Malcolm Terrell Bishop, etc. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: June 10, 1997
• Docket: 2397952
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Senior Judge Cole Argued at Richmond, Virginia

MALCOLM TERRELL BISHOP, S/K/A MALCOLM BISHOP, A/K/A RICHARD SANDERS MEMORANDUM OPINION * BY v. Record No. 2397-95-2 JUDGE MARVIN F. COLE JUNE 10, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Walter W. Stout, III, Judge Patricia P. Nagel, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.

Monica S. McElyea, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Malcolm Terrell Bishop (defendant) was indicted on three

charges of forging a public document in violation of Code

§ 18.2-168 based upon his signing the name "Richard Sanders" on

three Virginia Uniform Summonses. The defendant was convicted on

all three indictments. He contends that: (1) the evidence was

insufficient to sustain his convictions because the Commonwealth

failed to establish that he is Malcolm Bishop; and (2) the court

erred in admitting evidence of the fingerprint card, the arrest

sheet and his photograph because they constituted inadmissible

hearsay evidence.

During the arraignment, the defendant objected to

* Pursuant to Code § 17-116.010, this opinion is not designated for publication. identifying himself and suggested that the court needed to

establish that he was in fact the person charged in the

indictments without getting into the merits of the case. Without

objection, the name of the defendant on the indictments was

amended to include Malcolm Terrell Bishop, Richard Saunders,

Richard Sanders, Tyrone Booker and Malcolm Booker. The defendant

admitted that he was the person named in the indictments.

Facts On May 15, 1995, Officers Wooten, Baskette, and Mark were on

routine patrol when they observed the defendant backing his car

down the street to a stop sign. They stopped the defendant for a

driving violation. Officer Baskette approached him and asked for

a driver's license. Because defendant was unable to produce one,

he was asked to step out of the car for operating a motor vehicle

without an operator's license.

The defendant was asked what his name was, his date of

birth, and his Social Security number. He stated his name was

Richard Saunders, date of birth January 2, 1973. He was asked

how old he was and he stated he was 23. When told that he should

only be 22, according to the information he had given, he said,

"[W]ell, that's not me, I'll tell you the truth, my name is

Richard Sanders, my date of birth is 12/10/73. I still don't

know my social security number." This information was run

through the Division of Motor Vehicles and no further information

was found there. When asked if he had a driver's license, the

2 defendant said "Well, maybe."

At the police station, Officer Wooten filled out three

Virginia Uniform Summonses for the traffic offenses. He warned

the defendant if he lied and signed the summonses in the wrong

name, he would be charged with forgery. The defendant signed

each form in Wooten's presence. The defendant was also charged

with reckless driving. Officer Baskette filled out the arrest

sheet for this misdemeanor. Wooten testified that he was

present, went to the magistrate's office, and observed the

defendant place his thumb print on the arrest sheet. Officer Wooten testified that there came a point in time

when he found that the defendant was using the name of Malcolm

Bishop. He was charged with a parole violation, and the papers

for the violation had already been executed upon him. Based on

this information, Wooten obtained warrants for forgery based upon

the defendant's signature on the three Virginia Uniform

Summonses. At trial, Wooten identified the defendant as the

person who signed the traffic summonses in his presence.

Detective David S. Tweedie, a detective in the Forensic Unit

of the Richmond Police Department, qualified as an expert in

fingerprint analysis. The forensic unit is the custodian of all

mug shot records and fingerprint records of all arrestees in the

City of Richmond. He testified that the forensic unit maintained

a fingerprint card in the name of Malcolm Terrell Bishop dated

November 16, 1993, date of birth August 10, 1975. He testified

3 that the unit did not have a fingerprint card under the name of

Richard Saunders. Tweedie received the Sanders arrest sheet

containing Sanders' thumb print. Tweedie compared this print

with the prints in the fingerprint records and found it identical

with the fingerprint of Malcolm Terrell Bishop. He testified

that since no two people have the same fingerprints, he concluded

that Bishop and Sanders were the same person. Therefore, the

person who placed his fingerprint on the Bishop card in the

forensic unit's files was the same person who placed his

fingerprint on the arrest sheet. At trial, the Commonwealth's

attorney and defense counsel stipulated that if fingerprints were

taken on that day, the print on the arrest sheet and the

fingerprints on the fingerprint card would match. The evidence disclosed that arrest sheets customarily are

prepared by police officers on the street. Here, Detective

Wooten was present when the defendant's arrest sheet was prepared

and he saw the defendant place his thumb print on it. He

identified the arrest sheet at trial.

