Petition for Writ of Certiorari — Britain v. Alabama

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87-1612 ae

SUPREME COURT NUMBER

IN THE SUPREME COURT OF THE UNITED STATES

1987-88 TERM

JOHN E. BRITAIN,

PETITIONER,

VS.

STATE OF ALABAMA,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

NO. 85-399

THOMAS M. HAAS

255 SAINT FRANCIS STREET

MOBILE, ALABAMA 36602

205/432-0457

ATTORNEY FOR THE

PETITIONER

QUESTIONS PRESENTED FOR REVIEW

DID THE TRIAL COURT'S DENIAL

OF THE PETITIONER'S MOTION

NEW TRIAL WITHOUT AN VIDENTIARY

HEARING AND AN OPPORTUNITY

TO PRESENT’ EVIDENCE OF OUTSIDE

INFLUENCES UPON WHICH THE JURY

VERDICT WAS BASED IN PART DEPRIVE

THE PETITIONER OF A FAIR TRIAL

AND DUE PROCESS OF LAW UNDER

THE SIXTH AND FOURTEENTH AMEND-

MENTS TO THE UNITED STATES

CONSTITUTION?

DID THE PROSECUTORIAL MISCONDUCT

AT TRIAL AND IN ARGUMENTS,

AND BY UNWARRANTED PROSECUTORIAL

ATTACKS ON DEFENSE COUNSEL,

DEPRIVE THE PETITIONER OF A

FAIR TRIAL AND DUE PROCESS

OF LAW UNDER THE SIXTH AND

FOURTEENTH AMENDMENTS TO THE

LIST OF PARTIES

The varties to this proceeding

are John E. Britain and the State

e ., }

of Alabama.

1il

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW . 1

LIST OF PARTIES .. ++ «© «© « « Lili

TABLE OF CONTENTS ..+ + «2 « » iv

TABLE OF AUTHORITIES

OPINIONS DELIVERED IN

COURTS BELOW . . «© «© © © «© © © « vil

GROUNDS UPON WHICH SUPREME

COURT JURISDICTION [IS INVOKED . vii

CONSTITUTIONAL PROVISIONS

AND STATUTES ...++e+s+ee « Lx

STATEMENT OF THE CASE .... « l

ARGUMENT .. «ec ceeceee es 8

CERTIFICATE OF SERVICE .... « 25

APPENDIX ..++-eee-ere ee @ A-1

TABLE OF AUTHORITIES

CASES PAGE

Allen v. State, 494 So. 2d

777 (Ala.Cr.App. 1985) 10

Berger v. United States, 295 U.

S. 295 U.S. 78, 88, 79 L.

Ed. 1314, 55 S.Ct. 629

(1935) eo ee 22,23

Britain v. State, So.2d ‘

(Ala.Cr.App. 1987) owas

Napue v. Illinios, 60 U.S. 264,

3 L.Ed.2d 1217, 79 S.Ct.

1173 (1959) 2 23

Smith v. Phillips, 455 U.S. 209

102 S.Ct. 940, 71 L.Ed.2d 11,12,

78 (1982) A ae 13

Tanner v. United States, 483 U.S.

,107 S.Ct. , 97 L.Ed.

2d 90 (1987) e-e-s8 e

United States v. Chiantese,

582 F.2d 974 (Sth Cir. 1978)

United States v. 620 F.

2a 446 (5th Cir.

Forrest,

1980)

United States v. Windom, 510 F.

2d 989 at 994, cert. denied

423 U.S. 863, 96 S.Ct. 121,

46 L.Ed2d 91 (1975)

CONSTITUTIONAL AND STATUTORY

AUTHORITY

Code of Alabama, 1975,

§13A-8-2 oe

Code of Alabama, 1975,

§€36-25-5

28 U.6.C. 1257(3)

U.S. CONST. Amend. VI

U.S. CONST. Amend. XIV

OPINIONS DELIVERED IN COURTS

BELOW

The affirmance o£ Petitioner's

conviction by the Court of Criminal

Appeals of Alabama is reported as

Britain Vv. State, So. 2d ;

(Ala. Cr. App. 1987). The Supreme

urt of Alabama denied the petition

Or a writ of certiorari filed by

Petitioner without opinion. The opinion

affirming Petitioner's conviction

is set forth in its entirety infra

GROUNDS UPON WHICH SUPREME COURT

JURISDICTION IS INVOKED

The statutory provision which

confers upon this Court jurisdiction

to review the judgment of decree

in question by writ of certiorari

is 28 U.S.C. §1257(3), which provides

that judgments or decrees rendered

by the highest court of a State in

which a decision could be had may

be reviewed by the Supreme Court

by writ of certiorari, where any

title, right, privilege or immunity

is specially set up or claimed under

the Constitution of the United States.

