Joseph FIELDS, Appellant, v. STATE of Alaska, Appellee.
No. 3811.
Supreme Court of Alaska.
May 29, 1981.
629 P.2d 46
The experts, Mr. Hildreth have discussed this testimony. He‘s not going to say it wasn‘t arson. He‘s going to say, I believe beyond a reasonable doubt it was arson. He said, even though I‘m not an electrical expert, even though I—we didn‘t get an electrical expert to rule out electrical fires—he told you he ruled them out. . . . He didn‘t want any elеctrical experts, because he doesn‘t know what he‘s talking about. He came up here two months after the fire, doesn‘t know what happened at the fire; can guess, conjecture, and speculate; and he‘s not going to change his opinion, because he‘s going to get—by God, he‘s going to get Wayne Putnam; . . .
Mr. Chastine is a thief and a liar. And, as I said before, he‘s the one that got—you know, he said, oh, gee, members of the jury—he said, I would have testified without an agreement; I‘m a good guy; I‘m doing my duty. It‘s easy to say whеn there‘s an agreement signed saying, we‘re not going to prosecute you. Easy to say, oh, I don‘t need this agreement. Well, why was there an agreement? Why? You know, what he is going to be prosecuted for—for telling what stories is he is going to be prosecuted for? He‘s going to be prosecuted for telling the story that doesn‘t agree with what Mr. Hildreth and Mr. Michalski want—feel is the correct thing in this case. He‘s got to say one thing; he‘s trapped into it.
In view of the foregoing and this defense theory, it is clear that the tapes оf the two interviews between Hildreth and Chastine, at which Chastine admittedly gave two almost completely inconsistent statements, would have been absolutely crucial to the defense. Given the “heavy burden” of demonstrating that Putnam has suffered no resulting prejudice and the strict application of the harmless error rule in these cases,2 I would conclude that Putnam sustained substantial prejudice as a consequence of the state‘s loss of the tapes.3
Timothy Petumenos, Asst. Atty. Gen., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.
Before RABINOWITZ, C. J., and CONNOR, BURKE and MATTHEWS, JJ.
OPINION
CONNOR, Justice.
Joseph Fields was convicted of fraud in the sale of securities. The questions on appeal are (1) whether a mistrial should have been granted because an unrelated criminal charge was referred to in the testimony of a witness, (2) whether the testimony of a witness should have been excluded because a statement of the witness was not revealed by the prosecution in advance of trial, and (3) whether the sentence imposed was excessive.
Fields was charged with three counts of fraudulently selling security interests in oil and gas leases in violation of
I
At the commencement of trial on the securities fraud charges, the trial judge granted the defense a protective order to prevent any mention at trial of the pending check charge. The state presented four witnesses who testified that Fields befriended them, gained their confidence and persuaded them to purchаse a percentage of
Fields testified that he believed he had acquired a percentage of override interest in the oil leases in exchange for his efforts in finding a buyer for them so that he was under the impression that he actually owned the interests that he sold. Fields admitted that he had never been a millionaire, and claimed that he never represented himself as one except to tell his friends that he believed his override interest was worth millions.
Despite the protective order, mention of thе check charge was inadvertently made at trial. Prosecution witness David Curwen of the Fairbanks Police Department, when asked when the defendant was indicted, responded:
“On November 4, 1976, the case I should say, was issue—from is—issuing checks without sufficient funds. The case was combined. . . .”
A defense motion for a mistrial was promptly made and denied. The jury was never instructed to disregard the testimony.
In denying the defense motion for mistrial, the trial judge ruled that the evidence of the check charge was in fact relevant аnd admissible.2 He determined that the evidence was relevant to the question of Fields’ solvency, as well as to prove the existence of a larger continuing plan or scheme, and to establish motive and intent. Fields contends that this ruling was erroneous and that a mistrial should have been granted.
It is by now firmly rooted in Alaska that evidence of other crimes or prior misconduct is not admissible to show bad character or propensity to commit crime.3 Such evidence may be admissible, however, where rеlevant to a material fact in issue, such as motive, intent, knowledge, plan or scheme,4 and when its probative value outweighs its prejudicial impact.5 Hence, we must initially determine whether evidence that Fields was charged with writing bad checks was relevant to any material issue at his trial for securities fraud, other than his general character or propensity to commit crimes.
