Opinion
CR-18-0612.
05-29-2020
Melissa Reid LANG v. STATE of Alabama.
J.D. Lloyd and Robert Matthews of The Law Office of J.D. Lloyd, LLC, Birmingham, for appellant. Steve Marshall , atty. gen., and Jack W. Willis , asst. atty. gen., for appellee.
J.D. Lloyd and Robert Matthews of The Law Office of J.D. Lloyd, LLC, Birmingham, for appellant.
Steve Marshall , atty. gen., and Jack W. Willis , asst. atty. gen., for appellee.
COLE, Judge.
Melissa Reid Lang appeals her conviction for solicitation to commit murder, a violation of §§ 13A-6-2 and 13A-4-1, Ala. Code 1975, and her resulting sentence of 20 years in prison, which was split to serve 60 months in prison, followed by 36 months' supervised probation.
Facts and Procedural History
Lang was convicted of soliciting William Pickett to kill Pam Nunn, who was Lang's neighbor. Pam and her husband Mark Nunn had known Lang for many years and had been friendly with Lang until Lang's pit bull dog attacked Pam about 22 years before trial. After the dog attack, Pam did not speak to Lang for 10 years, but they eventually became friendly again. According to Pam, Lang began acting strangely in 2012 and became paranoid. Over time, the Nunns and Lang began to have serious issues, particularly involving Lang's new pit bull dog.
In July 2012, Lang stopped at the house of Cameron Guy, another neighbor in the area. Guy testified that Lang told him that she was going to have to "Lizzie Borden" Pam. Guy recounted an old rhyme: "Lizzie Borden had an axe, gave her mother 40 whacks. When she saw what she had done, she gave her mother ... 41." (R. 53.) Guy told Pam about the "Lizzie Borden" comment and told her that he thought Lang was serious. The Nunns became alarmed and filed a police report.
Over the next year, the Nunns had multiple issues with Lang, including a dispute about Lang's dog, during which Lang started screaming that she was going to kill them all. Another day, Mark was driving a golf cart when a motorcycle pulled into Lang's driveway. Lang came out of her house with a pistol, firing at the man on the motorcycle, but also in the same direction as Mark. The Nunns called the police about this incident. Lang also called the Nunns' house and screamed at Mark and sent the Nunns several letters threatening "divine wrath" on the Nunn family.
In July or August 2013, Mark received a telephone call from an old friend, Linda Armstrong, that caused him to telephone the police in fear for the lives of his wife and son. The Blount County Sheriff's Office investigated and spoke with Armstrong and with William Pickett, a known drug dealer. The investigator learned of the alleged solicitation of murder at issue in this case, and determined that the incident occurred in Jefferson County. The case was eventually turned over to the Jefferson County Sheriff's Office.
At trial, Pickett testified that Armstrong and another woman, whom he did not know, came to see him and asked him to go with them to buy crack cocaine. In the car, the other woman (Lang) asked Pickett if he would kill somebody for money. She also said that "money won't be no problem." (R. 186.) Pickett did not believe that Lang was serious, and he believed that both women were high at the time. Lang did not tell Pickett whom she wanted killed and did not say that she wanted to kill a neighbor.
During the investigation, Pickett viewed a photographic lineup and identified the woman in question as Lang. Pickett also identified Lang at trial.
Approximately one month before Lang's trial, Armstrong died from injuries suffered in a car wreck. (R. 230-32.) The trial court excluded the statements Armstrong had made to police. (R. 117, 126.)
Lang did not testify at trial, but before her arrest she was interviewed by Sgt. Chris Sharit of the Jefferson County Sheriff's Office. A recording of the interview was played at trial. In the interview, Lang admitted that she and Armstrong went with Pickett to buy crack cocaine, but she denied that she asked Pickett to murder someone. However, Lang admitted that Armstrong told her that Pickett was a killer, who had killed for $100. She conceded that "maybe I said `I wish they would go away.'" (R. 229, State's Ex. 6.) Lang stated, however, that she did not want the Nunns to die, only to leave her alone. She denied saying she wished they were "gone." She also said she did not remember saying anything about Mark and Pam and that she was only interested in getting "dope" on the night in question. (Id.)
