Tim ARMSTRONG, Appellant, v. STATE of Oklahoma, Appellee.
No. F-88-503.
Court of Criminal Appeals of Oklahoma.
March 18, 1991.
Rehearing Denied June 26, 1991.
811 P.2d 593
As Corrected July 16, 1991.
When considering a discretionary transfer quest invoked under
In sum, all judges of the district court have a constitutionally invested power to transfer cases from one docket to another on any tenable legal or equitable ground shown at any point in litigation. Under no condition may a legislatively imposed procedural time limit on transfer of small claims be perceived as a jurisdictional constraint upon the court.
I join in affirming the judgment‘s vacation, although I would prefer that today‘s remand be with direction that the defendant‘s motion to transfer be reconsidered in light of those standards of fairness in litigation process which are articulated by me in today‘s writing.
Robert H. Henry, Atty. Gen., Diane L. Slayton, Asst. Atty. Gen., Oklahoma City, for appellee.
OPINION
LANE, Presiding Judge:
Tim Armstrong, Appellant, was tried by jury for the crimes of Conspiracy to violate the Oklahoma Securities Act (
Tim Armstrong, the appellant, worked as an investment adviser to Jane Kolbash and Anna Hawk. On his advice, the women invested or bought stock in several companies. Neither the appellant nor the securities he purported to sell were registered with the State as required by the Oklahoma Securities Act.
Jane Kolbash met the appellant through Ann Miller whom she hired as a hospice
On the appellant‘s advice, Kolbash made four separate investments which he told her were absolutely without risk. She went with him and Bowen to American National Bank in Shawnee and pledged her CD against a loan of $10,000.00 for investment in Oklahoma Native Stone. Kolbash received the assignment of a mortgage and note, the appellant and Bowen received the proceeds of the loan. Kolbash understood she was to receive one-third of the profits from the investment, and the appellant also gave her a letter promising to pay her five percent (5%) of his share of the profits. Kolbash went to the bank a second time on the appellant‘s advice and pledged her CD against a loan in the amount of $15,000.00 for another investment. The appellant and Bowen received the proceeds; Kolbash received a contract for deed which was to generate a monthly income of $250.00.
Kolbash returned to the bank a third time, again on the appellant‘s advice, and pledged her CD against a loan in the amount of $17,000.00 to invest in a new long distance phone company, Phon-Et. Bowen and the appellant got the proceeds; Kolbash was to receive the accounts payable of the company, which the appellant told her were valued at $70,000.00. The appellant, Bowen and Kolbash also participated in a “three-way split” and each received $400.00 of the loan proceeds.
Kolbash‘s final investment was in the amount of $32,000.00 in Wetumka Materials, which the appellant told her produced perlite. The appellant promised her that she would have the amount of her investment back in six (6) months. No stock in Wetumka Materials was ever issued to Kolbash. None of these investments returned a profit, and eventually Kolbash lost her CD.
Anna Hawk met the appellant through similar circumstances. She was recently divorced when she talked with Miller about volunteering in a hospice program Miller was trying to start in Shawnee. Hawk informed Miller she had received a settlement through the divorce in the amount of $84,000.00; however, the case was on appeal and Hawk was not in a position to spend the money. Several months later, after the settlement was final Miller suggested to Hawk that she talk with Bowen. Bowen and Miller met with Hawk and suggested that she meet with the appellant. Over time he brought Hawk into his confidence. He told her she should think of her children‘s future. He assured her there was a lot of money to be made through private investments, and that her money would be completely secure.
Relying on this advice Hawk wrote the appellant eight separate checks for a total amount of $70,000.00 made payable to Bob Bowen for investment in a native building stone project. Hawk received a promissory note; an assignment of a 160-acre tract of land, which belonged to Bowen and which the appellant told her was valued at $240,000; a note and allegedly a five percent interest in Wetumka Materials. No stock was ever issued to Hawk. Hawk later investigated the land records at the county clerk‘s office and discovered Bowen owned only an undivided seventeen and a half (17 1/2) acres.
