Bell v. State

• Decision Date: 25 March 1971
• Docket Number: No. 982,982
• Citation: 482 P.2d 854
• Parties: Lucian BELL, James Edward Wilson, and Robert E. Smith, Appellants, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 854

482 P.2d 854

Lucian BELL, James Edward Wilson, and Robert E. Smith, Appellants, v. STATE of Alaska, Appellee.

No. 982.

Supreme Court of Alaska.

March 25, 1971.

David C. Backstrom, Asst. Public Defender, Fairbanks, Victor Carlson, Public Defender, Anchorage, for appellants.

Stephen Cooper, Dist. Atty., Thomas F. Keever, Asst. Dist. Atty., Fairbanks, for appellee.

Before BONEY, C. J., and DIMOND, RABINOWITZ, and CONNOR, JJ.

OPINION

RABINOWITZ, Justice.

After joint trial by jury, appellants were each convicted of a single count of receiving stolen property and 13 separate counts of passing forged checks.

The prosecution's case against appellants was extremely strong. The state's evidence in part showed the following: Sometime between June 30 and July 5, 1967, 145 checks of the sort used for payrolls were stolen from the Anchorage office of the John Wayne Construction Company. Wayne Davis and John Belarde, the two officers of John Wayne Construction Company who were authorized to sign checks for the company, testified that they did not draw the 13 checks in question, that they did not authorize payment to any of the named payees appearing on the faces of these checks, and that appellants had never worked for their company. An FBI document examiner stated that the signatures of Davis and Belarde on the 13 checks were, in his opinion, forgeries.

The state introduced further evidence which showed that appellants had unsuccessfully attempted to cash a John Wayne Construction Company check at a drive-in bank in Anchorage. When offered the check, the bank teller became suspicious, checked the authorized signatures, and then refused to cash the check on the basis that the drawers' signatures were 'irregular.' At this same time, the teller noted the license number and type of vehicle in which appellants were waiting. In this regard the state's evidence later developed that appellant Bell had rented this vehicle from the Rent-A-Chevy car rental agency in Anchorage. There was also evidence that at the time he rented the vehicle appellant Bell used a State of Washington driver's license bearing the name of Richard Senter.

From the state's evidence it is clear that sometime shortly after this occurrence appellants left the Anchorage area and drove to Fairbanks in the automobile that Bell had rented. Thereafter, on the 7th and 8th of July, appellants engaged in highly active check passing endeavors throughout the Fairbanks community. In passing and attempting to pass these John Wayne Construction Company checks appellants used aliases, offered nonexistent Fairbanks addresses for identification purposes, and presented other false indicia of identification. Owners and employees of several Fairbanks business identified one or more of the appellants as the people who attempted to cash, and in some instances successfully cashed, the John Wayne Construction Company checks in question on the 7th and 8th of July. An FBI fingerprint examiner gave testimony to the effect that appellant Bell's fingerprints or palm prints appeared on three of the checks in question while appellant Smith's fingerprints or palm prints were on 6 of the 13 checks in issue. At the time appellant Bell was arrested a John Wayne Construction Company check was found under his armpit. At this same time Bell was also found in possession of the keys to the Chevrolet Impala which had been rented in Anchorage and Richard Senter's State of Washington driver's license. Concurrent with Bell's arrest the automobile was impounded and later searched pursuant to a search warrant.

Appellants Wilson and Bell testified in their own behalf. According to their versions, appellants were all playing pool in Anchorage when they met a man named Richards who asked appellants to accompany him to Fairbanks. Bell denied having rented the Chevrolet Impala in Anchorage, and further denied using a draft card or State of Washington driver's license bearing the name Richard Senter as identification to facilitate rental of the vehicle. ¹ Both Wilson and Bell denied being in any of the various Fairbanks business establishments they were said to have entered on the dates in question, denied purchasing any of the merchandise the state's witnesses testified they purchased, and further denied any connection with the John Wayne Construction Company checks in question. Bell and Wilson also testified that certain items of merchandise they were alleged to have purchased from Fairbanks businesses with the checks in question were in fact purchased from a friend of Richards in the men's room of a downtown Fairbanks pool hall.

