Return to Top of DocumentSECTION 1 - COLQUITT
FALL, 2002
553 So. 2d 654 (Ala. Crim. App. 1989) (on application for rehearing)
Our original opinion in this cause is withdrawn and the following opinion substituted therefor.
Clar Glynn Ward Chisler was convicted of extortion in the second degree, a violation of Ala. Code (1975), § 13A-8-15, and was sentenced to two years' imprisonment.
The indictment alleged, in substance, that Chisler aided or abetted Jeff C. Mims, Jr., the administrator of the Alabama Alcoholic Beverage Control Board (ABC Board) in obtaining from Suntory International, Inc. (Suntory) a liquor manufacturer, Suntory's right to hire the agent, representative, or broker of its choice in Alabama, by means of a threat to take official action against, or to withhold official action from, Suntory.
The State's evidence established that liquor products must be officially listed with the ABC Board in order to be sold in Alabama. Liquor companies usually hire representatives, agents, or brokers, who, by means of promotional presentations to the ABC Board, try to get their products listed in Alabama. The ABC Board conducts regular listing hearings, after which the administrator and deputy administrator recommend to the Board which products should be listed. The Board members then vote on whether to accept the recommendations. A product is officially listed only if the Board votes to have it listed.
Carl Wright, deputy administrator of the ABC Board, testified that Jeff Mims, the administrator of the ABC Board, introduced him to the defendant in the spring of 1983 and told him "to assist her in getting some lines to represent here in Alabama." Initially, Wright did nothing. Mims later asked Wright whether he had done anything to help the defendant.
Wright then contacted the liquor companies which he thought did not have brokers in Alabama and told them that he knew "someone that could assist them in securing some listings in the State." If the company representatives informed Wright that they already had a broker, Wright inquired whether they wanted an additional broker who could help them obtain new listings. If they expressed no interest in an additional broker, Wright informed them that they would get no further listings in Alabama.
Wright told Frank Mancini at Suntory that "if [Suntory] expected to have any products listed in the State of Alabama, Clair Chisler would have to be [the] broker." Wright informed both Mims and the defendant of this conversation.
Frank Mancini testified that Suntory initially wanted to hire Mike Miaoulis as its Alabama broker. However, when told by Wright that Suntory should hire the defendant if it expected any listings, Mancini decided to interview the defendant. The defendant "guaranteed" Mancini that Suntory would get two or three listings. Suntory hired the defendant as its broker, and four of its products were listed in Alabama.
Mike Miaoulis testified that Mancini had originally agreed to hire him as Suntory's broker in Alabama. Later, however, Miaoulis told Mancini that he could not "guarantee" Suntory any listings in Alabama and that all he could guarantee was that he would "go before the Alabama ABC Board, and give it my best show." Miaoulis was not hired.
Leo Conte, of Montebello Brands Bottlers, testified that Wright recommended that his company hire the defendant as its broker. Montebello hired her and it obtained 23 new listings in three months. In the previous 25 years of doing business in Alabama, Montebello had received only 27 listings.
Edwin Morgan, of Brown-Foreman Distillers, testified that Wright told him "the broker [his company] had to go through was Mrs. Clair Chisler." Morgan refused to hire the defendant, and his company obtained no listings that year.
Robert Norton, of Federal Distillers, testified that Wright suggested the defendant as a broker for Norton's company. Federal Distillers, which had obtained only six Alabama listings in the previous five years, received nine new listings in one month after hiring the defendant.
Chris White, of Heublein Wine Company, testified that Wright suggested to him that his company hire the defendant as its broker. White replied that Heublein had decided to hire Alabama Crown. Wright then said that "there would be no way that [Heublein] would get listed with the State unless [it] appointed [the defendant]." White also testified that he had several telephone conversations with a woman who identified herself as Clair Chisler. According to White, the defendant stated that "in Alabama you g[e]t things done based on your connections, and that if you get the right connections you can be successful in the State. If you don't have the right connections, and you don't go with the program, then you are going to be out of business." Despite this, Heublein hired Alabama Crown. It obtained no listings in Alabama that year.