At trial the appellant made no objection to the jury instructions, but now claims that fifteen (15) of the instructions are improper. The appellant concedes his failure to object at trial has waived review by this court of all but fundamental error, that error which causes a miscarriage of justice. See Ashinsky v. State, 780 P.2d 201 (Okl.Cr.1989); Price v. State, 782 P.2d 143 (Okl.Cr.1989); Quilliams v. State, 779 P.2d 990 (Okl.Cr.1989). Appellant first objects to Instruction 15 in which the trial court summarized in detail the crimes with which the appellant was charged in accord with the Oklahoma Uniform Jury Instructions, OUJI-Cr. 902. He argues that the instruction left nothing for the jury to decide. As the first sentence states that the following facts are alleged, and the last sentence of this instruction plainly states the defendant has entered a plea of not guilty to the charges, we are not persuaded by the appellant‘s argument.
Appellant also objects to Instruction 36 which informed the jury that the defendant bears the burden of establishing that the transactions are exempt from the requirements of the Oklahoma Securities Act. For reasons which we fully discuss below in the sixth proposition of error, we find this instruction to be a correct statement of the law. Appellant claims Instructions 22 to 32, and 34 which define a “security“, “aiding and abetting“, “agent, dealer and investment advisor“, “material omission” and “willfully” are misstatements of the law. They are not. Appellant really is objecting to the wide cast of the Securities Act net, a futile argument.
Appellant directs our attention to a supplemental transcript to argue an instruction on circumstantial evidence was warranted. We ruled on April 5, 1990, that the supplemental transcript is not part of the record before us. Therefore we will not review the supplemental transcript for fundamental error. As his final argument regarding instructions the appellant states that statements of his “co-defendant” were admitted and no limiting instruction was given. There is no fundamental error here, for the appellant was tried alone and had no co-defendant.
In his second proposition of error the appellant argues that the trial court has the duty to instruct on defenses raised by the evidence and that the court should have instructed the jury that the defendant was an “issuer” and exempt from the registration requirements of the Oklahoma Securities Act. The appellant cites no authority to support his claim he was an issuer and we find the evidence does not support this position.
Appellant also objects to the fact that the trial judge did not instruct the jury regarding the many exemptions to the definition of broker/dealer, agent and investment advisor set forth in
(U)nder Oklahoma law a transaction is exempt from registration requirements if it is: any transaction in a bond or other evidence of indebtedness secured by a real or chattel mortgage or deed of trust, or by an agreement for the sale of real estate or chattels, if the entire mortgage, deed of trust, or agreement, together with all the bonds or other evidences of indebtedness secured thereby, is offered and sold as a unit.
O.R. 159.
Appellant next challenges admission of hearsay statements made by his co-conspirators. He argues that the conspiracy was not proved prior to the admission of the hearsay statements and that the independent evidence of the conspiracy was not presented prior to the hearsay statements. Under the Oklahoma Evidence Code, a statement which is offered against a party and made by his co-conspirator during the furtherance of a conspiracy is admissible and is not hearsay.
This Court imposes this order of proof to alleviate the danger that conditionally admitted hearsay, combined with other evi-
In the present case the trial court avoided this problem by holding an in camera hearing prior to trial to determine the admissibility of the statements made by co-conspirators. During this hearing the hearsay statements themselves were introduced prior to the independent evidence of the conspiracy. The proof of the conspiracy was straightforward and simple. Both Jane Kolbash and Anna Hawk testified that Ann Miller told her she should talk with Bob Bowen about her financial future. Each testified that Miller was present during her meeting with Bowen, and both Miller and Bowen advised her to meet with the appellant. Each of the victims met with the appellant and followed his investment advice. From this evidence the trial court correctly concluded at the close of the in camera hearing that a conspiracy existed.
