Woods v. State

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: TAYLOR
• Citation: Woods v. State, 641 So.2d 316 (Ala. Crim. App. 1993)
• Decision Date: 30 December 1993
• Docket Number: CR-92-926
• Parties: Cynthia Y. WOODS v. STATE.

Page 316

641 So.2d 316

Cynthia Y. WOODS v. STATE.

CR-92-926.

Court of Criminal Appeals of Alabama.

Dec. 30, 1993.

Rehearing Denied Feb. 11, 1994.

Certiorari Denied April 29, 1994

Alabama Supreme Court 1930692.

Certiorari Denied Oct. 11, 1994.

See 115 S.Ct. 331.

John Mark McDaniel and William P. Burgess, Jr. and James M. Dyer, Huntsville, for appellant.

James H. Evans, Atty. Gen., and Yvonne Saxon, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Cynthia Y. Woods, was convicted of theft by deception in the first degree, ¹ in violation of § 13A-8-2(2), § 13A-8-3(a) Code of Alabama 1975. The appellant was sentenced to 20 years in prison. The appellant raises six issues on appeal.

The state's evidence tended to show that during March 1991 and February 1992, the appellant extorted approximately $60,000 from Virginia Sanderson. Mrs. Sanderson testified that she became acquainted with the appellant and her husband in March 1991 when the appellant offered to help Mrs. Sanderson move some boxes into her house if Mrs. Sanderson would pay her. Mrs. Sanderson said that she paid her for helping with the boxes, and that she gave her some extra money to buy groceries. Afterwards the appellant asked Mrs. Sanderson to pay some of her medical bills. Mrs. Sanderson said that she paid the bills. The appellant visited Mrs. Sanderson regularly over the next two months, each time asking for money to pay her bills. In June 1991, Mrs. Sanderson told the appellant that she could no longer afford to provide financial support.

Mrs. Sanderson further testified that in July 1991, the appellant called her and told her that she owed money to a small loan operator, to whom she referred as a "loan shark." Mrs. Sanderson said that the appellant told her she was frightened of what he would do if she did not repay the money. Mrs. Sanderson gave the appellant $2,000 to repay the loan. Over the next eight months, the appellant called Mrs. Sanderson every few days demanding money, which she said she needed to repay amounts she had borrowed from the "loan shark." Whenever the appellant contacted Mrs. Sanderson, a person who identified himself as the "loan shark" would also be on the phone and would threaten Mrs. Sanderson if she did not give the appellant money. According to Mrs. Sanderson, this man, the alleged loan shark, threatened the appellant's life, Mrs. Sanderson's life, and the lives of Mrs. Sanderson's children.

From August 1991 until mid-January 1992, Mrs. Sanderson wrote checks payable to the appellant or her husband totalling $21,148. Starting in mid-January, Mrs. Sanderson gave the appellant cash. From mid-January 1992 until mid-February 1992, Mrs. Sanderson wrote checks to cash for approximately $10,000. On January 28, 1992, the victim took out a loan for $10,000. That same day, Mrs. Sanderson gave the appellant $10,000 in cash. On February 3, 1992, the appellant called Mrs. Sanderson and told her that she needed $35,000 to repay the loan shark. She accompanied Mrs. Sanderson to the bank so that Mrs. Sanderson could withdraw a $40,000 certificate of deposit. After paying the penalty for early withdrawal, Mrs. Sanderson received a cashier's check in the amount of $39,000, which she attempted to cash. Because of the amount of the check, however, Mrs. Sanderson was unable to cash the check. Someone at the bank called police. Mrs. Sanderson testified that when the police became involved, the appellant instructed her to burn the cancelled checks that she had written to the appellant.

The manager of the main branch of AmSouth Bank where Mrs. Sanderson had obtained the $39,000 cashier's check called Investigator Charles Moore of the Huntsville Police Department. The bank manager informed Moore of the situation and Moore went to the AmSouth branch at which Mrs. Sanderson was trying to cash the cashier's check. Moore spoke with the appellant and with Mrs. Sanderson at this time. Once Investigator Moore became involved, the appellant's demands for money ceased and the $40,000 was replaced in Mrs. Sanderson's account.

The appellant was later questioned by the police. She told Investigator Moore that she had received financial support from Mrs. Sanderson and that she had received between approximately $50,000 and $60,000 from Mrs. Sanderson during the period from March 1991 to February 1992. The appellant also stated that a loan shark was involved, and she gave the man's name and a description to the police. She told the police that the loan shark had made her perpetrate a scam so that Mrs. Sanderson would continue giving them money. After questioning, the appellant was allowed to leave the police station. The police attempted to locate a man matching the appellant's description of the loan shark, but they never located anyone matching that description.

