Michael Salts v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-KA-00437-COA
MICHAEL SALTS A/K/A MICHAEL I. SALTS AND
MARIE SALTS A/K/A ALICE MARIE SALTS
APPELLANTS
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLEE
02/21/2006
HON. THOMAS J. GARDNER, III
LEE COUNTY CIRCUIT COURT
JIM WAIDE
OFFICE OF THE ATTORNEY GENERAL
BY: DESHUN TERRELL MARTIN
JOHN RICHARD YOUNG
CRIMINAL - FELONY
MICHAEL SALTS - CONVICTED OF
EMBEZZLEMENT IN COUNT I AND SENTENCED
AS A HABITUAL OFFENDER TO FIVE YEARS IN
T H E C U S T O DY O F T H E M I S S I S S I P P I
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
T H E C U S T O DY O F T H E M I S S I S S I P P I
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.
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
T H E C U S T O D Y O F T HE M I S S I S S I P P I
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
T H E C U S T O DY O F T H E M I S S I S S I P P I
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
2
$285.58 TO SARAH AND JAMES MCGEE.
RESTITUTION TO BE PAID JOINTLY AND
SEVERALLY BY CO-DEFENDANTS.
DISPOSITION:
AFFIRMED IN PART, REVERSED IN PART AND
REMANDED: 8/07/2007
MOTIONS FOR REHEARING FILED: 09/05/2007-DENIED; 09/12/2007-GRANTED;
AFFIRMED IN PART AND REVERSED AND
REMANDED IN PART - 04/01/2008
MANDATE ISSUED:
ON MOTION FOR REHEARING
EN BANC.
MYERS, J., FOR THE COURT:
¶1.
The appellee’s motion for rehearing is granted; however, the appellants’ motion for rehearing
is denied. The original opinion is withdrawn and this opinion is substituted therefor.
¶2.
Michael Salts and Marie Salts were convicted by a Lee County jury of four counts of
embezzlement and sentenced by the Lee County Circuit Court to a total of ten years each in the
custody of the Mississippi Department of Corrections and an $11,000 fine.1 The Saltses were also
ordered to pay restitution. Aggrieved, the Saltses appeal and cite the following errors, which we
quote verbatim:
1. MICHAEL SALTS AND MARIE SALTS WERE DENIED EFFECTIVE
REPRESENTATION OF COUNSEL SINCE, THROUGH NO FAULT OF THEIR
OWN, THEY HAD NO ATTORNEY WHO WAS PREPARED FOR TRIAL.
2. MICHAEL SALTS AND MARIE SALTS WERE DENIED THEIR
CONSTITUTIONAL RIGHT TO EFFECTIVE REPRESENTATION OF
COUNSEL, BECAUSE THEY WERE NEVER PERSONALLY ADDRESSED TO
DETERMINE WHETHER THEY WISHED TO WAIVE ANY CONFLICT OF
INTEREST.
THIS VIOLATED UNITED STATES CONSTITUTION
AMENDMENTS SIXTH [SIC] AND FOURTEEN’S RIGHT TO EFFECTIVE
COUNSEL AND TO A FAIR TRIAL.
1
The Saltses were indicted on six counts of embezzlement. The State opted to withdraw one
count, and the jury acquitted the Saltses of another.
3
3. THE CIRCUIT COURT ERRED IN NOT DECLARING A MISTRIAL WHEN
THE PROSECUTOR COMMENTED, ON TWO OCCASIONS, THAT ONLY THE
“SALTSES” WOULD KNOW ABOUT WHETHER THE MONEY WHICH THEY
RECEIVED FROM THE INSUREDS WERE FOR PREMIUMS DUE TO “THE
INSURANCE COMPANY.”
THIS VIOLATED UNITED STATES
CONSTITUTION AMENDMENTS FIVE AND FOURTEEN.
4. THE CIRCUIT COURT VIOLATED THE SALTSES’ SUBSTANTIVE DUE
PROCESS RIGHTS BY REFUSING TO GIVE AN INSTRUCTION STATING
THAT CRIMINAL INTENT WAS REQUIRED FOR THE CRIME OF
EMBEZZLEMENT. THIS VIOLATED UNITED STATES CONSTITUTION
AMENDMENT FOURTEEN SINCE THE DUE PROCESS CLAUSE OF THE
UNITED STATES CONSTITUTION REQUIRES PROOF OF CRIMINAL
INTENT FOR THE COMMON LAW OFFENSE OF EMBEZZLEMENT.
5. THE INDICTMENT IS UNCONSTITUTIONALLY VAGUE SINCE THE
SALTSES WERE NEVER TOLD PRIOR TO TRIAL WHO THE VICTIMS WERE,
NOR WAS IT EVER SPECIFIED WHICH INSURANCE COMPANY IT WAS
THAT WAS SUPPOSED TO HAVE BEEN THE RECIPIENT OF THE MONEY.
THIS VIOLATED THE [SIC] SIXTH AND FOURTEENTH AMENDMENTS
[SIC] RIGHT TO NOTICE OF THE CHARGE.
6. THE CIRCUIT COURT ERRED IN SENTENCING THE SALTSES FOR
FELONIES WHEN THE LAW AT THE TIME OF SENTENCING WAS THAT
THEY WERE ONLY GUILTY OF MISDEMEANORS.
¶3.
We find no merit to any contentions that would require us to grant a new trial. However, we
affirm in part, reverse in part and remand. Though not raised as an issue by the Saltses, we find that
the trial court erred in ordering the Saltses to pay restitution to the policyholders because the
policyholders who benefitted from the restitution lost nothing as a result of the Saltses’ misconduct.
Therefore, we also reverse the trial court’s order of restitution and remand for further consideration.
FACTS
¶4.
The Saltses owned and operated a funeral home in Booneville, Mississippi. For many years,
the Saltses used Gulf National Insurance (Gulf) to provide funeral insurance for their customers.
In the early 1990s, the working relationship between the Saltses and Gulf began to deteriorate, and
in December 1994, Gulf terminated its relationship with the Saltses. Thereafter, the Saltses
4
conducted their insurance business through a different insurance company, Magnolia Guaranty Life
Insurance Company. However, many of the Saltses’ customers continued to send their Gulf
payments in to the Saltses rather than sending them directly to Gulf. Unfortunately, some of this
money never made its way to Gulf from the Saltses. It was on the basis of these unforwarded
payments that criminal charges were levied against the Saltses.2
¶5.
On May 12, 2003, the Saltses were indicted for six counts of embezzlement. The original
indictment alleged in Count I that the Saltses had embezzled $982.06 from Paula Cox between
January 19, 1985, and July 3, 1998.3 The Saltses were found not guilty of Count II, and Count III
was withdrawn by the State. Count IV originally alleged that the Saltses had embezzled $923.10
from Jeanette Taylor between January 2, 1992, and January 3, 2000. Count V alleged that the
Saltses had embezzled $1,025.62 from Charles and Clara Simmons between March 1, 1994, and
November 15, 2000. Finally, Count VI alleged that the Saltses had embezzled $524.80 from Sara
or James McGee between September 1, 1997, and March 2, 2002. All the counts stated that the
Saltses “were bound to deliver the money to the insurance company or return same,” but none of the
counts specified to what insurance company the payments were intended to go.