Vili

CONSTITUTIONAL PROVISIONS AND

STATUTES

UNITED STATES CONSTITUTION

AMENDMENT VI

In all criminal prosecutions,

the accused shali enjoy the right

to a speedy and public trial, by

an impartial jury of the state and

district wherein the crime shall

have been committed, which district

shall have been previously ascertained

by law, and to be informed of the

nature and cause of the accusaticn;

to be confronted with the witnesses

against him; to have compulsory process

for obtaining witnesses in his favor,

and to have the assistance of counsel

for his defense.

UNITED STATES CONSTITUTION

AMENDMENT XIV

Section 1. All persons born

Or naturalized in the United States,

and subject to the jurisdiction thereof,

are citizens of the United States

and of the State wherein they reside.

No State shall make or enforce any

law which abridge the privileges

or immunities of citizens of the

United States; nor shall any State

deprive any person of life, liberty

or property, without due process

of law; nor deny to any person within

its jurisdiction the equal protection

of the laws.

Section 5. Tne Congress”7 shall

have power to enforce, by avpropriate

legislation, the provisions of this

article.

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Britain's motion for new trial

alleged "the verdict was. based on

outside influences" among other grounds.

The motion was denied without an

evidentiary hearing and opportunity

to present evidence of the outside

influences. (R. 655-658, 660).

During trial, the state attorney

questioned key prosecution witness,

John L. Maples, regarding a conversation

he had with Britain's defense attorney

prior to trial. This testimony was

objected to as immaterial. (R. 61).

Maples testified over defense objections

that he had contacted Britain's defense

attorney, Thomas M. Haas, to discuss

his Situation regarding the Alabama

State Docks investigation. The witness

testified Mr. Haas asked "you do

Know that I am John Britain's attorney."

Maples responded he did not and would

need ancther attorney. (R. 9/7).

Maples also testified he delivered

several loads of topsoil and shells

to Britain's home and sent the payment

invoices for the materials to the

Alabama State Docks. (R. 45- 57).

Britain's defense counsel requested

the State turn over any prior statements

of witnesses testifying at trial.

The State has voluntarily turned

over statements of witnesses prior

to trial which were contradictory

to the witnesses' trial testimony.

(Re. 169-175, 277-297).

Defense character witness Marion

Martin, Sr. was questioned repeatedly

as to whether or not he had 0been

drinking. The State's attorney remarked

he smelled of alcohol. Objections

were sustained. (R. 300-304).

A potential state witness, Henry

1d been seen talking to jurors

ae reported to eme Court. Mr

lenied conversing with jurors

| stated an individua

id left the Courthouse had bee

rlkina ¢t Miron e, th. 315-316).

F by the State's attorn

to. Objection was overrul

). The witness was asked

id had defense counsel Thomas

“write 1 letter to the State

jators about this case.

yn was sustained. (R. Le?

-fenss attorneys objected

Bill Wasden stated the jury did not

hear testimony from one of Britain's

neighbors who had been referred to in

other testimony. Objection was

sustained. (R. 490). Wasden argued

Britain "had (docks' workers) under

his thumb, he practically had them as

indentured slaves. Something that is

part of our history." Objection that

the argument was an improper emotional

appeal to the jury, which included

five black persons, was overruled. (R.

497-498). Wasden argued Britain

"threatened (docks' employees),

threatened them with bodily harm." (R.

495). Despite sustained objections

during direct questioning, Wasden

argued defense witness Marion Martin

"walked in here reeking of alcohol,

could not remember where he lived

~e-". The trial court responded to

defense objection by stating the jury

would form its own impressions and

decision. (R. 501-502). Finally,

Wasden argued the evidence heard by

the jury was "the tip of the iceberg

over there at the Docks." Objection

was sustained and the jury instructed

to disregard.

