State v. Tenney

• Decision Date: 14 March 1996
• Docket Number: No. 930778-CA,930778-CA
• Citation: 913 P.2d 750
• Parties: Blue Sky L. Rep. P 74,107 STATE of Utah, Plaintiff and Appellee, v. John B. TENNEY, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 750

913 P.2d 750

Blue Sky L. Rep. P 74,107

STATE of Utah, Plaintiff and Appellee, v. John B. TENNEY, Defendant and Appellant.

No. 930778-CA.

Court of Appeals of Utah.

March 14, 1996.

Joan C. Watt, Salt Lake City, for Appellant.

Jan Graham, J. Kevin Murphy, Charlene Barlow, and Lynn Nicholas, Salt Lake City, for Appellee.

Before ORME, DAVIS and BILLINGS, JJ.

OPINION

DAVIS, Associate Presiding Judge:

Defendant John B. Tenney appeals his convictions for twelve counts of selling unregistered securities, twelve counts of securities fraud, two counts of employing unregistered agents, and one count of being an unregistered securities broker, all felonies in violation of Utah Code Ann. §§ 61-1-1, -3, & -7 (1993). We affirm.

FACTS

From 1986 through 1988, defendant sold stock in a company called "Cellwest" to a number of individuals. Thirteen of those sales form the basis of the criminal charges in this case. In some instances, the sales were facilitated for defendant by Steven Rick Jensen or Steven Bowers; in others, defendant himself sold the stock. The individuals selling stock on defendant's behalf were not registered securities sales agents, nor was defendant a registered securities broker or sales agent. In addition, the Cellwest stock was not registered with the Utah Division of Securities.

The thirteen investors relevant to this case were induced to buy Cellwest stock at roughly two dollars per share through representations by defendant, Bowers, and/or Jensen that the stock would be "going public" or "coming out" on the open market in the immediate future, that the stock's value would increase "substantially," and that defendant would buy back the stock six months after sale, at the purchaser's option, for five dollars per share. With very few exceptions, neither defendant nor his agents provided the investors with information concerning the length of time defendant had been claiming that the stock would soon be going public, defendant's prior problems with the Securities and Exchange Commission, defendant's bankruptcy, Cellwest's competition, or other material matters.

Cellwest stock did not go public "soon," or, in fact, ever. In addition, after six months had elapsed and investors asked defendant to honor the stock buy-back agreements, he failed to do so in most cases. Disgruntled investors reported defendant's activities to the Utah Attorney General's office, and defendant was tried for numerous securities law violations. Defendant elected to waive counsel ¹ and conduct his own defense at trial. The jury ultimately acquitted defendant of two charges and convicted him of the remaining twenty-seven.

ISSUES

Defendant claims on appeal that: (1) he did not knowingly, intelligently, and voluntarily waive his right to counsel; (2) prosecutorial misconduct during opening argument requires reversal; (3) the trial court committed plain error when it permitted the State's expert witnesses to testify to legal conclusions; (4) the trial court committed reversible error by denying defendant's motion for a new trial due to juror misconduct; (5) the trial court committed reversible error by improperly instructing the jury on the elements of the crimes, failing to adequately define certain terms, and failing to require unanimity as to the elements of the crimes charged; and (6) the trial court erroneously ordered restitution in the amount of $39,000 to Cellwest investor James Zieglowsky.

ANALYSIS

1. Self-Representation

Defendant argues that he did not knowingly, intelligently, and voluntarily waive his right to the assistance of counsel at trial. We review the trial court's factual findings supporting a knowing and voluntary waiver "under the 'clearly erroneous' standard of Rule 52(a), Utah Rules of Civil Procedure." State v. Drobel, 815 P.2d 724, 734 (Utah App.), cert. denied, 836 P.2d 1383 (Utah 1991); accord State v. Bakalov, 849 P.2d 629, 634 (Utah App.1993). The trial court's legal conclusions derived therefrom are reviewed for correctness. Bakalov, 849 P.2d at 634.