¶6.
The Saltses initially hired Steven Farese as their attorney. However, on September 2, 2003,
Farese requested permission to withdraw from the case, stating “upon discussion of this matter with
one of the Defendants that two separate irreconcilable conflicts arose. Based upon these conflicts,
Defense Counsel is ethically and legally unable to defend either of the Defendants.” The motion
2
The dates in the original indictment indicate that the State believed, at some point, that the
embezzlement had gone on long before Gulf terminated its relationship with the Saltses. However,
the only evidence of criminal conduct introduced at trial concerned acts after the termination of the
relationship.
3
This count was amended before trial to extend the date to August 3, 1998, rather than July
3, 1998.
5
was granted by the trial court, and the Saltses then hired Michael Thorne to represent them.
Unfortunately, Thorne was going through a bevy of personal problems, including serious illnesses
in his immediate family. The record indicates that, after requesting and being granted numerous
continuances, Thorne was still not prepared for trial.4 Shortly before trial, Thorne attempted to get
another continuance, stating that his father was gravely ill and was hospitalized and he needed more
time to prepare for trial. The trial court never ruled on the motion, although it emphasized at the
pretrial motion hearing that no more continuances were going to be granted in the case.
¶7.
The Saltses fired Thorne on the Thursday before their Monday trial. On that Friday, the trial
court dealt with pretrial motions, including a request by the Saltses for a continuance so that their
new attorney, Jim Waide, could prepare for trial. The Saltses also requested that the hearing on the
motions be held the next week, when Waide would be able to respond to the State’s motions. The
trial court refused to grant a continuance, noting: “It has taken me something in the neighborhood
of six to eight months to arrive at a trial setting for this, not entirely because of things that the
defendants did . . . . I have a venire panel coming in on Monday and, any thoughts about a
continuance in this case, you can abandon that.” After hearing further information from the Saltses
and Thorne about the case, the court reiterated:
Until yesterday, sometime late in the afternoon, you were represented by an attorney
who is thoroughly competent. Because of some disagreement with him you
terminated his services and I assume have made arrangements for another attorney
. . . . It has been a longstanding practice and rule that an attorney accepting
employment in a case in the posture this one finds itself takes it on with all the
responsibilities that go along with it, including being at this hearing.
Now, the fact that he is not here, that he is not familiar with the proceedings, has
limited knowledge I assume of what this is all about, is not anything that I have to
4
For example, it is uncontradicted that Thorne did not subpoena any witnesses to testify on
the Saltses’ behalf. Thorne indicated in his final continuance request that he needed more time in
part because he was not prepared for trial.
6
do with; and, therefore, I don’t feel bound to extend any time or circumstance -- any
other circumstance, you know, because of that discharge of Mr. Thorne.
Thereafter, the Saltses indicated to the trial court that Thorne had not subpoenaed any witnesses and
that “[t]here’s nothing been done.” The trial court continued to refuse a continuance and heard the
pretrial motions.
¶8.
The Saltses’ trial was held as scheduled on Monday, October 3, 2005. After it had finished
presenting its case-in-chief, the State orally amended the indictment to shorten both the length of
time and the amount of money alleged to have been embezzled. Specifically, the State amended
Count I to run from August 23, 1995, to August 3, 1998, and to allege only $272.14. This reduced
the amount charged by around $700 and shortened the time frame by more than ten years. Count
IV was amended to charge $298.50, a difference of more than $600, and to charge only the time
between December 27, 1994, and January 3, 2000, a reduction of almost three years. The
amendment to Count V alleged that the Saltses had embezzled $254.37 rather than $1,025.62, a
difference of more than $750, and altered the time frame to run from December 29, 1995, to July
3, 1998, reducing the alleged time period by approximately three years. Finally, Count VI was
amended from $524.80 to $285.58, a difference of more than $200; and its time frame was reduced
approximately one year to run from June 25, 1998 to March 2, 2002. The Saltses’ objections to
these amendments were overruled by the court.
¶9.
Thereafter, the Saltses presented their case-in-chief. After the close of all the evidence, the
jury returned a verdict of guilty on the four counts described above. The Saltses filed post-trial
motions, all of which the court denied. The Saltses also requested to be sentenced under Mississippi
Code Annotated section 97-23-19 (Rev. 2006), which provides that embezzlement of less than $500
is misdemeanor embezzlement, rather than Mississippi Code Annotated section 97-23-25 (Rev.
2006), which treats all embezzlement the same.
7
Alternatively, the Saltses contended that
embezzlement of less than $500 should be treated as a misdemeanor, even under Mississippi Code
Annotated section 97-23-25, because of section 99-19-17, which was repealed on July 1, 2003.5 The
trial court rejected the Saltses’ request and sentenced them under section 97-23-25, with the
exception of Count IV, which State had agreed would be considered misdemeanor embezzlement
because it involved an amount under $250.6
¶10.
Additional facts will be related during our analysis and discussion of the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
1. Denial of the Right to Effective Counsel
¶11.
The basis of this claim is the trial court’s failure to grant a continuance to allow the Saltses’
attorney, Waide, to prepare for trial after he took the Saltses’ case a few days before trial was set to
begin. In order to present an adequate picture of this issue, we first discuss the chronological
progression of this case.
¶12.
The Saltses were indicted on May 12, 2003, and were arraigned on July 3, 2003, at which
time Farese was acting as their attorney. On September 2, 2003, Farese filed a motion requesting
that he be allowed to withdraw as counsel, and his request was granted by the court on September
18, 2003. The record contains nothing indicating exactly when Thorne was hired as the Saltses’
attorney, but Thorne filed a motion requesting a continuance on February 19, 2004, citing Farese’s
failure to turn over discovery after his withdrawal. The motion indicated that trial was set for March
3, 2004. The trial court granted the motion on March 2, 2004.
5
These statutes will be discussed in more depth in our analysis of the issues.
6
Although Count IV still involved an amount over $250 when it was orally amended, the
jury was given two instructions regarding Count IV: a standard instruction for an amount over $250
and a lesser-included instruction for misdemeanor embezzlement in the event that the jury found that
the Saltses had embezzled less than $250 from the victim.
8
¶13.
The next trial date indicated in the record is June 22, 2004. On June 9, 2004, Thorne
requested another continuance, stating that he “has not been able to properly prepare for this case
due to other litigation involving these defendants.” Thorne also stated in the motion that, due to the
nature of the charges against the Saltses, it was possible that an accountant would have to be hired
to review the case. The trial court granted the motion on June 14, 2004.
