Bozeman v. State Court Opinion

    40T SOUTHERN REPORTER,2d SERIES

2. Crlmlnel Law e1144.1312;

- On review, Court of Criminal Appeals
ia required to consider evidence in' ligtrt
most favorable to prosecution.

3. Criminat Law e1144.13(4, 5)
Court of Criminal Appeals must take

evidence favorable to prcsecution as true,
and accord to state all legitimatc infercnces
thernefipm-

4. Crlminal Law e552141
Circumstantial evidence must be ac-

corded same weight as direct evidence when
it points to accused as guilty party.

6. Criminal Lav e7q211,1
Truthfulness of testimony is for triers

of fact.

0. Electlons 6329
In prosecution for voting violations, ev-

ldence was sufficient to support conviction.

7. Jury c.:13(5)
In prcsecution for voting violations, de-

fondantb constitutional rights were not vio-
lated when Stst€ used its peremptof
rtrikes to exclude all blacks f-m ;ury ,o
nhe.

- Solomon S. Seay, Jr. of Gray, Seay &
Lengford, Montgomery, for appellant. 

-

Charles A. Gnaddick, Atty. Gen., and
Thomas R. Jones, Jr., AssL Atty. Gen., for
appellee.

DoCARLO, Judge.

-The 
grand jury of pickens County indict

ed the appellant and charged her in a ttuee-
count indictment with voting more than
onoo or depoaiting more than one abeentee
bellot. for the same office as her vote, or
csrting illegal or fraudulent absentee Lal-
lotr. This is a companion ease to ilrilder v.
Serce,4Or So.zd f6f (1981).

The indictment in this case, omitting the
formal pafts, rcads as followg:

"The Grand Jury of said County charge
that before the finding of this indiJt-
ment, Maggie S. Bozeman, whose name
to the Grand Jury is otherwise unknown:

..COUNT 
ONE

"did vote morc than once, or did deposit
morc than one ballot for the or" offi""
as her vote, or did votc illegally or fraud-
ulently, in the Democratic primary Run-
off Election of September %,lffli,

..COUNT TWO

"did vote more than once a8 an absentee
voter, or did deposit more than one abeen-
tee ballot for the ssme office or officeo as
her vote, or did cast illegal or fraudulent
ab,sentee ballots, in the Democratic hi-
mary Run-off Election of September 26,
1978,

"COUNT THREE

"did cast iltegal or fraudutent absentee
ballots in the Democratic primary Run-
off Election of September 26, li?g, in
that she did deposit with the pickens
C,ounty Circuit Clerk, absentee ballots
which werc fraudulent and which she
knew to be frauduten! against the peace
and dignity of the State of Atabama,,
After a two-day trial which ended on

November Z, lylg, the appellant was foundguilty as charged in the indictment and
sentenced to four years imprisonment She
gave notice of appeal and filed a rnotion for
a new trial. The motion was auboequently
denied when no testimony or argument was
made on behalf of the motion.

The evidence presented at trial was sub
stantially as follows:

- 
Ms. Janice Tilley's testimony coneraing

absentee voting procedurea was subotantiai:
ly similar to her tcstimony in lUr?der, suprz.
Ms. Tilley stat€d that the week pr"""a'ing
the September 26, l9?g Democratic pri..,i
Run-off Election she gave the appellani
apprcximately twenty-five to thirty abcen-
tee voting applications. Ms. Tilley testified
that the appellant eame to the pickens
County Circuit Clerk,s office requesting the
applicationa on seversl occasions. Ua tn-
ley_ specifically remembered seeing the ap-
pellant on September 26th in thetmpany

of Julia Wilder. Ma. Til
the appellant in a esr <

office at that time, but s

ber whetier appellant he
ballots to the office. Ms.
a number of ballots wr
same addrcss, 601 Tent
west, Aliceville, Alabama

During crcss+xaminati
tified that there is no
applicationr for absent€€
up by the votero themsel

Pickens County Sherif:
tcstimony was substsntia
tcstimony in ITiIder, supl

Mr. Charies Tate tcsti
cerning his participatiol
the voting irregularities
1978 election. In cour
which had been double lr
box, lnvestigator Tate oh
nine of the ballots had l

Paul C. Rollins. Ar par{
tion, Mr. Tate examined t
Circuit Clerk's records I
conesponding applicatior
for the absentee ballots, ,

be the case.

