State v. Miller
| Decision Date | 04 November 1980 |
| Docket Number | CA-CR |
| Citation | 624 P.2d 309,128 Ariz. 112 |
| Parties | STATE of Arizona, Appellee, v. R. Wayne MILLER, Appellant. 13927. |
| Court | Arizona Court of Appeals |
Appellant was convicted of grand theft by false pretenses in violation of former A.R.S. §§ 13-661, -663, and -671 and two counts of perjury in violation of A.R.S. §§ 13-561 and -572, following a trial by jury. He was sentenced to serve not less than nine nor more than ten years in the Arizona State Prison on each count, the sentences to run concurrently. He raises five issues for our consideration on appeal: 1) Whether the trial court erred in admitting testimony regarding a prior bad act involving James Jeffries; 2) whether the trial court erred in allowing a superior court judge to testify and give his opinion of appellant's credibility; 3) whether the trial court erred in denying his motion for mistrial based upon questioning of a prosecution witness; 4) whether the trial court erred in denying two of appellant's requested jury instructions; 5) whether the trial court erred in denying appellant's motion to quash the State's subpoena duces tecum for records held by appellant's law clerk.
In the fall of 1976, appellant was a practicing attorney in Maricopa County. His advice regarding a divorce was sought by Gerald Klungtvedt on September 1, 1976. Klungtvedt paid appellant a $200.00 retainer and gave appellant information concerning his finances. The following day, Klungtvedt informed appellant he had changed his mind about the divorce proceedings and instead desired appellant to prepare a will for him. Appellant told Klungtvedt that the charge for the will would be $100.00 and that the $100.00 remaining from the retainer would be returned to Klungtvedt. The will was prepared, and on November 17, 1976, Klungtvedt went to appellant's office to pick up the remaining $100.00. At that time appellant told Klungtvedt that he (appellant) had an opportunity to make $250,000.00 on a land deal in Fricot City, California, but that he needed $50,000.00 immediately to clear up some deeds of trust in connection with the land transaction. Appellant asked Klungtvedt whether he would be interested in making a loan to appellant of $50,000.00 and Klungvedt stated that he was too conservative to loan such a sum. Klungtvedt also told appellant that he would be willing to assist appellant in procuring a bank loan for the money. Appellant told Klungtvedt that the money was needed immediately and that there was no time to obtain a bank loan and offered Klungtvedt a bonus of $5,000.00 to $10,000.00 if he loaned the money until December 1. Klungtvedt again indicated that he was not interested in making the loan.
The following day, appellant called Klungtvedt and they agreed to meet at appellant's office to discuss the loan again. At that time, appellant offered Klungtvedt a $15,000.00 bonus and Klungtvedt stated that he might be interested and he would like to talk to the title officer in California to determine whether the land transaction was proceeding to closing. Klungtvedt telephoned Jack Adams from Safeco Title Insurance Company in California, and Mr. Adams told Klungtvedt that the transaction was ready to close and that a few deeds of trust needed to be cleared. Klungtvedt was still reluctant, but he agreed to meet with Miller at the Adams Hotel in Phoenix later on that day.
At the meeting at the Adams Hotel, Klungtvedt and appellant were joined by Howard Woodall, who was introduced as appellant's partner. Appellant told Klungtvedt that he would be willing to secure the loan with a deed of trust to an eighty acre parcel of land located in Calaveras County, California. Appellant further told Klungtvedt that Disneyland was building a complex near the eighty acre parcel; that the parcel was improved with roads, water, sewage facilities, and utilities; that the land was valued at the sum of $2,000.00 per acre; and that the land was unencumbered.
On November 18, 1976, Klungtvedt loaned $50,000.00 to appellant in the form of a cashier's check made payable to appellant. In return, Klungtvedt was given a check postdated to December 1, 1976, drawn on appellant's trust account, a personal receipt On December 1, 1976, Klungtvedt asked appellant whether he could deposit the check and appellant told him that he did not have the money yet. From December 1, 1976, through January 3, 1977, Klungtvedt repeatedly contacted appellant and appellant repeatedly told him that he did not have the money yet. Finally, Klungtvedt filed a civil action against appellant and Woodall, among others. That case proceeded to trial in the Maricopa County Superior Court. Twice during the civil proceedings appellant stated under oath that the loan obtained from Klungtvedt was for Howard Woodall only, and that Klungtvedt was clearly told that the loan was for Woodall. The perjury charges in the instant case arose from the two assertions in the civil proceedings made by appellant.
from appellant, a promissory note signed by Woodall and appellant, and a warranty deed to the eighty acres of property in Calaveras County, California.