¶14.
On September 24, 2004, with trial set for October 11, Thorne filed a third motion for
continuance. Thorne again stated that he needed additional time because of “other litigation
involving these defendants.” The motion was granted by the court the same day. On October 8,
2004, the State filed a response to oppose the September 24 motion for continuance. In it, the State
claimed that the March 2 continuance was granted because of “a conflict of interest between the
Judge and the Defendants.” The State noted that, due to the advanced age of many of its witnesses,
it faced “a real possibility of impairment of prosecution.” The State further noted that the Prentiss
County Courthouse was closed for renovations, but a Prentiss County jury could hear the case in
“any one of the neighboring courthouses within the first judicial district. . . .” Despite the fact that
the order granting the continuance had been filed on September 28, 2004, the State appeared to be
unaware that the trial court had already granted the motion.
¶15.
Nothing else concerning the date of the trial is found in the record until March 29, 2005,
when the trial court entered an order setting trial for June 27, 2005. Three days before that trial date,
on June 24, Thorne filed a motion requesting a continuance because he planned to go out of state
to seek medical treatment for his wife on June 26, 2005, he did not know when he would return.
Thorne also indicated that the courthouse was still under renovation. The State filed a timely motion
opposing the continuance. The trial court granted Thorne’s motion, the fourth continuance in the
trial, and set trial for September 6, 2005. The trial court stated that all pretrial motions were to be
9
filed on or before August 1, 2005. An agreed order was entered on July 26, giving the Saltses until
July 28, 2005, to file discovery. On August 1, the Saltses filed a witness list identifying twenty-one
individuals.
¶16.
On August 4, 2005, Thorne filed a number of motions, including a request for sealed
documents, a motion for change of venue, a motion to dismiss the indictment, and a motion for
discovery. On August 16, 2005, Thorne requested a continuance of the motion hearing then set for
the next day, August 17, due to his father’s illness and admittance to the hospital. On August 17,
2005, the trial court granted this motion, the fifth continuance granted on behalf of the Saltses.
Thereafter, the trial court set the trial for October 3, 2005, in the Lee County courthouse.
¶17.
On September 27, 2005, Thorne filed another motion for a continuance, the sixth filed on
behalf of the Saltses. Thorne based this request on an illness in his immediate family and the need
for additional time to prepare for the trial. On the same day, Thorne also filed a motion to sever the
six counts of the indictment to have separate trials on each of the counts. On September 29, 2005,
the Thursday before the Saltses’ Monday trial date, the Saltses terminated Thorne’s legal services.
The following day, September 30, Thorne appeared with the Saltses for a hearing on pretrial
motions. At the hearing, the Saltses related to the trial court that Thorne had not, in their opinion,
adequately prepared for trial. The Saltses pointed out that Thorne had not subpoenaed any witnesses
and had not met with them about the case. However, the trial judge did not grant a continuance
because the case had already been continued for over a year. The Saltses informed the court that
Waide had agreed to take over their case.7
7
Waide later indicated that he believed that he was joining the case to help Thorne, not to
replace him as counsel. Waide entered a formal appearance on September 30, although the
transcript of the hearing indicates that he had not made the appearance at the time of the hearing.
10
¶18.
The Saltses contend that, because of the short amount of time that Waide had to prepare for
the case, they were denied effective representation of counsel. The Saltses further contend that this
was through no fault of their own.
¶19.
While we agree that the record reflects that the Saltses were not personally the source of the
multiple continuances, the record reveals that their attorney had requested and had received
numerous continuances. There is nothing in the record that suggests that Thorne’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 Thorne 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. If the Saltses were not the cause of the delays, they were at least complicit in
Thorne’s repeated continuance requests.
¶20.
As support, the Saltses cite Lester v. State, 692 So. 2d 755, 777 (Miss. 1997) (overruled on
other grounds) for the proposition that they “have the right to have an attorney who has adequate
time to prepare for the trial.” We find that the facts in Lester are radically different from the facts
in this case. In Lester, the defendant was charged with the murder of his daughter while engaged
in felonious child abuse. Id. at 765. At trial, the State attempted to introduce evidence that Lester
had sexually abused his daughter prior to her death. Id. at 777. Lester objected and requested a twoweek continuance to prepare a defense to the sexual abuse allegations. Id. The Mississippi Supreme
Court found that the continuance should have been granted, as the one-hour delay granted by the
court was not sufficient time for Lester to prepare an adequate defense to the sexual abuse evidence.
Id. In this case, Thorne had over a year to prepare a defense for the Saltses. The Saltses apparently
were aware that he had not done so to their satisfaction, yet they chose not to retain another lawyer.
Under these circumstances, we cannot say that the Saltses were denied the right to have an attorney
11
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. Lester provides no relief to the
Saltses.
¶21.
The Saltses also point to Lambert v. State, 654 So. 2d 17 (Miss. 1995).8 In Lambert, the
Mississippi Supreme Court reversed for failure to grant a continuance where the trial court found
that the defendant had been represented by counsel for four months. Id. at 21. The supreme court
noted that, although Lambert had been represented for four months, his trial was set for only one
week after his arraignment. Id. at 20. The trial court ruled on a motion to sever the counts of the
indictment on the morning of trial, deciding that that day’s trial would be on one of the five counts
with which Lambert was charged. Id. at 21. As the supreme court noted, “[t]his was the first
indication that Lambert would not be tried on all five remaining counts that day.” Id. One week
later, a second trial was held on one of the remaining counts. Id.
¶22.
In reversing Lambert, the supreme court noted that “Lambert’s lateness in hiring counsel was
not due to procrastination, but was the result of the short period of time between indictment and
trial.” Id. at 22. The supreme court noted that it was particularly troubled by the trial court’s
decision to wait until the morning of trial to inform defense counsel that only one of the counts
would be tried that day. Id. The supreme court emphasized why four months was not sufficient time
to prepare for trial, stating:
The trial judge’s reasoning in denying the continuances indicates a clear abuse of
discretion. The judge relied on the fact that counsel had been involved in the case
8
In their reply brief, the Saltses also cite Hughes v. State, 589 So. 2d 112, 113-15 (Miss.
1991). However, Hughes, like Lambert, involves a defendant who had a very short period of time
(three weeks) between indictment and trial. Id. at 113. This left Hughes’ hired attorney with eight
days to prepare for trial, a short amount of time that was compounded by the attorney’s problems
communicating with the prosecutor in the case. Id. at 113-14. The facts in this case are notably
different, as we discuss in relation to Lambert.
12
since the preliminary hearing allowing him an opportunity to prepare since that time.
However, the original charge against Lambert was different from those under which
he was indicted. Counsel clearly indicated that he had not been in contact with
Lambert since the preliminary hearing. Even if he had, it is not clear how he could
have prepared a defense when the nature of the charges was not fully known at that
time. This case does not involve just a single reason for the continuance but several.
