Chisler v. State

• Citation: 553 So.2d 654
• Decision Date: 21 July 1989
• Docket Number: 3 Div. 797
• Parties: Clair Glynn Ward CHISLER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 654

553 So.2d 654

Clair Glynn Ward CHISLER v. STATE.

3 Div. 797.

Court of Criminal Appeals of Alabama.

July 21, 1989.

Rehearing Denied Sept. 29, 1989.

Certiorari Denied Dec. 1, 1989

Alabama Supreme Court 89-66.

David G. Flack and Maurice S. Bell, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for appellee.

ON APPLICATION FOR REHEARING

BOWEN, Judge.

Our original opinion in this cause is withdrawn and the following opinion substituted therefor.

Clair Glynn Ward Chisler was convicted of extortion in the second degree, a violation of Ala.Code (1975), § 13A-8-15, and was sentenced to two years' imprisonment.

The indictment alleged, in substance, that Chisler aided or abetted Jeff C. Mims, Jr., the administrator of the Alabama Alcoholic Beverage Control Board (ABC Board) in obtaining from Suntory International, Inc. (Suntory) a liquor manufacturer, Suntory's right to hire the agent, representative, or broker of its choice in Alabama, by means of a threat to take official action against, or to withhold official action from, Suntory.

The State's evidence established that liquor products must be officially listed with the ABC Board in order to be sold in Alabama. Liquor companies usually hire representatives, agents, or brokers, who, by means of promotional presentations to the ABC Board, try to get their products listed in Alabama. The ABC Board conducts regular listing hearings, after which the administrator and deputy administrator recommend to the Board which products should be listed. The Board members then vote on whether to accept the recommendations. A product is officially listed only if the Board votes to have it listed.

Carl Wright, deputy administrator of the ABC Board, testified that Jeff Mims, the administrator of the ABC Board, introduced him to the defendant in the spring of 1983 and told him "to assist her in getting some lines to represent here in Alabama." Initially, Wright did nothing. Mims later asked Wright whether he had done anything to help the defendant. Wright then contacted the liquor companies which he thought did not have brokers in Alabama and told them that he knew "someone that could assist them in securing some listings in the State." If the company representatives informed Wright that they already had a broker, Wright inquired whether they wanted an additional broker who could help them obtain new listings. If they expressed no interest in an additional broker, Wright informed them that they would get no further listings in Alabama.

Wright told Frank Mancini at Suntory that "if [Suntory] expected to have any products listed in the State of Alabama, Clair Chisler would have to be [the] broker." Wright informed both Mims and the defendant of this conversation.

Frank Mancini testified that Suntory initially wanted to hire Mike Miaoulis as its Alabama broker. However, when told by Wright that Suntory should hire the defendant if it expected any listings, Mancini decided to interview the defendant. The defendant "guaranteed" Mancini that Suntory would get two or three listings. Suntory hired the defendant as its broker, and four of its products were listed in Alabama.

Mike Miaoulis testified that Mancini had originally agreed to hire him as Suntory's broker in Alabama. Later, however, Miaoulis told Mancini that he could not "guarantee" Suntory any listings in Alabama and that all he could guarantee was that he would "go before the Alabama ABC Board, and give it my best shot." Miaoulis was not hired.

Leo Conte, of Montebello Brands Bottlers, testified that Wright recommended that his company hire the defendant as its broker. Montebello hired her and it obtained 23 new listings in three months. In the previous 25 years of doing business in Alabama, Montebello had received only 27 listings.

Edwin Morgan, of Brown-Foreman Distillers, testified that Wright told him "the broker [his company] had to go through was Mrs. Clair Chisler." Morgan refused to hire the defendant, and his company obtained no listings that year.

Robert Norton, of Federal Distillers, testified that Wright suggested the defendant as a broker for Norton's company. Federal Distillers, which had obtained only six Alabama listings in the previous five years, received nine new listings in one month after hiring the defendant.