During cnoss-examinati
fied that the. thirty-nine
by Mr. Rollins, had alt be
for the same person.

Mr. Paul L. Rollino, a r
Tuscaloooa, testified that
appellant nine or ten y
was chown sever8l of the
he notarized on Septemb
office in Tuscaloos& Al
had not been signed in hi
was not pensonally acqur

ryr&ru who had signed.
that appellant, Julia Wik
ladiee bmught the baltotr
werc prcsent when he no
further teEtified that he
the appeltant about nota

.. On crocr.examination, 
.

!h": !" adviled the app
apd the other two ladier
liSning the ballots wene

:

{

t
a



BOZEMAN Y. STATE
ctt .+Alr.crp,/lol 52d r'7

Ala. f69

ONE

onoe, or did deposit
for the same office
te illegally or fraud-
ratic Primary Bun-
mber 26, 19?8,

TIYO

onse as an absentee
prc than one abeen-

e office or offices as
illegal or fraudulent
;he Democratic Pri-
rn of Septembbr 26,

IHREE

lreudulent abeent€e
ratic Primary Run-
ember 26, 1978, in
; with the Pickens
k, abcentee ballots
mt and which ghe

t sgainst the peace

Statc of Alabama."

al which ended on
rppellant was found
lhe indictment and
impriaonment. She
rd filed a motion for
)n waa subsequently
ny or ar3ument was
motion.

ed at trial was rub

xtimony concerning
lneE waa substantial-
rny in Mlder, rupra.
the week preceding
Democratic Primary
gave the appellant
ive to thirty absen-

Ma. Tilley t€stified
m€ to the Pickens
lffice requeating the
occasions. Ms. Til-
nred reeing the ap
5th in tJre company

of Julia wilder. Ms. Tilley recalled seeinq his presence. Mr' Rollins t€stified that pri-

,i" "pp"ff-t 
in a car outside the clerk's or to notarizing the ballots he received two

;;i*" that time, but she did not nemem- tclephone calls pertaining to the ballots and

;;;;,h"r appelfint henself returned any that one of the calls was fiom t5e appel-

ilffoO r rfr" ofn*. U.. Tilley noticed that lant. Mr. Rollins ststed that he was paid

"-i"rt"" 
of ballots were mailed to the for his servicee and that he subeequently

lr" "aa**, 
601 Tenth Avenue North- went to Pickens County to find thooe per-

Iot, eri"""ilie, Alabama. sons who had allegedly oigned the ballots'

During cno$tsexamination, Me' Tilley tes- He had the appellant's asEistance on that

tified that there is no requirement that occasion' however' he was surc he did not

applications for abeent€e voting be picked go to Pickens County prior to September 26'

;.byth" voters themselves. r9?8'

Pickens County Sheriff Ircuie Coleman's Mn' Maudine Latham testified that ghe

tcstimony was substsntially the same as his was a regietered voter of Pickena County

tcatimonyin}7ilder,supra.andstatedthatshesignedanapplicationto
Mr. charles rate testified basica[v con- ;:ffHlB#"ffiff:HH,'n: H:

cerning his participation in investigating testified that she never rcceived a ballot to
the voting irregularities in the September' vote.
l9?8 etection. In counting the ballots

which had been double locked in the ballot Mrg Annie B' Phillips' Mrs' Mattie o'

box, Investigator Tate observed that thirty' Gipson and Mr' Nat Dancy's testimony was

nine of the ballots had been notarized by aubstantially the ssme as their teetimony in

