Chillous v. State, 3 Div. 383

• Decision Date: 06 October 1981
• Docket Number: 3 Div. 383
• Citation: 405 So.2d 58
• Parties: Tyrone CHILLOUS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 58

405 So.2d 58

Tyrone CHILLOUS v. STATE.

3 Div. 383.

Court of Criminal Appeals of Alabama.

Oct. 6, 1981.

Rick A. Williams, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen. and Charles M. Allen, II, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

The appellant was indicted and convicted for the criminal possession of a forged instrument in the second degree in violation of Ala.Code 13A-9-6 (Supp.1977). The trial court fixed his punishment at eight years in the state penitentiary. At arraignment, in the presence of counsel, appellant pleaded not guilty and not guilty by reason of insanity. Appellant is represented on this appeal, as he was at trial, by court-appointed counsel and has been furnished a free transcript.

The facts in this case are not complicated. Briefly, the State's evidence proved that appellant cashed a check purportedly signed by a J. C. Wilson made payable to an A. V. Jackson at the Winn-Dixie Store on the Lower Wetumpka Road in Montgomery on or about February 11, 1980.

Mrs. Ila Juanita Thomas, head cashier at the Winn-Dixie, testified that appellant came into the store after lunch and asked her to cash the $243.22 check drawn on the Wilson Forest Products, Incorporated, account at the First Alabama Bank in Notasulga. The check purportedly signed by a J. C. Wilson was numbered 113.

After requiring appellant to fill out an application for a check-cashing card, Mrs. Thomas okayed the check and appellant cashed it at one of the registers. Mrs. Thomas stated that appellant was "by himself when he came into the store." Another Winn-Dixie employee, John Chappell, saw appellant getting the check approved by Mrs. Thomas on this occasion.

Mrs. Thomas testified that, two to three weeks later, after finding out that the check made payable to A. V. Jackson was "bad," appellant returned to the Winn-Dixie Store and attempted to cash a second check made out to a Franklin D. Tolliver. Mrs. Thomas motioned for the store manager not to okay this second check appellant presented.

Mr. Benny Nolen, vice-president-comptroller of Bama Wood, Incorporated ¹, testified that check number 113 on the Wilson Forest Products, Incorporated, account was stolen from his desk drawer along with twenty-four other blank checks and a check writer in January of 1980. Mr. Nolen stated that neither Wilson Forest Products, Incorporated, nor Bama Wood, Incorporated, ever wrote or issued the check to an A. V. Jackson. Mr. Nolen did not know an A. V. Jackson, nor did he know appellant.

Investigator Jonah B. Pemberton, Jr., of the Alabama Bureau of Investigation, stated that Mrs. Thomas and Mr. Chappell made a positive identification of appellant from a photographic lineup he presented to them on February 22, 1980.

Appellant presented evidence that he was illiterate. He testified in his own behalf that he had never seen Mrs. Thomas or been in the Winn-Dixie "a day in my life." Appellant also denied having ever seen the check made out to A. V. Jackson or the application for a check-cashing card.

This court is required to view the evidence in the light most favorable to the State, Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975), and not substitute its judgment for that of the jury. Cumbo v. State, Ala.Cr.App., 368 So.2d 871 cert. denied, 368 So.2d 877 (Ala.1979). We hold that the direct and circumstantial evidence presented by the State was sufficient to prove every element necessary to establish a prima facie case under Section 13A-9-6 and to prove appellant's guilt beyond a reasonable doubt.

Appellant's central contention of error in this case concerns a conflict in the State's evidence which developed during the testimony of Mr. Edward Burkett, a Certified Latent Print Examiner with the Department of Public Safety. Investigator Pemberton had testified previously that he had taken a set of appellant's fingerprints, State's Exhibit 8, at the Elmore County Jail on April 30, 1980. Mr. Burkett testified that he compared appellant's known prints on State's Exhibit 8 with the latent prints found on the application for a check-cashing card, State's Exhibit 2, and with an enlargement of Exhibit 2, State's Exhibit 3. Mr. Burkett, after making his comparison, determined that appellant's known fingerprints and the latent prints were "one and the same." Mr. Burkett testified, however, that he made the comparison on March 31, 1980, one month before Investigator Pemberton took appellant's known fingerprints.

Appellant's initial objection to Mr. Burkett's testimony regarding fingerprint comparisons due to the discrepancy in dates was overruled; the trial court held that the discrepancy affected the credibility, but not the admissibility, of the evidence. Appellant's cross-examination of Burkett emphasized the discrepancy in dates testified to by Burkett and Pemberton. Later, after the State had rested and after appellant's first witness had testified, the prosecution admitted to the trial court, outside of the jury's presence, that there was a conflict in Burkett and Pemberton's testimony: "We are not telling the Court that both witnesses say that what they each testified to is correct.... We are saying that we have an unexplainable condition." The trial court ruled that the fingerprint evidence should be struck from the record and the jury instructed to disregard it. Appellant's motion for a mistrial was denied.

For the sake of clarity we here set out the trial court's admonition to the jury in its entirety:

"THE COURT: Ladies and gentlemen of the jury, first of all let the record reflect the entire jury is back in the Court Room.

"It has been brought to my attention by the District Attorney's Office that there is an apparent unexplained discrepancy in regard to State's Exhibits 8 and 3? That's right, the fingerprints. There is apparently a discrepancy here so great that I am going to withdraw this one. You are not to consider it. The evidence tends to show that the fingerprint comparison that Mr. Burkett did, the latent print versus the ink print was done before the State's evidence would indicate that the latent print was ever taken. I'm sorry, that would be the ink print was ever taken. Well, that's physically impossible for there to have been a comparison before the print was taken. So, this evidence is going to be struck by the Court. You are to totally disregard it.

There is no evidence before the Court, whatsoever, at this time that the Defendant's fingerprint was on the card, State's Exhibit

"MR. GILLIS: 2.

"THE COURT: 2. There's no evidence of that, whatsoever. Now, let me ask you this: Is there anyone on the jury pane...