Chris White, of Heublein Wine Company, testified that Wright suggested to him that his company hire the defendant as its broker. White replied that Heublein had decided to hire Alabama Crown. Wright then said that "there would be no way that [Heublein] would get listed with the State unless [it] appointed [the defendant]." White also testified that he had several telephone conversations with a woman who identified herself as Clair Chisler. According to White, the defendant stated that "in Alabama you g[e]t things done based on your connections, and that if you get the right connections you can be successful in the State. If you don't have the right connections, and you don't go with the program, then you are going to be out of business." Despite this, Heublein hired Alabama Crown. It obtained no listings in Alabama that year.

John Waites testified that in the fall of 1983 he drove the defendant to Evergreen, Alabama, to meet the ABC Board administrator, Jeff Mims. "Waites said that the defendant told him that she and Mims had to get their stories straight, due to an upcoming investigation about her books." When they arrived at their destination, Waites said, Mims got into the car and kissed the defendant. He also said that the defendant told Mims she was worried that they had been seen together at a restaurant and at a motel and that Mims's car had been photographed in front of her house, and that later, the defendant asked Waites to tell the grand jury that he was Mims's bodyguard and that she and Mims had never been alone together. Waites testified that he had not been a bodyguard for Mims.

The defendant testified that she heard Mims tell Wright to help her become a broker. She denied, however, knowing that Wright had ever threatened any liquor companies into hiring her, denied having "guaranteed" Mancini that she could obtain any listings for Suntory, and denied having told any liquor companies that if they wanted their products listed they would have to hire her.

I

The defendant claims that the indictment failed to charge an offense because, she argues, the "contractual right" described in the indictment did not constitute "property."

Section 13A-8-13 states that one commits the offense of extortion "if he knowingly obtains by threat control over the property of another, with intent to deprive him of the property." "Property" is defined in § 13A-8-1(10) as:

"Any money, tangible or intangible personal property, property (whether real or personal) the location of which can be changed (including things growing on, affixed to or found in land and documents, although the rights represented hereby have no physical location), contract right, chose-in-action, interest in a claim to wealth, credit or any other article or thing of value of any kind." (Emphasis added.)

The property alleged to have been obtained was "the contractual right of Suntory ... to retain, hire or employ agents, brokers, or representatives of its choice."

The defendant attempts to draw a distinction between a "contract right" listed in the statute as a possible subject of extortion and the "contractual right" of Suntory described in the indictment. She claims that a contract right arises only from an existing contract (which Suntory did not have), whereas a contractual right is "a naked right existing merely in comtemplation of law, [and] although it may be very valuable to the person who is entitled to exercise it, it is not a subject of larceny." Brief of Appellant at 30-31, quoting Latham v. State, 56 Ala.App. 234, 320 So.2d 747, 755 (Ala.Cr.App.), affirmed, 294 Ala. 685, 320 So.2d 760 (1975).

The argument defeats itself. Latham v. State recognized that even a right existing merely in contemplation of law is "very valuable to the person entitled to exercise it." The definition of "property" under our extortion statute is broadly worded to include a "thing of value of any kind," Ala.Code § 13A-8-1(10), and repudiates the artificial and illogical restrictions imposed upon the kind of property which at common law could be the subject of larceny. See Ala.Code §§ 13A-8-2 through 13A-8-5 (Commentary at 266-267).

The defendant further claims that the contractual right at issue here, the ability of Suntory to secure the professional services of the broker of its choice, could not be the subject of extortion because "professional services" is not included in the definition of "property" set out in § 13A-8-1(10). Citing People v. Squillante, 18 Misc.2d 561, 185 N.Y.S.2d 357 (1959), the defendant argues that although the right to contract for professional services is one that may be lost by the victim of extortion, it is not one that may be obtained by the extortionist. In Squillante, the accused was convicted of extorting money from stores by demanding, under threat of picketing, that the stores discontinue dealing with a certain garbage collector and deal only with the accused sanitation company. The New York court held the indictment deficient. Responding to the State's argument that "the stores lost the freedom to contract with the cartmen of their choices, and that that right is 'property' within the [New York extortion] section," the Court held:

"It would appear that the right to contract may be property injured under Section 851 of the Penal Law ..., but it is difficult to consider that right property obtained under Section 850. 'Obtaining of property from another' imports not only that he give up something but that the obtainer receive something.... [T]wo federal cases cited by the People are distinguishable; [one] because the statutory definition encompassed...