Id.
¶23.
The facts in this case are notably different from those in Lambert. The Saltses were aware
of the nature of the charges against them for roughly two years. Unlike Lambert, the Saltses’
decision to retain Thorne rather than hiring a new attorney is attributable only to procrastination.
No other reason has been presented by the Saltses. In light of the facts, we find that the Saltses were
not denied their right to effective counsel who had adequate time to prepare for trial. Rather, the
Saltses chose to retain counsel who they believe did not sufficiently prepare for trial.
¶24.
We find Speagle v. State, 390 So. 2d 990, 991 (Miss. 1980) to be instructive on the denial
of a motion for continuance. In Speagle, the Mississippi Supreme Court affirmed a conviction
where a defendant terminated one lawyer and hired another shortly before trial. Id. The supreme
court considered:
The defendant’s principal assignment of error is that the lower court erroneously
refused to grant him a continuance. He contends that his attorney needed more time
to prepare for trial. The indictment was returned against Speagle on November 6,
1979. He appeared before the court on November 7, 1979, and stated that he had
employed a lawyer. He was arraigned on November 12, 1979, and was represented
by counsel, Mr. Ed Stevens, at that time. He pleaded not guilty and the case was set
for trial on November 20, 1979. On November 19, 1979, Mr. William Sullivan, then
representing the defendant, filed a motion for continuance, which was denied.
Id. at 991. The supreme court held “the voluntary substitution of counsel by a litigant during the
course of trial is not, of itself, grounds for a continuance. The same can be said for the voluntary
substitution of counsel prior to trial.” Id. at 992 (citing Ladnier v. State, 273 So. 2d 169, 172 (Miss.
1973)). Like Speagle, the Saltses voluntarily substituted counsel shortly before trial. Furthermore,
13
as we discuss below, the Saltses have not shown any prejudice that resulted to them as a result of
the court’s failure to grant them a continuance.
¶25.
The decision to grant or deny a continuance is made at a trial court’s discretion. Stack v.
State, 860 So. 2d 687, 691 (¶7) (Miss. 2003). In order to demand reversal, a trial court’s denial of
a continuance must result in “manifest injustice.” Id. (quoting Gray v. State, 799 So. 2d 53, 58 (¶14)
(Miss. 2001)). “The burden of showing manifest injustice is not satisfied by conclusory arguments
alone, rather the defendant is required to ‘show concrete facts that demonstrate the particular
prejudice to the defense.’” Id. at 691-92 (¶7) (citations omitted).
¶26.
The Saltses have presented no concrete facts to demonstrate any prejudice against them.
Although Waide 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. They point to no particular witness whose questioning might have
made a difference, nor do they indicate that there is anything in the documents that could have been
discovered had Waide had more time to review the case. In the absence of any showing of prejudice
to the Saltses’ case, we find that the Saltses have failed to show that the trial court abused its
discretion in failing to grant them a last-minute continuance, especially in light of the fact that five
continuances had already been granted to the defense over the course of almost a year and a half.
¶27.
We also note that there was no error on the part of the trial court in failing to grant the
continuance requested by Thorne prior to the Saltses’ termination of his services. The Saltses point
out that Thorne made the request due to family illness and Thorne’s father did, in fact, die shortly
thereafter. However, nothing in Thorne’s motion indicated the gravity of his father’s illness.
14
Furthermore, the motion indicated that the illness was not the sole cause of the request, as the motion
also stated that Thorne needed additional time to prepare for trial.9
¶28.
This contention of error is without merit.
2. Conflict of Interest
¶29.
The Saltses claim that they were denied their right to effective representation because they
were never asked if they desired to waive their right to joint representation. The Saltses point out
that the evidence showed that Michael had little to no bookkeeping skills, while very few of the
funeral home customers dealt with Marie. Consequently, Marie took care of the business’s books,
while Michael dealt with customers. There also may have been evidence that either Michael or
Marie did not work continuously at the funeral home during the time periods alleged in the
indictment. The Saltses argue that this shows that there may have been a conflict of interest, and
the joint representation made it impossible for either Marie or Michael to utilize this evidence to
point the finger at each other. The Saltses also point to Farese’s motion to withdraw as evidence that
there was a known conflict between the Saltses.
¶30.
Farese’s motion reads in relevant part: “Steven E. Farese, Sr. would submit that upon
discussion of this matter with one of the Defendants that two separate irreconcilable conflicts arose.
Based upon these conflicts, Defense Counsel is ethically and legally unable to defend either of the
Defendants.” This motion contains, at best, an inference that Farese may have encountered a
conflict of interest due to his representation of both Marie and Michael. However, it is also possible
that Farese was indicating that, pursuant to his discussions with the Saltses, he discovered some
9
The first indication that the trial court was made aware of the gravity of Thorne’s father’s
illness was at the pretrial hearing on September 30, where Marie told the court: “His wife’s been
sick and his dad’s dying.” This statement was related to the trial court after the Saltses had fired
Thorne and after the trial court had released him from his service in the case.
15
other conflict that left him ethically unable to defend either Marie or Michael. We do not take the
motion as proof that there was an actual conflict between Michael and Marie.
¶31.
We find the pretrial discussion on this matter enlightening:
[PROSECUTOR]:
Your Honor, as you recall, on the 28th of September
we had a hearing in this matter at which time the
defense attorney who stood up, I believe it was Mr.
Michael Thorne, and represented to this Court that
they would not be asking for a severance in this case
between the defendants.
****
[DEFENSE ATTORNEY]:
Your Honor, my response to that is that the law
requires that the defendants be addressed individually,
that the prosecution bring it to the Court’s attention,
that they then be addressed individually. The attorney
can’t waive a conflict of interest. They have to be
addressed individually and asked whether they waive
a conflict of interest and consent to one lawyer
representing both of them.
****
[PROSECUTOR]:
Your Honor, this matter was brought to the attention
of Your Honor as we met in chambers, and the matter
was thoroughly discussed, and the defense attorney
discussed this matter with his clients.
[DEFENSE ATTORNEY]:
Your Honor, if he’s going to argue that, then I’d like
to put the clients on to ask them whether it’s ever
been addressed with them. But it has to be addressed
by the Court in open court, not outside the court.
[THE COURT]:
You issue an instanter subpoena for Mr. Thorne and
get him to testify about this matter. Now, if we’re
going to have a hearing, we’re going to put Mr.
Thorne on the stand, too, and find out what the
discussion was. My recollection is that all this was
aired in chambers and in open court. . . .
(Emphasis added.) 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
16
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. Even if no such
discussion took place, we would still find no merit to this contention of error for the reason
discussed below.
¶32.
