Brown v. State, AE-96

Decision Date08 February 1983
Docket NumberNo. AE-96,AE-96
Citation426 So.2d 76
PartiesLinda Charlene BROWN, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Michael E. Allen, Public Defender and P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.

ERVIN, Judge.

Appellant Brown appeals her convictions for the offenses of forgery, uttering a forged instrument and grand theft. Finding that there is substantial and competent evidence supporting the verdict for the offense of forgery, we affirm it. We reverse, however, the convictions of uttering a forged instrument and commission of grand theft, and remand those offenses to the lower court for further consistent proceedings. In so doing, we reaffirm the continuing vitality of, but reflect upon, principles implicit in our previous opinion in Clark v. State, 379 So.2d 372 (Fla. 1st DCA 1979), in which we found hypnotically-induced-recall-testimony to be admissible for consideration by a criminal trial jury.

The convictions in this case stem from a 1979 incident in Jacksonville when the appellant obtained certain company checks in the name of the Abreu Twin Mini-Shops. The Twin Mini-Shops had previously gone out of business, and the owner had closed its bank account, discarding the company checks. At trial, a bank teller at the Atlantic Bank testified that appellant had appeared at the bank with a Twin Mini-Shop check in the amount of $425.01 made out to Kathleen Coleman, a long-time bank customer who testified that she had neither seen nor endorsed the checks. The check, identified by the bank teller as bearing her teller stamp, was negotiated on November 6, 1979. A handwriting expert, after examining the handwriting on the check and the deposit slip, and comparing it with known exemplars of accomplice Ernest Brown and Linda Brown's handwriting, opined that Ernest Brown had written the material on the face of the check and that Linda Brown had done so on the reverse side as well as on the deposit slip. The evidence further revealed that the appellant had previously endorsed the check, using the Coleman name. The teller testified that appellant passed both the check and a deposit slip to her. Appellant's plan to deposit the $425.01 check and receive $300 back in cash was successful. Two days following the check's utterance, a deposit receipt in the name of Kathleen Coleman and in the amount of $125.01 was found in the pocket of a jacket belonging to co-defendant Ernest Brown.

During the two-year period between the check cashing incident and the trial, the teller's recollection of appellant's identity had faded from memory. It was apparent to the prosecution that without the testimony of the teller identifying appellant as the one who had cashed the check, the charges of uttering a forged instrument and grand theft would be difficult, if not impossible, to prove beyond a reasonable doubt. Police Detective Bryant Mickler was called in to hypnotize the teller in an effort to assist her in refreshing her faded memory as to the day of the crime. It does not appear from the record that Mickler had any connection with the investigation of this case, other than to hypnotize the teller. Experienced in hypnosis, he claimed to have hypnotized over 2,000 people, been trained through many courses, and taught a course in hypnosis at a local junior college, but was admittedly not a medical expert. Mickler's testimony as to hypnosis had been utilized 12 times in court.

Our record review discloses that he knew nothing about the witness before hypnotizing her, that he was alone with her at the time of hypnosis, and that he placed her into "progressive relaxation," taking her back to the day of the crime and asking or perhaps telling her to try to recall the specifics of the incident and the identity of the person from whom she received the forged check. After she was brought out of the hypnotic trance, another detective displayed some photographs to her, and the witness selected a picture of the appellant.

The hypnosis session transpired on Friday morning, May 1, 1981, four days before trial. It was only shortly after the session took place that appellant's counsel was first advised of its occurrence. Upon learning that the teller had made a positive identification of his client, the attorney spent the weekend researching the legal ramifications of using hypnosis in a criminal trial. On Monday, the day before trial, he deposed Mickler. On the following day, just before trial, appellant's counsel sought a continuance, claiming prejudice based on the short notice of the hypnosis session, alleging that he was unable to depose the hypnotist until the day before trial and that he wished to obtain another expert for the purpose of presenting evidence concerning hypnosis in appellant's favor. The motion was denied, and appellant was subsequently convicted of forgery, uttering a forged instrument, and grand theft.