In this appeal appellants contend that the trial court's instructions pertaining to the requisite intent necessary for conviction were erroneous in that the prosecution was not required to prove that appellants intended to defraud the particular persons named in the 13 separate uttering of forged check counts. Disposition of the merits of this specification of error is controlled by our decision in Morrison v. State, 469 P.2d 125, 126-127 (Alaska 1970). There we held that under Alaska's forgery statutes it is unnecessary for the state to prove, or for the trial court to instruct the jury, that the intent to defraud a particular person is essential to conviction. In Morrison, we said that 'at the trial of a forgery prosecution, it is considered sufficient if an intent to defraud any person or corporation is established.' We further stated that the naming of particular persons in the body of the indictment was, under Alaska's forgery statutes, normally surplusage. Study of the record in the case at bar fails to reveal that any substantial rights of the appellants were adversely affected because of the trial court's failure to instruct that it was necessary for the state to prove that appellants intended to defraud the particular persons named in the indictment. We therefore hold that the trial court did not err in its instructions pertaining to intent. ²

Appellants next assert that the trial court committed error when it refused to grant their motion to suppress certain items of clothing, jewelry, and men's accessories which were obtained as a result of a search made of the vehicle which Bell had rented in Anchorage. Subsequent to the arrest of appellants on the 8th of July, the vehicle was impounded by the Fairbanks police department for illegal parking and pursuant to the request of the Anchorage car rental agency to retain the vehicle. ³ At the suppression hearing which was held during the trial, the state's evidence showed that on July 10, 1967, Sergeant Tannenbaum of the city of Fairbanks Police Department searched Bell's impounded vehicle pursuant to a search warrant. The warrant authorized a search of the vehicle for 'certain payroll checks No. 2606 through 2750 stolen or embezzled from the John Wayne Construction Company.' Officer Tannenbaum testified that he conducted this search in the presence of appellant Bell, and that the search failed to uncover any payroll checks. Tannenbaum further testified that during the course of his search of the vehicle he observed clothing, jewelry cases, and cosmetics contained in black plastic bags in the trunk of the car. Tannenbaum said that these items were not seized at that time but were subsequently seized pursuant to a search warrant which was obtained the next day, July 11. Officer Tannenbaum further stated that appellant Bell was also present at the time the items were seized from the vehicle under authorization of the second warrant. ⁴

Appellant Bell testified that on July 10, 1967, he was shown a search warrant which permitted a search of the vehicle for checks of the John Wayne Construction Company. Bell claims that the items of clothing, deodorant, cologne, and jewelry were seized from the trunk of the car during this first search of the vehicle which occurred on July 10, 1967. Bell denied having ever been out of jail on July 11, and further denied having witnessed a second search of the vehicle. ⁵

The trial court held that the items in question were admissible on the gounds that the search of the vehicle was 'overall' reasonable because the police had authority to search the vehicle and remove items therefrom as part of their inventory procedures pertaining to impounded vehicles, that appellants' motion to suppress was untimely because appellants should have moved to suppress before trial, and that appellants lacked standing to object to the seizure. In so ruling, the trial court refused to resolve the credibility issue relating to the conflicting testimony of appellant Bell and Officer Tannenbaum concerning the second search warrant and the search purportedly conducted under that warrant.

On appeal the state concedes that appellants had standing to contest the search and seizure in question. The state also concedes that as the record stands, the search and seizure must be treated as having taken place as Bell alleged, that is under the first warrant which only authorized a search for checks.

Both the Fourth Amendment to the United States Constitution and article I, section 14 of the Alaska Constitution provide, in regard to searches and seizures, that:

(N)o warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.

In Stanford v. Texas, 379 U.S. 476, 481, 85 S.Ct. 506, 509, 13 L.Ed.2d 431, 435 (1965), the Supreme Court of the United States alluded to the origin of the Fourth Amendment's proscription against unreasonable searches and seizures, saying:

These words are precise and clear. They reflect the determination of those who wrote the Bill of Rights that the people of this new Nation should forever 'be secure in their persons, houses, papers, and effects' from intrusion and seizure by officers acting under the unbridled authority of a general warrant. Vivid in the memory of the...