Salts v. State


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Docket Number: 2006-KA-00437-COA
Linked Case(s): 2006-KA-00437-COA2006-CT-00437-SCT
Oral Argument: 03-14-2007
 

 

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Court of Appeals: Opinion Link
Opinion Date: 04-01-2008
Opinion Author: MYERS, J.
Holding: Affirmed in Part, Reversed and Remanded in Part

Additional Case Information: Topic: Embezzlement - Right to effective counsel - Conflict of interest - Prosecutorial statements - Intent instruction - Defective indictment - Sufficiency of indictment - Sentencing - Restitution
Judge(s) Concurring: KING, C.J., LEE, P.J.,GRIFFIS, ISHEE AND CARLTON, JJ.
Non Participating Judge(s): CHANDLER AND ROBERTS, JJ.
Dissenting Author : IRVING AND BARNES, JJ., without separate written opinion.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 02-21-2006
Appealed from: LEE COUNTY CIRCUIT COURT
Judge: Thomas J. Gardner
Disposition: MICHAEL SALTS - CONVICTED OF EMBEZZLEMENT IN COUNT I AND SENTENCED AS A HABITUAL OFFENDER TO FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS: CONVICTED OF MISDEMEANOR EMBEZZLEMENT IN COUNT IV AND SENTENCED TO SIX MONTHS IN THE CUSTODY OF THE PRENTISS COUNTY SHERIFF’S DEPARTMENT; CONVICTED OF EMBEZZLEMENT IN COUNT V AND SENTENCED TO FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; AND CONVICTED OF EMBEZZLEMENT IN COUNT VI AND SENTENCED TO FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. THE SENTENCE IN COUNT I IS TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT V, AND CONCURRENTLY WITH THE SENTENCES IN COUNTS IV AND VI. THE SENTENCE IN COUNT IV IS TO RUN CONCURRENTLY WITH THE SENTENCES IN COUNTS I, IV AND V. 2 THE SENTENCE IN COUNT V IS TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, AND CONCURRENTLY WITH THE SENTENCES IN COUNTS IV AND VI. THE SENTENCE IN COUNT VI IS TO RUN CONCURRENTLY WITH THE SENTENCES IMPOSED IN COUNTS I, IV, AND V. DEFENDANTS ALSO ORDERED TO PAY A $10,000 FINE IN COUNT I AND A $1,000 FINE IN COUNT IV. RESTITUTION ALSO ORDERED IN THE AMOUNT OF $272.14 TO PAULA COX, $216.07 TO JANETTE TAYLOR, $254.57 TO CHARLES CLARA SIMMONS, AND $285.58 TO SARAH AND JAMES MCGEE. RESTITUTION IS TO BE PAID JOINTLY AND SEVERALLY BY CO-DEFENDANTS. MARIE SALTS - CONVICTED OF EMBEZZLEMENT IN COUNT I AND SENTENCED TO FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; CONVICTED OF MISDEMEANOR EMBEZZLEMENT IN COUNT IV AND SENTENCED TO SIX MONTHS IN THE CUSTODY OF THE PRENTISS COUNTY SHERIFF’S DEPARTMENT; CONVICTED OF EMBEZZLEMENT IN COUNT V AND SENTENCED TO FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; AND CONVICTED OF EMBEZZLEMENT IN COUNT VI AND SENTENCED TO FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. THE SENTENCE IN COUNT I IS TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT V, AND CONCURRENTLY WITH THE SENTENCES IN COUNTS IV AND VI. THE SENTENCE IN COUNT IV IS TO RUN CONCURRENTLY WITH THE SENTENCES IN COUNTS I AND VI. THE SENTENCE IN COUNT V IS TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, AND CONCURRENTLY WITH THE SENTENCES IN COUNTS IV AND VI. THE SENTENCE IN COUNT VI IS TO RUN CONCURRENTLY WITH THE SENTENCES IMPOSED IN COUNTS I, IV, AND V. DEFENDANTS ALSO ORDERED TO PAY A $10,000 FINE IN COUNT I AND A $1,000 FINE IN COUNT IV. RESTITUTION ALSO ORDERED IN THE AMOUNT OF $272.14 TO PAULA COX, $216.07 TO JANETTE TAYLOR, $254.57 TO CHARLES CLARA SIMMONS, AND The Saltses were indicted on six counts of embezzlement. The State opted to withdraw one 1 count, and the jury acquitted the Saltses of another. 3 $285.58 TO SARAH AND JAMES MCGEE. RESTITUTION TO BE PAID JOINTLY AND SEVERALLY BY CO-DEFENDANTS.
District Attorney: John Richard Young
Case Number: CR05-650(G)L

