Miller v. State

• Decision Date: 17 June 1992
• Docket Number: No. 49A02-8910-CR-00502,49A02-8910-CR-00502
• Citation: 593 N.E.2d 1247
• Parties: Keith MILLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. 1
• Court: Indiana Appellate Court

Page 1247

593 N.E.2d 1247

Keith MILLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-8910-CR-00502. ¹

Court of Appeals of Indiana,

Fifth District.

June 17, 1992.

Rehearing Denied July 28, 1992.

Transfer Denied Sept. 15, 1992.

Monica Foster, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

SHARPNACK, Judge.

A jury found Keith Miller guilty of six counts of dealing in unregistered securities, six counts of sale of securities by an unregistered agent, and six counts of securities fraud, all class C felonies. The trial court sentenced Miller to eight years imprisonment on each count. The court further ordered that the sentences for sales by an unregistered agent and securities fraud be served concurrently with the sentences for dealing in unregistered securities, but the court ordered that the sentences for each count of dealing in unregistered securities be served consecutively. Miller was thus sentenced to six consecutive eight year terms, for a total executed sentence of forty-eight years. Miller appeals his convictions, and we affirm.

Miller raises four issues for our review. We restate these issues as follows:

1. Did the trial court err in trying Miller in absentia when he failed to appear for trial?

2. Did Miller's trial counsel render ineffective assistance when he failed to raise an accountant-client privilege objection to the testimony of witness Wertz?

3. Did the trial court abuse its discretion when it allowed a prosecution witness to testify concerning uncharged acts of misconduct committed by Miller?

4. Was Marion County the proper venue for Miller's prosecution for violations of the securities laws?

The following are the facts most favorable to Miller's conviction. In 1983 Miller and Bernie Custer operated a business called Hospitality Guides Systems, Inc. (hereinafter "HGS") from an office in Indianapolis. They directed their accountant, Greg Wertz, to incorporate a new company to be known as Advertising Guides of America, Inc., (hereinafter "AGA") and they hired an electrician to produce a prototype electronic advertising board upon which the new corporation's business would be based. In early January of 1984, Miller and Custer contacted Gerald Shouse and told him that they had a functioning prototype of the advertising board. They also told him that they had already sold the idea to some investors in Lake County. Shouse agreed to help them find additional investors in his area in exchange for a share in the business.

Miller and Custer held a dinner meeting for Shouse and the potential investors at the Executive Inn in Vincennes on January 14, 1984. Prior to this meeting, Miller had not registered any stock in the advertising board business with the Indiana Securities Division, nor had he registered with the division as an agent for sale of any stock. The division twice had ordered Miller, who had a prior felony conviction and a prior conviction for conversion arising out of the sale of securities, to stop selling unregistered securities. At this meeting Miller and Custer showed the potential investors an operating prototype of the sales board, photographs of the corporate office, their resumes, and a prospectus. Miller told the investors that he intended to form a limited partnership, Advertising Guide Partners, Ltd. (hereinafter "AGP"), to market the board. He further told them that the business would be financed by only a limited number of investors, and that each investor had to purchase a minimum of two shares at a price of $2,375.00 per share. The money generated was to be used to produce the boards. The investors would serve as limited partners, while he and Custer would be general partners and would run the business. Miller told the potential investors that they could expect a 75% return on their investment in the first year.

Several of the potential investors decided to purchase shares in the partnership. Over the course of the next several days, these investors paid to Custer and Miller sums of money ranging from $1,000.00 to $9,500.00. Miller and Custer cashed the investors' checks.

Miller and Custer hired a salesman to sell advertising space on the boards in the Lake County area. The salesman made sales of over $30,000.00, but none of the boards were ever installed. None of the investors in AGP ever received a return on their investment, and none of them ever heard from Miller or Custer after giving them the money.

Miller first asserts that the trial court committed reversible error when it proceeded with the trial in his absence. He argues that both the federal and state constitutions guarantee him the right to be present for his own trial. U.S. Const.Amends. VI, XIV; Indiana Const. Art. I, Sec. 13. Citing Taylor v. United States (1973), 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174, he concedes that the right may be waived. However, he argues that the right is fundamental and, accordingly, that the trial court should not find that the defendant has waived the right unless the state has shown that the defendant has knowingly and intentionally relinquished it. Dodson v. State (1987), Ind., 502 N.E.2d 1333, 1337. Miller contends that there is no evidence that he knowingly and intentionally absented himself from trial.