We are not concerned with the order of proof of the conspiracy presented to the trial court in camera. Once the trial court correctly determines in camera that the State has evidence sufficient to prove the conspiracy, the order of proof to the jury becomes a matter of prosecutorial discretion and is outside our ruling in Harjo. In Harjo apparently no in camera hearing was held, therefore the order of proof of the conspiracy was of critical importance. In the present case the in camera hearing eliminated the danger of conditionally admitted hearsay blending with the independent evidence of the conspiracy prior to a determination of admissibility. Therefore, under these circumstances, we find that the fact that hearsay statements were introduced into evidence prior to independent evidence of the conspiracy is not error.
Appellant next attacks the Oklahoma Securities Act,
Each of these terms is defined in Section 2 of the Oklahoma Securities Act.
We find nothing in this language which offends the due process requirement of the federal and state constitutions that prohibited conduct be clearly defined. See
The appellant next objects to twenty (20) incidents of alleged prosecutorial misconduct. We do not reach the merits of this argument regarding sixteen (16) of the allegedly improper statements for the following reasons. Ten (10) of the allegedly improper statements were made during closing argument which the appellant did not make part of the original record. As the Court has denied his motion to supplement the record, the alleged error contained in the closing argument is not part of the record properly before us and will not be addressed.
Two of the statements appellant now objects to were not objected to at trial. Appellant has thus waived all but fundamental error. We find these questions and answers did not inject fundamental unfairness into the trial.
On two occasions appellant objected on one ground, and now on appeal objects on a totally different ground. When one objection is made at trial, this Court will not address a different objection on appeal. Tyler v. State, 777 P.2d 1352 (Okl.Cr.1989); Fitchen v. State, 738 P.2d 177 (Okl.Cr.1987).
The appellant argues that one question to which his objection was sustained amounts to reversible error. The question was such that the trial court‘s action of sustaining the objection cured any possible error. See Walker v. State, 781 P.2d 838 (Okl.Cr.1989). We are unable to address one of the appellant‘s allegations of prosecutorial misconduct for his citation to the transcript contains no improper hearsay testimony, as he alleges, only his argument for mistrial. We will not search the record to find the errors an appellant attempts to raise. Court of Criminal Appeals Rule 3.5.
Appellant raises four (4) additional allegations of prosecutorial misconduct which are preserved for our review. The first two pertain to testimony by victim Jane Kolbash. She testified to the fear she had about investing her money since it was all she had for her future and that of her children. She also stated she had been through a traumatic nine months during which her husband died of lung cancer, and that she considered the appellant a friend whom she trusted. The testimony was straight-forward and the trial judge very carefully kept the testimony from going unduly into the emotional vulnerability of the witness at the time the appellant brought her into his confidence ultimately to defraud her. This evidence is admissible, even though prejudicial to the appellant, for it is highly probative, and its probative value is not substantially outweighed by the danger of unfair prejudice. See
On cross-examination the Appellant attempted to ascertain whether Ms. Kolbash had a boyfriend in New Jersey at the time her husband was terminally ill, and the trial court sustained the State‘s objection. The trial court expressly told the Appellant that he could elicit testimony regarding what financial advice this man gave the victim, but not whether they were involved in a romantic relationship. The trial court properly excluded this evidence which has no probative value whatsoever. See
Appellant also objects to the trial court allowing the State on redirect examination to delve into an issue raised by defense counsel on cross-examination. This issue is the appellant‘s persistent efforts to persuade Anna Hawk to help him with a sexual dysfunction problem which he claimed he could not resolve with his wife. This argument overlooks the plain statutory authority for such cross-examination. See
Appellant next argues that the Securities Act,
Appellant cites no cases which have found state blue-sky laws unconstitutional for this reason. This Court has previously recognized the defendant‘s burden in this regard, though we have not had the occasion to expressly address the constitutionality of the burden. See State v. Hoephner, 574 P.2d 1079 (Okl.Cr.1978); Sisson v. State, 404 P.2d 55 (Okl.Cr.1965); Nelson v. State, 355 P.2d 413 (Okl.Cr.1960). Those Courts which have addressed this argument uniformly reject it. See e.g. State v. Crooks, 84 Or.App. 440, 734 P.2d 374 (1987); State v. Burrows, 293 Or. 691, 653 P.2d 226 (1982); State v. Frost, 57 Ohio St.2d 121, 387 N.E.2d 235 (1979); Commonwealth v. David, 365 Mass. 47, 309 N.E.2d 484 (1974); State v. Goodman, 21 Ariz.App. 252, 517 P.2d 1299 (1974); People v. Dempster, 396 Mich. 700, 242 N.W.2d 381 (Mich.1976).
