DeLaune v. State, F-76-768

• Decision Date: 13 September 1977
• Docket Number: No. F-76-768,F-76-768
• Citation: 569 P.2d 463
• Parties: Dorothy DeLAUNE and Carroll DeLaune, Appellants, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 463

569 P.2d 463

Dorothy DeLAUNE and Carroll DeLaune, Appellants, v. The STATE of Oklahoma, Appellee.

No. F-76-768.

Court of Criminal Appeals of Oklahoma.

Sept. 13, 1977.

An appeal from the District Court, Caddo County; Sam W. Williams, judge.

Amos E. Black, III, Anadarko, for appellants.

Larry Derryberry, Atty. Gen., Robert McDonald, Asst. Atty. Gen., Janet Cox, Legal Intern, for appellee.

OPINION

BRETT, Judge:

Appellants, Dorothy DeLaune and Carroll DeLaune, hereinafter referred to as defendants, were charged, tried by jury and convicted in District Court, Caddo County, Oklahoma, for the offense of Embezzlement of State Funds, in violation of 21 O.S.1971, § 341. Punishment was set at five (5) years' imprisonment, with two and one-half (21/2) years suspended, and a fine of Five Hundred ($500.00) Dollars for defendant Dorothy DeLaune; and, three (3) years' imprisonment, with two (2) years suspended, and a fine of Five Hundred ($500.00) Dollars for defendant Carroll DeLaune. Defendants have perfected this timely appeal.

Defendants, employees of the Kiowa Housing Authority (a State agency created under 63 O.S.1971, § 1057), were charged along with four others with embezzling more than $10,000.00 between July 3, 1973, and February 1, 1975. Defendant Dorothy DeLaune was originally employed by the Authority as a clerk, and became Acting Executive Director on August 15, 1973. Her husband, defendant Carroll DeLaune, was employed by the Authority as an overseer on a housing rebuilding project.

Frances Oheltoint, an investigator for the Oklahoma Indian Rights Association, testified that defendant Dorothy gave her three containers of documents shortly before the Caddo County Grand Jury met in early 1975. Her stated reason was to aid the grand jury, and to "get Vincent Bointy," chairman of the Authority at the time, and a co-defendant. When asked what defendant Dorothy told her about the documents, the witness stated that:

"A. She told me that they had falsified some of the bills and to give them amounts of money that they were not entitled to. She told me that they had paid for fences that were not built, and that they had falsified other things to give Mr. Bointy money which he needed when he was in the hospital.

"Q. And she said 'they' falsified them. Who is 'they', Mrs. Oheltoint?

"A. Herself and the people she was making reference to, LaVerne Satepeahtaw and Vincent Bointy."

Following a Jackson-Denno hearing out of presence of the jury, the court overruled a motion to suppress, and allowed into evidence grand jury testimony of both defendants.

In that testimony defendant Dorothy said she often signed blank checks and left them in her desk as she was often away from the office, and bills had to be paid. As executive director, hers was one of two signatures needed on all Authority checks. She testified she signed a check for $1,704.08 to LaVerne Satepeahtaw for drilling a water well that, in fact, never was drilled.

She admitted taking $50.00 in Authority funds for her own use and cashing a $500.00 check for Bointy, entered on the books as a payroll advance for her. She said she authorized her own salary to continue when she left the job for a time in early 1974, and when asked if she were justified in doing it she responded:

"A. No, not now.

"Q. You did at the time?

"A. I don't think anything that went on there was justified.

"Q. Do you think this was illegal to do this?

"A. Yes, very much so. I should have come forward with this a long time ago. . . ."

During his grand jury testimony, defendant Carroll said:

"A. There was two occasions where I gave him (Vincent Bointy) some money on a kick-back on a deal.

"Q. Can you explain the circumstances surrounding this transfer of money?

"A. There was one occasion where he and I split up a thousand dollars. He got five hundred and I got five hundred.

"Q. How was this done?

"A. Well, a check was made out to me and I cashed the check and brought $500.00 back to him.

"Q. What were you to do, if anything, for the $500.00 that you testified that you received when you cashed that check?

"A. What was I supposed to do? Nothing, but just go cash the check and bring the money back.

"Q. Just the cashing of the check and bringing the money back?

"A. Right. That was all.

"Q. No promise to do anything?

"A. No, there was no promise to do anything at all. Just the use of my name to cash the check and that was the only thing."

