State v. Temby, 81-2017-CR
| Decision Date | 23 June 1982 |
| Docket Number | No. 81-2017-CR,81-2017-CR |
| Citation | 322 N.W.2d 522,108 Wis.2d 521 |
| Parties | , Blue Sky L. Rep. P 71,754 STATE of Wisconsin, Plaintiff-Respondent, v. Lance W. TEMBY, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
David C. Niblack, State Public Defender, for defendant-appellant.
Bronson C. La Follette, Atty. Gen., and David J. Becker, Asst. Atty. Gen., for plaintiff-respondent.
Before VOSS, P. J., and BROWN and SCOTT, JJ.
Lance W. Temby appeals from a judgment of conviction on two counts of violations of the Wisconsin Uniform Securities Law, sec. 551.42(2), Stats. On appeal, he raises two issues. First, he argues that the trial court erred by allowing the state to use the deposition of a principal witness, Leo Bonelli, at trial without a showing that the witness was unavailable for trial and without a showing that an effort had been made to get him to testify at trial. Second, he contends that the trial court improperly instructed the jury by telling them that it was not necessary for the jury to find that Temby had made a statement with intent to defraud any particular person. We hold that making a statement with intent to defraud is not a necessary element of the offense. However, we believe that the trial court committed prejudicial error by admitting Bonelli's deposition without showing that the state had attempted to obtain his attendance at trial and without showing that he was unavailable. On that basis, the judgment of the trial court is reversed on both counts, and the case is remanded for a new trial.
The rather extensive facts in this case can be fairly stated as follows. In October 1978, Temby purchased a business called Locata-Place. The business sold advertising space on electronic map boards to be placed by hotels, motels and restaurants. When Temby bought the business, it had only four boards, all located in Sheboygan. Generally, the business was not doing well. To help his business expand, Temby sought and received $5,000 from Leo Bonelli and $5,000 from Eric Larson. As consideration for the sums received, both received a thirty percent share of the franchise fee paid to Temby for the Minnesota Locata-Place franchise. Each received a guarantee that if the Minnesota franchise did not come into being, Temby would repay each man $5,000 plus twelve percent interest. No Minnesota franchise was established, and Temby was unable to repay the money.
On July 1, 1980, the Sheboygan County District Attorney filed a criminal complaint alleging that the agreement Temby entered into with Bonelli and Larson was a fraudulent "offer, sale and purchase" of a security, in violation of sec. 551.41(2), Stats.
At a hearing prior to trial, the prosecutor informed the court that Bonelli would not be present to testify at the February 24, 1981 trial. The state filed a motion pursuant to sec. 967.04, Stats., to have a deposition of Bonelli's testimony taken and used as evidence at trial. Temby objected strongly; nevertheless, the deposition was taken and subsequently admitted.
The first witness at trial, Larson, testified that he had known Temby as a social friend prior to the time that he and Temby entered into their business agreement. Larson's initial discussions with Temby about the business deal took place on July 24, 1979. Temby met with Larson and Bonelli at a restaurant. Larson admitted to drinking before and during the meeting and agreed that this may have affected his recollection of all that occurred that night.
In his testimony, Larson claimed that on July 24, Temby had told him that James Grummet was prepared to purchase the Minnesota franchise of Locata-Place for $78,000 if Temby could supply the advertising boards and a van to service them. He also claimed that Temby indicated that Larson would get a $4,000 return on his investment in the first week. Larson signed the contract the next day. About six weeks later, Temby told him that Grummet had decided not to purchase the Minnesota franchise because his stepson had committed suicide. However, Temby told him he would run the franchise himself.
Bonelli's deposition, which was admitted at trial, indicated that he was a real estate agent who had known Temby for seven years. Temby had discussed the Locata-Place business with Bonelli in approximately twenty meetings over a period of nine months. He had indicated to Bonelli that a franchise existed in Iowa and that he intended to open similar franchises in Michigan and Minnesota. The deposition also indicated that Temby had told Bonelli that Grummet was willing to purchase the Minnesota franchise as soon as the boards were obtained from Milwaukee and were set up. Also, Bonelli stated that it was Temby's idea to include the provision in the agreement to repay the $5,000 with interest if the Minnesota franchise agreement never materialized.
