Hamburg v. State

• Decision Date: 08 November 1991
• Docket Number: No. 90-188,90-188
• Parties: Al HAMBURG, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 523

820 P.2d 523

Al HAMBURG, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).

No. 90-188.

Supreme Court of Wyoming.

Nov. 8, 1991.

Rehearing Denied Dec. 4, 1991.

Robert Moxley of Gage & Moxley, Cheyenne, Gary Sinawski and Harry Kresky of The International People's Law Institution, New York City, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., and Mary B. Guthrie, Sr. Asst. Atty. Gen., for appellee.

Before THOMAS, CARDINE, MACY and GOLDEN, JJ., and BROWN, Ret. J.

BROWN, Justice, Retired.

Appellant Al Hamburg appeals from a forgery conviction. The issues stated by appellant are:

I

Did the proof at trial demonstrate that defendant committed the crime of forgery?

II

Was the defendant tried before a jury which was impartial and free of bias and prejudice?

III

Was defendant deprived of effective assistance of counsel?

IV

Did the trial court commit other prejudicial and reversible error?

V

Do the terms of defendant's sentence violate his rights under the First Amendment of the U.S. Constitution and the laws of the State of Wyoming?

We affirm in part, reverse in part and remand for modification of the judgment.

Appellant Al Hamburg is one of Wyoming's most conspicuous citizens. He ran for sheriff of Goshen County, Governor, United States Senator and nine times for United States Representative. ¹

Appellant is a member of the New Alliance Party. When Congressman Dick Cheney resigned his position in the United States House of Representatives, a special election to select his successor was set for April 26, 1989. To gain his party's nomination for the seat, appellant was required to collect at least 479 signatures on nomination petitions. He circulated nomination petitions and turned them in to the Secretary of State for verification. As stated in his brief, appellant was "paying persons 20 cents per signature collected on his behalf." During the verification process, it appeared that some of the signatures were unusual and of a suspicious nature.

The petitions with questionable signatures were turned over to the Division of Criminal Investigation (DCI) for further investigation. Part of the DCI investigation included contacting persons whose signatures appeared on the petitions. There was evidence that some of the names on the petition were obtained from the cemetery. ² Also, there were several instances of apparent forged signatures of living persons. At trial, fifty-seven people testified that they had not placed their signatures on the petitions.

Appellant's connection to some of the forged signatures was established by the testimony of Richard Crivello, senior forensic examiner for the Wyoming State Crime Laboratory, a handwriting expert. Mr. Crivello compared the appellant's handwriting samples with handwriting exemplars prepared by appellant and persons whose names appeared on the petitions. He concluded that some of the signatures on the petitions had been forged. He gave his opinion that appellant had probably written at least twenty-one of the names on the petition. Appellant was convicted by a jury on March 1, 1990, of two counts of forgery and given a suspended sentence. He appeals the conviction and sentence.

I

Appellant contends that signing names of others on a nomination petition is not forgery as contemplated by W.S. 6-3-602 (June 1988 Repl.) which states in part:

(a) A person is guilty of forgery if, with intent to defraud, he:

(i) Alters any writing of another without authority;

(ii) Makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or

(iii) Utters any writing which he knows to be forged in a manner specified in paragraphs (i) or (ii) of this subsection.

"Writing" is defined by W.S. 6-3-601 (June 1988 Repl.) as "printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, and other symbols of value, right, privilege or identification." This statute does not purport to list documents or instruments subject to the forgery statute. Indeed, such enumeration would not be practical. A wide variety of documents or writings have been held to be subjects of forgery. 37 C.J.S. Forgery § 36, pp. 55-56 (1943). The words "printing or any other method of recording information * * * and other symbols of value, right, privilege or identification" contained in the statute are certainly broad enough to cover nomination petitions.

The substance of the instrument, as distinguished from its form or name, is determinative of whether it may support a charge of forgery. ³ In determining what circumstances support a charge of forgery, the focus is on the elements of the crime rather than the name or species of instrument or document involved. In Commonwealth v. Powers, 110 Pa.Super. 319, 168 A. 328 (1933), the court held that a petition to strike off names from voters' registry lists could be the subject of forgery.