Final closing argument for

the state was given by Assistant

Attorney General Don Valeska. Valeska

argued he wanted the jury "to see how

far those slime bags would go...".

Objection was sustained. (R. 547-549).

He argued ". . . you reckon Adolph

Hitler ever had him a farty foot boat

- « « you reckon Adolph Hitler and

Jerry Tew and those guys, they're the

ones that got the power .. . the only

difference between us and Jerry Tew

and his Nazis, we get a jury. . .do

you reckon Adolph Hitler used a jury."

Objection was sustained. (R. 551-554).

Valeska further argued defense witness

Jerry Tew, an Alabama State Docks’

employee, would be "out there

building" a boat slip at the State

Docks. Objection was overruled. (R.

556). He argued investigations) and

meetings were conducted in secret

because of talk about throwing people

in the river. (R. 558). Finally,

Valeska argued “you reckon those guys

that work out at the State Docks and

paying for their yachts . . . sports

cars ..e.- homes at Gulf Shores. ..".

Objection was sustained. (R. 558-559).

ARGUMENT

Ee THE TRIAL COURT'S DENIAL OF THE

PETITIONER'S MOTION FOR NEW TRIAL

WITHOUT AN EVIDENIARY HEARING AND AN

OPPORTUNITY TO PRESENT EVIDENCE OF

OUTSIDE INFLUENCES UPON WHICH THE JURY

VERDICT WAS BASED IN PART DEPRIVED-THE

PETITIONER OF A FAIR TRIAL AND DUE

PROCESS OF LAW UNDER THE SIXTH AND

FOUPTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION.

The Petitioner's motion for new

tcial was denied by the trial court

without affording Petitioner any

opportunity to be heard and present

evidence of the grounds for new trial

alleged in the motion, including the

grounds that the verdict was based on

outside influences. (R. 655-658, R.

660, Appendix A-21).

During trial of the Petitioner,

it was brought to the trial judge's

attention that a potential witness for

the state and another unknown

individual had been seen talking to

jucors. The potential witness, Henry

Scott, denied this, Stating to the

court that he had not spoken with

jurors. The other individual had left

the courthouse. FF 315-316). In

2ddition, numerous instances of

prosecutorial misconduct occurred

before the court including an effort

by the state's attorney to present for

the jury's consideration irrelevant

and nighly prejudicial testimony

concerning a conversation prior to

trial between the state's witness,

John Maples, and defense attorney,

Thomas M. Haas. (R. 61, R. 96-97).

These and other objectionable

matters were made the subject of a

motion for new trial, however, the

Petitioner was not afforded any

opportunity to present evidence of the

outside influences’ upon which the

verdict allegedly was based.

Under Alabama law, defendant is

entitled to an evidentiary hearing on

aq motion for new trial where it

appears that jurors might have

considered extraneous facts which

might have improperly influenced their

verdict. Allen v. State, 494 So.2d 777

(Ala.Cr.App. 1985). A presumption of

prejudice arises when the trial judge

learns of such outside influences and

his complete failure to hold a hearing

has been held to constitute an abuse

of discretion and reversible error.

= &<&<<o«oe

United States v. Chiantese, 582 F.2d

974 (Sth Cir. 1978). Off-the-record

contact with a juror is presumptively

prejudicial and the Government bears

the hearing burden of proving” such

contact did not affect the jury. The

failure to meet this burden requires a

new trial. United States v. Forrest,

620 F.2d 446 (Sth Cir. 1980).

This Honorable Court "“has_ long

Since held that the remedy for

allegations of jury partiality is a

hearing in which the defendant has the

opportunity to prove actual bias.”

Smith v. Phillips, 455 U.S. 209, 102

S.Ct. 940, 71 L.Ed.2d 78 (1982). In

Smith, upon granting of a writ of

certiorari, the United States Court of

Appeals for the 2d Circuit was

reversed: that court had affirmed

=_ +

grant of Petitioner's writ of habeas

corpus. The United States Supreme

Court reasoned in Smith that the

Petitioner was not entitled to have

his verdict set aside on the ground

that he was denied due process of law

in violation of the Fourteenth

Amendment to the United States

Constitution by virtue of juror bias

Or prosecutorial misconduct because a

post-trial hearing has been conducted

in which the Petitioner had been

afforded the opportunity to prove

actual bias and had failed to do so.