Paul C. Rollins. As part of his investiga- ITrTder' supra'

tii, f*fr. Tate examined the Pickens Crcunty Mrs. Janie Richey testified that Julia Wil-

i:i*rit Clerk's rccords to verify whether der helped her to vote abeentee in the Dem-

corresponding applications had Len filed ocratic Primary Run'off Election. She had

for the ausentes uatlots, which he found to no objection to the way Ms. Wilder marked

be the case. her ballot'

During cross+xamination, Mr. Tatc tcsti-

fied that the thirty-nine ballots, notarized

by Mr. Rollins, had all been marked to vote

for the ssme Pemon

Mr. Paul L. Rollins, a notary public fiom
Tugcaloosa, testified that he had known the

appellant nine or ten years. Mr. Rollins

was shown several of the thirty-nine ballots

he notarized on September 23, 1978 in his

office in Tusc8loosa. All of these ballots

had not been signed in his presenec and he

was not pemonally acquainted with those

pemons who had signed. Mr. Rollins atsted

that appellant, Julia Wilder and two other

ladies brought the ballots to his office and

werrc prrcaent when he notarized them. He

further teEtified that he had talked with
the appellant about notarizing the ballots.

On c.ras+xamination, Mr. Rollins atst€d
that he advis€d the appellant, Ms. Wilder
and the other two ladies that the penona
rigning the ballots were euppooed to be in

Mrs. Frcnnie B. Bice testified that she

voted absentee in the Democratic Primary

Run-off Election, and that her application

and ballot came in the mail. She ststcd

that ehe marked her "X'8" without assiat'

ance and then aigned her name on the bal-

lot. Mrs. Rice gave her ballot to Julia

Wilder. She did not know Paul C. Rollina'

Ninety-three-year'old Lou Sommerville

tertified that ahe was a regiatered voter in

Pickens County and that Julia lf ilder as-

sisted her in voting in the Septcmber 26,

l9?8 Democratic himary Run-off Election'

Mrs. Sommerville ststed that she placed her

ballot in the box at the polla. Mn. Som-

merville insist€d that Julia Wilder and her

daughter werc the only pemons who had

ever assist€d her in voting absent€e, and

ahe made her own "X" m8rk. Mrs. Som-

merville did not know Paul C. Rollinr'

Sophia Spann, whoc€ absentee bsllot was

notarized by Paul Rotlins at the appellant'r



170 Ala- 40r SOUTHERN REPORTER,2d SERIES

rcquest, testified that she always voted in
Cochran, Alabama, and that she had never
voted in Aliceville. Ms. Spann stated that
she had never voted an absentee ballot, but
that the appellant had come to her house
and had tslked to her about it. She had
known the appellant all her life. On the
occasion the appellant talked with Ms.
Spann, Ms. Spann tcstified that the follow-
ing conversation occurred:

"She just asked me because my husband
was sick. And she askd me did I want
her to votc for me. And I wouldn't have
had to come over to Aliceville.
"[ said, 'maybe. I don't have to go to
Aliceville. I votes in Cochran.' I haven't
voted in Aliceville in my life. I votes
here. Just started to voting right in
Cochran. That's all I vote." [Em-
phasis added.l

Ms. Spann denied ever making applica-
tion for an absentee ballot, or to having
ever signed her name to one. See l&'lder,
supra, and the attached appendix.

On cross-€xamination, Ms. Spann testi-
fied that she knew Julia l4rilder, but "I
don't know her nothing like I do Maggie."
She denied that Julia Wilder had ever been
to her house and further denied ever having
discussed voting with her on any occasion
and said, "I don't know anything about
that."

Ms. Spann tcstified that the appellant
talked to her before voting time. "She
thought I had to come to Aliceville and she
was helping me. And I told her I didn't
have to go to Aliceville, I votes in Cochran,
and I didn't need the help." M* Spann
next testified that when she went to Coch-
ran to vot€, I voting official told her she
had already voted in Aliceville; "somebody
had voted for me over at the Alice-
ville...."

