State v. Sumling

786 So. 2d 843, 0 La.App. 5 Cir. 1641, 2001 La. App. LEXIS 838, 2001 WL 421597
CourtLouisiana Court of Appeal
DecidedApril 24, 2001
DocketNo. 00-KA-1641
StatusPublished
Cited by2 cases

This text of 786 So. 2d 843 (State v. Sumling) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sumling, 786 So. 2d 843, 0 La.App. 5 Cir. 1641, 2001 La. App. LEXIS 838, 2001 WL 421597 (La. Ct. App. 2001).

Opinion

| .GOTHARD, JUDGE.

Defendant, Kenney Sumling, appeals his conviction and sentence on one count of forgery in violation of LSA-R.S. 14:72. For reasons that follow, we reverse.

The record shows that the Jefferson Parish District Attorney filed a six-count bill of information charging Kenney Suml-ing and a co-defendant, Robert Johnson, with violations of the forgery statute, LSA-R.S. 14:72. Counts 1, 3 and 5 alleged that defendant and Johnson forged checks with intent to defraud. The remaining counts alleged that defendant and Johnson “issued and transferred” checks.

Defendant was arraigned on July 30, 1999, and pled not guilty. On March 16, 2000, defendant was tried by a six-member jury only on Count 31 sof the bill. On that day, the jury returned a verdict of guilty as charged. The state dismissed all charges against Robert Johnson on August 16,1999.

Defendant filed a Motion for New Trial on March 23, 2000, alleging he had uncovered alibi witnesses since the time of trial, and that photographic evidence improperly withheld from him prior to trial would have exonerated him. The motion was heard on March 31 and April 28, 2000. On the latter date, the trial court denied the motion.

On July 14, 2000, the trial court sentenced defendant to five years at hard labor. Counsel made an oral motion to reconsider sentence, renewing a previously filed written motion. The trial court denied the motion that day.

FACTS

Janet Pontiff, the office manager for Wells Construction Company in Kenner, testified that in June, 1998, she was reconciling that month’s bank statement from Hibernia National Bank when she discovered several unauthorized checks written on a company account. Ms. Pontiff testified that only she and the company’s owner, William I. Wells, Jr., were authorized to write checks on that account. One of the checks in question was made payable to “Kenny Sumling,”1 and was signed by John Wells, Jr. Ms. Pontiff, who was in charge of the company’s payroll and bank accounts, testified that no one named Sumling had been employed with the company in the fifteen years she had worked there. She verified this by checking the payroll records. She asked the project manager whether he had ever hired someone named Sumling, and he responded that he had not. Other bad checks were made out to Roy Johnson and Robert Johnson, and were also Rsigned by John Wells, Jr. She determined that one of the Johnsons had worked for the company through a temporary agency, but stated that temporary workers were paid by their agencies, and would not have received payroll checks from Wells Construction.

Ms. Pontiff stated that no one named John Wells, Jr. worked with the company. Moreover, the checks were written on account “A”, the account used to pay the company’s bills. The payroll account was account “B”. The checks had come from a new book, which was stored under a desk in her office. Only she, the company’s owner, and his wife had access to the checks. Ms. Pontiff surmised that the checks had been taken from her office some time earlier, but stated there had been no evidence of a break-in.

[846]*846Ms. Pontiff testified that the fraudulent checks were all made out for roughly the same amounts. According to Detective Michael Cunningham of the Kenner Police Department, the stolen checks were numbered in sequential order. The detective further testified that these checks were all cashed within the space of an hour on May 18,1998, at the Driftwood branch of Hibernia National Bank on Williams Boulevard in Kenner.

Christy St. Germain, a Hibernia Bank teller, testified that she recognized her handwriting on the back of State’s Exhibit 1, the Wells Construction check made out to Kenny Sumling in the amount of $468.99. Although she had no independent recollection of the transaction, Ms. St. Ger-main stated that prior to cashing the check, she would have followed standard bank procedure by comparing the payee’s signature with the state identification card he presented to her. In this instance she found the signatures to be a match, as evidenced by the fact that she wrote the payee’s ^identification number on the back of the check, along with the letters “PSM” (picture and signature match). Ms. St. Germain stated that if anyone other than the payee on the check had attempted to cash it, she would have prevented that person from doing so.

Detective Cunningham testified that he used the identification number written on the back of the check to obtain a photocopy of defendant’s identification card from the Louisiana Department of Motor Vehicles. He was also able to locate Robert Johnson in that manner. The detective testified that the third suspect, Roy Johnson, was still at large at the time of trial. On July 9, 1998, Cunningham questioned Robert Johnson about the forged checks, and Johnson denied any connection with them. Johnson did say, however, that he knew Roy Johnson and defendant, Kenney Sumling, from the neighborhood in which they all live.

Handwriting exemplars were obtained from both defendant and Johnson. Detective Keith Bourque, a handwriting expert with the Jefferson Parish Sheriffs Office, testified that Johnson’s writing did not match the signatures on the checks he was alleged to have forged. Because of that finding, charges against Johnson were subsequently dropped.

After questioning Johnson, Cunningham located defendant at his residence on Newton Street. The detective asked defendant to accompany him to the Kenner Police Department for questioning, explaining that he was a suspect in a forgery.2 Defendant went willingly. According to Cunningham, he advised defendant of his Miranda rights after they arrived ¡ ñat the station. Defendant signed an Advice of Rights form, indicating he understood his rights. Defendant waived those rights, and agreed to be interviewed.

Defendant denied having cashed any Wells Construction checks. He told the detective he had never been inside Hibernia Bank, and professed not to know what the detective was talking about. The officer asked defendant for a piece of identification. Defendant responded that he had left it at his girlfriend’s house. He later said that his driver’s license had been confiscated by a police officer during a traffic stop.

During his trial testimony, defendant stated that he had obtained a state identification card years earlier, when his driver’s license was revoked. Defendant further testified that he had lost several identification cards. He stated that he did not have a card at the time of the incident, and that [847]*847he was using his birth certificate and Social Security card as identification.

Detective Cunningham testified that he obtained videotape taken by the bank’s surveillance camera at the time the forged check was cashed. The detective noted that defendant was wearing a cap in the videotape that bore a strong resemblance to the hat he wore during his interview at the police station. The cap was admitted into evidence at trial. The court also admitted, over defense counsel’s objection, a slowed-down version of the bank surveillance tape.3

During his trial testimony, defendant admitted he had prior convictions in Jefferson Parish for simple robbery and battery on a police |7officer. He was still on probation for those convictions at the time of trial, although his probation had not as yet been revoked. Defendant further testified that he was innocent of the charged offense.

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Related

State v. Gillum
165 So. 3d 924 (Louisiana Court of Appeal, 2014)
State v. Fields
801 So. 2d 1278 (Louisiana Court of Appeal, 2001)

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Bluebook (online)
786 So. 2d 843, 0 La.App. 5 Cir. 1641, 2001 La. App. LEXIS 838, 2001 WL 421597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sumling-lactapp-2001.