In answer to appellant's arguments assailing the convictions imposed, we respond that a judgment will not be reversed, unless the error of the evidence's admission was prejudicial to the substantial rights of the appellant. Prejudice will not be presumed. Section 924.33, Fla.Stat. (1979); Palmes v. State, 397 So.2d 648, 653 (Fla.1981), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981). This requires us to determine whether, but for the admission of the testimony of the teller and the hypnotist, the result below in regard to each of the three offenses might have been different. Palmes, at 654. It seems apparent to us that the admission of Officer Mickler's hypnosis testimony related solely to the charges of uttering a forged instrument and grand theft. Mickler testified as to the procedures used in hypnotizing the teller, while the teller testified concerning the method by which she processed the Twin Mini-Shop check, and her identification of appellant as the individual who passed her a pre-endorsed Abreu Twin Mini-Shops check was the product of her hypnotized state. She did not testify, however, that she had witnessed the actual act of forgery.

Her testimony did not relate to proving any of the elements of forgery, which include the requirements: (1) that there be a falsely made or materially altered written instrument; (2) that the writing be of such a character that, if genuine, it might apparently be of legal efficacy for injury to another, or the foundation of a legal liability; and (3) that there be an intent to injure or defraud. See Ch. 831, Fla.Stat.; 16 Fla.Jur.2d Criminal Law §§ 1564-1568 (1979).

Although the evidence against Linda Brown was circumstantial as it related to the forgery charge, it was nonetheless sufficient. Independent of the questionable identification of appellant as the person who uttered the forged check, Brown and her accomplice were both shown to be, through the testimony of the expert examining the questioned documents, in possession of a check stolen from the Abreu Twin Mini-Shops. Both the purported maker and purported endorser of the check denied either that they had written anything on the check or had authorized anyone to do so. Neither of the two Browns offered any explanation as to how they came into possession of the check.

We held in a case which reversed a conviction for uttering a forged instrument that because the only evidence against the defendant was that he had possession of a forged check and caused it to be cashed, yet offered a reasonable explanation for its possession, the evidence was insufficient to convict. Heath v. State, 382 So.2d 391 (Fla. 1st DCA 1980). We observed, due to the explanation offered, and the absence of any other evidence of guilty knowledge, such as a handwriting analysis, that possession of the stolen check did not give rise to an inference that the appellant knowingly uttered the forged instrument. Conversely, we consider that such inference could apply to facts such as those in the case before us and is one which the jury could properly weigh in its determination of guilt. The Florida Supreme Court, in sustaining the constitutionality of Section 812.022(2), Florida Statutes (1977), 1 reasoned that "[s]ince there [was] a rational connection between the fact proven (the defendant possessed stolen goods) and the fact presumed (the defendant knew the goods were stolen), the inference created by section 812.022(2) does not violate [the defendant's] due process rights." Edwards v. State, 381 So.2d 696, 697 (Fla.1980).

There is a similar rational connection here. In addition to evidence revealing both defendants' possession of the stolen check, without reasonable explanation therefor, the record discloses possession by appellant's accomplice of a deposit receipt containing the difference between that deposited and that received from the forged check. Moreover, the deposit slip was shown through the testimony of the handwriting expert to have been at some point in time in possession of the appellant. As stated, all of this evidence was obtained independently of the questionable method used to retrieve the bank teller's memory relating to the identification of appellant as the person who passed the check. Cf. Davis v. State, 364 So.2d 19 (Fla. 1st DCA 1978), cert. denied, 373 So.2d 457 (Fla.1979).

We are unable to say, after considering the record as a whole, that any of the allegedly prejudicial evidence, if excluded, might have affected the jury's verdict as to the forgery charge. Consequently, we affirm the conviction of forgery.

Appellant also challenges the lower court's denial of her motion for a continuance. She argues that the untimely scheduled hypnosis session did not give her an adequate opportunity to obtain expert witnesses in opposition to the hypnosis process utilized by the state and the hypnotist who testified for the state. "A motion for a continuance is directed to...

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