Bonelli's deposition went on to indicate that he signed an agreement with Temby on July 23, 1979. On that day, Bonelli claimed that Temby had indicated to him that the Minnesota franchise agreement would generate $469,000 yearly. After signing the agreement, Bonelli talked at length with Larson. The two met with Temby at a restaurant and discussed the franchise agreement in detail the day before Larson signed his agreement with Temby. Finally, Bonelli's deposition indicated that Temby had also told him that the Minnesota franchise deal had not been closed because Grummet's stepson had committed suicide.
Not surprisingly, Temby's account of the facts culminating in separate contracts with Larson and Bonelli differs from their account. He testified that he sold the Iowa franchise to a friend of his from the marines. Also, he stated that Grummet initially exhibited a genuine interest in the business. Over a period of time, that interest lessened, and he decided not to invest in the Minnesota franchise. He claims he only sought a loan from Bonelli but agreed to a different agreement when Bonelli suggested purchasing a portion of Temby's royalty fees from the Minnesota franchise. Temby claims that he wrote the agreement, and Bonelli signed. On July 24 when Temby and Bonelli met Larson at the restaurant, Temby claims that Bonelli was so enthusiastic about the agreement that he told Temby to describe it to Larson. Larson expressed a similar interest, and he also entered into an agreement with Temby identical to Bonelli's.
The jury found Temby guilty on both counts of violating the Wisconsin Uniform Securities Act. The trial court entered a judgment of conviction on March 30, 1981, and Temby appeals from the judgment.
First, Temby argues that the court erred by admitting Bonelli's deposition into evidence. He claims that it should not have been admitted without a prior showing that the state had made an attempt to secure his appearance and a showing that he was unavailable to testify. Temby argues that the state had not made a showing of unavailability.
On appeal, the state agrees that it did not establish Bonelli's unavailability. In Sheehan v. State, 65 Wis.2d 757, 765, 223 N.W.2d 600, 604 (1974), the supreme court held:
Depositions of witnesses are allowed in criminal cases. State ex rel. Drew v. Shaughnessy (1933), 212 Wis. 322, 249 N.W. 522. Sec. 967.04, Stats., so provides. However, if the witness is not in fact unavailable or if the prosecutorial authorities have not made a good-faith effort to obtain his presence at trial, the use of the deposition does not fit within the exception to the confrontation requirement. Barber v. Page (1968), 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255.
Under this test, our review of the record establishes that no adequate showing of unavailability exists sufficient to satisfy the requirements of the confrontation clause. Bonelli claimed that he could not testify at trial because he was going to be at a real estate convention in Las Vegas on the day of the trial. Such a temporary absence does not amount to unavailability as defined by sec. 908.04, Stats. Accordingly, we agree with Temby and the state that Bonelli's deposition should not have been admitted at trial.
Although the state concedes that Bonelli's deposition should not have been admitted at trial, it argues that this only requires reversal on the count violating the securities law through the statements he made to Bonelli. The state argues that the conviction on the securities law count related to the statements Temby made to Larson is still valid. The state contends that Bonelli's testimony did not concern Temby's representations to Larson. We cannot agree.
At the hearing on the state's motion to allow it to take Bonelli's deposition for use at trial, the prosecutor stated:
Mr. Bonelli's testimony would not be substantially different from Mr. Larson's and it is somewhat intertwined since there was a joint meeting with all three parties .... But I do feel that the jury is going to have ample opportunity to see all the evidence and what they decide as to one count I think will relate to the second count because there's no real difference between these two counts ....
Further, in ruling on the admissibility of Bonelli's deposition, the trial court ruled:
Mr. Bonelli's not only a witness but a material witness and his testimony goes to support count two [the count related to Temby's statements to Larson] of the information. On this ground the Court would grant the motion to take the deposition of Mr. Bonelli and the Court will not grant any further continuance in this matter.
Additionally, cross-examination of Bonelli dealt with the conversation Bonelli, Larson and Temby had on July 24, 1979. Based upon our review of the record, we agree that Bonelli's deposition dealt with matters in that count of the complaint which concerned Temby's statements to Larson. On that basis, we reverse and remand for a new trial on both counts because of Bonelli's improperly...
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