As support, the Saltses cite Smith v. State, 666 So. 2d 810 (Miss. 1995). We find Smith
distinguishable on its facts. In Smith, the same public defender represented both a defendant and
his accomplice, who later became the “key eyewitness for the State . . . .” Id. at 811. The
Mississippi Supreme Court found that this created an “irreparable actual conflict of interest once
the trial began.” Id. (emphasis added). As we will discuss further, it is this actual conflict that
distinguishes Smith from the present case.
¶33.
The Saltses also cite Armstrong v. State, 573 So. 2d 1329 (Miss. 1990). Like Smith,
Armstrong involved an actual conflict of interest rather than a potential conflict. In Armstrong, the
same attorney represented both Armstrong and his co-defendant. Id. at 1331. It was clear from the
evidence that Armstrong’s participation in the crime was far less than that of his co-defendant. Id.
at 1333-34. However, at Armstrong’s sentencing on his guilty plea, counsel did not raise any of the
ameliorative factors that existed, “apparently fearing that too much information would incriminate
[the co-defendant] more than . . . Armstrong.” Id. at 1333. As in Smith, the Armstrong court noted
that the conflict was not merely a potential conflict, stating:
This was not a case involving highly theoretical potential for conflict but one where
it might easily have been anticipated that the defense attorney would argue that the
actions of the one should not be attributed to the other which would create a conflict
in the case and tend to throw more blame on the co-defendant . . . than on Armstrong.
The converse is also true and counsel may opt to not say or do anything in mitigation
for fear that to do so would characterize one as being more culpable than the other.
This is exactly what occurred in the case sub judice, for the public defender neither
said nor did anything in mitigation at the sentencing hearing in [sic] behalf of either
Armstrong or [his co-defendant].
17
Id.
¶34.
Mississippi law is clear that only an actual conflict of interest must be waived by co-
defendants. Both Armstrong and Smith clearly state that the conflicts in those cases were actual,
rather than potential. In Witt v. State, 781 So. 2d 135, 137 (¶7) (Miss. Ct. App. 2000), this Court
addressed the difference between an actual and a potential conflict, stating:
Mississippi has applied the [F]ifth [C]ircuit’s definition of “actual conflict”:
If a defense attorney owes duties to a party whose interests are
adverse to those of the defendant, then an actual conflict exists. The
interests of the other client and the defendant are sufficiently adverse
if it is shown that the attorney owes a duty to the defendant to take
some action that could be detrimental to his other client.
(quoting Irving v. Hargett, 518 F. Supp. 1127, 1144 (N.D. Miss. 1981)). We specifically noted that
a court needs to conduct an inquiry into the propriety of a joint representation only when an actual
conflict has been shown. Id. at 137 (¶7). In Witt, we held:
Another argument that Witt raises is that the lower court should have made an
inquiry into the propriety of any multiple representation. The United States Supreme
Court in Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980),
stated that “nothing in our precedents suggest that the Sixth Amendment requires
state courts themselves to initiate inquiries into the propriety of multiple
representation in every case.” Id. at 346. Taking this into consideration, the Cuyler
court held: “Unless the trial court knows or reasonably should know that a particular
conflict exists, the court need not initiate an inquiry.” Id. at 347 (emphasis added).
Both defendants had confessed and had been offered recommendations of identical
sentences; the trial court had no reason to suppose an actual conflict existed.
Without such, the court was not required to make such an inquiry.
Id. at 138 (¶11) (emphasis added).
¶35.
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. Nothing conclusively indicates
that Michael or Marie had interests that were adverse to each other, or that Waide should have
engaged in some course of conduct that would have been adverse to the interests of one or the other.
18
The Saltses merely suggested that some of the evidence indicated the possibility of a conflict
between Michael and Marie. We note that Marie took the stand and testified, essentially, that
neither she nor Michael had ever embezzled the insurance money. The Saltses have at best shown
a potential conflict, which does not require that the court make an inquiry into their joint
representation. Furthermore, the record indicates that some inquiry was made, although apparently
off the record. This contention is without merit.
3. Prosecutorial Statements
¶36.
The Saltses contend 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.
¶37.
On the first occasion pointed out by the Saltses, Waide was questioning Thomas Keenum,
a defense witness, when the following exchange occurred:
Q.
Let me ask you this question. You represented a funeral home for a large
number of years so you learned something about how the business operated,
right?
A.
Yes.
Q.
Would you tell the jury whether or not it was in the Saltses’ interest based
upon your -[PROSECUTOR]:
Your Honor, I think the best people to do that would
be Alice and Michael Salts, not Mr. Keenum, whether
it was in their best interest to --
[COURT]:
Let him finish his question, Counsel.
State your question again, Mr. Waide.
Q.
How many years did you say you were the attorney for this business?
A.
Some 27 years I believe.
Q.
All right, sir. Does the funeral home make most of its money off of funerals
or does it make most of its money off of collecting insurance premiums?
19
A.
Funerals.
Q.
Would you tell the jury whether or not it’s in the interest of a funeral home
owner to see that the insurance premiums are paid on burial insurance?
A.
As a general rule it surely would be.
No objection was made in reference to the State’s comment. Waide claims that he made no
objection at the time because he felt that an objection would only draw more attention to the
prosecutor’s remark.
¶38.
In the second incident, Waide was cross-examining Robert Spell, a witness for the State,
when the following exchange took place:
Q.
Tell you what, let me put it on the screen so I can show it to the jury. There’s
some type of record that we’re looking up here regarding Cox, and it has
some notations on it, NEA. Do you know what that means?
A.
No, sir.
Q.
Or BBA?
A.
No, sir.
Q.
Okay.
A.
I could make an assumption, but I’m not sure exactly.
Q.
Well instead of an assumption, why don’t you do us this? With all your
experience in the funeral business, what could funeral homes be collecting
money for from a Magnolia policyholder other than just a Magnolia policy?
What other types of things could they be collecting?
[PROSECUTOR]:
Your Honor, I’d like to object. I think the
best person to ask that question to would be
the Salts.
[DEFENSE ATTORNEY]:
Your Honor, if the Court please, with that
comment --
[COURT]:
He’s already said he’s not familiar with it. He
doesn’t know what it means. Anything that
he might say would be an assumption on his
20
part if I understand what he’s already told
you, Counsel.
The objection will be
sustained.
[ATTORNEY WAIDE]:
Your Honor, may I approach the bench just a
second?
[COURT]:
Yes, sir.
The bench conference was not recorded by the court reporter. According to the Saltses, the
prosecutor’s comment was discussed, and the Saltses requested a mistrial. The State does not deny
that this happened.
¶39.
Although not mentioned by the Saltses, the State actually made three remarks to this effect.
The first occurred before either of the incidents described by the Saltses, while Waide crossexamined Walter Blessey, a State witness:
Q.
Sir, is it not true that beside sending the letters out, the Saltses also posted
notices in the public newspaper that they were not agents of yours and to tell
the public not to be paying them for your policies? Isn’t that true?
[PROSECUTOR]:
[DEFENSE ATTORNEY]:
¶40.
