Wright v. State

• Decision Date: 29 June 1982
• Docket Number: 3 Div. 284
• Citation: 421 So.2d 1324
• Parties: James C. WRIGHT, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1324

421 So.2d 1324

James C. WRIGHT, alias v. STATE.

3 Div. 284.

Court of Criminal Appeals of Alabama.

June 29, 1982.

Rehearing Denied July 27, 1982.

Certiorari Denied, Nov. 24, 1982 Alabama Supreme Court 81-959.

Calvin M. Whitesell, Roger S. Morrow, and Richard D. Shinbaum, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.

DeCARLO, Judge.

Receiving embezzled property; ten years.

Appellant was found guilty of receiving embezzled property under Counts III, IV and V of a five-count indictment returned by the November, 1979 Term of the Montgomery County Grand Jury. Appellant was found not guilty of embezzlement under Count I of the indictment and the trial court sustained appellant's demurrer to Count II, eliminating that count from the jury's consideration.

Counts III--V of the indictment charge that appellant:

"... did feloniously receive money, checks, bank notes, bills of exchange or other evidence of debt, the property of Associates Financial Services Company of Alabama, Inc., a corporation [in the amounts of $43,629.98, $33,629.98, and $27,834.43, respectively,] knowing that said money, checks bank notes or bills of exchange had been embezzled, fraudulenty converted or fraudulently secreted with intent to prevent the recovery thereof to defraud the rightful owner."

I

Appellant contends that the indictment under which he was charged is void because no legal evidence was presented to the November, 1979 Montgomery County Grand Jury. While it is clear that a grand jury may not indict merely on their own suspicions and must have sworn witnesses or self-proving documents before them, State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 296 So.2d 779, cert. denied, 292 Ala. 506, 296 So.2d 784 (1974); Ala.Code § 12-16-200 (1975), it is also clear that the State is not required to prove the sufficiency of any such documentary evidence or testimony. Fikes v. State, 263 Ala. 89, 81 So.2d 303 (1955), rev'd on other grounds, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957).

In response to appellant's motion to dismiss or, in the alternative, to quash the indictment on December 6, 1979, the trial court, on February 27, 1980, ordered the State to produce evidence that the November 27, 1979 Term of the Montgomery County Grand Jury had before it either documentary evidence or the testimony of a witness at the time it returned a true bill on appellant's indictment. Then, at the beginning of appellant's trial before opening statements, the trial court entered the following stipulation into the record:

"COURT: Stipulating the witness for the State who testified before the Grand Jury is Mr. Macon Brock and he was the sole witness. He was the only witness and he was represented by the law firm of Jordan and Heard."

No objections were made to this stipulation.

On the third day of trial, March 26, 1980, the appellant called Macon Brock as his first witness; Mr. Brock had previously testified as a State witness. During his direct examination by appellant the following exchanges occurred:

"Q. You have testified as a witness for the State before the grand jury, haven't you?

"A. Yes, sir, that's correct.

"Q. I don't want you to give me your exact answer unless you know it, but in your best judgment how many times have you appeared before the grand jury?

"A. That's easy, just one.

"Q. Just one time?

"A. To the best of my knowledge, yes, sir.

"Q. That was in the James Wright case?

"A. Yes, sir.

....

"Q. Alright, sir. You recall when you testified before the Grand Jury; you only testified once?

"A. To the best of my memory it was last summer or fall.

"Q. Summer or fall, you don't know which?

"A. It could have been in the last--it could have been in the winter, it could have been in the last four or five months.

"Q. Mr. Brock, you haven't testified but before one Grand Jury and in one case. Just give us--

"MR. BEERS: Your Honor--

"A. Mr. Whitesell, that wasn't the biggest day of my life.

"MR. BEERS: Mr. Brock. We object at this time. He has testified here today but he did testify before the Grand Jury against this man and that is all he is required to do. We object to any further questioning on this matter. Mr. Whitesell knows it is not proper.

....

"Q. Alright. You recall whether you testified in July of last year before the Grand Jury?

"A. I don't remember the day I testified before the Grand Jury. I know I testified. I have already said that but I do not remember the date.

"Q. I'm not asking you for the date. I am asking you if it was in the month of July.

"MR. BEERS: Objection, Your Honor. He has answered that question to the best of his ability. I don't know whether Mr. Whitesell is trying to trap him into something that he has answered that question.

"THE COURT: Overruled.