This was held sufficient to decide

allegations of juror partiality.

Due process does not require a

new trial in all instances where a

juror has’ been placed in a potentially

compromising situation, 455 U.S. at

217, 102 S.Ct. 940, 71 L.Ed.2d 78. The

Smith Court concluded a post-trial

hearing in both federal and state

courts was sufficient under the Due

Process Clause of the Fourteenth

Amendment to decide allegations of

jury misconduct. 455 U.S., at 218, 102

S.Ct. 940, 71 L.Ed.2d 78.

Further, such a heacing would not

disrupt the jury process’ in such

circumstances. "The Court's’ holdings

requiring an evidentiary hearing where

extrinsic influences or relationships

have tainted the deliberations do not

detract from, but rather harmonize

with the weighty government interest

in insulating the jury's deliberative

process." Tanner Ve United States, 483

U.S. , 107 S.Ct. ,97 L.Ed.2d

90 (1987).

The trial court was under a duty

to conduct an evidentiary hearing on

the Petitioner's motion for new trial

where allegations of outside

influences on the jury were both made

in the motion and brought to the

court's attention at trial. The

failure of the court to conduct such a

hearing deprived the Petitioner of his

right to due process of law under the

Sixth and Fourteenth Amendments to the

United States Constitution.

II. THE PROSECUTORIAL MISCONDUCT AT

TRIAL AND IN ARGUMENTS, AND BY

UNWARRANTED PROSECUTORIAL ATTACKS ON

DEFENSE COUNSEL, DEPRIVED THE

PETITIONER OF A FAIR TRIAL AND DUE

PROCESS OF LAW UNDER THE SIXTH AND

FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION.

Numerous incidents of

prosecutorial misconduct occurred

throughout the Petitioner's trial and

in closing arguments made by the State

of Alabama. During the testimony of

prosecution witness John Maples, the

State elicited testimony over defense

objections regarding a pretrial

conversation between defense attorney

Thomas Haas and the witness. Maples

told the jury about his conversation

with the defense attorney and stated

he was not informed of Haas'

representation until he had completed

his conversation. (R. 61-62, 96-97).

This testimony was immaterial and

the Petitioner.

of key state's witnesses Roy Cox and

James King had been furnished by the

state to defense attorneys. The

Statements of both witnesses given to

defense attorneys were directly

contradictory to the trial testimony

given by the witnesses. At trial,

defense attorneys stated they had been

misled by the state providing them

with a prior statement of each witness

which was the opposite of their

testimony at trial. (R. 169-175).

The attorney for the state again

referred to defense attorney Thomas

Haas in cross-examining defense

character witness Jerry Tew by asking

if the witness had "Tom Haas write a

letter to state investigators about

this case." Objection was sustained.

(R. 353).

State's attorney Bill Wasden

Stated during his closing argument

that the Petitioner enslaved other

docks' workers referring to such

Slavery as "a part of our history."

Five black individuals served on

Britain's jury. While the court

admonished Wasden to avoid such

comments, objection was overruled and

the jury was not instructed. (R. 496).

Other misconduct in closing argument

by Wasden included referring to a

defense witness as "reeking of

alcohol, could not remember where he

lived" despite sustained objection to

this subject during cross examination

of the witness. The trial court stated

the jury would make its’ own decision,

but did not Sustain objection or

instruct the jury. Wasden stated _ the

evidence heard by the jury was’ the

"tip of the iceberg" at the docks over

sustained objection. The jury was

instructed to disregard. (R. 501-506).

Assistant Attorney General Don

Valeska in closing referred to

Petitioner as a “slime bag," to which

objection was sustained, and compared

Petitioner and defense witness Tew

repeatedly to Adolph Hitler and Nazis,

to which objection was overruled. (R.

552). Valeska stated Britain was a

"thug" (R. 551-552) and Tew would be

building a boat slip for himself at

the docks if the jury acquitted

Britain. Objection was’ overruled. (R.