The court found, and the state now argues, that the check charge was relevant to the question of Fields’ solvency, since it was alleged that Fields falsely represented himself to be a millionaire to prospective investors. The state contends that evidence that Fields was charged with cashing checks with insufficient funds is proof that Fields was not in fact the millionaire he
Moreover, the state had already established, through far more reliable and less prejudicial еvidence, that Fields was in fact insolvent at the time he purportedly represented himself to be a millionaire. A banker at the First National Bank of Fairbanks testified that in February of 1976, Fields’ bank account was overdrawn by 21 cents. We stated in Freeman v. State, 486 P.2d 967, 977 (Alaska 1971):
“Evidence of other offenses committed by the accused will always be potentially prejudicial; for this reason, before such evidence is admitted, care must be taken to ascertain whether it is actually necessary in the circumstances of the particular case.”
486 P.2d at 977. Here evidence of the check charge was of limited probative value and cumulative on the issue of Fields’ insolvency and was, therefore, unnecessary.
The state also urges that proof of the check charges was relevant, and therefore admissible, to show an overall fraudulent scheme. Evidence of other offenses or misconduct is often relevant to show that the charged offense was part of an overall scheme or plan to defraud.7 However, in order to be admitted for this purpose, the offenses must be “so related to each other that proof of one tends to prove the other.” 1 C. Torcia, Wharton‘s Criminal Evidence § 248, at 565 (13th ed. 1972). The state cites a number of securities fraud cases upholding the admission of prior uncharged offenses to prove a scheme to defraud. In all of these cases, however, the uncharged offense involved a similar transaction and was clearly part of the overall fraudulent scheme. For еxample, in United States v. Austin, 462 F.2d 724 (10th Cir.), cert. denied, 409 U.S. 1048 (1972), the defendant participated in numerous transactions involving securities and mail fraud, only some of which were charged. The Tenth Circuit held that the uncharged transactions were properly admitted to show the existence of a common plan to defraud, since each transaction involved substantially the same pattern and mode of operation by the defendant.8 Here, the only connection between the check charge and the securities transactions is that the checks were written at the Chena View Hotel, where Fields negotiated many of the securities sales. The checks, however, were written months after the security sales were consummated and appear to be totally unrelated to the security transactions.
The state presented no evidence at trial suggesting that the check offenses were part of an overall fraudulent scheme. It now asserts that Fields continued to lull “the investors into a false sense of security”
Finally, we are not persuaded that evidence of the check charge was admissible on the issue of intent or motive. Although Fields’ intent was a controlling issue at trial, “[i]t is normally required that in order to be admissible on the issue of intent the prior misconduct of the accused must be similar to the crime charged and not too remote in time.” Freeman, 486 P.2d at 977.9 In all the cases cited by the state where evidence of other misconduct was admitted on the issue of intent, the uncharged acts were similar in nature and somehow related to the charged offense.10 In the case at bar, there is an аbsence of any affirmative link between the securities sales and the check charges. To imply that because the defendant may have engaged in fraudulent conduct in a wholly separate transaction, he therefore had a fraudulent intent here demands precisely the type of inference the law condemns. The reasonable inference to be drawn from proof of the check charge is that Fields is a person of dishonest character who had a propensity tо commit fraudulent acts. This is the “type of leap of faith the evidence rules have been designed to prevent.” Eubanks v. State, 516 P.2d 726, 729 (Alaska 1973).
Having concluded that evidence of the pending check cashing charge was not admissible for any of the purposes advanced by the trial court or the state, we hold that the evidence falls within the proscription of
In reviewing thе record we are impressed by the strength of the state‘s case, as shown by all of the evidence adduced by the state. Measured against that we find this truncated portion of inadmissible testimony to be relatively minuscule in impact. Accordingly, in this context we conclude that the error was harmless.
We wish to caution, as we have in the past, that the prosecution should take great care to inform its witnesses not to refer to other unrelated crimes the defendant may have committed, espeсially where, as here, a protective order has been issued against mention of another criminal charge.11 Where such evidence does inadvertently come before the jury, the trial court‘s determination upon a motion for mistrial will be given deference on review.
II
On the opening day of trial, on a Monday, the prosecutor disclosed that on the previous Friday he had learned that there was an electronically taped statement of a witness, John McGowan, and that the prosecutor intended to call McGowan as part of his case in chief. The prosecutor stated that he had tried to inform defense counsel about the taped statement on the previous Friday but had been unable to reach her. Apparently the tape had been made by a securities examiner who was not assigned to investigate the case, and its existence had not been known earlier to the investigator in charge of the case.
The court recessed in order to allow defense counsel an opportunity to listen to the tape. When the court later reconvened it inquired into the possible prejudice to the defense because of not having had earlier аccess to the tape. The court ruled that McGowan‘s testimony would be admissible and that defense counsel would be given an opportunity to interview McGowan before he testified.
It should be noted that the defense requested the exclusion of McGowan‘s testimony, but did not move for a continuance. The prosecutor had agreed at the outset that he would not call McGowan until the close of his case, and McGowan did not testify until Wednesday.
