal arises out of the misappropriation of funds from the Wilcox County Water/Waste Department, where Towanda Taite and codefendant Sylvia Ross had been employed. Taite was charged by a Wilcox County grand jury in case no. CC-07-2006 with theft of property in the first degree, a violation of § 13A-8-3, Ala.Code 1975, and with a violation of the State ethics laws-using her official position or office for personal gain, a violation of § 36-25-5, Ala.Code 1975. Identical charges were filed against Sylvia Ross in case no. CC-07-2007. Following a consolidated jury trial Ross and Taite were convicted of misapplication of property and of the ethics-laws violation.¹ The trial court imposed on Taite a 1-year jail sentence for the misapplication-of-property conviction and a 10-year sentence for the ethics-laws conviction. The trial court suspended the sentences and ordered Taite to serve two years' imprisonment followed by five years of supervised probation. The trial court further imposed an assessment of $10,000 and an assessment to be paid to the Crime Victims Compensation Commission. We reverse and remand for further proceedings.

Facts

The evidence presented at trial tended to show that a routine audit of the Wilcox County Water/Waste Department ("the Water Department"), where Taite and Ross were employed as clerks, revealed that the Water Department had received more than $11,000 in receipts that could not be accounted for on the morning of the audit. The auditor testified that Ross and Taite were the only two people with access to the Water Department's receipts. Daily reports for six days revealed that money had been received at the office but had not been deposited at the bank. Taite told one of the auditors that the receipts were at the bank, so Taite and two auditors went to the bank together. Taite spoke to a teller at the bank and then told the auditors that the teller had not yet processed the deposits. No deposits were ever produced, and bank employees stated that there were no undeposited funds from the Water Department at the bank. The auditors contacted their supervisors and the Wilcox County Commission. The Wilcox County Sheriff's Department was also notified.

During the morning of the audit, Taite took a bank bag from the Water Department to a teller at the bank where the Water Department's funds were deposited; the bag contained no checks or currency, only duplicate copies of deposit slips. Taite asked the head teller to stamp the copies of the deposit slips as if the money represented by the slips had been deposited. Taite assured the teller that she would bring the money to the bank later. The teller refused to complete the transaction, and she notified her supervisor and the bank's auditor.

After the Wilcox County Commission was notified that money was missing from the Water Department, Ross was interviewed by a Wilcox County sheriff's deputy. Ross told the deputy that she and Taite had been using money from the nightly deposit and that they had been replacing it. The auditors then conducted a second count of the cash at the Water Department's office. This cash count revealed money in an envelope that had not been counted previously. When the auditors asked Taite where that money had been, Taite said that the money had been at the bank when the initial count had been conducted. Five additional deposits, comprising more than $9,000, were made at the bank that afternoon. All the money that had been missing during the auditors' initial count of the receipts was accounted for by the end of the day.

After the trial, Taite filed a motion for a new trial in which she alleged, among other things, that one of the jurors, F.G., had presented extrinsic evidence to her fellow jurors during jury deliberations. Specifically, Taite alleged that F.G. had stated during deliberations that Taite had a prior conviction and had been imprisoned. Affidavits from three jurors were filed along with the motion for a new trial. Juror M.B. stated in her affidavit, in relevant part:

"I was a juror in the above referenced cases involving Sylvia Ross and Towanda Taite.

"When we were in the jury room, someone in the jury room said that Towanda Taite had already been in prison one time. I can not say for sure which juror said this. I do believe that this had an effect on the jurors['] vote of guilty. My first vote was not guilty. [Jury foreman M.M.] told all the jurors that we were going to vote guilty on the second and third charges against each defendant. He said that everyone had to vote guilty as the first vote was seven guilty and five not guilty. [M.M.] told us the charges we were voting guilty for were lesser charges. I thought that both guilty charges were for lesser charges. Someone said that we had to find both defendants guilty. That we could not find one defendant guilty and one defendant not guilty.