John Waites testified that in the fall of 1983 he drove the defendant to Evergreen, Alabama, to meet the ABC Board administrator, Jeff Mims. "Waites said that the defendant told him that she and Mims had to get their stories straight, due to an upcoming investigation about her books." When they arrived at their destination, Waites said, Mims got into the car and kissed the defendant. He also said that the defendant told Mims she was worried that they had been seen together at a restaurant and at a motel and that Mims' car had been photographed in front of her house, and that later, the defendant asked Waites to tell the grand jury that he was Mims' bodyguard and that she and Mims had never been alone together. Waites testified that he had not been a bodyguard for Mims.
The defendant testified that she heard Mims tell Wright to help her become a broker. She denied, however, knowing that Wright had ever threatened any liquor companies into hiring her, denied having "guaranteed" Mancini that she could obtain any listings for Suntory, and denied having told any liquor companies that if they wanted their products listed they would have to hire her.
The defendant insists that her motion for judgment of acquittal should have been granted because the State presented insufficient evidence to prove her complicity in the crime of extortion in the second degree.
The indictment charged the defendant with being an accomplice to extortion, not with conspiracy to extort. There are several distinctions between complicity, or accomplice liability, and conspiracy. The most practical distinction, and one which may account for the rarity of conspiracy indictments in Alabama, is the fact that while there is no difference in the punishment of principals and accomplices, see West v. State, 25 Ala. App. 492, 149 So. 354 (1933); Ala. Code (1975), § 13-9-1 (repealed); Ala. Code (1975), § 13A-2-23, the penalty for conspirators is generally one class lower than that imposed upon participants in the object crime. See Ala. Code (1975), § 13A-4-3(g)(1)-(7). The exception is conspiracy to murder, which is punished the same as murder.
Another distinction between complicity and conspiracy is that in order for a defendant to be convicted as an accomplice, the guilt of the principal must be shown, Evans v. State, 508 So. 2d 1205, 1207 (Ala. Crim. App. 1987), whereas "[i]t is no defense to a prosecution for criminal conspiracy that [t]he person, or persons, with whom defendant is alleged to have conspired has been acquitted." Ala. Code § 13A-4-3(d)(1).
For present purposes, the fundamental difference between aiding and abetting and conspiracy lies in the fact that "while an agreement is an essential element of the crime of conspiracy, aid sufficient for accomplice liability may be given without any agreement between the parties." W. LaFave & A. Scott, Substantive Criminal Law, § 6.8 at 156-57 (1986).
* * *
Accomplice liability is defined in § 13A-2-23 as follows:
"A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
"(1) He procures, induces or causes such other person to commit the offense; or
"(2) He aids or abets such other person in committing the offense; or,
"(3) Having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally required to make."
Although the drafters of our complicity statute observed that § 13A-2-23 "formalizes in simple terms" the basic principles for determining accomplice liability, see Commentary to § 13A-2-23, the determination is somewhat less than simple because the Alabama cases dealing with complicity have very often used the terminology and standards of conspiracy law to find liability. However, "[c]onspiracy and complicity are not identical; it is possible to have either without the other." R. Perkins & R. Boyce, Criminal Law, § 5 at 702 (3d ed. 1982).
"[I]t is possible for one to become a party to a crime directly committed by another without there being any agreement or communication of any kind between the two persons. For example, A is an accomplice to murder if, knowing that B and C have set out to kill D, he prevents a warning from reaching D, and this is so even though A's actions were not by preconcert with B and C and did not become known to B and C prior to the killing. This is because A has actually aided in the murder of D and rendered the aid with the intent that D be killed."
W. LaFave & A. Scott, Handbook on Criminal Law, § 61 at 462. The case upon which the foregoing hypothetical is based is State ex rel. Martin v. Talley, 102 Ala. 25, 15 So. 722 (1894), which is the classic illustration of the legal principle that for one to be an aider and abettor, or accomplice, one need not have agreed, or had a "meeting of the minds," with the perpetrator of the offense. See R. Perkins & R. Boyce, Criminal Law, supra, at 702. It is ironic that the law of complicity in Alabama, whose Supreme Court provided in Talley the textbook example of the distinction between complicity and conspiracy, should have become so infused with conspiracy terminology. * * * See also Alabama Code § 13A-2-23 (Commentary at 40) ("[O]ften the courts ambiguously have treated conspiracy, which properly is an inchoate crime, as a basis for complicity liability. * * * Properly, conspiracy is an incomplete crime, independent of the object crime, and is not a valid theory of complicity."); Commentary to Alabama Code § 13A-4-3(f) ("[T]he determination of complicity responsibility often has been couched in terms of conspiracy. Under this Criminal Code, the complicity provisions in § 13A-2-23 are the exclusive method of determining criminal responsibility for the conduct of others.").
