 |
| "Well, who else had access to the jar?" |
By Eric Fanning
It’s your lucky day, devoted SCOV Law readers, because today we get to discuss an embezzlement case! People commonly think of embezzlement as a rich person’s crime—only occurring on Wall Street in large banks or brokerage firms where the trusted young executive skips town to his own private island with millions of dollars in ill-gotten wealth. However you don’t have to steal a lot of money to be guilty of embezzlement, and you sure as heck don’t have to be in a big city working for a big bank to commit the crime.
Case in point: Gregory Manning. Mr. Manning worked at the Corner Stop Mini Mart in Royalton- hardly a Wall Street behemoth. He was a Mini Mart employee for several years, and was also friends with the owners of the store. Manning was so close with the owners in fact, that he was the only employee allowed to make after-hours bank deposits for the store. This entailed counting the money in the cash register at the end of his shift, filling out a deposit slip, putting the money and deposit slip in a zippered bag to be deposited, and then depositing the money and slip at the bank’s after-hours deposit box.
At some point, the store owner who did the bookkeeping noticed some irregularities, namely that there were a few deposits missing: four to be exact, totaling over $10,000. As fate would have it, all four of the missing deposits were on dates when Manning was working. The bank’s search of the deposits came up with nothing. Then they went to the bank security footage, which appeared to show Manning basically pretending to drop the bags in the deposit box, putting the money in his jacket, and walking away.
When questioned about these deposits, Manning claimed that he had trouble with the deposit box, and that the bag would not drop in properly (really, guy?), and so he returned to the bank the next day to make a deposit with a teller. The police reviewed the security footage of the bank interior on the dates on question and did not see Manning at all. This gives the cops probable cause, and Manning is arrested and charged with embezzlement. Spoiler alert: he was convicted. So here we are.
The key issue on appeal centers around the daytime bank footage that the cops and bank staff viewed in the months prior to Manning’s arrest. You see, the footage itself was never actually introduced into evidence at trial—by either side. Prior to his arrest, Manning made a request in writing to the bank to preserve the footage from the dates he claimed he made the deposits. The bank said, “sorry, we can’t give that to you without a subpoena.” Manning never got a subpoena.
On the other side of the fence, so to speak, we have the Royalton police, who never sought a warrant to obtain copies of the footage, because the officer who viewed the footage “did not see the defendant come into the bank and give the deposit to a teller.” So, the cops didn’t take custody of the footage for trial, and the State consequently never offered the videos into evidence to show that Manning never actually went back to the bank like he said he did.
Manning says his conviction should be overturned, or at the very least, he should get a new trial because he was denied due process as a result of the State’s failure to preserve potentially exculpatory evidence (i.e. the security camera footage). He raises the so-called Bailey test, which I wrote about back when I was a SCOV Law newbie. Basically, a criminal defendant can demonstrate reversible error if she shows that the State acted in bad faith in failing to preserve potentially exculpatory evidence. To this end, Manning says “Hey, if y'all would’ve saved the bank footage, I would have had a decent shot at establishing reasonable doubt.”
SCOV is not convinced. First of all, there’s some doubt as to whether or not Manning adequately preserved his due process claims for appeal. You see, during the trial, the kerfuffle between the prosecution and the defense was about the testimony concerning the bank footage (both the bank manager and a Royalton police officer testified that they didn’t observe Manning in the video). Defense counsel never actually raised an objection based on due process, nor did they mention the Bailey test. Instead, Manning’s lawyer tried to argue at trial that testimony concerning the contents of the missing footage amounted to “hearsay in disguise” (which is my vote for an all-lawyer bar band name, by the way), and also violated the best evidence rule. No due process claim was raised, and the objections were of course overruled.
Nevertheless, SCOV says even if his claim was preserved, his argument doesn’t satisfy the Bailey factors. Why? Well, because under Bailey, the scales tip in favor of the State if there is other evidence of guilt, and, in this case, the State produced a lot of other evidence tending to show that Manning was guilty.
First of all, there was night deposit video recordings, which, unlike the daytime footage, was introduced into evidence and viewed by the jury. This footage clearly shows Manning doing his pantomime shtick and pretending to deposit the bags of money. In addition, there was no evidence that there was any problem with the deposit box, nor was there any evidence that Manning ever told the Mini Mart owners that he had issues with the night deposits. All of this other evidence tends to show that the interior bank footage would’ve done diddly squat for Manning’s defense, and therefore Bailey is a no-go.
Manning’s two other arguments on appeal are to no avail also, which I’ll quickly mention. First, he argues that the prosecution shifted the burden to the defense to preserve the video evidence during their closing argument (this part of the opinion contains an amusing exchange taken from the trial transcript). SCOV agrees that the prosecutor went too far in her closing argument, but says it’s harmless error.
Finally, Manning argues that the probation condition requiring him to complete the restorative justice program was not sufficiently tailored to his circumstances because it required him to admit his guilt even though he maintained his innocence. SCOV shoos this argument away also, finding that the court acted well within its discretion, and also, it’s not even clear that the program required Manning to admit guilt. SCOV affirms.
Comments
Post a Comment