Giddens v. State

565 So. 2d 1277, 1990 Ala. Crim. App. LEXIS 907
CourtCourt of Criminal Appeals of Alabama
DecidedJune 29, 1990
StatusPublished
Cited by13 cases

This text of 565 So. 2d 1277 (Giddens v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Giddens v. State, 565 So. 2d 1277, 1990 Ala. Crim. App. LEXIS 907 (Ala. Ct. App. 1990).

Opinion

565 So.2d 1277 (1990)

Joanne GIDDENS
v.
STATE.

3 Div. 830.

Court of Criminal Appeals of Alabama.

June 29, 1990.
Rehearing Denied August 3, 1990.

*1278 David B. Byrne, Jr. and Scott R. Talkington, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and Venessa Campbell, Asst. Atty. Gen., for appellee.

TAYLOR, Presiding Judge.

The appellant, Joanne Giddens, was convicted of theft in the first degree, a violation of § 13A-8-3 Code of Alabama 1975. She was sentenced to five years' imprisonment, which was suspended, and was placed on supervised probation. She was ordered to pay restitution in the amount of $16,076.77.

The evidence showed that the appellant was Comptroller of Goodwill Industries of Central Alabama from October 1982 to May 1984. During that period $16,076.77 was misappropriated. Ms. Calloway, an employee working as a bookkeeper under the supervision of the appellant, testified that she and the appellant began misappropriating funds from the sale of salvage metal and from delivery fees. She said that the appellant hid the misappropriation of funds by tampering with the revenue books. In 1984, the appellant was promoted. Her old job was filled by Ms. Nan Holt, and shortly thereafter, Nan Holt was replaced by Ms. Joanne Wilmore. Ms. Wilmore discovered the alterations to the revenue books and brought them to the attention of the executive director, Col. John Walter. An investigation was then initiated. Janice Heacock, a certified public accountant who had worked auditing Goodwill Industries books since 1976, performed a special audit on the revenue books and complied a special report on her findings.

*1279 I

The appellant argues that the report prepared by Janice Heacock should not have been allowed into evidence. She gives three reasons why she says the evidence was inadmissible. Initially, she argues that the evidence did not fall within the business records exception to the hearsay rule. See § 12-21-43, Code of Alabama 1975. That section reads:

"Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event shall be admissible in evidence in proof of said act, transaction or event if it was made in the regular course of any business and it was the regular course of the business to make such memorandum or record at the time of such act, transaction, occurrence or event, or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. The term, `business' shall include a business, profession, occupation and calling of every kind."

As our Supreme Court stated in Ex parte Frith, 526 So.2d 880 (Ala.1987), the requirements necessary to meet the business records exception to the hearsay rule are:

"1) that the record or writing was made as a memorandum or record of an act, transaction, occurrence, or event;
"2) that the record was made in the regular course of business; and
"3) that it was the regular course of business to make such a memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter."

Ex parte Frith, 526 So.2d at 882.

In the instant case, the summary report compiled by Janice Heacock was made only after she had been instructed by the board of Goodwill Industries to prepare such an audit. The report was based on a "special audit" performed by Ms. Heacock, and Ms. Heacock was not a regular employee of Goodwill Industries. Thus, it would not fall within the business records exception. However, the report would clearly be admissible as a summary of voluminous materials prepared for the aid of the jury.

A similar situation arose in Kersh v. State, 26 Ala.App. 15, 153 So. 284 (1933), cert. denied, 228 Ala. 364, 153 So. 287 (1934). In Kersh, the defendant, who was clerk of the City of Tuscaloosa, was accused of fraudulently taking money for his own use. After he resigned, the books were audited and $16,000 was found missing.

"The main insistence of appellant is that the court erred in permitting the witness Jamison to testify as to conclusions arrived at by him through calculations made from the books kept by defendant when he had not examined those books item by item, but in some instances had taken totals made by other auditors in reconciling balances."

Kersh, 26 Ala.App. at 16, 153 So. at 285-86.

As the Court stated in Kersh:

"An accountant who has examined certain books and schedules which have been introduced in evidence may state the results of his computations therefrom, [citation omitted]. In this state the rule is stated to be: `In the cases where it is impracticable or impossible for the court to make an examination of a large number of instruments, entries, or records, a competent witness may make such examination and present his conclusions thereon to the court.'"

Kersh, 26 Ala.App. at 16, 153 So. at 286.

The Court in Kersh went on further to say that this kind of case is the typical situation where the above stated rule applies. It would be impractical to expect the jury to wade through all the materials that someone with a specialized degree is qualified to do.

As stated in McElroy's Alabama Evidence:

"It sometimes occurs that a fact to be proven requires an inspection and compilation of numerous and voluminous documents, such that inspection and compilation *1280 by the judge or jury at the trial would be unreasonable, impracticable or impossible. Under these circumstances, a qualified witness, who has made an examination of such documents, may state the result of his computations therefrom if, but only if, the documents are made available to the opponent for his inspection. The witness, therefore, may testify to his summary of voluminous records without having to produce the original or account for their loss."

C. Gamble, McElroy's Alabama Evidence § 220.01 (3rd ed. 1977). See United States v. Pollack, 417 F.2d 240 (5th Cir.1969), cert. denied, 397 U.S. 917, 90 S.Ct. 924, 25 L.Ed.2d 98 (1970); United States v. Prevatt, 526 F.2d 400 (5th Cir.1976); Bowmar Instrument Corp. v. Fidelity Electronics, Ltd., Inc., 466 So.2d 344 (Fla.Dist.App. 1985) (Florida has a statute which specifically deals with the introduction of summaries of voluminous materials).

Many states, including Florida, provide that notice must be given to the other party before a summary of voluminous material is admissible. In the instant case there is no argument that notice was not given. The special audit summary prepared by Ms. Heacock was admissible under the voluminous records exception to the best evidence rule. See McElroy's Alabama Evidence and cases cited above.

The appellant further argues that the admission of the report prepared by Ms. Heacock violated her Sixth Amendment right to confrontation. Appellant bases this argument on the fact that the report was based in part on records transcribed by Ms. Doreatha Calloway. As in the Kersh

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Bluebook (online)
565 So. 2d 1277, 1990 Ala. Crim. App. LEXIS 907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giddens-v-state-alacrimapp-1990.