"When the judge polled the jury after the verdict, I did not say that this was my verdict. The guilty verdicts were not my verdicts."

(C. 61.)

Juror S.A. submitted an affidavit that stated, in relevant part:

"[Juror F.G.] said in the jury room that Towanda Taite had had a prior felony.

"[Jury foreman M.M.] said that we had to find both defendants the same. That we couldn't find one guilty and one not guilty.

"I did not believe that the state had enough evidence or proof that either of the defendants were guilty. My vote from the beginning was not guilty."

(C. 63.)

Finally, Juror N.F. submitted an affidavit and stated, in relevant part:

"I was a juror in the above referenced cases involving Sylvia Ross and Towanda Taite.

"When we first took a vote in the jury room, the vote was seven guilty and five not guilty votes. [Jury foreman M.M.] told us that the guilty votes outweighed the not guilty and that we had to go along with the guilty. I had never been on a jury before and I thought it was what I had to do. My vote was not guilty. I did not voluntarily vote guilty. I did not vote guilty at all.

"One of the jurors, [F.G.], told us that if we didn't convict, that they would both get their jobs back. She also told us that Towanda Taite had been to prison one time and that she needed to go back.

"[Jury foreman M.M.] told us that we had to find both defendants the same. That if one was guilty, then both were guilty.

"I did not believe that the state had enough evidence or proof that either of the defendants were guilty."

(C. 65.)

The trial court held a hearing on the motion. Ten of 12 jurors testified at the hearing pursuant to subpoenas, including the 3 jurors who had submitted affidavits about the comments another juror had made during deliberations. The trial court conducted the questioning, and asked each of the jurors whether he or she recalled any juror making a statement during deliberations about one of the defendants' having a prior conviction. Eight of the jurors testified that they remembered such a statement being made. The jury foreman, M.M., testified that the statement was made after the jury had determined that Ross and Taite were guilty. He said that when one of the jurors said that she hated to see the defendants be put in jail, another juror stated that "it shouldn't matter to Towanda Taite because she's already been in jail." (R. 205.) Juror S.A., who had given an affidavit about the matter, testified that a fellow juror had stated that Taite had previously been convicted of a felony. S.A. stated that statement was made near the time the jury voted, and she testified that the information affected her vote. Specifically, S.A. testified, "Before that was mentioned, I was planning on voting-at the time-I reckon I can say that-not guilty. That was the vote I had in my mind to do." (R. 208-09.) Juror P.O. testified that during the middle of deliberations a juror stated that Taite had "done time." (R. 210.) P.O. testified that the statement did not affect her verdict. Juror M.B., who had also provided an affidavit after the trial, testified that a juror had stated that Taite previously had been to prison. When the trial court asked M.B. how the comment had affected her, M.B. answered, "Well, at one time, it affected me but then again, when I thought about it, it really didn't bother me because I had already decided what I was going to vote." (R. 212.) Juror S.C. testified that she could not recall any mention during deliberations of a prior conviction or sentence for either defendant. Juror N.F. testified that, before a verdict had been reached, Juror F.G. had stated that Taite had been to prison and that she needed to go back. N.F. further testified:

"We were getting ready to reach the verdict and we wanted to do-[Juror R.M.] asked could we do Sylvia Ross['s] case first because we didn't have no evidence on Towanda Taite. And that's when [F.G.] said how could we do her case first when both them did the crime together. And she said we let them get off, they going to get they job back. Then she said she already been in prison and she needs to go back."

(R. 215.)

When the trial court asked N.F. whether the statement affected her vote, N.F. replied, "Really my verdict was not guilty because I really think the State didn't have enough evidence no way to convict her." (R. 215.) The court asked N.F., "Yet you told me when I asked you that, that was your verdict?" N.F. replied, "Yeah. This [was] my first time being on a jury so I didn't think that, you know, I didn't know anything." (R. 215.) The trial court then asked N.F. whether the jury had believed that the State had presented a stronger case against Ross than it had presentedagainst Taite, and N.F. replied, "No, not really. Fi...