The trial court has heard evidence and argument concerning Miller's knowledge of the date of trial on four separate occasions: on the day of trial before it decided to proceed with trial, at hearing about sentencing which took place after the trial, at the sentencing hearing and at a subsequent evidentiary hearing conducted pursuant to the order of this court. We will now summarize the evidence presented at each of these proceedings.

Miller's trial was set for 9:00 a.m. on November 14, 1988. When Miller failed to appear in court by 10:47 a.m., the trial court commenced a hearing to determine whether he had knowingly absented himself from trial. The court noted that the trial date had been set on August 12, 1988, and that the court had held a hearing on a motion for continuance on November second. The court, without swearing in Miller's trial counsel Michael Riley, proceeded to question him concerning Miller's absence. Riley objected to the court's questions but answered them when the court overruled his continuing objection.

Riley stated that he had last spoken with Miller at approximately 8:00 a.m. Indianapolis time on November 12, 1988, the Saturday before trial. When the court asked if he had discussed the trial date with Miller in this conversation, Riley replied that he had told Miller, "I'll see you Monday." The court then asked Riley when he first notified Miller of the November 14 trial date. Riley responded, "The date, whenever it was that I became aware that it was set for November the 14th, 1988; I would have sent him a notice at the address that I have for him. Plus I told him by phone." Riley estimated that he sent Miller notice of the trial date on August 14 or 15. Riley also stated that he had informed Miller that the motions for continuance which were heard on November 2 had been denied. In response to the court's last question, Riley stated that he had no doubt that Miller knew of the trial date.

One of the deputy prosecutors then proceeded to question Riley. She asked when Riley had been in contact with Miller, and Riley said that he had talked with Miller on each business day of the week before trial. Finally, Riley stated that, in a conversation which took place the Thursday before trial, he had a conversation with Miller in which it was implicit that the trial was set for the fourteenth.

As the hearing continued, one of the deputy prosecutors, Scott Newman, made certain representations to the court. Newman stated that he had talked with Miller at a deposition some time earlier and indicated that the case would come to a conclusion on the fourteenth. Newman stated that Miller agreed with his comment. Riley offered no objection to Newman making these representations.

On December 8, 1988, the trial court attempted to hold a sentencing hearing. At this time, Miller was still absent from the state. He was represented at the hearing by Gil Berry. The court did not proceed with sentencing, but did interrogate Kurtis Miller, the defendant's son, under oath. In response to the court's questions, Kurtis offered the following testimony:

Q. Well, last month had 30 days. How about last month in relation to the 14th of November? Did you see him before or after that date?

A. What day was the 14th?

Q. Monday.

A. It was before that.

Q. How do you know?

A. It was on a weekend. He was supposed to go to Court on Monday.

* * * * * *

Q. And it was at that time he told you he was coming to Indianapolis for his trial--

A. Yes, he did.

Q. --on Monday, the 14th?

A. Yes, he did.

(Supp. Record, pp. 130, 131).

On January 19, 1991, Miller filed a pro se petition in which he requested that he be afforded an opportunity to explain his absence from trial in order to rebut the inference that he had voluntarily absented himself from the trial and thus knowingly and intelligently waived his right to be present. (Petition For Remand, p. 5). This court initially denied Miller's petition, but we subsequently reconsidered our ruling in light of the fourth district's holding in Ellis v. State (1987), Ind.App., 525 N.E.2d 610, 612-613, in which Judge Conover wrote:

"The trial court may presume a defendant voluntarily, knowingly, and intelligently waived his right to be present and try the defendant in absentia upon a showing that the defendant knew the scheduled date but failed to appear. [citation omitted]. A defendant who has been so tried, however, must be afforded an opportunity to explain his absence and thereby rebut the initial presumption of waiver."

(emphasis added). We therefore issued an order remanding the...