Frcm the rccord:
'Q. A question like that came up?

'A. Yes, sir. Slhen I walked in, Mrs.
Charlene said, therrc's my mama How
oome you so lat€? . . . . So, she said,
'well, that's all right fumeWy done
votd lor you over at the Alieville,'and
she showed it b me. And she asked me

did I know that writing. I didn't know
that writing.
"Q. Now, who told you that?

'A. The lady down at Cochran, the lady,
Mrs. Charlene, Mr. Hardy Baldwin's wife.
"Q. Did she tell you how she come to
know that you had votcd?

'4. It was in the box at C,ochran. The
paper w8s in the box and he [sicJ got it
and showed it to me and asked me did I
know that handwriting. I didn't know it.
That's all of it." [Emphasis added.]

Mrs. Lucille Harris' testimony was sub
stantially the same as her testimony in I7l-
der, supra.

At the conclusion of Mrs. Harris' testimo-
ny the State rested its case and appellant's
motions to exclude were denied. The de-
fense did not present a s&se. Closing argu-
ments werp had and the trial court prrperly
charged the jury as to the law, therc being
no exceptions taken.

I.
Section 17-?ts-1, Code of Alabama 1975,

is constitutional. ITiIder, supra.

II.
The indictment in this case, which is iden-

tical in pertinent part to the indictment in
Wilder, supra is eonstitutionally valid. Wil-
der, supra.

III.
tl-51 The evidence, although circum-

stantial to a large degnee and confusing in
several instances, was sufficient to support
the jury's verdict. In reviewing the suffi-
ciency of circumstantial evidence the test to
be applied is "'whether the jury might rea-
sonably find that the evidence excluded ev-
ery rcasonable hypothesis except that of
guilt; not whether such evidence excludes
every ressonable hypothesis but guilt, but
whether I jury might rreasonably so con-
clude. (Citations omitted)."' Dolvin v.

St8te,891 So.zd 188, 187 (Ala.f980); Cumbo
v. Statc, 868 So.zd 871, gl4 (AlaCr.App.
1978), cert. denied, 868 So.zd 87I (Ahf9?9).

On review, this cour
the evidence in the
the prcsecution.
*.Zl l?Al2 (AlaCr.
St:te,37 AlaApp. ,

This court must tak,
to the pnooecution a
St8te sll legitimatr
Johnson v. State, I
App.), cerL denied
19?9). Circumstsnt
corded the same w
when it points to tl
party. Luke v. St
Cr.App.19l6). The
timony was for the
Stste, 335 Slr..%l ?A2

t61 Thercfore, r
cording the verdict
tion of @rrectnes!,
sufficient to suppor
convinced that the v
unjuat and was no
weight of the evide
284 Ala 412,% *

t?l Therc is no n
argument that her
werc violated when
emptory striker to r

the jury venire. 1l
tively answered in ,

u.s. ry2, 86 S.Cr
(1966); Thigpn v. ,

?0 So2d 6G0; Ct
So2d 89 (Ala"Cr-A,pp

Xre have seareher

Prcjudicial to appe
none, ther:for.e, the
by the Pickeru Cin

AFFIRIr{ED.

All the Judger cor

-/3\-\IF



IIANDLEY v. CITY OF MONTGOMERY
Gtt. e+ AbCr.AgD" lol So''d l7l

Ala. l7ls

writing. I didn,t knol

old you that?