II. Sufficiency of the Evidence

The defendant contends that the Commonwealth failed to

establish whether his true identify was Malcolm Bishop or Richard

Sanders. He asserts that the evidence only showed that on a

prior occasion, he used the name Malcolm Bishop. He claims that

when he was previously arrested, he gave the name of Malcolm

Bishop and his name may actually have been Richard Sanders.

4 Therefore, the evidence was insufficient as a matter of law to

show that by signing the three summonses as Richard Sanders he

committed forgeries. If the defendant is Richard Sanders, then

the evidence is insufficient to convict him of forgery.

The Commonwealth asserts that the fingerprint card in the

forensic unit records establishes that the name "Malcolm Terrell

Bishop" matched the thumb print on Richard Sanders' arrest sheet.

At the time of his arrest, the defendant gave the name of

"Richard Saunders." After realizing that the birth date he gave

did not match the age he claimed to be, the defendant changed his

story and told the police he was "Richard Sanders." The

Commonwealth contends that the defendant falsely signed the three

summonses as "Richard Sanders" in order to mislead the police

because he was wanted for a parole violation under the name of

"Malcolm Bishop"; that he lied to the police about his name and

age; and he previously admitted to law enforcement officials that

his name was "Malcolm Terrell Bishop." Therefore, the trial

court's finding of fact was not plainly wrong and was sufficient

to support the convictions of forgery and should not be disturbed

on appeal. "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom." Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). "'In testing the credibility and weight to be ascribed in the evidence, we must give the trial courts and juries the wide discretion

5 to which a living record, as distinguished from a printed record, logically entitles them. The living record contains many guideposts to the truth which are not in the printed record; not having seen them ourselves, we should give great weight to the conclusions of those who have seen and heard them.'"

Nicholas v. Commonwealth, 15 Va. App. 188, 194, 422 S.E.2d 790,

794 (1992) (citations omitted). It is within the fact finder's

discretion to determine whether the testimony of witnesses is

credible. See Fordham v. Commonwealth, 13 Va. App. 235, 239, 409

S.E.2d 829, 831 (1991). The issue is not a matter of degree when the law says that

it is for the fact finder to judge the credibility of witnesses.

If the witness states facts which, if true, are sufficient to

support the decision, then the fact that the witness' credit is

impeached by contradictory statements affects only the witness'

credibility; contrary statements go to the weight and sufficiency

of the testimony. If the fact finder sees fit to base the

decision upon that testimony, there can be no relief in the

appellate court. See Simpson v. Commonwealth, 199 Va. 549,

557-58, 100 S.E.2d 701, 707 (1957).

In this case, the trial judge made the following findings: The proof offered by the Commonwealth suggests from the officers that in their presence Richard Sanders signed three Virginia Uniform Summons, there's no contest to that. He previously and in the records of the . . . police department had a fingerprint card in the name of Malcolm Terrell Bishop, which matches, according to the testimony, exactly the fingerprint on the arrest card, which the officers also saw taken at the time

6 of the arrest at the police station. That leads to a photograph, which the Court will indicate it has looked at and if it's not Mr. Bishop or Mr. Sanders then I would be very surprised. It seems to match exactly the defendant. He also gave to the officer an improper name [Saunders], an improper birth date. When caught doing that he changed the name [Sanders] slightly and changed the birth date to a different birth date than Malcolm Terrell Bishop. The indication to the Court is that he has attempted to through [sic] [throw] off the police about who he is by his signing that. It was done so improperly and as part of this offense and it meets the requirements of this offense.