The failure to distinguish the principles of conspiracy and complicity liability no doubt exists because the two "normally go hand-in-hand," R. Perkins & R. Boyce, Criminal Law, supra, at 703, and in most of the cases the accomplice who aided and abetted the offense was also a conspirator who agreed beforehand with the perpetrator to commit the offense.
* * *
Notwithstanding ambiguous language to the contrary in some Alabama cases dealing with complicity, § 13A-2-23 authorizes accomplice liability in the absence of a conspiracy or an agreement between the parties. "Conspiracy requires proof of agreement; aiding and abetting does not." United States v. Beck, 615 F.2d 441, 449 (7th Cir. 1980).
Based on the foregoing authorities, the defendant's argument that the State failed to prove her guilt because it did not show she agreed with either Mims or Wright to commit the offense of extortion is unavailing. Because she was not charged with conspiracy, it was not necessary to prove that she acted by prearrangement or agreement.
The State did prove that she intended to "promote or assist" Mims and Wright in the extortion of Suntory and that she "aided and abetted" Mims and Wright in committing the offense.
"To make one accused of a crime an accomplice, the State must adduce some legal evidence implying that he either recruited, helped or counseled in preparing the [crime] or took or undertook some part in its commission. Criminal agency in another's offense is not shown merely by an exhibition of passivity.' * * * Mere consent to a crime, when no aid is given and no encouragement rendered, does not amount to participation.'"
id. The state's evidence shows that the defendant's conduct was not merely passive and that it can be more reasonably characterized as eager encouragement. Wright stated that the defendant was "well aware" of the tactics he had used to get distillers to hire her because she questioned him about the efforts he had made on her behalf, asking "have you spoke[n] to a certain distillery, and if [Wright] said yes, then she wanted to know what [Wright] said, what they said, what was the outcome."
The fact that Wright reported to Mims the results of each threatening telephone call he made on the defendant's behalf and the fact that the defendant eagerly discussed these calls with Wright circumstantially proved her complicity. The fact that the defendant herself made a similar threatening telephone call to Chris White at Heublein Wine Company, stating that "[i]f you don't have the right connections, and you don't go with the program, then you are going to be out of business" directly established her intent.
The defendant's complicity in the charged crime was also circumstantially established by proof of her intimacy with Mims, her meeting with him to "get their stories straight," and her attempt to have Waites lie to the grand jury about their having been alone together. The jury could fairly conclude that such actions reflected a consciousness of guilt and an attempt to suppress the truth. See Holmes v. State, 29 Ala. App. 594, 199 So. 736 (1941).
"Any act proving, or tending to prove, an effort or a desire on the part of the defendant to obliterate evidence of a crime, is always relevant, for from such facts, if unexplained, the jury may justly apprehend his mental condition, and may infer that they indicate a consciousness of guilt." Underhill, Crim.Ev. p. 563, § 323. Thus it appears that such testimony was also admissible upon the theory of facts showing a consciousness of guilt. Evidence upon this theory never depends on its contemporaneousness, connection with the crime that is charged, or upon its being a part of the res gestae. Facts showing or tending to show a consciousness of guilt are always permissible, though not connected with the res gestae of the offense. Any statement or conduct of a person indicating a consciousness of guilt, where at the time or thereafter he is charged with or suspected of a crime, is admissible as a circumstance against him on his trial. Evidence of circumstances, which are part of a person's behavior subsequent to an event which it is alleged or suspected he is connected with or implicated in, [is] relevant, if the circumstances are such as would be natural and usual; the connection or implication having been shown to exist. Under a rule of evidence of this character testimony will be received to prove or disprove facts of circumstances which indicate a consciousness of guilt on the part of the accused, existing after the crime with which he is charged was committed. Montgomery v. State, 17 Ala. App. 469, 86 So. 132; 134 (1920), cert. denied, Ex parte State, 204 Ala. 389, 85 So. 785 (1920).
There was no variance between the indictment charging that the defendant aided and abetted Mims and proof that Wright actually made the extortionate threats. The State's evidence clearly established that Wright was acting at Mim's direction, so that the acts of Wright were the acts of Mims. " [A]ll persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must * * * be indicted, tried, and punished as principals.'" Stokley v. State, 254 Ala. 534, 49 So. 2d 284, 290 (1950).
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