Watson v. State

• Decision Date: 07 October 1980
• Docket Number: 1 Div. 76
• Citation: 398 So.2d 320
• Parties: Thomas Randall WATSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 320

398 So.2d 320

Thomas Randall WATSON v. STATE.

1 Div. 76.

Court of Criminal Appeals of Alabama.

Oct. 7, 1980.

Rehearing Denied Nov. 25, 1980.

Sterling G. Culpepper and Julia S. Waters of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, Rivard D. Melson and Paul M. Harden, Monroeville, for appellant.

Charles A. Graddick, Atty. Gen. and Elizabeth Ann Evans, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted and convicted for perjury. Alabama Code Section 13-5-111 (1975). The trial court fixed his punishment at three years in the State penitentiary.

I

To sustain a conviction for perjury there must be testimony of two witnesses to the corpus delicti or one witness with strong corroborative evidence. Ex parte Oglesby, 337 So.2d 381 (Ala.1976); Murry v. State, 367 So.2d 985 (Ala.Cr.App.1978), cert. denied, 367 So.2d 989 (Ala.1979). The defendant maintains that the State failed to meet this burden of proof. We disagree.

Prior to his indictment, the defendant and his wife were the plaintiffs in a civil action for slander against several defendants, including M. M. Kennedy, Jr., the State's key witness here. The indictment charges the defendant with giving perjured testimony at a sworn deposition concerning this civil action. The indictment specifically charges the defendant with falsely swearing at his deposition on November 2, 1978, that he had not had a telephone conversation with Kennedy on July 21, 1978, in which nine tapes, seventy-five thousand dollars and certain other matters were discussed, "the matters so sworn to being material, and the oath of the said Thomas Randall Watson in relation to such matters being willfully and corruptly false."

M. M. Kennedy, Jr. testified that a telephone conversation between himself, Thomas Andrews and the defendant occurred on July 21, 1978, at approximately 3:15 P.M.:

"The substance of the conversation was that I was to supply seventy-five thousand dollars to Randall Watson and a bill of sale for a black four wheel drive pickup truck in return for nine tapes which he had of conversations between me and his wife, as well as some pictures."

Kennedy stated that the defendant had informed him that he would deliver a tape recording "of the same nature" to Kennedy's wife, along with pictures of Kennedy and the defendant's wife together, if Kennedy did not produce the seventy-five thousand dollars and the bill of sale for the truck. Kennedy allowed state law enforcement agents to record the July 21st telephone conversation.

Sergeant Gene Mitchell of the Department of Public Safety was present when a telephone conversation between the defendant, Thomas Andrews and Kennedy was recorded shortly after 3:00 P.M. at Kennedy's house on July 21st. Sergeant Mitchell testified that he and Kennedy listened to the tape at the conclusion of the conversation, and that he could identify each voice in the recording. Mitchell further stated that Ms. Drew Nunnally, a stenographer for the Attorney General's Office, was present on two occasions when he and Kennedy listened to the July 21st tape, and that Ms. Nunnally fully and accurately transcribed the entire recording. This tape was played in the presence of the jury, and, each member of the jury was furnished a transcript of the conversation.

Mrs. Betty J. Maurer was a court reporter. On November 2, 1978, Mrs. Maurer, in her capacity as notary public, placed the defendant under oath and took his deposition at the Monroe County Courthouse. Mrs. Maurer transcribed the entire deposition and read pertinent parts of it into evidence. In the deposition the defendant absolutely denied that he had a telephone conversation with Kennedy on July 21, 1978: "I haven't talked to him at all." The defendant denied discussing with Kennedy each particular portion of the conversation alleged in the indictment. At the conclusion of Mrs. Maurer's testimony the State rested its case. The defendant's motion to exclude the evidence was overruled.

We find the State's evidence sufficient to prove beyond any reasonable doubt that the defendant is guilty of perjury. The defendant swore under oath at his November 2, 1978, deposition that he had had no telephone conversation whatsoever with Kennedy on July 21, 1978. To question after question in his deposition the defendant swore that he had not discussed any of the matters with Kennedy which are averred in the present indictment and which appear in the tape recording of the conversation.

The falsity of the defendant's sworn testimony is proved through M. M. Kennedy, Jr., a witness to the corpus delicti of perjury, who testified that the July 21st conversation did occur and that each particular matter averred in the indictment as the substance of the conversation was discussed between the defendant and himself. A witness to the corpus delicti of perjury is a witness who has independent knowledge of the facts to which the defendant has sworn and who testifies, based on that independent knowledge, that the defendant has perjured himself. Ex parte Oglesby, 337 So.2d at 384.

