State Ex Rel. Nicholas v. State

520 So. 2d 377, 1988 WL 15694
Supreme Court of Louisiana·Decided February 29, 1988·No. 86-KH-1753·Published·Cited by 23 cases

Opinion

520 So.2d 377 (1988)

STATE of Louisiana ex rel. Michael NICHOLAS
v.
STATE of Louisiana.

No. 86-KH-1753.

Supreme Court of Louisiana.

February 29, 1988.

*378 Francis Jones, Loyola Law Clinic, for applicant.

William J. Guste, Jr., Atty. Gen., Harry F. Connick, Dist. Atty., Brian Treacy, Asst. Dist. Atty., for respondent.

DENNIS, Justice.

The issues presented by this case are (1) whether the evidence was sufficient to justify a finding beyond a reasonable doubt of forgery by false making, (2) whether the trial court unconstitutionally deprived the defendant of his right to confront and cross-examine the witnesses against him as to forgery by false issuing, and (3) whether the state, which did not petition for review, may urge in support of defendant's conviction of forgery the evidence of false issuing appearing in the record, although this may involve an attack on the reasoning of the court of appeal or an insistence on matter overlooked or ignored by it.

Defendant, Michael Nicholas, was convicted by a jury of two counts of forgery, La.R.S. 14:72, adjudicated a quadruple offender, La.R.S. 15:529.1, and sentenced to serve forty years at hard labor. On appeal, the court of appeal reversed one forgery conviction because a defendant may not be convicted and punished twice cumulatively for the fabrication and transfer of a single false writing. State v. Smith, 475 So.2d 331 (La.1985). Although the court of appeal affirmed the defendant's remaining conviction, it found the sentence to be excessive, vacated the sentence, and remanded the case for resentencing. The court of appeal rejected defendant's arguments that the trial court's rulings preventing his cross-examination of prosecution witnesses was reversible error. State v. Nicholas, 491 So.2d 711 (La.App. 4th Cir.1986). This court granted certiorari in response to defendant's petition. The state did not apply.

Facts

A number of checks were stolen from Clearview Dodge, an automobile dealership, between December 9, 1983 and December 12, 1983. The defendant, who was an employee of Clearview Dodge until December 15, 1983, cashed one of these checks at the Paris Avenue Bar and Lounge in New Orleans on December 12, 1983. The check was made payable to "Michael Nicholls" in the amount of $550.00 and signed by "James P. Goulld" and "Bobby Shaw." Nicholas, who was well known to the owner of the bar, Noland Biagas, endorsed the check in the owner's presence. After paying Nicholas for the check, Biagas deposited the check into his bank account. Shortly thereafter, he was notified by the bank that the check was "not cashable." He then informed Clearview Dodge of the problem with its check. Clearview Dodge's manager in turn contacted the forgery division of the New Orleans Police Department. During the investigation of the matter, Biagas identified the defendant from a photographic lineup as the person who cashed the check on December 12, 1983.

*379 Kirk Tracy, the Vice-President and General Manager of Clearview Dodge, testified as to the theft of the dealership's checks and that the defendant was employed by the dealership until December 15, 1983. He also said that the amount of the check in question was not printed by the dealership check machine and that neither of the two signatures belonged to anyone associated with the dealership.

Bobbie Lindsey, the Secretary and Treasurer of Clearview Dodge, testified that she was in charge of the payroll at the dealership, that the last check drawn for Michael Nicholas was on January 6, 1984 in the amount of $30.34 and that, except for the $30.34, there was no outstanding payment due the defendant on December 12, 1983. She additionally testified that the only persons authorized to sign the dealership checks were herself, Mr. Kirk Tracy, Mr. David Tracy and Mr. Stubbs. She also said that the two signatures on the check in question were not those of authorized signers and that she had never heard of a Mr. Goulld or Shaw.

Officer James Dupuy, a handwriting expert with the New Orleans Police Department, testified that in his opinion the endorsement on the back of the check definitely matched the defendant's handwriting exemplar taken after his arrest, but that he could not express an opinion as to who had written the two signatures on the front of the check. On cross-examination, he additionally testified that the two signatures on the front of the check could have been made by someone other than Michael Nicholas.

False Making

The evidence is constitutionally insufficient to support a conviction of forgery by false making. In order to prove the forgery ground of false making the state must demonstrate defendant's guilt of "false making or altering, with intent to defraud, of any signature to, or any part of, any writing purporting to have legal efficiacy." La.R.S. 14:72 (para. 1). There was no evidence that the defendant falsely made or altered any signature or part of the check in question. The defendant affixed his own signature as his endorsement of the instrument. While this might be part of a forgery by false issuing, it does not constitute a false making or altering of a signature or part of a writing.

False Issuing

Although the evidence is constitutionally sufficient to support a conviction of forgery by false issuing, we conclude that the district court committed trial error by preventing the defendant from exercising his right to confront and cross-examine two of the prosecution witnesses, Kirk Tracy and Bobbie Lindsey, as to evidence tending to show whether defendant had intent to defraud or knowledge of forgery when he endorsed and issued the check. In order to prove forgery by false issuing, the state must show that defendant was guilty of "[i]ssuing or transferring, with intent to defraud, a forged writing, known by the offender to be a forged writing...." La. R.S. 14:72 (para. 2). The prosecution presented cogent evidence that the check in question was stolen from the automobile dealership while defendant was its employee, that the signatures of the makers did not belong to any employee of the dealership and that the dealership owed defendant only $30.34 at the time he endorsed and transferred the $550 check. In cross-examining the prosecution witnesses, defense counsel sought to overcome this evidence of defendant's intent to defraud and knowledge of forgery by asking such questions as whether the company ever paid its employees bonuses, whether defendant was owed a bonus, what were the company's methods and times of remunerating car salesmen, how many cars the defendant had sold in December, whether the company owed defendant any additional money, whether defendant had put up a deposit on a demonstrator which was due to be repaid to him, what were the company's procedures regarding employees' use of demonstrators, and what were the circumstances under which the dealership recovered the demonstrator automobile which had been assigned to defendant. In each instance the trial court sustained the prosecutor's objection to the question. With respect to *380 virtually every question, the prosecutor failed to state any grounds for his objection and the court failed to give any reason for its ruling. The trial court's rulings constituted error and misuse of discretion.

For two centuries Anglo-American judges and lawyers have regarded the opportunity of cross-examination as an essential safeguard of the accuracy and completeness of testimony, and they have insisted that the opportunity is a right and not a mere privilege. McCormick, On Evidence, § 19, at 47 (3rd ed. 1984); 5 J.

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State Ex Rel. Nicholas v. State, 520 So. 2d 377, 1988 WL 15694 (La. 1988).

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