IrLffih:Tsr
,t"lr"l"X 

she come !o

e box at Coch61 llp
box and he taicl g,ot ii
me and asked me did iiting. I didn't know ii
[Emphasis added.J

is' teatimony war ruL
s her testimony in %l-

f Mrs. Harrie'tegtimo
its cas€ and appellant'r
were denied. The de-
; a caae. Closing argu-
the trial court pruperly
b the law, there being

I.
bde of Alabama l9?5,
Ider, aupra.

I.
his case, which is iden-
t to the indictment in
itutionallyvalid. Wit-

I.
r, although circum-
yree and confusing in
rufficient to aupport

r rcviewing the suffi-
rl evidence the test to
r the jury might rea-
gvidenoe excluded ev-
heais except that of
ch evidence excludes
rthegia but guilt, but
L rcasonably Eo qon-

itt€d).'" Dolvin v.

l7 (AIa.1980); Cumbo
ll, gll (Ala.Cr.App.
So2d 877 (Ala19?9).

*

n reviel, this court is required to consider

."* 
"uia"n." 

in the light most favorsble to

il prosecution. M&rd v' State, 878

H,ff^'l^Y;?,*slJiB;%iti*;
ffi" 

"oort 
must take the evidence favorable

,'it " 
p*ution as true, and accord to the

["t" i,tt legitimate infercnces therefipm'
-r^-ron, ,. St t",8?8 So'2d 1164 (Ala'Cr'

irr.l, ""ta. 
denied, S?8 So.zd 1178 (Ala'

ffij. Circumstantial evidence must be sc-

,a"a tm rame weight as direct evidence

Ii"n it points to the accuged as the guilty

*rny Inke v. Sts,e, 838 So'Zt 488 (Ala'

6i.epp.fgZ0. The truthfulness of the tes-

tirony was for the triers of fact' May v'

3t"t", ru b.zA 2a (Ala.Cr'APP'19?6)'

161 Thercforc, we conclude, after ac-

contling the verdict all rtasonable presumF

iion of comectness, that the evidence was

rufficient to support the verdict' We arc

convinced that the verdict was not wnong or

unjust and was not patently against the

weight of the evidence. Briilges v' Stat'e'

& Ala. 412,25 So.zd 821 (1969)'

IV'

tZl Therc is no merit to appellant'a final

argument that her constitutional rights

wJre violated when the State used its per-

emptory gtrikes to exclude all blacks film
td ju; venire. This question was defini'

tively anrwered in Swain v' Alabama, 880

u.s. 2CI2, 85 s.ct. 821, 18 L.Flt'zd ?59

(1965); Thigpen v. Stztn, '19 Ala'App' 233'

ffO S".Za eSO; CarPentcr v' Stztz' 04
So2d 89 (AlaCr.APP.1980).

We have searched the rccord for emor

prcjudicial to appellant and have found

none, thelefore, the judgment of 'conviction

by the Pickens Circuit Court is affirmed'

AFFIRII{ED.

All the Judgee ooncur.

Ex Parte Meggic BOZEMAN'

(rc Mrrrie S. Bozcmen

v.

' State of Alabama)'

80-63&

Suprcme Court of Alabama'

JulY 2{, 1981'

Certiorari to the Court of Criminal Ap
peals,401 So.zd f67.

BEATTY, Justice.

WRIT DENIED-NO OPTNION.

TORBERT, C. J., and MADDOX, JONES

and SHORES, JJ., concur.

Roger HANDLEY et el'

v.

CITY OF MONTCOMERY.

I Dlv. 195'

Court of Criminal Appeala of Alabama'

March 81, 1981'

Rehearing Denied MaY 6, 1981'

Defendants werc convicted before the

Circuit Crcurt, Montgomery County, Jooeph

D. Phelpo, J., of unlawful assembly and

paraaing without Permiq and they appeal-

ed. Th; Court of Criminal Appeala, DeCar-

lo, J., held that: (1) article of city traffic

code requiring permit for partdes a4 p*
cessionE w8s valid on its face and did not

constitut€ an impermirsible prior r=atraint

of First Amendment freedoms; (2) article

was not unconstitutionally applied againrt

Ku Klux Klansmen arreetcd for demon'