State v. Streett

• Decision Date: 30 December 1969
• Docket Number: CA-CR,Nos. 2,s. 2
• Citation: 11 Ariz.App. 211,463 P.2d 106
• Parties: STATE of Arizona, Appellee, v. Franklin B. STREETT, Appellant. 185, 2 186, 2 191.
• Court: Arizona Court of Appeals

Page 106

463 P.2d 106

11 Ariz.App. 211

STATE of Arizona, Appellee, v. Franklin B. STREETT, Appellant.

Nos. 2 CA-CR 185, 2 CA-CR 186, 2 CA-CR 191.

Court of Appeals of Arizona, Division 2.

Dec. 30, 1969.

Gary K. Nelson, Atty. Gen., Phoenix, by Carl Waag, Asst. Atty. Gen., for appellee.

Rees, Estes & Browning, by H. W. Howard, Tucson, for appellant.

KRUCKER, Chief Judge.

Because of the identity of questions presented in these three appeals, this court, upon the defendant's motion, ordered consideration for all purposes. In fact, Nos. 2 CA-CR 185 and 186 were consolidated for trial below, resulting in convictions for both offenses charged: (1) obtaining money by false pretenses or confidence game, and (2) theft by embezzlement. In a separate trial, defendant was found guilty of the crime of forgery. All three charges arose out of the defendant's conduct while employed as an automobile salesman for Pueblo Ford, a Tucson, Arizona car dealer.

The defendant was represented by court-appointed counsel at all stages for the respective proceedings below. On appeal, however, he is represented by another appointed counsel who has examined the record in all the cases and has concluded that the appeals therefrom are wholly frivolous. He has filed a motion for permission to withdraw as counsel and in compliance with Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), filed a brief enumerating those points which 'might arguably support an appeal.' The defendant was furnished a copy of counsel's brief and its accompanying affidavit and was informed therefrom of counsel's belief that the appeals were frivolous. Counsel also forwarded to him the entire available record. Thus, the procedure followed by appellate counsel comports with that approved by the Arizona Supreme Court in State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969) and his motion to withdraw is granted.

We afforded the defendant an opportunity to file a brief in his own behalf. He has done so, in substance reiterating the 'arguable errors' and in addition, he attacks the fairness of his trial and the adequacy of his representation by counsel.

Briefly, the evidence in support of the respective convictions is as follows. As to the embezzlement charge, it arose out of a transaction beween the defendant and a couple with whom he dealt in the course of his employment. This couple, after discussion with the defendant, signed an agreement to purchase a new vehicle. They gave him a check as down payment and left the payee's name blank at the defendant's suggestion. He told them that Pueblo Ford's name would be inserted by the cashier. Subsequently, however, the defendant's name was a written in as payee without the authorization of the makers. Later the same day on which the sales agreement was signed and the check issued, the purchasers returned to Pueblo Ford for purposes of rescinding the transaction and procuring their check. They were unable to contract the defendant as he had left for the day and were informed that no papers of any kind concerning their transaction were in the office. Two days later, the defendant contracted the couple by phone and they agreed to purchase the same type of car, with a smaller engine. The check which the couple had given to the defendant as a deposit was cashed by him instead of being paid to Pueblo Ford.

As to the obtaining money be false pretenses or confidence game charge, this too arose out of purchase negotiations with a customer. The defendant was given a down payment check made out to Pueblo Ford by the customer. The following day, he advised the customer that the check had been accidentally torn and he had deposited his own money with Pueblo Ford. He asked the customer to give him a new check payable to him. The customer complied with this request but in fact, at that point in time the defendant had made no deposit of his own funds on behalf of the customer. It was contrary to company regulations for deposit checks to be made out to salesman or for salesman to retain any deposit money.

As indicated above, the forgery charge was tried separately. It arose out of the defendant's negotiations with another couple for their purchase of a new car. The comple signed a written purchase agreement and gave defendant a deposit check made out to Pueblo Ford. The next day defendant telephoned the wife, informing her that the check was torn and that the bank would not accept it in a mutilated condition. He asked if he could make out a new check, but she told him that he could not. The State introduced into evidence a counter check, dated the day following this telephone conversation, made payable to the defendant. This check bore the purported signature of the customer-husband (it was not in fact his signature) and the check was cashed by the defendant. When the couple received their monthly bank statement, which included the cancelled check, payment was stopped on the torn check. The customer--husband testified to a conversation with the defendant:

'Q And was there any conversation regarding the check that you had made payable to him?