The record establishes that the defendant had a motive to

fabricate his name and age when he discussed the traffic

infraction and reckless driving charge with the police on May 15,

1995. A person's motive or reason for committing a crime can

generally be shown in order to explain why the offense was

committed. See Williams v. Commonwealth, 208 Va. 724, 730, 160

S.E.2d 781, 785 (1968). He had facing him a parole violation.

The papers on the violation had already been served upon him.

The judge, in this case, was entitled to conclude from the

evidence that the defendant was being less than straight-forward

with the police because further charges would be detrimental at

the parole hearing. Thus, he had a motive to give a false name

and age in order that the violations would not be discovered.

In Reid v. Commonwealth, 16 Va. App. 468, 471, 431 S.E.2d 63, 65 (1993), the defendant had been fingerprinted five times

previously under the name of Dexter Reid. When arrested, he gave

the name "Gary Shaw," but misspelled "Gary" as "Gray." Id. We

7 found this evidence clearly sufficient to convict for forgery.

We find that the trial court's findings of fact are

supported by credible evidence beyond a reasonable doubt and are

not plainly wrong.

II.

"Hearsay evidence is defined as a spoken or written

out-of-court declaration or nonverbal assertion offered in court

to prove the truth of the matter asserted therein." Arnold v. Commonwealth, 4 Va. App. 275, 279-80, 356 S.E.2d 847, 850 (1987). The business records exception allows introduction into evidence of regular business entries of persons, other than the parties, where the entrant is unavailable to testify at trial and where the trustworthiness of the entries are established by showing the regularity of preparation of the records and the fact that they are relied upon in the transaction of business by those for whom they are kept.

Hooker v. Commonwealth, 14 Va. App. 454, 456, 418 S.E.2d 343, 344

(1992).

The fingerprint card, arrest sheet and photograph were

properly admitted as business records exceptions to the hearsay

rule. The evidence showed that when a person is arrested, he is

fingerprinted and photographed, usually by the Sheriff's

Department. The fingerprint cards and photographs are then

transferred to and kept at the forensic unit. Detective Tweedie

testified that the fingerprint card and photograph of Malcolm

Terrell Bishop were maintained in the forensic unit. The

forensic unit regularly relies on these records in order to

8 conduct its regular business of fingerprint analysis and records

maintenance. Therefore, appellant's fingerprint card and

photograph were properly admitted into evidence under the

business records exception to the hearsay rule.

The evidence also showed that police officers prepare arrest

sheets upon making an arrest. The arrestee's thumb print is

included on the arrest sheet. Depending on the seriousness of

the offense, all ten fingerprints may be taken after the arrest

sheet is completed. Officer Wooten was present when appellant's

arrest sheet was prepared and appellant's thumb print was taken.

This arrest sheet was prepared and maintained in the ordinary

course of police business and qualifies as a business record

exception to the hearsay rule. The arrest sheet was properly

admitted into evidence. For these reasons, the trial court's judgment is affirmed.

Affirmed.

9 Benton, J., dissenting.

To prove forgery under Code § 18.2-168, the Commonwealth

must prove beyond a reasonable doubt that the defendant's

signature was false and that he acted with the intent to defraud.

See Reid v. Commonwealth, 16 Va. App. 468, 471, 431 S.E.2d 63,

65 (1993). Because the Commonwealth failed to prove that the

signature "Richard Sanders" was false, I would reverse the

conviction. Accordingly, I dissent. I.

The indictments charged that on May 15, 1995 the defendant

forged three public records. The evidence at trial proved that

on May 15, 1995, the defendant was stopped by Officer Wooten for

traffic violations. When the defendant stated that he did not

have a driver's license, Wooten asked defendant for his name,

Social Security number, and date of birth. Wooten testified that

the defendant "stated his name was Richard Saunders, date of

birth January 2, 1973." The defendant said he did not know his

Social Security number. Wooten asked the defendant how old he

was, and defendant said he was 23. Wooten informed the defendant

that based on the date of birth he had just given, the defendant

should only be 22 years old. In response, the defendant said,

"I'll tell you the truth, my name is Richard Sanders, my date of

birth is 12/10/73." Wooten then informed the defendant that he

was issuing summonses and warned the defendant that if he signed

a false name on the summonses, the defendant would be charged

10 with forgery. The defendant signed his name as "Richard Sanders"

on three summonses. Each summons charged a separate motor

vehicle equipment violation.