The jury found Lang guilty of solicitation of murder. On September 8, 2016, the trial court held a sentencing hearing and sentenced Lang to 20 years' imprisonment, then split the sentence and ordered her to serve 60 months in prison, followed by 36 months' supervised probation.
Lang filed a motion for a new trial, arguing, among other things, that the elements of solicitation for murder were not proven beyond a reasonable doubt. In a supplement to Lang's motion for new trial, Lang also asserted that the State failed to prove that venue was proper in Jefferson County, that the State's evidence was insufficient to support a conviction, and that the testimony of the person she had allegedly solicited to commit the murder had not been corroborated. After a series of continuances, the motion for new trial and supplement thereto were denied by the circuit court. Lang appealed.
This Court dismissed Lang's initial appeal as untimely. Lang v. State, (No. CR-17-1093, Dec. 19, 2018) (Ala. Crim. App. 2018). Because Lang's original motion for a new trial was denied by operation of law on July 31, 2017, Lang's supplement to the motion for a new trial, which was filed on July 19, 2018, was not timely, and issues raised solely in that supplement are not properly before this Court. Lang later filed a petition pursuant to Rule 32.1(f), Ala. R. Crim. P., requesting an out-of-time appeal, which was granted. This appeal followed.
Standard of Review
"`In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution.' Faircloth v. State, 471 So.2d 485, 489 (Ala. Cr. App. 1984), affirmed, Ex parte Faircloth, [471] So. 2d 493 (Ala. 1985).
"`....
"`"The role of appellate courts is not to say what the facts are. Our role, ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury." Ex parte Bankston, 358 So.2d 1040, 1042 (Ala. 1978). An appellate court may interfere with the jury's verdict only where it
reaches "a clear conclusion that the finding and judgment are wrong." Kelly v. State, 273 Ala. 240, 244, 139 So.2d 326 (1962).'"
White v. State, 546 So.2d 1014, 1017 (Ala. Crim. App. 1989).
Discussion
On appeal, Lang argues that she was entitled to a judgment of acquittal because, she says, the State did not present sufficient evidence to support her conviction and did not corroborate the testimony of the person allegedly solicited to commit the crime, as required by § 13A-4-1(a), Ala. Code 1975.
Section 13A-4-1(a) provides:
"A person is guilty of criminal solicitation if, with the intent that another person engage in conduct constituting a crime, he solicits, requests, commands or importunes such other person to engage in such conduct.
"A person may not be convicted of criminal solicitation upon the uncorroborated testimony of the person allegedly solicited, and there must be proof of circumstances corroborating both the solicitation and the defendant's intent."
In Kimbrough v. State, 544 So.2d 177, 179 (Ala. Crim. App. 1989), this Court explained the elements of this crime:
"The two elements of the crime of solicitation are: first, the solicitation and, second, the specific intent that another person engage in the conduct constituting a crime. In other words, given the requisite intent, the crime is in the communication to another to commit a crime; no resulting action is necessary by the person being solicited. People v. Burt, 45 Cal.2d 311, 288 P.2d 503 (1955); People v. Berger, 52 N.Y.2d 214, 418 N.E.2d 1291, 437 N.Y.S.2d 272 (1981).... The offense is complete when the solicitation is made. It does not matter that the offense is never accomplished or that no overt act towards accomplishment of the solicited offense is made."
(Emphasis added.)