Your Honor, I’m going to have to object.
He’s badgering. He is constantly on our
witness for hearsay, and then he’s going to
ask a question if this gentleman knows what
the Salts did. The best people to ask about
what the Salts did are the Salts themselves as
far as what they did.
He’s correct, Your Honor. I’ll withdraw it.
Therefore, we have three distinct 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, or not, as they chose.
21
¶41.
We find Fears v. State, 779 So. 2d 1125 (Miss. 2000) to be helpful.10 In Fears, the following
exchange occurred during the defense attorney’s questioning of a witness:
Q:
And when he returned home, did he enter the house?
A:
Yes
Q:
Did he say anything to you?
A:
Yes, he did.
Q:
Do you recall what it was that he said?
[Mr. Pittman]:
Your Honor, objection to hearsay.
The Court:
I’m going to technically sustain.
Q:
Did he say, Good morning, Grandma?
A:
He said some things to me, but it wasn’t [Mr. Pittman]:
A:
Your Honor, objection -
– and I’m not allowed to say that.
[Mr. Pittman]:
[The Court]:
A:
- to anything he said as hearsay.
All right.
I’m not allowed to say, so I can’t say it.
[Mr. Lawrence]:
I don’t understand the basis of the objection, Your
Honor. Perhaps I need to return to law school, but if
the Court may take the opportunity to educate me as
to how a statement made from the defendant directly
10
In their initial appeal brief and in their reply brief, the Saltses urge this Court to take into
account two cases from other jurisdictions that the Saltses claim support their position. The Saltses
acknowledge that these are not Mississippi cases, but argue that this Court should address them
anyway. As support, the Saltses cite Leflore v. State, 726 So. 2d 261, 263-64 (¶9) (Miss. Ct. App.
1998), where this Court used a Nebraska case to address an issue that had never been presented to
a Mississippi appellate court. Since Fears, despite the Saltses arguments to the contrary, is relevant,
binding precedent regarding the issue raised here, we do not address the non-Mississippi cases cited
by the Saltses as support.
22
to her is hearsay. I’m not asking if he said anything
regarding what anyone had stated.
[Mr. Pittman]:
Because the defendant is here to testify about what
he said.
Id. at 1128-29 (¶16) (emphasis added). The supreme court noted that “[w]hether a comment is
improper is determined on a case-by-case basis.” Id. at 1129-30 (¶20) (citing Strahan v. State, 729
So. 2d 800, 807 (¶27) (Miss. 1998)). 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.” Id. at 1129 (¶20) (quoting Ladner v. State, 584 So. 2d 743, 754 (Miss.
1991)).
¶42.
In Fears, the Mississippi Supreme Court affirmed this Court’s finding that “the prosecutor’s
comment was made in the context of a discussion on the admissibility of statements,” and “that the
remark was not directed to the jury and . . . was not improper.” Id. at 1129 (¶18). As in Fears, we
find that the remarks in the present case were not directed to the jury.11 Rather, they were made “in
the context of a discussion on the admissibility of statements.” While the objections could, perhaps,
have been worded more carefully, we decline to find that the trial court erred in refusing to grant a
mistrial on the basis of the remarks. 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. This
issue is without merit.
4. Criminal Intent and Jury Instructions
11
The Saltses attempt to distinguish Fears on the ground that the defendant in Fears failed
to object to the remark when it was made. Fears, 779 So. 2d at 1129 (¶18). However, two of the
three comments at issue in this case also were not objected to by the defendants. Furthermore, we
find nothing in the holding of Fears that is altered by the fact that the statement in Fears was not
objected to. It is clear that the comment was held to be proper because it was not a comment on the
defendant’s right to testify. Nothing in the Fears holding turns on the fact that the statement had
not been contemporaneously objected to.
23
¶43.
The Saltses contend that the trial court erred when it refused to instruct the jury that specific
intent to defraud is required to prove embezzlement. At trial, during the jury instruction conference,
the State argued two theories: first, that specific intent is not a required element of embezzlement,
and second, that “the fraudulent language [in the instructions] would establish the intent requirement
if one was required.” An off-the-record discussion was held, and the trial court then granted the
State’s instructions, which read in relevant part:
If you find from the evidence in this case beyond a reasonable doubt that:
1.
Michael I. Salts and Alice Marie Salts, while doing business as Salts Funeral
Home . . .
2.
Fraudulently appropriated more than $250.00. . . .
Six instructions, all containing “fraudulently appropriated,” were issued to the jury, at least one for
each count in the indictment.12 The Saltses contend that it is clear that the trial court issued the
instructions because it “accepted the State’s argument that the crime of embezzlement did not
require any criminal intent.” However, the record is not clear as to what the trial court believed
when it issued the State’s instructions, as the trial court could have accepted either of the State’s
arguments when it issued the instructions. Contrary to the Saltses’ contentions, nothing in the record
indicates that the trial court believed that embezzlement did not require specific intent.
¶44.
We note at the outset that the Saltses are correct that embezzlement requires specific intent,
even though the statute does not mention intent. See Morissette v. United States, 342 U.S. 246, 263
(1952). On appeal, the State argues that “fraudulently appropriated” is sufficient to denote intent.
12
Count III had already been withdrawn by the time that jury instructions were given. As
already discussed, two instructions were given for Count IV: one for an amount over $250 and one
for an amount under $250.
24
The Saltses contend that even if “fraudulently appropriated” could be used to denote specific intent,
it could not do so here because “fraudulently” was not defined for the jury.
¶45.
Although we have found no Mississippi case directly addressing this issue, we find United
States v. Hummer, 322 F. Supp. 601 (N.D. Ill. 1971) to be particularly helpful. The Hummer court
found that an indictment was legally sufficient to charge embezzlement, even though it contained
no mention of intent, because “embezzled” “connotes to both lawyers and laymen that the act
alleged was done with wrongful and felonious intent.” Id. at 602. In so finding, the court noted:
In United States v. Alexander, 415 F.2d 1352, 1357-58 (7th Cir. 1969), the United
States Court of Appeals for the Seventh Circuit approved the definition of
“embezzlement” as “the fraudulent appropriation of property by a person to whom
such property has been entrusted or into whose hands it has lawfully come.” Such
a definition implicitly includes wrongful or felonious intent. A person could not
fraudulently appropriate the property of another to himself without felonious intent.
Id. at 602 (emphasis added).
¶46.
Here, 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.
This contention of error is also without merit.
5. Propriety of Indictment
¶47.
The Saltses contend that the indictment against them was fatally flawed because it failed to
specify who the victims of their crimes were. The Saltses argue that this flaw was further
compounded by the State’s amendment of the indictment after the close of its case. We believe it
would be helpful to address not only the sufficiency of the indictment, but also the propriety of the
mid-trial amendment of the indictment.
Amendment
25
¶48.