After the defendant was arrested, Wooten took the

defendant's fingerprints. David S. Tweedie, a detective in the

forensic unit, testified that the fingerprints the defendant gave

in Wooten's presence were identical to other fingerprints listed

under the name "Malcolm Terrell Bishop." The fingerprints on the

card with the name Bishop were taken on November 16, 1993.

Tweedie testified that the same person gave both sets of

fingerprints. II.

"[T]he Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which [the accused]

is charged." In re Winship, 397 U.S. 358, 364 (1970). It is not sufficient to create a suspicion or probability of guilt, but the evidence must establish guilt of the accused beyond a reasonable doubt. It must exclude every reasonable hypothesis except that of guilt. The guilt of the party is not to be inferred because the facts are consistent with his guilt, but they must be inconsistent with his innocence.

Allen v. Commonwealth, 211 Va. 805, 808, 180 S.E.2d 513, 515

(1971). "'[W]here a fact is equally susceptible of two

interpretations one of which is consistent with the innocence of

the accused, [the trier of fact] cannot arbitrarily adopt that

11 interpretation which incriminates him.'" Corbett v.

Commonwealth, 210 Va. 304, 307, 171 S.E.2d 251, 253 (1969)

(citation omitted).

The evidence failed to prove the defendant's true identity

beyond a reasonable doubt. At most, the Commonwealth proved that

the defendant has used in the past the name "Malcolm Terrell

Bishop." However, no evidence proved that the defendant's true

name is not "Richard Sanders." The fact that a fingerprint card matching the defendant's

fingerprints contained the signature of "Malcolm Terrell Bishop"

as the name of the person fingerprinted does not prove that the

defendant's true identity is "Malcolm Terrell Bishop." Indeed,

Detective Tweedie testified as follows: [If] [a] person comes to us . . . for the first time as John Doe, he will be carried in the police department as John Doe forever. If he comes in subsequently with another name all of those names are added as alias[es], even if it's maintained somewhere along the way that one of those subsequent names is actually the given name. We carry one name throughout as being the name of the person as they came through the first time.

Tweedie's testimony reveals that, regardless of the

individual's true identity, the name the individual gives during

his first arrest will be the name used to classify all of that

individual's fingerprints. Thus, the defendant's 1993

fingerprints established, at most, that the defendant told the

police in 1993 that his name was "Malcolm Terrell Bishop." That

evidence did not establish that defendant's true identity is

12 "Malcolm Terrell Bishop."

Furthermore, the indictment in this case did not charge that

the defendant signed his name as Bishop in 1993 and Sanders in

1995, and, thereby, did forge one of the two documents. By

charging that the defendant forged a public document on May 15,

1995, the Commonwealth undertook to prove that the defendant's

name was not "Richard Sanders." The proof failed. Indeed, the

Commonwealth failed to exclude the reasonable hypothesis that the

defendant's name is in fact "Richard Sanders." The evidence in this case is much less probative than the

evidence this Court found sufficient in Reid, 16 Va. App. at

471-72, 431 S.E.2d at 65. In Reid, the evidence proved that the

accused had signed his name as Dexter Reid five times in the

past. See id. at 471, 432 S.E.2d at 65. The evidence also

showed that the defendant in Reid misspelled the name he orally

gave to the police. See id. Unlike Reid, the evidence in this

case proved that the defendant had signed "Malcolm Terrell

Bishop" only once. In addition, although the officer testified

that the defendant initially pronounced his name "Saunders," the

defendant did not misspell "Sanders," the name the defendant

later told the officers was his true name.

The indictment charged that the defendant forged public

records on May 15, 1995. Thus, proof that "Richard Sanders" was

a fictitious or assumed name was an essential element of the

offense charged in this case. See Bullock v. Commonwealth, 205

13 Va. 558, 560-61, 138 S.E.2d 261, 263 (1967). The evidence in the

record was insufficient to prove beyond a reasonable doubt that

essential element.

For these reasons, I would reverse the conviction.

Accordingly, I dissent.