In this case, Lang was indicted for soliciting Pickett to murder Pam. To prove that crime, the State was required to prove that Lang solicited Pickett to murder Pam and that Lang intended that Pickett commit that particular crime. Lang argues that Pickett's testimony was not sufficient to establish that a solicitation occurred or that she had the requisite intent to have Pam killed. The State presented evidence indicating that Lang solicited Pickett to kill someone, but no evidence indicating that she solicited Pickett to kill Pam. According to Pickett, Lang did not explicitly or implicitly identify whom she wanted killed. Pickett testified that Lang asked him if he would kill somebody, but Pickett did not know whom she wanted killed and he did not take her question seriously. The State cites McClendon v. State, 813 So.2d 936, 948 (Ala. Crim. App. 2001), for the proposition that solicitation does not require that the person solicited be informed of the particular person to be killed. But McClendon does not stand for that proposition. Instead, the solicitee in McClendon testified that the defendant asked him "if he would be interested in killing Yvonne," whom the solicitee knew to be McClendon's wife. McClendon, 813 So. 2d at 939. The testimony of the corroborating witnesses was less direct, referring to funerals and "doing a job," but those witnesses also understood the victim to be the defendant's wife. 813 So. 2d at 948. McClendon is clearly distinguishable from the facts in this case. We conclude that a request that Pickett kill someone is too indefinite to constitute a solicitation to murder Pam. Lang also argues that the State did not corroborate Pickett's testimony. This issue was raised in Lang's untimely supplement to her motion for a new trial, but it was properly raised and the issue preserved for appellate review in Lang's oral motion for a judgment of acquittal at the close of the evidence at trial when Lang's attorney stated:
"They haven't—I mean, if we get back to the rule under the solicitation statute. His testimony alone cannot be used to convict.
"They haven't given you any other corroboration that happened out there on July 20th of 2013. There is no other corroboration."
(R. 262.)
Again, § 13A-4-1(a), Ala. Code 1975, provides:
"A person may not be convicted of criminal solicitation upon the uncorroborated testimony of the person allegedly solicited, and there must be proof of circumstances corroborating both the solicitation and the defendant's intent."
In Kimbrough v. State, supra, this Court held that § 13A-4-1(a) requires corroboration of both the solicitation itself and the defendant's intent. The commentary to § 13A-4-1 states:
"Since solicitation makes criminal a communication that is likely to be within the peculiar knowledge of only several persons, more evidence is required than just the testimony of the person allegedly solicited, and there must be circumstances corroborative of both the making of the solicitation and that its making was in earnest."
See also Kimbrough, 544 So. 2d at 179 (quoting commentary). This Court has construed the corroboration requirement of § 13A-4-1(a) as being similar to the corroboration of accomplice testimony, as provided in § 12-21-222, Ala. Code 1975.
The method for determining whether sufficient corroboration exists is to "eliminat[e] the testimony given by the [solicitee] and examin[e] the remaining evidence to determine if there is sufficient incriminating evidence tending to connect the defendant with the commission of the offense." Kimbrough, 544 So. 2d at 181 (citations omitted). Corroborative evidence does not have to be strong or sufficient to support a conviction, but it must link the defendant to the crime. However, the corroborative evidence must be of a substantive character, must be inconsistent with the innocence of the accused, and must do more than raise a suspicion of guilt. Williams v. State, 72 So.3d 721, 722-24 (Ala. Crim. App. 2010). Williams also held as follows:
"`"`"`The tendency of the corroborative evidence to connect [the] accused with the crime, or with the commission thereof, must be independent, and without the aid of any testimony of the accomplice; the corroborative evidence may not depend for its weight and probative value on the testimony of the accomplice, and it is insufficient if it tends to connect [the] accused with the offense only when given direction or interpreted by, and read in conjunction with the testimony of the accomplice.' 23 C.J.S. Criminal Law, Section 812(b)(1961)."'"'"
Williams, 72 So. 3d at 723 (quoting Ex parte McCullough, 21 So.3d 758, 761-62 (Ala. 2009), quoting in turn Ex parte Stewart, 900 So.2d 475, 477-78 (Ala. 2004), quoting in turn Ex parte Hunt, 744 So.2d 851, 858 (Ala. 1999), quoting in turn Mills v. State, 408 So.2d 187, 191-92 (Ala. Crim. App. 1981)).
Based upon the foregoing requirements, the corroborative evidence in this case did not sufficiently link Lang to the crime and did not establish that a crime was committed. Absent Pickett's testimony, there was no evidence, circumstantial or otherwise, of a criminal solicitation to kill Pam. The State presented evidence of long-standing animosity between Lang and the Nunns and of Lang's prior threats and outbursts of anger directed toward the Nunns. Those prior events do not, however, corroborate that Lang solicited Pickett to murder Pam. "Proof of a defendant's motive, alone, is not sufficient to corroborate an accomplice's testimony and to connect the defendant to the crime." Johnson v. State, 120 So.3d 1130, 1219-20 (Ala. Crim. App. 2009) (quoting Ex parte Bullock, 770 So.2d 1062, 1067 (Ala. 2000)).