We agree with these jurisdictions which are in complete agreement in their analysis of this question. The appellant would be correct if the Act required that he carry the burden of disproving an element of the offense charged. Inasmuch as the existence of an exemption is not an element of the charge, we find the appellant‘s challenge must fail.
Appellant‘s final argument is that his sentence, five years on the count of conspiracy and three years imprisonment on each of the remaining twelve counts all to run consecutively, is cruel and unusual punishment considering his age of sixty-eight years and the fact that he has no previous known criminal activity. Appellant asks this Court to modify his sentence.
The review of a sentence in a non-capital case is not a review de novo. The appellate court modifies a sentence only where trial error requires modification, see e.g. Treece v. State, 753 P.2d 377 (Okl.Cr.1988); Scott v. State, 751 P.2d 758 (Okl.Cr.1988), cert. denied 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1988), or the sentence shocks the conscience of the court. See e.g. Middaugh v. State, 767 P.2d 432 (Okl.Cr.1988); Edwards v. State, 663 P.2d 1233 (Okl.Cr.1983). Modification is most often the result where the Court finds that trial error led to a sentence driven by passion and prejudice. See e.g. Massingale v. State, 713 P.2d 15 (Okl.Cr.1986); Freeman v. State, 681 P.2d 84 (Okl.Cr.1984); Green v. State, 611 P.2d 262 (Okl.Cr.1980), cert. denied 449 U.S. 1102, 101 S.Ct. 898, 66 L.Ed.2d 828 (1980).
In the present case we find no errors which injected passion or prejudice into the sentencing decision. Examining the five and three year sentences, we find that the conspiracy charge carries a maximum sentence of ten (10) years,
LUMPKIN, V.P.J., and BRETT and JOHNSON, JJ., concur.
PARKS, J., concurs in result.
PARKS, Presiding Judge, concurring in result:
I concur in all respects with the majority opinion except that portion which addresses appellant‘s third assignment of error. The majority holds that “[o]nce the trial court correctly determines in camera that the
In Laske, this Court held that at the conclusion of all the evidence, the trial court must determine as a factual matter whether the prosecution has satisfied its burden under
If a co-conspirator‘s hearsay statement is admitted prior to the independent evidence, and the State does not subsequently satisfy the evidentiary predicates for admissibility, then the court is faced with instructing the jury to disregard the statement or, in appropriate circumstances, granting a mistrial if a cautionary instruction will not suffice to cure the prejudice caused by admitting the statement into evidence. Moreover, there exists a danger that conditionally admitted hearsay, combined with other evidence subsequently admitted, will blend such “that there [will be] no distinction between hearsay and non hearsay.” Id., at 345 (citations omitted) (emphasis added). It is for these reasons that the Harjo Court specifically “decline[d] to abandon that portion of our Laske decision which mandates that independent evidence be presented to the jury before co-conspirator hearsay testimony is admitted. Harjo, 797 P.2d at 345.
Notwithstanding the erroneous order in which co-conspirator testimony and independent evidence was admitted in the present case, or the fact that the trial court did not make a final determination under
Notes
Puckett v. Cook, Okl., 586 P.2d 721, 722-723 (1978); Winters v. City of Oklahoma City, Okl., 740 P.2d 724, 729-730 (1987) (Opala, J., concurring in part and dissenting in part).
My dissent in Carter v. Gullett, supra note 5 at 642-643, strongly counsels against judicial treatment of time limits for interdocket transfers as legislatively erected jurisdictional barriers.
“By our Constitution,