A Yes, there was.

Q And what was that?

A I told him that I wanted that check and that I would write him out another check for the amount, inasmuch as he would give me the cancelled check, and at that time he--we were talking there and then he said he wanted the check made out to his name, and I told him that I was dealing with Pueblo Ford and that I wasn't going to write the check out to his name, and he then told me that the reason he wanted it made out to his name was due to the fact that he had put his name on the check here, and the bank had refused to cash it, and therefore, he tore it up.'

It was not until the day after this conversation that the defendant deposited to the customer's account with Pueblo Ford a cash sum equivalent to the customer's deposit check.

In all three cases defendant challenges the trial court's refusal to grant his pretrial motion for an order directing Pueblo Ford 'to furnish counsel for defendant with the names and addresses of each and every person who has purchased a vehicle from Pueblo Ford Inc. during the month of July through December, 1968.' The motion further recited:

'The defense in this case will be based on the lack of criminal intent by defendant at the time he committed the acts alleged to be crimes. In order to establish this defense it is essential that purchasers of vehicles at Pueblo Ford Inc. be subpoenaed for the trial. The defense has no way of ascertaining the names and addressed of these prospective witnesses except through Pueblo Ford Inc.'

Pueblo Ford, in its response to the motion, stated in part:

'It is respondent's position that this works a grave hardship on it to make available to defendant such records as during this period of time it sold approximately 850 motor vehicles at its business. It has the individual records of each of such sales. It does not have any compilation of the names and address of purchasers.'

In this jurisdiction, a defendant's right to discovery and inspection is prescribed by Rule 195, Rules of Criminal Procedure, 17 A.R.S.:

'Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the county attorney to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable. The order shall specify the time, place and manner of making the inspection and of taking the copies of photographs and may prescribe such terms and conditions as are just.'

Our Supreme Court has pointed out that this rule does not inhibit a trial court, in the exercise of its inherent power, to permit discovery beyond the scope of the rule when essential to the administration of justice. State ex rel. Polley v. Superior Court, 81 Ariz. 127, 302 P.2d 263 (1956); State ex rel. Corbin v. Superior Court, 103 Ariz. 465, 445 P.2d 441 (1968). This 'fundamental fairness' doctrine i.e., affording a defendant a reasonable opportunity to prepare his defense, has been enunciated in situations where disclosure of the prosecution's case has been sought. Here, however, the requested inspection was directed to things in the possession of a third person.

The discovery available to a party in civil litigation is not equally available in criminal proceedings. State ex rel. Mahoney v. Superior Court, 78 Ariz. 74, 275 P.2d 887 (1954). In the federal hierarchy, discovery and inspection of items not within the possession, custody or control of the prosecution is not allowed. United States v. Birrell, 276 F.Supp. 798 (S.D.N.Y.1967); United States v. Kaskel, 18 F.R.D. 477 (E.D.N.Y.1956). Some state courts, however, interpret the 'inherent power' of the trial court to include an order for production of books and records of a third person. See, e.g., State v. Wilde, 214 La. 453, 38 So.2d 72 (1948), cert. den. 337 U.S. 932, 69 S.Ct. 1484, 93 L.Ed. 1739; Townsend v. City of Helena, 244 Ark. 228, 424 S.W.2d 856 (1968); State v. Boutsikaris, 69 N.J.Super. 601, 174 A.2d 653 (1961). The last case cited points out that the defendant must show that the inspection would Reasonably tend to lead to discovery of relevant evidence and recognizes that undue hardship to the inspectee would justify denial of inspection. In Townsend v. City of Helena, supra, the court required a prerequisite showing that the defendant could not obtain the sought-after records himself.

Here, Pueblo Ford asserted a claim of 'undue hardship' in that there was no written compilation of purchasers' names and in order to obtain the names of the 850 purchasers of...