Likewise, Lang's comments made in the interview with Sgt. Sharit are not sufficient to corroborate Pickett's testimony. Although Lang admitted that she may have said that she "wish[ed] they would go away," she denied saying she wished they were "gone." She also told Sgt. Sharit that she did not recall mentioning Mark and Pam during the car ride when the solicitation to commit murder allegedly occurred. Those comments do not link Lang to a criminal solicitation unless they are interpreted in light of Pickett's testimony. Lang's admitted presence in the vehicle with Pickett on the night in question may create a suspicion of Lang's guilt, but a suspicion will not sustain a conviction. Furthermore, the testimony of all other witnesses, including Cameron Guy, Lynn Wall, Mark Nunn, Pam Nunn, and Chad Long, in no way corroborated Pickett's testimony that Lang solicited him to murder Pam. Accordingly, we find that, based upon the State's failure to corroborate the testimony of the individual Lang allegedly solicited, the evidence was insufficient to support Lang's conviction.
Conclusion
For these reasons, the judgment is reversed and a judgment is rendered in Lang's favor.
REVERSED AND JUDGMENT RENDERED.
Kellum and Minor, JJ., concur. McCool, J., dissents, with opinion. Windom, P.J., joins in dissent.
McCOOL, Judge, dissenting.
In this case, the majority opinion essentially holds that a person who solicits another person to commit murder may do so with impunity if the solicitation is vague and the testimony of the person solicited is not admitted by the solicitor or overheard by a third party who can corroborate the specific language and terms of the solicitation. Because I do not believe that a potential murderer should be absolved of liability simply because she is careful in her speech and private in her solicitation, I respectfully dissent.
This case involves a years-long feud between the appellant, Melissa Reid Lang, and her neighbors, Mark Nunn and Pam Nunn. The majority opinion summarizes the relevant facts of this case as follows:
"Lang was convicted of soliciting William Pickett to kill Pam Nunn, who was Lang's neighbor. Pam and her husband Mark Nunn had known Lang for many years and had been friendly with Lang until Lang's pit bull dog attacked Pam about 22 years before trial. After the dog attack, Pam did not speak to Lang for 10 years, but they eventually became friendly again. According to Pam, Lang began acting strangely in 2012 and became paranoid. Over time, the Nunns and Lang began to have serious issues, particularly involving Lang's new pit bull dog.
"In July 2012, Lang stopped at the house of Cameron Guy, another neighbor in the area. Lang told Guy that she was going to have to `Lizzie Borden' Pam. Guy recounted an old rhyme: `Lizzie Borden had an axe, gave her mother 40 whacks. When she saw what she had done, she gave her mother ... 41.' (R. 53-54.) Guy told Pam about the `Lizzie Borden' comment and told her that he thought Lang was serious. The Nunns became alarmed and filed a police report.
"Over the next year, the Nunns had multiple issues with Lang, including a dispute about Lang's dog, during which Lang started screaming that she was going to kill them all. Another day, Mark was driving a golf cart when a motorcycle pulled into Lang's driveway. Lang came out of her house with a pistol, firing at the man on the motorcycle, but also in the same direction as Mark. The Nunns called the police about this incident. Lang also called the Nunns' house and screamed at Mark, and sent the Nunns several letters threatening "divine wrath" on the Nunn family.
"In July or August 2013, Mark received a telephone call from an old friend, Linda Armstrong, that caused him to telephone the police in fear for the lives of his wife and son. The Blount County Sheriff's Office investigated and spoke with Armstrong and with William Pickett, a known drug dealer. The investigator learned of the alleged solicitation of murder at issue in this case, and determined that the incident occurred in Jefferson County. The case was eventually turned over to the Jefferson County Sheriff's Office.
"At trial, Pickett testified that Armstrong and another woman, whom he did not know,1 came to see him and asked him to go with them to buy crack cocaine.2 In the car, the other woman (Lang) asked Pickett if he would kill somebody for money. She also said that `money won't be no problem.' (R. 186.) Pickett did not believe that Lang was serious, and he believed that both women were high at the time. Lang did not tell Pickett whom she wanted killed and did not say that she wanted to kill a neighbor.
