White v. State

• Decision Date: 31 March 1989
• Docket Number: 4 Div. 966
• Citation: 546 So.2d 1014
• Parties: George William WHITE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1014

546 So.2d 1014

George William WHITE v. STATE.

4 Div. 966.

Court of Criminal Appeals of Alabama.

March 31, 1989.

Rehearing Denied May 26, 1989.

Certiotari Denied Aug. 25, 1989.

Alabama Supreme Court 88-1137.

G.A. Lindsey, Elba, and Paul A. Young, Jr., Enterprise, for appellant.

Don Siegelman, Atty. Gen., and Charles W. Hart III, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

George William White was indicted for the capital murder of his wife Sara Charlene White. He was convicted of the lesser included offense of murder and was sentenced to life imprisonment. Review convinces this court that White did not receive a fair trial and that his conviction must be reversed.

I

White contends that his conviction should be reversed because the circumstantial evidence upon which it is based does not exclude every other reasonable hypothesis but that of guilt. We disagree.

"The standard for appellate review of the sufficiency of the evidence in a case such as this one was aptly set out in Dolvin v. State, 391 So.2d 133 (Ala.1980):

" ' "In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir.1974); United States v. McGlamory, 441 F.2d 130 (5th Cir.1971); Clark v. United States, 293 F.2d 445 (5th Cir.1961).

" ' "[W]e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir.1969); Roberts v. United States, 416 F.2d 1216 (5th Cir.1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir.1967):

" ' " 'Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir., 1963, 321 F.2d 140; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949.... The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is to examine the welter of evidence to determine if there exists any reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged. McGlamory, 441 F.2d at 135 and 136.' " ' (Emphasis in original.)

"391 So.2d at 137-38, quoting Cumbo v. State, 368 So.2d 871, 874 (Ala.Crim.App.1978), cert. denied, Ex parte Cumbo, 368 So.2d 877 (Ala.1979)." Robinette v. State, 531 So.2d 697, 698-99 (Ala.1988). ¹

"In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution." Faircloth v. State, 471 So.2d 485, 489 (Ala.Cr.App.1984), affirmed, Ex parte Faircloth, 485 So.2d 493 (Ala.1985).

"This Court must revise and overturn the verdicts of juries 'where, in our opinion, after making all proper allowances and indulging all reasonable intendments in favor of the court below, we reach the conclusion that the finding and judgment are wrong.' Hunter v. State, 34 Ala.App. 565, 567, 41 So.2d 637 (1949)." Granger v. State, 473 So.2d 1137, 1139 (Ala.Cr.App.1985).

" 'The role of appellate courts is not to say what the facts are. Our role, ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury.' Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978). An appellate court may interfere with the jury's verdict only where it reaches 'a clear conclusion that the finding and judgment are wrong.' Kelly v. State, 273 Ala. 240, 244, 139 So.2d 326 (1962). 'The rule is clearly established in this State that a verdict of conviction should not be set aside on the ground of the insufficiency of the evidence to sustain the verdict, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust.' Bridges v. State, 284 Ala. 412, 420, 225 So.2d 821 (1969). Even though an appellate court should 'marvel that a jury would convict upon such flimsy proof,' it is 'not permitted to pass upon the weight or sufficiency of the evidence, where it may yield any rational inference of guilt.' Toles v. State, 170 Ala. 99, 100, 54 So. 511 (1911). A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). '[W]here there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense.' Fuller v. State, 269 Ala. 312, 333, 113 So.2d 153 (1959), cert. denied, Fuller v. Alabama, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960)." Granger, 473 So.2d at 1139.

Where a defendant's conviction is based solely on circumstantial evidence, "if the circumstances can be reconciled with the theory that someone else may have done the act, then the conviction is due to be reversed." Ex parte Brown, 499 So.2d 787, 788 (Ala.1986) (emphasis in original). "Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty." White v. State, 294 Ala. 265, 272, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). "Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused." Cochran v. State, 500 So.2d 1161, 1177 (Ala.Cr.App.1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So.2d 1179 (Ala.1985). "It is not necessary for a conviction that the defendant be proved guilty to the 'exclusion of every possibility of innocence.' " Burks v. State, 117 Ala. 148, 23 So. 530 (1898). "The facts and circumstances in evidence, if dissevered and disconnected, may be weak and inconclusive; but their probative force, when combined, as it was the province of the jury to combine them, under proper instructions from the court, may have satisfied them of the guilt of the defendant." Howard v. State, 108 Ala. 571, 18 So. 813, 815 (1895).

"[T]here was some evidence from which inferences might have been drawn by the jury unfavorable to the innocence of the accused. We regard this evidence as weak, inconclusive, and unsatisfactory, and we marvel that a jury would convict upon such flimsy proof. But we are not permitted to pass upon the weight or sufficiency of the evidence, where it may yield any rational inference of guilt." Toles v. State, 170 Ala. 99, 54 So. 511 (1911).

Here, the State's case against White is based on weak circumstantial evidence. Both parties to this appeal have relied on essentially the same factual circumstances in arguing White's guilt and innocence. Each particular circumstance is almost insignificant when isolated and viewed separately. It is only when the individual threads of fact and inference are woven together that the garment of guilt is seen to fit this defendant.

In February of 1985, White was the vice-president of Townsend Building Supply (hereinafter referred to as the warehouse) in Enterprise, Alabama. The State's evidence established that, sometime after 5:00 on the evening of February 27, 1985, White and his wife were preparing to go out to dinner. Mrs. White's mother, Bess Porter, had arrived to pick up the Whites' children. She testified that White dialed a number on the telephone and "then hung it up immediately, and before he could stand up the telephone rang and he answered it." After the telephone call, White told his wife that a man needed a part and that they would go by the warehouse on their way out to dinner. Mrs. Porter asked White who he called. She testified that White "said he had called his mother to tell her that they were going out and then he realized he had already told her that they were going out." Mrs. Porter also testified that, to her knowledge, White had never returned to the warehouse after hours to let someone have a part and that he "would always tell them that they would have to call either Oscar Lawhorn or Dale Townsend because he could not go out and let them have a part."

At trial, an employee of General Telephone Company testified and demonstrated how a telephone could be made to ring by dialing the number assigned to that particular telephone and immediately hanging up.

White's neighbor saw White and his wife leave White's house at 5:20.

Shortly before 6:00 that night, White telephoned the Enterprise Police Department from the warehouse to report that both he and his wife had been robbed and shot. At the scene, White told the police that he and his wife had been robbed and shot by an intruder armed with a pistol, wearing gloves and two toboggans. Two toboggans were found outside the store. Tracking dogs were unable to pick up a scent in the area where the toboggans were discovered.

Forensic analysis revealed that some fibers found on both toboggans were consistent with fibers in the carpet of the company vehicle assigned to White. Some fibers on the toboggans were consistent with the fibers of other toboggans sold at the warehouse. An animal hair found on one toboggan was "similar...