The evidence at trial further showed that after appellant and Woodall received the loan from Klungtvedt, they divided the proceeds of the loan between themselves. They did not use the proceeds of the loan to clear deeds of trust relating to the California transaction. Moreover, the evidence at trial showed that there was no proposed Disneyland development adjacent to the land purportedly deeded to Klungtvedt as security and, further, that the land was unimproved and of a value substantially less than that represented to Klungtvedt by appellant. Finally, because there were numerous tax liens on the Calaveras County land, the California Recorder's Office refused to record the deed conveying the land to Klungtvedt. The charge of grand theft by false pretenses arose out of the transactions between Klungtvedt, appellant, and Woodall.
Prior to trial in the instant case, appellant filed two motions in limine to exclude from the trial any and all references, testimony, and evidence involving a transaction between appellant, Woodall, and James Jeffries. This transaction was the subject of criminal charges in a related case, CR-99404, for which appellant was convicted following his conviction in the present case. The trial court denied both motions. During the trial in this case, Howard Woodall was allowed to testify to the events which formed the transaction between Jeffries, Woodall, and appellant. Appellant claims that the trial court erred in admitting Woodall's testimony and in allowing the State to argue the similarities between the Jeffries transaction and the Klungtvedt transaction during its opening statement and closing argument.
Woodall testified that appellant introduced Jeffries to Woodall in November 1976 in order to discuss a loan between Jeffries and Woodall. Woodall sought to borrow $50,000.00 from Jeffries ostensibly for the purpose of clearing deeds of trust in a Fricot City, California, land transaction. The land transaction was the same California land transaction which formed the basis of the Klungtvedt loan. Woodall told Jeffries he would repay him $65,000.00, which would be secured by a deed of trust to eighty acres of land located in Calaveras County, California. Woodall and appellant explained to Jeffries that the eighty acres were near a proposed Disneyland development, that the land was improved with utilities and roads, and that the land would be valued at $15,000.00 to $25,000.00 per acre after the Disneyland complex was built. Ultimately, on November 22, 1976, Jeffries gave Woodall a check for $50,000.00. In exchange, he received a warranty deed to the eighty acres in Calaveras County, which was recorded. At the time the loan occurred, appellant was in New Jersey attempting to close another real estate transaction with the Teamsters Union for the purpose of a warehouse for Woodall and appellant. Although Woodall and appellant had represented to Jeffries that they intended to use his money to clear the deeds of trust on the California land, they actually intended to use his money to close the New Jersey warehouse deal. The New Jersey warehouse transaction did not occur Appellant argues on appeal that the trial court improperly admitted evidence of the Jeffries transaction because the transaction was highly dissimilar from the Klungtvedt loan. We disagree. While there were some differences between the Jeffries transaction and the Klungtvedt transaction, 1 the two transactions were substantially similar. In each case, the amount of the loan request was the same, $50,000.00, and the bonus was the same, $15,000.00. Each transaction was accomplished by means of meetings between the victim, Woodall, and Miller, where it was represented that the money was needed for clearing up deeds of trust on a potentially highly profitable transaction in California, and that the money was needed quickly. As to both transactions, the same misrepresentations were made as to the condition and value of the eighty acre parcel in Calaveras County, California. Each transaction was ostensibly secured by that parcel of land. Each transaction occurred during November 1976.
when Woodall cashed the check from Jeffries, however, he exchanged it for cashiers' checks in $2,500.00 denominations and gave $15,000.00 of it to appellant upon his return from New Jersey. The proceeds of the Jeffries loan were never used to clear deeds of trust in California.
Arizona Rule of Evidence 404(b) states that:
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