"Lang did not testify at trial, but before her arrest she was interviewed by Sgt. Chris Sharit of the Jefferson County Sheriff's Office. A recording of the interview was played at trial. In the interview, Lang admitted that she and Armstrong went with Pickett to buy crack cocaine, but she denied that she asked Pickett to murder someone. However, Lang admitted that Armstrong told her that Pickett was a killer, who had killed for $100. She conceded that `maybe I said "I wish they would go away."' (R. 229, State's Ex. 6.) Lang stated, however, that she did not want the Nunns to die, only to leave her alone. She denied saying she wished they were `gone.' She also said she did not remember saying anything about Mark and Pam and that she was only interested in getting `dope' on the night in question. (Id.)
"_______________________
"1 During the investigation, Pickett viewed a photographic lineup and identified the woman in question as Lang. Pickett also identified Lang at trial.
"2 Approximately one month before Lang's trial, Armstrong died from injuries suffered in a car wreck. (R. 230-32.) The trial court excluded the statements Armstrong had made to police. (R. 117, 126.)"
359 So. 3d at 285-86.
There are basically two questions that must be answered to resolve this appeal: (1) Whether there was sufficient evidence that Lang's conduct rose to the level of criminal solicitation and, if it did, (2) whether there was sufficient corroboration of the solicitation. As the majority opinion notes, in any sufficiency-of-the-evidence analysis, this Court must accept all of the State's evidence as true and must afford the State every reasonable inference from the evidence. Cooner v. State, 272 So.3d 206, 226 (Ala. Crim. App. 2018). Applying this deferential standard, I would answer both questions in the affirmative.
The first question is whether the alleged solicitation in this case constituted the offense of criminal solicitation. Under Alabama law, "[a] person is guilty of criminal solicitation if, with the intent that another person engage in conduct constituting a crime, he solicits, requests, commands or importunes such other person to engage in such conduct." § 13A-4-1(a), Ala. Code 1975.
In this case, Pickett testified as follows regarding what occurred when Lang and Armstrong approached him to purchase drugs:
"Q. Okay. Did [Lang and Armstrong] want you to get them something?
"A. They wanted me to get them something. I told them, I don't do that.
"Q. They wanted you to get them some — do you know what they wanted?
"A. They wanted some crack-cocaine.
"Q. Okay. And you told them you don't do that anymore?
"A. Uh-huh.
"Q. Did y'all go anywhere?
"A. We went to the Shell Station or the Jet-Pep down on Pinson Valley Parkway and got me some beer.
"....
"Q. Okay. Now, at some point, when y'all were in the car, did the lady that you didn't know, did [Lang] make any statements to you?
"A. Well, she asked me would I kill somebody.
"Q. She asked you if you would kill somebody —
"A. Yeah.
"Q. Did that conversation just come up out of the blue?
"A. I don't — I don't know where it come from.
"Q. Okay. So she asked you if you would kill somebody?
"A. Yes, sir.
"Q. What was your response to that?
"A. I said, no, I don't do that.
"....
"Q. Did she ask you more than one time?
"A. Nope —
"Q. If you'd kill somebody for her?
"A. No.
"Q. She didn't. Once you said no, she left it alone or she kept asking?
"A. She told me, `Money won't be no problem.'
"I said, `I don't do that.'
"....
"Q. What was she offering you money for?
"A. To kill somebody.
"Q. Okay. Do you remember who she wanted to be killed?
"A. No, not really.
"Q. You can't remember. So you weren't familiar with the person she wanted killed?
"A. No, ma'am.
"Q. Was [Armstrong] in the car when this conversation took place?
"A. Yes, ma'am. She was in the car.
"Q. Okay. After the individual asked you, would you kill somebody, what did y'all do next?
"A. We went back up on the hill and I got out the car.
"Q. Okay. Did she ever say how she wanted the person to die?
"A. No, ma'am.
"Q. Did she ever say what she wanted you to do to kill the person?
"A. No, ma'am.
"Q. Okay. Did she ever mention using a gun?
