People v. Smalls

Decision Date27 May 1975
Docket NumberNo. 3,Docket No. 17626,3
Citation61 Mich.App. 53,232 N.W.2d 298
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nathaniel SMALLS, Defendant-Appellant
CourtCourt of Appeal of Michigan — District of US

Philip A. Gillis, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller Pros. Atty., Donald A. Johnston, III, Chief Appellate Counsel, Grand Rapids, for plaintiff-appellee.

Before T. M. BURNS, P.J., and McGREGOR and WALSH, JJ.

T. M. BURNS, Presiding Judge.

Defendant Nathaniel Smalls was convicted by a jury on April 5, 1973, of uttering and publishing. M.C.L.A. § 750.249; M.S.A. § 28.446. On July 5, 1973, he was sentenced to 2 to 14 years imprisonment and now appeals.

On September 22, 1972, Mrs. Shirley Rockwell, a drive-in teller at the Plainfield Branch of Old Kent Bank, was presented with a cashier's check drawn on the Bank of the Commonwealth in Detroit. The person who presented the check also gave Mrs. Rockwell a temporary driver's license and an Old Kent savings passbook, both in the name of Charles Bowman. After approval was secured from the branch manager, the check was cashed. Both Mrs. Rockwell and the assistant manager, Mr. Fred Gaul, who observed the transaction, were able to identify defendant as the person who presented the check.

Approximately two hours later, Mr. John Lutz, an assistant manager of the Breton Street Branch of the Old Kent Bank, was presented with another check drawn on the Bank of the Commonwealth. A temporary driver's license and Old Kent savings passbook were also produced. Mr. Lutz informed the person who presented the check that it could not be cashed and this person, later identified as Ernest Lee, left the bank and got into the passenger side of an automobile being driven by defendant. This vehicle left the bank at a high rate of speed, pursued by police officers who were responding to a bank alarm.

After a high speed chase, Lee and defendant were apprehended. In the car was a total of $2,095 in currency, 68 forged Commonwealth Bank checks made payable to Charles Bowman, as well as a temporary driver's license, social security card and an Old Kent savings passbook, all in the name of Charles Bowman. Another set of license plates were also found in the trunk of the vehcile.

Defendant was initially arrested and charged with uttering the check at the Breton Street Branch. He had an attorney representing him who had been in contact with detective Milo Schuiteman, the officer in charge of the investigation of the counterfeit checks.

On October 21, 1972, detective Schuiteman, investigating the possibility of defendant and Lee being involved in the Plainfield check passing, went to the Plainfield Branch and interviewed Mrs. Rockwell. He showed her nine photographs, three of Lee, three of the defendant and single photographs of persons 19, 20 and 30 years of age. Mrs. Rockwell recognized the defendant in at least one of the photos. Defendant's attorney was not advised of this photographic show-up.

Mrs. Rockwell described the check-passer as a clean-shaven male Negro between 25 and 30 years of age. The assistant manager who approved the check for cashing described the check-passer as light-skinned, beardless and in his lower thirties. According to police photographs taken of the defendant three or four hours later, he had a full beard and moustache and his skin was medium to dark in color.

Fingerprint testimony produced at trial was conflicting. The Grand Rapids Police Department fingerprint expert was unable to identify any of the prints on the various exhibits as belonging to defendant. However, although admitting some mistakes in identifying some fingerprint characteristics, a state police fingerprint expert opined that a latent print raised from the check in question matched that of defendant's right thumb print.

Ernest Lee testified at trial that he and defendant arrived in Grand Rapids at 11:30 a.m., at which time they split up, Lee not seeing defendant again until 1:30 or 2 p.m. At this time, they went to the Breton Street Branch of the Old Kent Bank where Lee attempted to pass one of the counterfeit checks.

Defendant took the stand in his own behalf and testified that on the morning of the 22nd, he and Lee had arrived in Grand Rapids around 11:30 a.m. Defendant said that he them met a business acquaintance and was with him for 1 1/2 to 2 hours. The acquaintance, Virgil Stowe, corroborated the defendant's alibi.

Over objection as to relevancy, the prosecutor asked defendant if he had been in any bank within the City of Grand Rapids on September 22, 1972. Defendant denied that he had.

After defendant rested, the prosecutor called two rebuttal witnesses who testified that defendant was in another branch of the Old Kent Bank while Ernest Lee cashed a check drawn on the Bank of the Commonwealth. Defendant's objection to this testimony on the grounds that it was not proper rebuttal and that it tended to show defendant's involvement in another crime was overruled by the trial court.

On appeal defendant first contends that the evidence produced at trial was insufficient to support a finding of guilty beyond a reasonable doubt. Defendant argues that the identification by the teller and the assistant manager of the bank should not have been believed and that, in light of the testimony of his alibi witness, the evidence was insufficient. Claims of mistaken identification by a witness and alibi are matters which deal with the credibility of witnesses and such questions are generally to be decided by the jury. People v. Boynton, 46 Mich.App. 748, 208 N.W.2d 523 (1973), People v. Hughes, 26 Mich.App. 355, 182 N.W.2d 631 (1970). After listening to all the testimony and observing the demeanor of the witnesses, the jury chose to disbelieve defendant. We shall not substitute our judgment for theirs.

Furthermore, where sufficient evidence exists, which may be believed by the jury, to sustain a verdict of guilty beyond a reasonable doubt, the decision of the jury should not be disturbed by an appellate court. People v. Palmer, 392 Mich. 370, 220 N.W.2d 393 (1974), People v. Boynton, supra, People v. Stewart, 36 Mich.App. 93, 193 N.W.2d 184 (1971). Our review of the record in the case at bar reveals ample evidence, if believed, to warrant a jury verdict of guilty of the crime charged.

Defendant next claims that the trial court's admission of the rebuttal testimony was an abuse of discretion. Defendant's argument is that the rebuttal testimony was not properly admissible after the defense had rested, since it should have been offered by the prosecution during its case in chief as evidence of a plan or scheme of the defendant.

In People v. Atkins, 58 Mich.App. 503, 506, 228 N.W.2d 435, 436 (1975), this Court said:

"Rebuttal evidence is broadly defined as that given by one party to contradict,...

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