The state concedes that under
In these circumstances, the normal course is to grant a continuance of sufficient length to allow defense counsel adequate time to prepare to meet the previously undisclosed evidence. Des Jardins v. State, 551 P.2d 181, 187 (Alaska 1976); Scharver v. State, 561 P.2d 300, 301 (Alaska 1977). Moreover, a continuance need not be granted automatically in the absence of a request for it by the defense. Scharver, 561 P.2d at 302.
Our review of the record does not reveal substantial prejudice to the defendant. We conclude that there was no error in the court‘s refusal to exclude the testimony of the witness.
III
Fields was sentenced to serve three years on each of the three counts of sale of fraudulent securities, with each sentence to be served consecutively. He additionally was sentenced to servе three years on each of three counts of sale of unregistered securities, with each sentence to be served consecutively. Each of these total nine year
In reviewing a sentence for excessiveness, our general standards require a consideration of the nature of the crime, the defendant‘s character, and the need for protecting the public. State v. Chaney, 477 P.2d 441, 443 (Alaska 1970). We must also consider the total sentence imposed, including any period of suspension. Nattrass v. State, 554 P.2d 399, 401 (Alaska 1976).
Fields was born in Texas in 1940. He left high school at age 17, after his father died. He attended an electronics school, and has worked in that field at certain times. He served in the United States Army frоm 1964 to 1967, when he was honorably discharged. He has worked at various jobs such as in grocery stores, in a paint shop, as an automobile salesman, and as a freelance artist. He does not suffer from alcohol or drug problems. He has no previous criminal convictions, except a $32 fine for what must have been an insignificant offense. There is no indication that he has been a professional criminal previous to the commission of the instant offenses.
From the presentence report and presentence psychiatric evaluation it appears that Fields’ potential for rehabilitation is good.
In his sentencing remarks, the trial judge indicated a strong belief that a substantial sentence was warranted, and a belief that Fields was lacking in remorse, after preying upon his victims.
We agree with the state‘s contentions that “white collar” crimes must be taken seriously, and that sophisticated schemes to defraud should be deterred. But our weighing of the various factors applicable tо this case leads to the conclusion that this sentence was disproportionately severe and that the court was clearly mistaken in imposing it.13 See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
In our opinion, the maximum sentence should not exceed a total of six years, with three years to be suspended and the defendant to be on probation during the suspended period. The provision for a $25,500 fine, to be paid to the victims of Fields’ offenses during the period of probation was, in our opinion, proper.
The conviction is affirmed, but the сase is remanded for the entry of an amended judgment in conformity with this opinion.
AFFIRMED IN PART, AND REMANDED.
MATTHEWS and BURKE, JJ., dissenting in part.
MATTHEWS, Justice, dissenting.
I agree with parts II and III of the majority opinion. With respect to part I, I agree that the trial court erred in concluding that the evidence that Fields had been charged with issuing checks without sufficient funds was admissible.1 However, I do not believe that the error was harmless, and would therefore reverse.
The critical issue leading to Fields’ conviction was whether he actually intended to defraud anyone, with Fields testifying that he did not and the prosecution contending that he did. Any evidence suggesting that Fields had a dishonest character could be extremely damaging to his defense. Since cashing checks with insufficient funds con-
The deep tendency of human nature to punish, not because our victim is guilty this time, but because he is a bad mаn and may as well be condemned now that he is caught, is a tendency which cannot fail to operate with any jury, in or out of court.
1 J. Wigmore, Evidence § 57 at 456 (3rd ed. 1940). Because Fields’ credibility and integrity was crucial to his defense and because the evidence admitted has a strong tendency to discredit these qualities, I cannot fairly say that the evidence did not appreciably affect the jury‘s verdict,2 and would therefore reverse.
I reach this conclusion in full awareness of the rule that the trial court‘s determination of a motion for mistrial is entitled to considerable deference. Peters v. Benson, 425 P.2d 149, 152 (Alaska 1967). The trial court is better situated than are appellate judges reviewing a cold record to determine the impact on the jury of the evidence. Here, the trial judge concluded that, except for his belief that the evidence in question was independently admissible, he would have been compelled to grant a mistrial.3 He stated:
[I]f I hadn‘t been able to fit it in my own mind into two or three of those exceptions, I think it clearly goes to the intent question as to whеther or not he intentionally defrauded, if I hadn‘t been able to fit it into those exceptions after looking at the rule, why, I‘d had no choice but to grant a mistrial.
BURKE, Justice, dissenting in part.
I am unable to agree that the superior court was clearly mistaken as to the length of its sentence. McClain v. State, 519 P.2d 811 (Alaska 1974). Otherwise, I concur in the opinion of the majority.