AlaFile E-Notice

01-CC-2017-000010.00
Judge: SIBLEY G. REYNOLDS
To: MILES MATT HART
mhart@ago.state.al.us

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT CRIMINAL COURT OF JEFFERSON COUNTY,
ALABAMA

STATE OF ALABAMA V. HENDERSON CHARLES TODD

01-CC-2017-000010.00

The following matter was FILED on 9/20/2017 2:36:10 PM

C001 STATE OF ALABAMA

STATE OF ALABAMA'S MOTION FOR DEPOSITION OF WITNESS
[Filer: HART MILES MATTHEW]

Notice Date: 9/20/2017 2:36:10 PM

ANNE-MARIE ADAMS
CIRCUIT COURT CLERK
JEFFERSON COUNTY, ALABAMA
JEFFERSON COUNTY, ALABAMA
716 N. RICHARD ARRINGTON BLVD.
BIRMINGHAM, AL, 35203

205-325-5355
anne-marie.adams@alacourt.gov
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ELECTRONICALLY FILED
9/20/2017 2:36 PM
01-CC-2017-000010.00
CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
ANNE-MARIE ADAMS, CLERK
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA

STATE OF ALABAMA, )
)
v. ) CASE NO. CC-2017-000010
)
CHARLES TODD HENDERSON, )
)
Defendant. )

State of Alabamas Motion for Deposition of Witness

Pursuant to Alabama Rule of Criminal Procedure 16.6 and Alabama Code 12-21-

264, the State of Alabama moves this Court for an order granting a videotaped deposition

of Yareima Carmen Valecillos Akl, a material witness in the above-styled case. In support

of the States motion, the State contends that, due to the exceptional circumstances of the

case, it is in the interest of justice that Akls testimony be taken and preserved for trial. Ala.

R. Crim. P. 16.6(a).

Introduction

Hendersons perjury trial will center on whether, as a guardian ad litem in Akls

divorce, he and Akl deceived her attorney, her husband, and the Court about the nature of

their relationship and whether Henderson could impartially perform the duties of a GAL.

In the nine months since Henderson was indicted, Akl has secured a divorce, and pending

a possible appeal by her ex-husband, exhausted Alabamas sixty-day waiting period to

marry. Upon information and belief, Henderson and Akl have continued their relationship,

and may soon be free to marry each other on the eve of Hendersons trial. To be clear, the

State has no objection or interest in whether or not Henderson and Akl marry, but the State

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has a fundamental interest in pursuing justice and a fair trial. The absence of any testimony

from a key witness in Hendersons trial will cause an injustice to the State and can be

avoided if her deposition is taken before trial and preserved. Accordingly, the State seeks

an order for an immediate deposition of Akl, based on the reasons presented below.

I. Alabama law permits deposing a witness before trial on good cause and possible
unavailability.

Alabama law provides that upon a motion by a party, or the court itself, the court

may order the deposition of a witness in a criminal prosecution if good cause is shown and

the witness is or may be unavailable for trial for medical reasons or other exceptional

circumstances. Ala. Code 12-21-264 (emphasis added). The statute holds that a court

shall consider the following factors:

the age of the [witness], the potential unavailability of the [witness] for trial,
the nature of the offense, the nature of testimony that may be expected, and
the possible effect that testimony in person at trial may have on the [witness],
along with any other relevant matters that may be required by Supreme Court
rule.

Ala. Code 12-21-264. All six factors weigh in favor of ordering the deposition.

While two factors provide only minimal guidance, they still support the States

position. First, Akls age is not an impediment, and no evidence suggests that she is not

sufficiently mature to be deposed. Second, the possible effect that testifying in person at

trial would have on Akl is largely irrelevant because the evidence indicates she would

likely make herself unavailable for trial. See Sec. A, infra. And in any event, this factor

appears to be geared to protecting witnesses, particularly young witnesses, who may be ill-

suited to testifying in a trial.

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A. Good cause exists because the relevant factors favor the States position.

Moving to the remaining factors, good cause exists because they favor the States

position. First is the potential unavailability of Akl. Reliable evidence tends to show that

Akl is or may be unavailable for trial because she may soon be free under Alabama law to

marry Henderson and invoke the marital privilege. Ala. R. Evid. 804(a)(1) (providing that

a witness is unavailable if exempted by a court ruling on the ground of a privilege from

testifying); see also Doc. 37, States Response in Opposition to Defendants Motion to

Dismiss (detailing disputed issues of material fact that tend to show Akl and Henderson

have a very close relationship that began before Henderson became the guardian ad litem

in Akls divorce case, continued through his appointment and removal, and remained

ongoing when Henderson allegedly perjured himself). When Henderson was indicted, Akl

was going through a divorce. After the circuit court granted a divorce on July 6, Akl entered

a sixty-day period under which she could not marry any person other than her former

spouse. Ala. Code 30-2-10. That prohibition extends beyond sixty days if one party

appeals the divorce. In Akls case, the trial court denied her ex-husbands motion to vacate

the decree, and the Alabama Court of Civil Appeals rejected his mandamus petition on

September 15. Thus, absent an appeal of the mandamus denial to the Supreme Court, Akl

will be permitted to marry Henderson, invoke the marital privilege, and thwart the court

and the jury from hearing material testimony in the States criminal trial against Henderson.