Bank employees who were familiar with both Mrs. Sanderson's and the appellant's bank account records testified as to the amounts of money withdrawn from Mrs. Sanderson's accounts and the amounts of money deposited in the appellant's bank accounts. These witnesses said that the withdrawals from Mrs. Sanderson's accounts were synchronous with deposits in the appellant's bank accounts.

I

The appellant initially contends that the trial court erred in denying her motion for a mistrial. She contends that the prosecutor made comments during closing arguments that called the jury's attention to the fact that she did not testify and thereby violated her constitutional right to remain silent.

The record does not contain the state's closing arguments. As stated in Bethune v. State, 542 So.2d 332 (Ala.Cr.App.1989):

" '[T]he record should disclose with reasonable certainty what was said in the court below, in order that the appellate court may review it.' Flowers v. State, 269 Ala. 395, 397, 113 So.2d 344 (1959); McClary v. State, 291 Ala. 481, 482-83, 282 So.2d 384 (1973). 'It is well established that objectionable remarks should be fully quoted, or substantially so, in an objection to improper argument.' Jones v. State, 460 So.2d 1382, 1383 (Ala.1984). The appellate court must be able to ascertain with reasonable certainty what was said before improper argument may be the predicate for a reversal. Jones, supra."

542 So.2d at 334.

Here, the record does contain the appellant's objection to the state's arguments and the trial court's response to that objection:

"(Mr. Chadbourne [prosecutor] continued closing argument, during which the following occurred:) "Mr. Webster [defense counsel]: Your Honor, I object to the reference to take the stand. My client's under no burden to take the stand and counsel is attempting to put that burden on my client. I think it's improper.

"Mr. Gladden [defense counsel for co-defendant]: I also join in that objection.

"The Court: Ladies and Gentlemen, no defendant is required to take the stand in any case because the defendant has no burden of proof in a case. The burden rests entirely upon the State of Alabama, and as I will instruct you more fully in just a moment, that is a fact from which you may draw no inferences whatsoever. Do you all understand?"

Further, at the end of the trial, the appellant renewed her objection concerning the comments made by the state during closing argument, and the following occurred:

"Mr. Webster [defense counsel]: I have no objections to the charge, your Honor. I would like at this time, which is the first opportunity we've had, to renew an objection made to the statement made by counsel during closing argument and move for a mistrial on the basis of my interpretation of what he said, which I interpreted to be placing a burden on my client. And, for the record, my recollection of what he said was something to the effect that intent can be shown when someone confesses or testifies. My position is that places an undue emphasis on the failure of my client to testify, and it's an improper comment on her failure to testify in this case."

(Emphasis added.) The jury was then recalled, and the trial court stated:

"The Court: All right, ladies and gentlemen, I want to say a few other things to you and then send you back to deliberate.

"First, during closing argument, Mr. Chadbourne [the prosecutor] was talking to you about some matters that I have instructed you on and that is the concept of intent, ... intent being one of those words like knowingly which refers to a state of mind, the mental attitude that existed within the mind of a person when an act was done or a statement was made, and he was stating to you his argument that intent, as I said, rarely can be proven by direct evidence. Usually, it can only be proven by circumstantial evidence.

"Unfortunately, in defining how rarely intent can be proven directly-- because, as he said, you can't open up a person's head, rummage around in the brain, pull out a particular piece of brain matter and say, 'Ah-ha, here's intent'--that, normally, you can only prove intent directly when a person tells you that and you find their statement to be a credible one. Well, that causes me concern for this reason and I'm going to have to talk to you very straight, and then I'm going to have to ask you whether you're going to give me your assurance that you will not allow this to affect your thinking in any way."

(Emphasis added.)

The substance of the comments contained in the above excerpts from the record provide sufficient specificity for this court to review the comments on appeal. Jones v. State, 460 So.2d 1382, 1383 (Ala.1984).

After the court polled the jury, it continued to instruct the jury on the applicable law concerning the state's burden of proof and the presumption that the appellant is innocent until proven guilty. The trial court informed the jury that the appellant could testify if she wanted but that she had a right to remain silent. At the end of this instruction, the trial court polled the jury to determine if all the jurors understood the instructions and if they...