Defendant Carroll said that similar transactions occurred when he received a check for $1,181.25. He said he deposited the check in his personal account, took out $473.00, and split this amount with Bointy. The amount he actually deposited $708.00 was owed him for work already done. The grand jury asked defendant if he knew this to be unlawful, and the defendant responded, "Yes, I knew that, but I needed to get paid."

Orville Brewer, supervisor auditor of the Department of Housing and Urban Development (HUD), testified that defendant Dorothy began drawing biweekly paychecks of $230.00, which increased to $375.00 when she was named Acting Executive Director on August 17, 1973. On January 3, 1974, her salary checks increased to $550.00. Brewer said he could find no authorization for that increase, although admitted that copies of Authority minutes and resolutions were missing for a period during that time. Brewer determined that between August 17, 1973, and July 11, 1974, defendant should have received a gross salary of $8,812.50, figured at the authorized $375.00 biweekly level. Her bank account, however, reflected deposits of $13,075.20 identified as "salary" and $3,075.24 not identified as salary. This made a total excess payment to defendant Dorothy of $7,262.94.

Brewer said the overpayment could have been the result of reimbursement for mileage, per diem, or travel expenses, but added that other employees were issued separate checks for travel expenses.

Curtis J. Greer, a private accountant hired by the Authority, testified that his investigation reflected an overpayment of salary and other Authority funds to defendant Dorothy of $7,392.81. He, like Brewer, found no support for the salary increase to $550.00. He said Authority records reflected $8,129.13 in collections which were never deposited, and that overpayments in salaries to other employees totalled $23,256.32. He said that all the checks were signed by defendant Dorothy and one of the Authority officials, usually Bointy.

Greer said that in computing defendant Dorothy's overpayment he used a salary figure of $550.00 biweekly. If he had used the highest authorized figure of $375.00, the overpayment would have been $2,975.00 greater.

George Poolaw, former Authority commissioner, said defendant Dorothy never had been authorized to receive more than the former executive director had received, $375.00 biweekly.

Vincent Bointy, former chairman of the Authority and a co-defendant, testified for the defense that he did not recall whether the Authority authorized a salary increase for defendant Dorothy to $550.00.

Martha Depel Myers, who was Executive Director of the Authority when defendant Dorothy was account clerk, testified to finding in defendant Dorothy's desk a temporary receipt book which listed collections not posted in the permanent ledger.

Darrell Vaught, HUD auditor, testified that his audit of the cost of rebuilding a house included a check for $1,181.25, listed under costs the exact amount defendant Carroll said he cashed as part of a kickback scheme. His audit of the defendants' bank account showed, for a period between December 27, 1973, and February 2, 1974, total deposits labeled as Authority funds of $5,356.86. Included were two checks not listed as salary.

Dr. Everett Rhoades, Vice Chairman of the Kiowa Tribe, said the defendants talked to him several times before the grand jury met. He said he was "absolutely certain" that defendant Dorothy had taken "a considerable amount of money," and added, "She had told me that she had taken the money." He also said that while Dorothy was waiting to give her grand jury testimony she asked him for a tranquilizer and he gave her about 20 Librium or Valium tablets, but did not see her take them.

In their first assignment of error, the defendants contend the trial court erred in failing to sustain defendant Dorothy's plea of former jeopardy. The defendant was charged, tried and acquitted in an earlier trial of embezzling $800.00 from the Kiowa Housing Authority during the time period covered in the present case. Prior to the presentation of any evidence, the trial court instructed the prosecutor to exclude any evidence of the $800.00 check for which the defendant had already been tried. Despite the trial court's order, the $800.00 check was actually admitted into evidence along with several other checks as State's Exhibit No. 10.

While we think it would have been the better practice for the State to have tried Ms. DeLaune all at one trial for as much of the embezzling as they knew about, this Court has applied the same evidence rather the same transaction test in determining whether a defendant can be charged with more than one crime or whether in fact only one crime was committed. That is, if the two crimes charged each require the proof of at least one fact which is not required to be proved in the other, the defendant can be charged with more than one crime. See, Webb v. State, Okl.Cr., 538 P.2d 1054 (1975). Therefore, defendant's acquittal on the charge involving the $800.00 check is not a bar to her trial on other embezzlement which took place during the period between July 3, 1973, and February 1, 1975.

However, as defendant had already been charged and acquitted on the $800.00 check, the trial judge was correct in ordering the prosecution to omit any evidence of that check. Jeopardy had already attached with regard to that check. Further, we view the admission of that check along with the testimony regarding all the...