As we discussed in the facts portion of our opinion, 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. In discussing the propriety
of the amendment, the prosecutor stated that he had told the Saltses’ previous attorney, Thorne, that
he would seek such an amendment at trial in an e-mail sent several weeks before trial.
¶49.
Rule 7.09 of the Uniform Rules of Circuit and County Court states: “All indictments may
be amended as to form but not as to the substance of the offense charged.” The Supreme Court held:
An amendment is one of form if the amendment is immaterial to the merits of the
case and the defense will not be prejudiced by the amendment. Pool v. State, 764 So.
2d 440, 443 (Miss. 2000). “The test for whether an amendment to the indictment
will prejudice the defense is whether the defense as it originally stood would be
equally available after the amendment is made.” Id.
Jones v. State, 912 So. 2d 973, 976 (¶9) (Miss. 2005).
¶50.
“[U]nless 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.” Conley v. State, 790 So. 2d 773, 781 (¶16)
(Miss. 2001) (quoting Baine v. State, 604 So. 2d 258, 260 (Miss. 1992)). 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. Furthermore, the Saltses have shown nothing to indicate
that the amendment as to the dates negated a defense they would otherwise have had before the
amendment.
¶51.
As to the reduction in the amount of money that the Saltses were alleged to have embezzled,
we find that our holding in Oby v. State, 827 So. 2d 731, 735-36 (¶¶13-17) (Miss. Ct. App. 2002),
while not directly on point, is both helpful and relevant. In Oby, the defendant was indicted for
possession of more than two grams of cocaine. Id. at 735 (¶13). However, at trial the proof showed
that Oby had possessed only .55 grams of cocaine. Id. The State moved to amend the indictment,
26
and Oby objected, arguing that the amendment affected the substance of the charges against him.
Id. at 735 (¶14). While the amendment did not change the crime charged, it did lessen the penalty
that could be imposed against Oby. Id. at 735 (¶16). Nonetheless, we found that the amendment
was one of form and accordingly affirmed Oby’s conviction. Id. at 735-36 (¶17). Like Oby, 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.
¶52.
We also find the following passage from Jones, 912 So. 2d at 977 (¶15) relevant:
Jones also argues that the lateness of the amendment to indictment prejudiced him
since he relied on the original indictment to prepare his defense. However, Jones
knew of the role of Grady Shoemaker in the alleged cocaine transaction which took
place at the time of Shoemaker’s and Jones’s arrest and the importance of
Shoemaker’s potential testimony to the case. Therefore, Jones could not have been
“surprised” by the State’s attempt to prove Jones transferred cocaine to Shoemaker.
Like Jones, 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. Furthermore, the amounts
that the Saltses were alleged to have embezzled were reduced to amounts that were smaller than
those charged in the indictment. Again, 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.
¶53.
In short, nothing has been presented to indicate that the State’s amendment was one of
substance rather than form.
Sufficiency of Indictment
¶54.
The Saltses contend 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 Saltses argue that this deficiency was further compounded
27
by the fact that the insured customers testified that their policies were through Gulf, but the State
amended the indictment to include only dates after 1994, when the Saltses were no longer working
with Gulf. The Saltses contend that they did not learn until trial who the intended victims were, as
it was only at trial that the court ruled that the victims alleged in the indictment were the Saltses’
customers. The original indictment, which was later amended as to the dates and amounts of money
alleged to have been embezzled, reads in pertinent part:
MICHAEL I. SALTS and ALICE MARIE SALTS (“defendants”), in said County
and State and within the jurisdiction of this court, individually or while aiding and
abetting or acting in concert with each other . . . did unlawfully, wilfully, feloniously
and fraudulently embezzle and appropriate more than Two-hundred Fifty dollars
($250.00) in lawful United States money, the personal property of Paula Cox, in that:
(1) Paula Cox delivered or caused to be delivered to the defendants by checks or
currency the aggregate amount of approximately $982.06 as premium payments on
insurance policies to cover burial and funeral expenses; (2) the said money was
delivered on trust by which the defendants, as agents of Paula Cox, and doing
business as Salts Funeral Home, were bound to deliver the money to the insurance
company or return same; and (3) instead of delivering or returning the money as the
defendants were bound to do under the said trust, the defendants embezzled and
appropriated said money. . . .13
¶55.
We find no merit to the Saltses’ contention that the testimony of the victims confused this
matter. If anything, the fact that the Saltses were no longer working with Gulf during the dates in
the indictment strengthened the State’s case. If the Saltses had no working relationship with Gulf,
they had no reason whatsoever to retain checks that belonged to Gulf. There is no evidence that any
of the checks in question were returned to the individuals who had sent them. Consequently, we find
the Saltses’ argument as to any confusion on this point to be without merit.
¶56.
As to the Saltses’ contention that the indictment was unclear as to who the victims in this
case were, we find no merit to this either. The only named entities in the indictment were the
13
The other counts of the indictment are similarly worded, with the exception of the amounts
of money, dates, and names of the victims, which were altered to create each separate count.
28
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. This interpretation is
consistent with the statute that the Saltses were indicted under, which reads:
If any person shall fraudulently appropriate personal property or money which has
been delivered to him on deposit, or to be carried or repaired, or on any other
contract or trust by which he was bound to deliver or return the thing received or its
proceeds, on conviction, he shall be punished by . . . .
Miss. Code Ann. § 97-23-25 (Rev. 2000). The statute does not specify who the victim of an
embezzlement is. In the case before us, there were arguably two victims – the customers whose
payments were never received by the insurance company and the insurance company who never
received the payments. 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.
¶57.
We also find 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. In order to be sufficient, an indictment must “be a plain,
concise and definite written statement of the essential facts constituting the offense charged and .
. . fully notify the defendant of the nature and cause of the accusation.” URCCC 7.06. The
indictment here fully notified the Saltses as to the nature of the charges against them. We find no
merit to this contention.
¶58.
We also find no merit to the Saltses’ contention that their customers could not be the victims
because civil law construes payment to an insurer’s agent to be the same as payment to the insurer
itself. While this would be relevant in a civil suit involving these same claims, this principle does
not operate to mean that the customers could not be the victims of a crime involving the
29
embezzlement of the funds. The Saltses have presented no authority that says that this principle of
civil law can operate to prevent a criminal embezzlement charge. This issue is without merit.
6. Sentencing
¶59.
On appeal, the Saltses contend that they should have been sentenced under Mississippi Code
Annotated 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. Before its repeal,
Mississippi Code Annotated section 99-19-17 read as follows:
In convictions for obtaining money under false pretenses, and for embezzlement, if
the value of the money or property received, obtained, or embezzled, be less than
Two Hundred Fifty Dollars ($250.00), the offense shall be punished as petit larceny.
The Saltses contend that the amendment of the larceny statute at the same time to create a $500
threshold meant that embezzlement of less than $500 should not be treated as a felony because “[t]he
rule that statutes are not to be given an absurd construction, compels that embezzlement be given
the same interpretation as petit larceny and that one must have embezzled more than $500 for there
to be a felony.”