Second is the nature of the criminal offense. A perjury charge, unlike other crimes

that may involve physical or forensic evidence, depends critically on witness testimony to

explain the exact false testimony and the surrounding circumstances. Under Alabama law,

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the State must prove the falsity of the defendants testimony by more than one witness

and strong corroboration from surrounding circumstances. Murry v. State, 367 So. 2d 989

(Ala. Crim. App. 1978). Likewise, [a] witness to the corpus delicti of perjury is one who

has independent knowledge of the facts to which the defendant has sworn and who testifies,

based on that independent knowledge, that the defendant has perjured himself. Murry,

367 So. 2d at 989 (citing Oglesby v. State, 337 So. 2d 381 (Ala. 1976)). Because of these

obligations, the testimony of each and every key witness is critical so that the jury is

informed of the basis for the charged offense and can weigh the evidence and determine

whether the crime occurred. There are some cases where the absence of a key witness can

be replaced with tangible physical evidence such as a photo or fingerprints, but a perjury

case all but demands witness testimony.

Third is the nature of the expected testimony. The State expects Akl to provide first-

hand testimony that no other witness can provide the jury. Her testimony would go directly

to the nature and circumstances of her relationship with Henderson and will thus illuminate

the details of the alleged offense and its surrounding circumstances. Simply put, the jury

can hear from no witness more valuable than Akl. And in the context of a perjury case, the

absence of the key witness will cause a significant injustice to the States case.

The final factor includes any other relevant matters that may be required by

Supreme Court rule. Alabama Rule of Criminal Procedure 16.6 calls for a deposition

when, due to the exceptional circumstances of the case, it is in the interest of justice that

the testimony of a prospective witness be taken and preserved for use at trial. Ala. R.

Crim. P. 16.6(a)(emphasis added). While there is little to no Alabama caselaw construing

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that standard, federal courts have construed the federal exceptional circumstances

standard to exist when the witness is likely to be unavailable and the absence of his or her

testimony would result in an injustice. United States v. Alvarez, 837 F.2d 1024, 1029 (11th

Cir. 1988). The principal consideration guiding whether the absence of a particular

witnesss testimony would produce injustice is the materiality of that testimony to the

case. United States v. Drogoul, 1 F.3d 1546, 1552 (11th Cir. 1993). In this case, Akls

testimony is unquestionably material to the case. Thus, if this Court is persuaded that there

is a likelihood Akl will be unavailable to testify, then the State has met the exceptional

circumstances prong and the deposition should be ordered.

For all these reasons, the State submits that good cause exists to take Akls

deposition. The State further submits that justice would be best served if the Court ordered

the deposition to occur as soon as possible. To do otherwise would risk that the Defendant

would seek to thwart justice and shield material testimony from the jury by marrying a

material witness just before his criminal trial begins. Without expressing any interest in a

marriage between Henderson and Akl, the State simply reiterates that Akl, right now,

possesses material, first-hand testimony that no other witness could provide. And despite

that, there is evidence that suggests that Akl is or may be unavailable to provide that critical

testimony at trial. Accordingly, [because] a substantial likelihood exists that the

prospective deponent[] will be unavailable for trial and their testimony is highly relevant

to a central issue in the case, justice generally requires preservation of that testimony.

United States v. Drogoul, 1 F.3d 1546, 1556 (11th Cir. 1993).

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Respectfully submitted this 20th day of September, 2017.

Steve Marshall
Attorney General

s/ Miles M. Hart
Miles M. Hart
Deputy Attorney General

Kyle Beckman
Assistant Attorney General

STATE OF ALABAMA
OFFICE OF THE ATTORNEY GENERAL
501 Washington Avenue
Post Office Box 300152
Montgomery, AL 36130-0152
(334) 242-7300
mhart@ago.state.al.us
kbeckman@ago.state.al.us

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CERTIFICATE OF SERVICE

I certify that on September 20, 2017, I electronically filed the foregoing using the
AlaFile system, which will send notification of such filing to the following registered
persons, and that those persons not registered with the AlaFile system were served a copy
of the foregoing by U. S. mail or electronic mail:

Yareima Carmen Valecillos Akl

c/o Mickey Lamarr Johnson, Esq.
Post Office Box 430
Pelham, AL 35124-0430
mljlawoffice@gmail.com

James W. Parkman, III

Clayton R. Tartt
William C. White, II
Parkman White, LLP
1929 3rd Ave. N., Suite 700
Birmingham, AL 35203
(205) 244-1920
parkman@parkmanlawfirm.com
wwhite@parkmanlawfirm.com
ctartt@parkmanlawfirm.com

Joseph C. Espy, III

Benjamin J. Espy
Melton, Espy & Williams, P.C.
P.O. Drawer 5130
Montgomery, AL 36103
Tele: 334.263.6621
Fax: 334.263.7252
jespy@mewlegal.com
bespy@mewlegal.com

s/ Miles M. Hart
Deputy Attorney General