Appellant contends that the nomination petitions could not be the subject of forgery because they: were not listed in W.S. 6-3-601; had no intrinsic value; were incapable of accomplishing any fraudulent purpose; had no independent legal efficacy; did not establish any legal liability; and were not capable of accomplishing the purpose for which they were intended. Forgery is generally defined as the false making or materially altering, with intent to defraud, any writing, which if genuine, might apparently be of legal efficacy, or foundation of legal liability. See, e.g., Carr v. United States, 278 F.2d 702, 703 (6th Cir.1960); State v. Kendrick, 173 N.W.2d 560, 561 (Iowa 1970); State v. Reese, 283 Md. 86, 388 A.2d 122, 125-26 (1978); State v. Thrunk, 157 N.J.Super. 265, 384 A.2d 906, 909 (1978); State v. McAllister, 287 N.C. 178, 214 S.E.2d 75, 83 (1975). While the forgery statutes in the various jurisdictions may be slightly different, the gist of the offense of forgery is the false making of an instrument or uttering of such instrument with intent to defraud. People v. Parrott, 174 Cal.App.2d 301, 344 P.2d 643, 645 (1959).

Forgery is accomplished if the instrument is such that, if it were genuine, it would serve as the foundation for legal liability and has the potential to injure or defraud. In this case, the petitions had the potential for having legal effect and purported to be the act of another who did not authorize the act. The electors of the state would be defrauded and the election system of the state had the potential to be compromised by appellant's actions. Appellant cannot be absolved because his scheme was unmasked before his name was actually placed on the ballot.

II

In the second issue, appellant argues that he was not tried before an impartial jury, free of bias and prejudice. In support of this argument he contends that the voir dire was not adequate. Rule 701, Uniform Rules for the District Courts, permits the examination of potential jurors for the purpose of selecting a panel who will fairly and impartially hear the evidence and render a just verdict. Voir dire is designed to raise alleged bias from the realm of speculation to the realm of fact and to explore possible grounds for challenges for cause. Lopez v. State, 544 P.2d 855, 861 (Wyo.1976). For a more in-depth discussion of voir dire standards, see Amin v. State, 811 P.2d 255, 258-59 (Wyo.1991).

On voir dire, appellant's counsel asked the jury panel if anyone had feelings about the New Alliance Party. Venireman David Burrill stated "it has crossed my mind a time or two." Appellant's attorney followed this response by asking the entire panel whether they were opposed to the New Alliance Party's desire to participate in the election and "[w]ould it be a factor in your decision in this case?" There were no responses from the prospective jurors. Counsel then asked "whether it will affect you in the determination of guilt or innocence in this case, if that political factor would? Does anybody feel that it would?" Again, no jurors responded to these queries. A failure to directly and plainly examine jurors with respect to a particular basis for bias or prejudice constitutes a waiver of a later claim of prejudice. Lopez, 544 P.2d at 861. If appellant had concerns about whether any of the prospective jurors were prejudiced, he could have challenged them for cause, as permitted under W.S. 7-11-104 (June 1987 Repl.).

There is nothing in the record to demonstrate that appellant did not receive a fair trial by a fair and impartial jury, and he cites no authority to support this assignment of error. See Amin, 811 P.2d at 258-59. Furthermore, he makes no cogent argument and has not met his burden of demonstrating bias or prejudice of any panel member.

III

In the third issue, appellant contends that at trial he was denied effective assistance of counsel. In more than a few cases of recent date, we have addressed the standard of evaluating claims of ineffective assistance of counsel:

We do not evaluate those actions from a perspective of hindsight. We invoke a strong presumption that counsel rendered adequate and reasonable assistance making all decisions within the bounds of reasonable professional judgment.

* * * Each case must be viewed in the total context of the representation afforded to determine if the defendant was denied his right to a fair trial.

Gist v. State, 737 P.2d 336, 342 (Wyo.1987) (citations omitted). See also Amin, 811 P.2d at 261; Murray v. State, 776 P.2d 206 (Wyo.1989); Cutbirth v. State, 751 P.2d 1257 (Wyo.1988); Frias v. State, 722 P.2d 135, 145 (Wyo.1986).

A reviewing court, using a "standard of reasonableness," must presume that counsel is competent and place the burden on the appellant to establish...