¶60.
We disagree with the Saltses’ analysis that the Legislature must have intended to implicitly
create a threshold limit of $500 for embezzlement in 2003. 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. We do not find what the Legislature did to be absurd, and any complaint that the Saltses have
with the statutes as they are written must be taken up with the Legislature, not this Court.
30
¶61.
Furthermore, we do not find that the concept of lenity demands that the Saltses be
resentenced according to Mississippi Code Annotated section 97-23-19 (Supp. 2007),14 which reads:
If any director, agent, clerk, servant, or officer of any incorporated company, or if
any trustee or factor, carrier or bailee, or any clerk, agent or servant of any private
person, shall embezzle or fraudulently secrete, conceal, or convert to his own use,
or make way with, or secrete with intent to embezzle or convert to his own use, any
goods, rights in action, money, or other valuable security, effects, or property of any
kind or description which shall have come or been intrusted to his care or possession
by virtue of his office, place, or employment, either in mass or otherwise, with a
value of Five Hundred Dollars ($500.00) or more, he shall be guilty of felony
embezzlement, and, upon conviction thereof, shall be imprisoned in the Penitentiary
not more than ten (10) years, or fined not more than Ten Thousand Dollars
($10,000.00), or both. If the value of such goods, rights in action, money or other
valuable security, effects, or property of any kind is less than Five Hundred Dollars
($500.00), he shall be guilty of misdemeanor embezzlement, and, upon conviction
thereof, shall be imprisoned in the county jail not more than six (6) months, or fined
not more than One Thousand Dollars ($1,000.00), or both.
(Emphasis added).
¶62.
Our supreme court and this Court, alike, have held numerous times that where two or more
statutory provisions could apply to the same conduct, the State is not required to prosecute an individual
under a statute providing for a lesser penalty. Jenkins v. State, 888 So. 2d 1171, 1174 (Miss. 2004);
Martin v. State, 732 So. 2d 847, 855 (¶33) (Miss. 1998); Clubb v. State, 672 So. 2d 1201, 1204 (Miss.
1996); Beckham v. State, 556 So. 2d 342, 343 (Miss. 1990); Weaver v. State, 497 So. 2d 1089, 1092
(Miss. 1986); Cumbest v. State, 456 So. 2d 209, 222 (Miss. 1984); Grillis v. State, 196 Miss. 576, 586,
17 So. 2d 525, 527 (1944); Torrey v. State, 816 So. 2d 452, 454 (¶4) (Miss. Ct. App. 2002). In the event
that a defendant’s conduct can be classified under two different statutes, the defendant is entitled to
sentencing under the statute providing the lesser penalty if, and only if, the indictment, itself, is
ambiguous as to which the defendant is charged under. Jenkins, 888 So. 2d at 1174; Martin, 732 So.
14
The Saltses argued this theory to the court below, but they did not raise it in their appeal
to this Court.
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2d at 855 (¶33); Clubb v. State, 672 So. 2d at 1204; Beckham, 556 So. 2d at 343; Weaver, 497 So. 2d
at 1092; Cumbest, 456 So. 2d at 222; Burns v. State, 438 So. 2d 1347, 1353 (Miss. 1983); Grillis, 196
Miss. at 586, 17 So. 2d at 527. This Court has held that when the specific code section under which the
defendant is charged appears in the indictment, the indictment is not ambiguous. Torrey, 816 So. 2d at
454 (¶4).
¶63.
In this case, the Salts were initially indicted under Mississippi Code Annotated section 97-7-25
(Rev. 2006). The indictment was later amended to reflect the charges under Mississippi Code Annotated
section 97-23-25 (Rev. 2006). Section 97-23-25 remained the section under which the Salts were tried,
convicted, and sentenced. There existed no ambiguity in the indictment against the Salts. Thus, because
there is no ambiguity, the defendant is not entitled to sentencing under the statute with the lesser penalty,
Mississippi Code Annotated section 97-23-19. Torrey, 816 So. 2d at 454 (¶4). This contention is
without merit.
7. Restitution
¶64.
Although not raised as an issue by the Saltses, this Court reverses the lower court’s grant of
restitution in favor of the individual policyholders. Mississippi Code Annotated section 99-37-1© (Rev.
2007) states that restitution is “full, partial or nominal payment of pecuniary damages to a victim.”
(emphasis added). Section 99-37-1(b) defines pecuniary damages as “all special damages, but not
general damages, which a person could recover against the defendant in a civil action arising out of the
. . . defendant’s criminal activities and shall include, but not be limited to, the money equivalent of
property taken, destroyed, broken or otherwise harmed, and losses such as medical expenses.”
¶65.
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
32
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. Consequently, we reverse the trial court’s award of restitution to the policyholders
and remand the issue of restitution to the trial court for further consideration with respect to the rightful
victim, Gulf.
¶66. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS AFFIRMED IN
PART AND REVERSED AND REMANDED IN PART AS FOLLOWS: EACH ARE
SENTENCED TO COUNT I - CONVICTION OF EMBEZZLEMENT AND SENTENCE OF
FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS
AND FINE OF $10,000 IS AFFIRMED; COUNT IV - CONVICTION OF MISDEMEANOR
EMBEZZLEMENT AND SENTENCE OF SIX MONTHS IN THE CUSTODY OF THE
PRENTISS COUNTY SHERIFF’S DEPARTMENT AND FINE OF $1,000 IS AFFIRMED;
COUNT V - CONVICTION OF EMBEZZLEMENT AND SENTENCE OF FIVE YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED;
AND COUNT VI - CONVICTION OF EMBEZZLEMENT AND SENTENCE OF FIVE YEARS
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS
AFFIRMED. SENTENCE IN COUNT I TO RUN CONSECUTIVELY WITH SENTENCE
IMPOSED IN COUNT V AND CONCURRENTLY WITH SENTENCES IMPOSED IN COUNTS
IV AND COUNT VI. SENTENCE IN COUNT VI IS TO RUN CONCURRENTLY WITH
SENTENCES IMPOSED IN COUNTS I, IV AND V. MICHAEL SALTS IS SENTENCED AS
A HABITUAL OFFENDER. MICHAEL SALTS AND MARIE SALTS’S SENTENCES TO BE
SERVED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.
THE ORDERS OF RESTITUTION ARE REVERSED AND REMANDED FOR FURTHER
CONSIDERATION CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL
ARE TO BE DIVIDED EQUALLY BETWEEN LEE COUNTY AND THE APPELLANTS.
KING, C.J., LEE, P.J.,GRIFFIS, ISHEE AND CARLTON, JJ., CONCUR. IRVING AND
BARNES, JJ., DISSENT WITHOUT WRITTEN OPINION. CHANDLER AND ROBERTS, JJ.,
NOT PARTICIPATING.
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