"A. No, ma'am. I ain't seen her since."
(R. 184-88.)
As evidenced by the foregoing, Pickett unequivocally testified that Lang asked him if he would "kill somebody" and that Lang offered him remuneration in exchange for the murder. Thus, although Pickett did not know or could not recall who the victim was to be, his testimony clearly indicated that Lang "solicit[ed], request[ed],... or importune[d]" Pickett to murder someone. § 13A-4-1(a). If such facts do not constitute the very definition of solicitation to commit murder, then I do not know what facts would.
Furthermore, on cross-examination, Pickett testified as follows:
"Q. Now, I want to make sure I understand, Mr. Pickett. My client, out of the clear blue, didn't know you from an Adam's house cat?
"A. No.
"Q. Just said will you kill somebody for her?
"A. Yes. That's exactly what she said.
"Q. All right. And she didn't tell you who?
"A. No, sir.
"Q. All right. I mean, she didn't say a neighbor, she didn't say anybody?
"A. No, sir.
"....
"Q. ... All right. The person that asked you about killing someone, they never told you they'd give you an X number of dollars, did they?
"A. No. She said money wouldn't be no problem."
(R. 199-200.) That testimony bolstered, rather than undercut, Pickett's testimony regarding Lang's solicitation because at no point did Pickett waver from his testimony that Lang asked him to kill someone. To the contrary, Pickett emphatically declared "[t]hat's exactly what she said" in response to defense counsel's question about whether Lang asked him to kill someone. Pickett also consistently maintained that, although he and Lang never discussed the detailed terms of the arrangement, Lang clearly stated to him that money was no object.
Of course, Pickett also unequivocally testified that Lang did not identify the victim of the solicited murder, but that fact should have little, if any, bearing on the resolution of this appeal. It is doubtful that anyone who has determined to hire a hit man will spell out the terms of the contract as an attorney would in a written document, and especially at the first meeting. More likely, the solicitor will dance around the issue, feeling her way through the initial meeting with the potential hit man until she is comfortable that he is the "real deal" and will not reveal the solicitation to law enforcement officers. In fact, it is likely that the solicitation will continue to be vague, even beyond the initial meeting, while the solicitor "sizes up" the solicitee. Nevertheless, when it is clear that the solicitor knows who the intended victim is, as it is in this case, the mere fact that the solicitor does not communicate that information to the solicitee does not prohibit a conviction for solicitation of murder. I recognize that Pickett testified that he "believe[d] [Lang] wasn't serious" (R. 203) when she asked him if he would kill someone, but it is the mental state of the solicitor that is the controlling factor, not the solicitee's belief regarding the solicitor's mental state. I suspect that most people who intend to hire a hit man to kill another person will likely approach the initial conversation in a way that affords plausible deniability in any future prosecution should the hit man decline the offer to kill. Therefore, even if a person solicits a criminal offense with the utmost sincerity, it would behoove her to do so under the guise of jest so that she could later claim she was not serious. Furthermore, the mens rea element of criminal solicitation — intent — is rarely susceptible to proof by direct evidence, and, thus, intent generally must be proven from the circumstances. Cooner, 272 So. 3d at 227.
In this case, there was evidence indicating that Lang told Cameron Guy, another neighbor, she wanted to "Lizzie Borden" Pam, which was a reference to a woman who was suspected of axing her own parents, and that Guy believed Lang was serious. There was also evidence indicating that Lang sent the Nunns threatening letters and that she told the Nunns during a dispute over a dog that she was going to kill them. In addition, there was evidence indicating that Lang fired a gun in Mark's direction. Such evidence establishes a history of violence between Lang and the Nunns that provided circumstantial evidence indicating that Lang's solicitation of Pickett was serious, i.e., that Lang intended for Pickett to kill Pam if he was willing to do so.
Because there was unequivocal testimony indicating that Lang solicited Pickett to kill Pam and because Lang's intent can be inferred from the circumstances, I would hold that there was sufficient evidence to find Lang guilty of criminal solicitation as that offense is defined by § 13A-4-1(a).
