Salts v. State
| Docket Number: | 2006-KA-00437-COA Linked Case(s): 2006-KA-00437-COA2006-CT-00437-SCT |
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| Oral Argument: | 03-14-2007 | |
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| Court of Appeals: |
Opinion Date: 08-07-2007 Opinion Author: Irving, J. Holding: Affirmed, Reversed, and Remanded |
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| Additional Case Information: |
Topic: Embezzlement - Right to effective counsel - Conflict of interest - Prosecutorial statements - Jury instructions - Amendment of indictment - Sentencing - Section 97-23-19 - Restitution Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Griffis, Barnes, Ishee, Roberts and Carlton, JJ. Non Participating Judge(s): Chandler, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 02-21-2006 Appealed from: Lee County Circuit Court Judge: Thomas J. Gardner Case Number: CR05-650(G)L |
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| Party Name: | Attorney Name: | |||
| Appellant: | Michael Salts a/k/a Michael I. Salts and Marie Salts a/k/a Alice Marie Salts |
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| Appellee: | State of Mississippi |
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| Topic: | Embezzlement - Right to effective counsel - Conflict of interest - Prosecutorial statements - Jury instructions - Amendment of indictment - Sentencing - Section 97-23-19 - Restitution |
| Summary of the Facts: | Michael Salts and Marie Salts were convicted of four counts of embezzlement, and were sentenced to a total of ten years each. They appeal. |
| Summary of Opinion Analysis: | Issue 1: Right to effective counsel The Saltses argue that the court erred by failing to grant a continuance to allow their attorney to prepare for trial after he took the Saltses’ case a few days before trial was set to begin. While it appears from the record that it was not the Saltses personally that were the source of the multiple continuances, the record reveals that their first attorney had requested and had been granted numerous continuances. It appears that the Saltses had known for some time that the attorney had not done an adequate amount of work on their behalf, yet they were content to continue employing him so long as their trial date continued to be pushed back. Under these circumstances, the Saltses were not denied the right to have an attorney who had adequate time to prepare for trial. Instead, they chose to continue to retain an attorney who had adequate time but who allegedly did not prepare for trial. Also, the Saltses have presented no concrete facts to demonstrate any prejudice against them. Although their new attorney had a limited amount of time to interview witnesses and review the admittedly large amount of documents in the case, the Saltses have presented no evidence that this lack of time had any impact on their case. Issue 2: Conflict of interest The Saltses argue that they were denied their right to effective representation because they were never asked if they desired to waive their right to joint representation. A diligent search of the record has not revealed where any discussion of any conflict of interest was made or waived in court. However, the averments of both the prosecutor and the trial court indicate that such a discussion did occur, that the Saltses were informed of the potential problems with their representation, and that they waived any conflict. In addition, a court needs to conduct an inquiry into the propriety of a joint representation only when an actual conflict has been shown. Because the Saltses never showed an actual conflict of interest, there was no need for any inquiry by the court into the propriety of joint representation. Nothing conclusively indicates that either of the Saltses had interests that were adverse to each other, or that their attorney should have engaged in some course of conduct that would have been adverse to the interests of one or the other. Issue 3: Prosecutorial statements The Saltses argue that the court erred in not granting them a mistrial on the basis of comments made by the prosecutor during the course of the trial. There are three instances where the prosecutor in this case said something to the effect of “the best person to answer that question would be the Saltses themselves.” The question is whether these remarks constitute an impermissible comment on the Saltses’ right to testify. The remarks were not directed to the jury. Rather, they were made in the context of a discussion on the admissibility of statements. There is no error, since the comments were made in an attempt to explain the State’s objection and were not intended to comment on the Saltses’ right to take or not take the stand. Issue 4: Jury instructions The Saltses argue that the court erred when it refused to instruct the jury that specific intent to defraud is required to prove embezzlement. The instruction stated that the Saltses were charged with embezzlement, and then went on to state that the jury should find the Saltses guilty if it found beyond a reasonable doubt that the Saltses had “fraudulently appropriated” various sums of money. Even without a separate definition, this language necessarily implied that the Saltses had intentionally defrauded the victims in this case. Issue 5: Amendment of indictment The Saltses argue that the indictment against them was fatally flawed because it failed to specify who the victims of their crimes were. Unless time is an essential element or factor in the crime, an amendment to change the date on which the offense occurred is one of form only. Time is not an essential element or factor of the crime of embezzlement. Therefore, the amendment as to time was an amendment of form and was allowable. Also, the Saltses cannot be surprised by the State’s attempt to prove that they embezzled funds during a time period that had already been disclosed in the indictment. The Saltses also argue that the indictment is insufficient because it did not clearly identify who the victims of the embezzlement were, nor did it state from which insurance company the Saltses were alleged to have withheld funds. The only named entities in the indictment were the customers who had paid sums to the Saltses that had not been forwarded to the appropriate entity. Therefore, it is only logical that the customers were the alleged victims. There is also no fault with the indictment for not specifying an insurance company. Ultimately, the Saltses had customers who were paying them for insurance, but those payments were not being forwarded as they were supposed to be. In fact, there is no evidence that these payments were forwarded to any insurance company. Issue 6: Sentencing The Saltses argue that they should have been sentenced under section 99-19-17, which created a relationship between embezzlement of less than $250 and petit larceny, and which was repealed in 2003, prior to the Saltses’ trial. They argue that the legislature must have intended to implicitly create a threshold limit of $500 for embezzlement in 2003. Any complaint that the Saltses have with the statutes as they are written must be taken up with the legislature. However, the concept of lenity demands that the Saltses be resentenced according to section 97-23-19. Conduct which can fall under either of two statutes must be treated as leniently as possible, and the statute which imposes the lesser punishment must be applied. The Saltses’ conduct clearly could fall under either section 97-23-25 or section 97-23-19. At resentencing, the Saltses will be subject to a maximum of six months in the county jail and a one-thousand-dollar fine for each count under $500. Although not raised as an issue by the Saltses, the Court reverses the lower court’s grant of restitution in favor of the individual policyholders. The problem with the restitution rendered in favor of the policyholders is that the Saltses’ customers (the policyholders) did not lose anything that could be recovered in a civil action. While the Saltses embezzled their money, the insurance company reinstated each of the victim’s insurance policies upon proof of payment to the Saltses. Therefore, there are no damages that the Saltses’ customers could obtain in a civil action arising out of the embezzlement. Therefore, there were no pecuniary damages to the policyholders. |
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