Note: MOTIONS FOR REHEARING FILED: 09/05/2007-DENIED; 09/12/2007-GRANTED; AFFIRMED IN PART AND REVERSED AND REMANDED IN PART - 04/01/2008

  Party Name: Attorney Name:  
Appellant: MICHAEL SALTS A/K/A MICHAEL I. SALTS AND MARIE SALTS A/K/A ALICE MARIE SALTS




JIM WAIDE



 

Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: DESHUN TERRELL MARTIN  

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Topic: Embezzlement - Right to effective counsel - Conflict of interest - Prosecutorial statements - Intent instruction - Defective indictment - Sufficiency of indictment - Sentencing - Restitution

Summary of the Facts: The appellee’s motion for rehearing is granted, and the appellants’ motion for rehearing is denied. This opinion is substituted for the original opinion. Michael Salts and Marie Salts were convicted of four counts of embezzlement and sentenced to a total of ten years each. They appeal.

Summary of Opinion Analysis: Issue 1: Right to effective counsel The Saltses argue that, because of the short amount of time their new attorney had to prepare for the case, they were denied effective representation of counsel. While the record shows that the Saltses were not personally the source of the multiple continuances, the record shows that their attorney had requested and had received numerous continuances. There is nothing in the record that suggests that their attorney’s allegedly inadequate preparation for trial suddenly became known to the Saltses on the eve of trial. It appears that the Saltses had known for some time that he 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. Not only did the Saltses voluntarily substitute counsel shortly before trial, but they have not shown any prejudice that resulted to them as a result of the court’s failure to grant them a continuance. 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 and there may have been a conflict of interest. A diligent search of the record has not revealed whether 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 trial court into the propriety of joint representation. Issue 3: Prosecutorial statements The Saltses argue that the trial court erred in not granting them a mistrial on the basis of comments made by the prosecutor during the course of the trial. The three instances occurred when prosecutor said something to the effect of “the best person to answer that question would be the Saltses themselves.” The ultimate question that must be answered is whether the comment of the prosecutor can reasonably be construed as a comment upon the failure of the accused to take the stand. The remarks in the present case were not directed to the jury. Rather, they were made in the context of a discussion on the admissibility of statements. While the objections by the prosecutor could, perhaps, have been worded more carefully, the trial court did not err in refusing to grant a mistrial on the basis of the remarks. Issue 4: Intent instruction The Saltses argue that the trial court erred when it refused to instruct the jury that specific intent to defraud is required to prove embezzlement. The State argues that “fraudulently appropriated” is sufficient to denote intent. The jury instruction stated that the Saltses were charged with embezzlement, and 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: Defective indictment The Saltses argue that the indictment against them was fatally flawed because it failed to specify who the victims of their crimes were. The State orally amended the indictment after finishing its case-in-chief to drastically shorten both the alleged time period of the charges and the amount of money that the Saltses were alleged to have embezzled. 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. As to the reduction in the amount of money that the Saltses were alleged to have embezzled, the most that the Saltses can argue is that the reduced amount of money that they were charged with embezzling lessened the penalty that may be imposed against them. Either way, the essential crime of embezzlement remains intact. The Saltses cannot claim surprise that the State sought to prove that they embezzled those amounts of money, as the Saltses knew from their indictment that the State would attempt to prove embezzlement of at least those amounts. Issue 6: Sufficiency of indictment The Saltses 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. The indictment clearly put the Saltses on notice as to the State’s theory of who the victims were – namely, the customers whose payments were not properly forwarded. Issue 7: 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. The statute that created the relationship between petit larceny and embezzlement, section 99-19-17, was repealed in 2003. The larceny statute does not indicate anything about embezzlement. Furthermore, Counts I, IV, V, and VI all charged greater amounts than $250. Thus, the repealed statute would have no applicability in any event. Issue 8: Restitution Although not raised as an issue by the Saltses, the lower court’s grant of restitution in favor of the individual policyholders is reversed. 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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