I also disagree with the conclusion in the majority opinion that there was insufficient corroboration of Lang's criminal solicitation. Under Alabama law, "a person may not be convicted of criminal solicitation upon the uncorroborated testimony of the person allegedly solicited, and there must be proof of circumstances corroborating both the solicitation and the defendant's intent." § 13A-4-1(a), Ala. Code 1975. Thus, as the majority opinion notes, "`[t]he two elements of the crime of solicitation are: first, the solicitation and, second, the specific intent that another person engage in the conduct constituting a crime.'" 359 So. 3d at 287 (quoting Kimbrough v. State, 544 So.2d 177, 179 (Ala. Crim. App. 1989)).
In this case, as I have already noted, the circumstances of the history between Lang and the Nunns were sufficient evidence of Lang's intent that Pickett engage in criminal conduct, i.e, the murder of Pam. The majority opinion holds, however, that there was no evidence corroborating the solicitation itself. I believe that there was.
Sgt. Chris Sharit of the Jefferson County Sheriff's Office testified that he interviewed Lang before her arrest, and a recording of that interview was played at trial. During the interview, Lang admitted the following corroborative facts: (1) that she was in the car with Pickett on the occasion in question; (2) that, as Pickett stated, she and Armstrong were going to purchase cocaine; (3) that she had a conversation with Armstrong before the car ride in which Armstrong told her that Pickett was a killer and that he had previously killed someone for $100; and (4) that she had a conversation with Pickett about the Nunns in which she conceded that she wished the Nunns would "go away." Although Armstrong was present at the time of the alleged solicitation, she died before trial, so at the time of trial the only two participants in that conversation who were available to testify were Pickett and Lang. Certainly, testimony from a third party — in this case Armstrong — who actually heard the conversation would be direct evidence corroborating the solicitee's testimony. However, circumstantial evidence may also be used to corroborate such testimony. Although Armstrong was unable to testify at trial, as set forth in the statement of the relevant facts in the majority opinion, there was evidence indicating that shortly after the alleged solicitation, Mark received a telephone call from Armstrong that caused him to telephone the police in fear for the lives of his wife and son. This telephone call indicates that Armstrong believed that the solicitation was a real threat to the Nunns.
Here, Lang's statements provided direct corroboration that her conversation with Pickett occurred and that she and Pickett discussed the Nunns during that conversation. Of course, Lang refused to go so far as to concede that she asked Pickett to kill Pam — as I would anticipate most people accused of criminal solicitation would refuse to do. However, Lang did concede that she knew Pickett had previously killed someone for remuneration and that she told Pickett she wished the Nunns would "go away." In my opinion, although Lang would not go so far as to admit that she expressly asked Pickett to kill Pam, her statements constituted circumstantial evidence from which the jury could have reached such a conclusion, especially when considering that this Court affords the State every reasonable inference from the evidence. Cooner, supra. Granted, the jury could have conversely found that Lang's statements did not rise to the level of criminal solicitation, but therein lies my point. In a sufficiency-of-the-evidence analysis, the question is not whether this Court would have reached a different result if sitting as jurors in this case, and the relative strength or weakness — i.e., the weight —of the evidence is not under consideration. Rather, the question is whether, accepting all of the State's evidence as true and affording the State every reasonable inference therefrom, there was sufficient evidence to support the jury's verdict. Cooner, supra. In this case, I would hold that there was sufficient, corroborated evidence that Lang committed the offense of criminal solicitation; thus, I would not reverse the jury's verdict, as it is well settled that an appellate court will not disturb a jury's verdict so long as the verdict is supported by sufficient evidence. See Boyd v. State, 699 So.2d 967, 970 (Ala. Crim. App. 1997) ("Where the evidence raises questions of fact for the jury, which, if believed, would be sufficient to sustain a conviction, this court will not disturb the judgment based on the jury verdict.").
I do not believe that a person who is cagey and careful in her initial approach to a potential hit man in an effort to shield herself from culpability, but who nonetheless is found guilty by a duly impaneled jury of her peers, should be set free by this Court simply because the initial solicitation does not name the victim or spell out detailed terms. I also believe that there was sufficient corroboration of Lang's solicitation of Pickett to commit murder in this case. Therefore, I respectfully dissent.
Windom, P.J., concurs.