556). Objections were sustained to

Valeska's references to "vachts,

sports cars and homes at Gulf Shores"

paid for by docks’ workers and a

reference by state's witness Tew

attributed to Petitioner about

"someone floating in the river." (R.

558-559). Objection to this testimony

had been sustained during direct

examination of the witness. (R.

157-162).

Thus, prosecutors at Britain's

trial established a pattern of

prosecutorial misconduct by eliciting

prejudicial and immaterial testimony

regarding defense attorney Haas and

repeatedly making comments which were

not based upon the evidence and_ were

prejudicial to the Petitioner. This

pattern of misconduct by prosecutors

throughout trial was uncontrolled by

the trial judge. in general,

prosecuting attorneys are no longer

permitted to indulge themselves, or

their audiences, in unrestrained,

abusive histrionics, giving their

versonal evaluations of what a

low-down fellow the defendant really

2 United States v. Windom, 510

F.2d 989, at 994, cert. denied, 423

U.S. 863, 96 S.Ct. 121, 46 L.Ed 2d 91

[i979). Such characterizations will

not provoke reversal if supported by

the evidence but accompanied an

unstemmed flow of prejudicial conduct

and comments by prosecuting attorneys.

The prosecuting attorneys’ conduct

and comments violated the due process

clause. The prejudicial references to

Slavery and the other instances of

misconduct were calculated to engender

prejudice or had a tendency to do. so.

The misconduct of the prosecutors was

completely unjustified and deprived

the Petitioner of a fair and impartial

trial. The prosecutorial misconduct

was not isolated and, in most

instances, went uninstructed by the

trial court. Indeed, the misconduct

detailed was purposeful and flagrant

and required repressive measures by

the trial judge. Such measures were

not taken, and even had _ they been,

instructions may not cure such

persistent and pronounced misconduct.

This Honorable Court held in 1935

that prosecutors must “refrain from

improper methods to produce a wrongful

conviction . . ." Berger v. United

States, 295 U.S. 78, 88, 79 L.Ed.

1314, 55 S.Ct. 629 (1935). Prosecutors

are permitted to strike hard blows,

but not foul ones. Ibid. Whether

prosecutorial misconduct constitutes

reversible error is decided in the

circumstances of each case and this

Court has ruled that it is not bound

by the conclusions of lower courts,

but has the duty to make its own

independent examination of the record

and to decide for itself facts and

constructions upon which federal

p be

—_—

°«e

constitutional issues rest. Napue v.

Illinois, 60 U.S. 264, 3 L.Ed.2d 1217,

79 6.Ce. LTD (29399) «

In Petitioner's case, the

prosecutorial misconduct called for

"stern rebuke and repressive

measures." Berger, at 85, 79 L.Ed.

1314, J.J. S.Ct. 629. Such measures

were not taken andas a result, as in

Berger, "it is impossible to say that

the evil influence upon the jury of

these acts of misconduct by such mild

judicial action as was taken." Ibid.

The argument is witnessed by the fact

that the trial judge failed to act aft

all in many instances of misconduct.

The prosecutorial misconduct at

Petitioner's trial was pronounced and

persistent. Its probable cumulative

effect on the jury was not cured and

cannot be disregarded. The Petitioner

was deprived of his right to

process of law by the improper

prejudicial misconduct of

prosecutors throughout trial.

A ms /

Y/ i fa! / / ) C7 7 ‘

THOMAS M. HAAS

due

and

the

eS — ttt

CERTIFICATE OF SERVICE

I, Thomas M. Haas, a member of

the Bar of the Supreme Court of the

United States, do hereby certify that

I Fave served a true and correct copy

of this Petition For A Writ of

Certiorari on the Honorable Don

Siegelman, Attorney General of

Alabama, by depositing three (3)

copies of same in the United States

mail, at the United States Post Office

at 250 St. Joseph Street, Mobile,

200

36602 at approximately ++,00

Am. on this ost day of March,

Alabam

1988 with sufficient postage affixed

thereon to insure first class

delivery.

APPENDIX

THE STATE OF ALABAMA - - - JUDICIAL

DEPARTMENT

THE ALABAMA COURT OF CRIMINAL

APPEALS

OCTOBER TERM, 1985-87

1 Div. 399

John E. Britain

Vv.