"Q. Did you testify in July, Mr. Brock, of 1979?

"A. It could have been, I just don't remember.

"Q. Do you have any memory at all about the season of the year?

"A. Yes, sir.

"Q. Well, was it summer time?

"A. I wasn't connecting the season to the date. I testified before the Grand Jury, Mr. Whitesell. To tell you the truth, it was about the most unpleasant experience I have ever had and I want to never have it again and I didn't pay any attention to the date.

"Q. Yes, sir. I do understand that fully, Mr. Brock but it's important not just to you but to everybody in the case, that you do exercise the best memory you can as to whether it was July or November.

"A. To the best of my memory, I think it might have been July but I am not positive."

The controversy over whether Mr. Brock had testified at the July Term or the November Term of the Montgomery County Grand Jury arose because of an earlier indictment which had been presented to the July Term of the grand jury charging appellant with receiving embezzled property. ¹ Appellant claims that Mr. Brock testified at the July Term of the grand jury and that, according to the trial court's stipulation and Mr. Brock's statement that he testified only once before the grand jury, no legal evidence was presented to the November Term. In his motion for a new trial or, in the alternative, for a judgment of acquittal, appellant insists that Brock did not testify before the November Term. Appellant argues now on appeal that the trial court's stipulation concerning Brock's testimony before the grand jury was in error due to "the falsity of the representations" by the State.

In a motion to quash an indictment alleging failure by the State to present legal evidence to the grand jury, the burden of proof is on the defendant. Sparks v. State, 46 Ala.App. 357, 242 So.2d 403, cert. denied, 286 Ala. 738, 242 So.2d 408 (1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1382, 28 L.Ed.2d 650 (1971); Hill v. State, 20 Ala.App. 197, 101 So. 298 (1924). From the record before us appellant failed to carry his burden of proof. An appellate court may only consider matters contained in the record as it is filed on appeal. Lucy v. State, 340 So.2d 840 (Ala.Cr.App.), cert. denied, 340 So.2d 847 (Ala.1976).

At most, Brock's testimony that he could not remember whether he testified at the July Term or November Term of the grand jury was inconclusive. Contrary to appellant's allegations, Brock did not deny that he had testified before the November Term, nor did he state with any certainty that he had testified before the July Term. He did remember testifying, and to testifying only one time before the grand jury. Appellant offered no other evidence, besides Brock's testimony, to show that the November Term of the grand jury did not have legal evidence before them at the time the indictment was returned in this cause. This proof, or lack of proof, offered by appellant falls short of contradicting the stipulation entered by the trial court.

The testimony of a single witness before the grand jury is sufficient to comply with Ala.Code § 12-16-200 (1975). Douglas v. State, 42 Ala.App. 314, 163 So.2d 477 (1963), cert. denied, 276 Ala. 703, 163 So.2d 496 (1964), rev'd on other grounds, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). When it appears that witnesses were examined by the grand jury, or the jury had before them legal documentary evidence, no inquiry into the sufficiency of the evidence is indulged. Fikes, supra; Sparrenberger v. State, 53 Ala. 481 (1875); Evans v. State, 338 So.2d 1033 (Ala.Cr.App.1976), cert. denied, 348 So.2d 784 (Ala.1977).

II

Appellant next questions the sufficiency of the State's evidence. In deciding whether the trial court properly overruled appellant's motion to exclude this court is required to view the evidence in the light most favorable to the State. Livingston v. State, 44 Ala.App. 559, 216 So.2d 731 (1968).

Macon A. Brock, Sr., a key witness for the State, testified that he had been employed at Associates Financial Services of Alabama for approximately sixteen and one-half years prior to October 23, 1978, the date he left the company. Associates Financial Services had formerly been Cumberland Capital and Brock had opened the Madison Avenue branch of that lending institution in Montgomery as branch manager and employee supervisor in 1971.

The witness had known appellant since 1972 or 1973, when appellant first inquired about obtaining a loan. Appellant had been referred to Brock by a representative of Central Bank. Around the time appellant and his second meeting with him, Brock became aware that appellant was a bookmaker "which presented a problem of me making a loan." The loan was made, however, and shortly thereafter Mr. Brock began placing bets with appellant on football games. Brock said, "I would bet one or two a week right to start or more." He would then have weekly meetings with appellant to discuss the bets. Those meetings were at first unrelated to any business transactions appellant had with Associates Financial Services. He testified that it was the next fall before he (Brock) had a "close" gambling relationship...