Although there is no second witness to the corpus delicti, Kennedy's testimony is strongly corroborated. Sergeant Gene Mitchell testified without objection on direct examination that he was present when the July 21st telephone conversation between Kennedy, Andrews and the defendant was recorded. Also without objection, Mitchell testified that the three voices in the taped conversation were those of Kennedy, Andrews and the defendant.

Sergeant Mitchell admitted on his voir dire examination by defense counsel that he could not identify the voices on the tape recording through his own independent knowledge and that his identification of the voices was based on hearsay. However, the defendant made no mention to exclude Sergeant Mitchell's testimony identifying the voices. No motion to exclude was made, and no questions were proffered concerning Sergeant Mitchell's voice identifications during his cross examination in the presence of the jury. Although the defendant argues that the tape recording should not have been admitted into evidence because the voices on the recording were never properly identified, we must disagree.

To preserve error there must be a timely and appropriate objection prior to the witness's answer to a question or a motion to exclude the answer. Jones v State, 52 Ala.App. 184, 290 So.2d 251 (1974). Where no objection to a question is made, an answer responsive to the question is not open to objection or motion to exclude. Ayers v. State, 48 Ala.App. 743, 267 So.2d 533 (1972). Ordinarily, a witness's testimony becomes legal evidence if it is received without objection. Wilson v. State, 52 Ala.App. 680, 296 So.2d 774, cert. denied, 292 Ala. 759, 296 So.2d 778, cert. denied, 419 U.S. 845, 95 S.Ct. 79, 42 L.Ed.2d 73 (1974). Hearsay evidence which is admitted without objection becomes lawful evidence. Wilder v. State, 52 Ala.App. 157, 290 So.2d 225 (1974). "The fact that evidence which is introduced in a case may be, if objected to, incompetent evidence under some one or more exclusionary rules of evidence does not destroy its probative effect, if it is admitted without objection." Smith v. State, 40 Ala.App. 600, 119 So.2d 202, cert. denied, 270 Ala. 741, 119 So.2d 203 (1960).

It has been held time and again that if during the cross examination of a witness it is developed that the witness's knowledge and testimony on direct examination is based on hearsay, or other inadmissible evidence, the defendant's remedy is to make a proper motion to exclude such evidence from the jury. Oates v. State, 375 So.2d 1285 (Ala.Cr.App.1979); Allred v. State, 55 Ala.App. 74, 313 So.2d 195 (1975); Smith v. State, 28 Ala.App. 506, 189 So. 86 (1939); Bufkins v. State, 20 Ala.App. 457, 103 So. 902, cert. denied, 212 Ala. 638, 103 So. 906 (1925). Absent such a motion to exclude the trial court cannot be put in error and the entire testimony of the witness remains with the jury. Oates, supra; Allred, supra; Smith, supra; Bufkins, supra.

Applying these principles of law to the facts, Sergeant Mitchell's voice identifications of Kennedy, Andrews and the defendant were properly allowed to remain before the jury and were strongly corroborative of Kennedy's testimony.

When courts speak of the corroborative evidence required to establish perjury, they mean "proof of material and independent facts and circumstances, which, taken and considered together, tend in confirmation of the testimony of the single witness to establish the falsity of the oath." 70 C.J.S. Perjury § 70(c)(1)(1951). As in the case of accomplice testimony, corroborative evidence need not directly confirm any particular fact stated by the accomplice, Wyatt v. State, 51 Ala.App. 226, 283 So.2d 675 (1973), and it need not go to every material fact to which he testifies. Montgomery v. State, 40 Ala. 684 (1867). Corroboration means to strengthen, not necessarily to prove any specific fact about which the accomplice has testified. Smothers v. State, 38 Ala.App. 153, 83 So.2d 374, cert. denied, 263 Ala. 701, 83 So.2d 376 (1955). Yet, unlike the evidence required to corroborate accomplice testimony, the corroborative evidence required to establish perjury must be strong.

Without question, the tape recording and Sergeant Mitchell's testimony "tend in confirmation of the testimony of the single witness to establish the falsity of the oath." On the tape recording itself the parties call each other by name and the name of "Randall" is frequently used by one party in addressing another. These facts and circumstances, coupled with Mr. Kennedy's identification of the voices on the recording, provide sufficient identification of the voices and strong corroborative evidence of the perjury.

We note that the defendant objected to the admission of the tape recording but had no objection to furnishing the jury with copies of the transcript "to better interpret the...