State

Appeal from Baldwin Circuit

Court

BOWEN, PRESIDING JUDGE

A-1

John E. Britain was the

maintenance Supervisor for the Alabama

State Docks in Mobile. He was’ indicted

and convicted for two violations of

the Alabama Ethics Act, S$36-25-5, Code

of Alabama 1975. In each case, he was

sentenced to five years' imprisonment,

Fined $5000, and ordered to pay $25 to

the Alabama Crime Victims Compensation

Fund. He was also convicted of second

degree theft of property by deception

in violation of s§13A-8-3, sentenced to

ten years' imprisonment, and ordered

to pay $1000 in restitution to the

State Docks’) and $25 to the Crime

Victims Compensation Fund. The

sentences in the ethics violation

cases were ordered to run concurrently

with the sentence in the theft case.

A-2

The defendant's motion for

judgment of acquittal was properly

denied because the State presented a

prima facie case of each crime

charged.

The substance of Counts I and III

was that the defendant caused invoices

for topsoil, dirt, and shells to be

Submitted to and paid by the State

Docks when those materials were

actually delivered to the defendant's

residence for his personal use. There

was testimony that the defendant was

the Supervisor of the maintenance

department at the State Docks and that

he had the authority to order and sign

for materials in an unlimited dollar

amount. John E. Maples, the owner of a

hauling company that did business’ with

A-3

the State Docks, testified that in the

latter part of 1983 or the early part

of 1984 his company delivered "three

to five" truckloads of topsoil and

"three to five" truckloads of clam

Shells to the defendant's residence.

The price of the dirt was between $150

and $200 per load. The shells’ were

around $300 per load. Maples testified

that the defendant did not pay for

this material but told him "to just

make up some invoices as we normally

do with the State Docks and send them

down there at various increments dated

various different dates and he would

Sign the tickets accordingly." The

different dates were so that (the

invoices) would blend in with the

actual materials that were ordered for

the State Docks." Maples testified

oe OLA ee er Rik

that "we were requested to make up

some bogus invoices and send them to

the State Docks For payment." He

stated that he was paid by the State

Docks for the loads delivered to the

defendant's residence.

Maples' testimony was

corroborated by that of David Cannon

and Bobby Broglen, truck drivers for

Maples Hauling Company. Cannon

testified that during the latter part

of 1982 and in 1983 he delivered three

truckloads of topsoil and one load of

shells to the defendant's’ residence.

The defendant was present on two of

these deliveries. He stated that, on

instructions’ from Mr. Maples, “the

next time that we would take a load

down (to the State Docks), we would

take two or three extra tickets with

A-5

i a ee

—

us and get them signed. And we kept

doing this until we got ail the

tickets signed to take care of the

amount of dirt that was sent to his

home." Cannon testified that the

defendant signed several tickets.

Broglen testified that in late

1983 he delivered one load of shells

to the defendant's home. The defendant

was home when the shells were

delivered,

Howard McKenzie, the assistant

director of the Alabama Ethics

Commission, testified that the

Statements of economic interest filed

by the Defendant for 1982 and 1983 did

mot indicate that the defendant had

received any Shells or dirt from

Maples Hauling.

Although the State did prove that

A-6

Ce We ee Tear es re eee ee

the defendant did sign a number of

invoices showing the delivery of “base

clay" by Maples Hauling Company to the

State Docks, there was absolutely no

proof of which invoices were "bogus"

and for the material actually

delivered to the defendant's

residence. Although there was no

documentary proof that the defendant

signed any "“bogus" invoice, there is

considerable circumstantial evidence

to support that factual finding.

However, since no count of the

indictment specifically charged the

defendant with actually signing a

false invoice, the State was not

required to prove that the defendant

actually signed a false invoice as an

element of proof that he used his

offical position for personal gain or

A-7

that he was guilty of theft by

deception.

Count II charged that the

defendant used his official position

as maintenance supervisor to obtain

‘4

the labor and services of State Docks

bas

employees under his supervision for

ae te

his direct personal financial gain.