The right to self-representation is implicitly guaranteed by the Sixth Amendment to the United States Constitution. Faretta v. California, 422 U.S. 806, 818-32, 95 S.Ct. 2525, 2532-40, 45 L.Ed.2d 562 (1975). In addition, the right to self-representation is also guaranteed by Utah law. Utah Const. Art. I, § 12; Utah Code Ann. § 77-1-6(1)(a) (1995); State v. Frampton, 737 P.2d 183, 187 n. 6 (Utah 1987). However, because the right to self-representation is essentially a waiver of the Sixth Amendment guarantee of assistance of counsel, the decision to waive counsel and proceed pro se must be made knowingly, intelligently, and voluntarily. See Frampton, 737 P.2d at 187; Bakalov, 849 P.2d at 633; Drobel, 815 P.2d at 731-32. This determination necessarily involves consideration of " 'the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.' " Drobel, 815 P.2d at 732 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)); see also Frampton, 737 P.2d at 188.

The preferred method for determining whether the defendant opting to proceed pro se understands the risks involved and makes a voluntary and knowing decision to waive counsel is to conduct an in-depth colloquy held on the record between the trial court and defendant. See Frampton, 737 P.2d at 187; accord Bakalov, 849 P.2d at 633; Drobel, 815 P.2d at 732. The colloquy should determine:

"whether defendant has studied law; defendant's experience at self-representation; the charges and possible penalties faced; familiarity with, and the expectation of adherence to, procedural and evidentiary rules; a warning that the trial court will not direct or advise the defense; a recommendation against self-representation; and whether the choice of self-representation is voluntary."

Bakalov, 849 P.2d at 633 (quoting Drobel, 815 P.2d at 732 (discussing Frampton, 737 P.2d at 187-88 n. 12)). This colloquy is not mandatory; nonetheless, when employed by the court, it helps show that the decision to waive counsel was knowing and voluntary. See Bakalov, 849 P.2d at 633.

Defendant acknowledges that a colloquy was held on the record in which it was established that defendant understood: (1) the potential punishment for the charged offenses was over one hundred years of imprisonment plus substantial fines; (2) it was necessary that the rules of evidence and procedure be followed; (3) training and experience were required to provide an effective defense; (4) there was a substantial difference between civil actions, in which defendant had prior experience representing himself, and criminal actions; and (5) that the court strongly recommended that defendant not represent himself. In addition, defendant represented that he had the education and desire to master the rules of evidence and procedure, that he had detailed knowledge of the securities laws, that he understood the meaning of proof beyond a reasonable doubt, and that he understood the court was "more than willing to appoint a lawyer to represent him." Finally, the court appointed stand-by counsel who was available and assisted defendant throughout the trial. Nonetheless, defendant contends that because he was not informed during the colloquy with the court that he would be required to present his testimony in a question and answer format, as opposed to a narrative format, he did not knowingly, intelligently, and voluntarily waive his right to counsel.

This contention is without merit. The record reveals that defendant told the court on the fourth day of trial that he was aware of two modes of presenting his testimony--question and answer, and narrative. He represented that either of these alternatives would be fine with him, but he would prefer narrative. Thus, defendant was aware of the options for presenting testimony in a pro se case and was not particularly troubled by the question and answer format ultimately selected by the court. Additionally, the court permitted defendant to consult with stand-by counsel in order to respond to the State's objections to his questions and afforded him the opportunity to formulate additional questions in order to pursue various avenues suggested by earlier questions. Therefore, even if defendant did not have his first choice in the mode of presenting his testimony, he is unable to establish that any failure of the trial court to advise him of its intention to require question and answer rendered his waiver of counsel invalid.

We conclude that defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel. The record establishes that defendant " 'understood the seriousness of the charges ... knew the possible maximum penalty ... was aware of the existence of technical rules and [knew] that presenting a defense is not just a matter of telling one's story.' " Frampton, 737 P.2d at 188 (quoting City of Bellevue v. Acrey, 103 Wash.2d 203, 691 P.2d 957, 962 (1984) (en banc) (citation omitted)). Moreover, we note that defendant conducted himself ably during trial, making several motions and numerous relatively sophisticated evidentiary objections.

2. Prosecutorial Misconduct

Defendant argues that the State committed prosecutorial misconduct in its opening argument that so tainted the proceedings as to deprive him of a fair trial. We will reverse a jury verdict on the basis of prosecutorial misconduct if defendant demonstrates that

"[t]he actions or remarks of [the prosecutor] call to the attention of the jury a matter it would not be justified in considering in determining its verdict and, if so, under the circumstances of the particular case, whether the error is substantial and prejudicial such that there is a reasonable likelihood that, in its absence, there would have been a more favorable result."

State v. Wright, 893 P.2d 1113, 1118 (Utah App.1995) (quoting State v. Peters,...