Two employees of the State Docks

testified that the defendant was chats

supervisor and that they worked on the

defendant's boat or home while they

were being paid for working at the

State Docks. Roy Cox testified that he

worked on the construction of the

defendant's shrimp boat and boat slip

From 1981 through 1984. James King

testified that he worked on the

defendant's boat and house during the

years from 1981 to 1983. This

A-8

testimony presented a prima facie case

of the violation of the State Ethics

Act charged in Count II of the

indictment.

A third State employee, John

Hobbs, also testified. However, Hobbs

testified that when he worked at the

defendant's residence in 1979, 1980,

or 1981 he was not paid by the State

Docks because he would take vacation

time or accumulated leave time. Hobbs'

testimony did not establish any

violation of the State Ethics Act.

The fact that some of the State's

evidence was contradictory and

conflicting does not negate the fact

that the State did present a prima

facie case of each crime charged in

the indictment.

-— eee ee

"'"The effect of contradictory

and inconsistent Statements

goes to the credibility of the

witness and is a question for

the jury." Magro v. State, 384

So.2d 871, 874 (Ala.Cr.App.),

cert. denied, Ex parte Magro,

384 So.2d 875 (Ala. 1980).

"(A) jury may believe part of

the evidence of a witness and

reject part.' _ ees

‘Inconsistencies and

contradictions in the

testimony of a witness do not

make it inherently

improbable.' coe ‘The

inconsistencies may impair the

credibility of the witness’ and

reduce the weight of the

testimony, but they do not

destroy the probative force of

the testimony as a matter of

law." Jones v. State, 469

So.2d 713, 716-17 (Ala.Cr.App.

1985)." Yeager v. State, 500

So.2d 1260, 1263 (Ala.Cr.App.

1986).

-10

The trial judge properly charged

the jury that, with regard to Count

[Il of the indictment charging theft

by deception of "money or checks the

property of the Alabama State Docks,"

they could consider “any acts that

occurred subsequent to October 1 of

1979."

The statute of Limitations’ for

theft is three years, § 15-3-1l, Code of

Alabama 1975, unless the prosecution

is “for conversion of the state ...

ceyvenue, in which case the statute of

limitations is Six years. §15-3-3.

Violation of the Alabama Ethic

Act is a felony, § 36-25-27(a), to

which applies the three-year statute

of limitations applicable

(Vv

Ww)

ln general. 6L5-3-1.

— ee oo

“Ff

The indictment was returned in

October of 1985. This tolled the

statute of limitations. §15-3-7. As

set out in Issue ie there was

sufficient evidence of the defendant's

Criminal activities in 1982, 1983, and

1984 alone to sustain convictions for

all three counts in the indictment.

ait

The trial judge properly denied

the defendant's request for a

mistrial. State's witness Roy Cox, a

State Docks employee, testified that,

after the investigation into the

defendant's criminal activities began,

the defendant told him "to do (his)

job and keep (his) mouth shut or

somebody else could be found floating

in the eivec.* Tre. G£iGs judge

overruled defense counsel's objection

A-12

that "(t)here is no charge of this

sort of thing in this case," but

directed the prosecutor to "lay a

predicate as to time."

When Cox testified that the

Statement was made "in the latter part

of '81," the trial judge "“sustain(ed)

the objection to the statement about

the river because of the time factor"

and instructed the jury to disregard

that threat.

Defense counsel requested a

mistrial which the trial judge denied

"because the Court had required the

State to lay a predicate and sustained

the objection and instructed the Jury

to disregard it and I don't feel that

it is not capable of being put out of

the Jury's mind. And I think they have

been sufficiently instructed." There

A-13

was no objection to the judge's

instructions or request for further

instruction.

"A crucial assumption underlying

that system (of trial by jury) is that

juries will follow the instructions

given them by the trial judge. Were

this not so, it would be pointless for

a trial court to instruct a jury, and

even more pointless for an appellate

court to reverse a criminal conviction

because the jury was improperly

instructed. Parker v. Randolph, 442

0.8. 62, 73, FP €.Ct. 2isey. 2439, -60

bcEG.420 743°. (23979). "tne ‘rule’ -

indeed, the premise upon which the

system of jury trial functions under

the American Judicial System - is that

juries can be trusted to follow the

trial court's instructions." Id., 442

A-14

U.S. at 74, 99 S.Ct. at 2140, n. 7.