People v. Williams

• Decision Date: 05 October 1970
• Docket Number: Cr. 5485
• Citation: 90 Cal.Rptr. 292,11 Cal.App.3d 970
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Excel WILLIAMS, Defendant and Appellant.

Page 292

90 Cal.Rptr. 292

11 Cal.App.3d 970

The PEOPLE of the State of California, Plaintiff and Respondent, v. Excel WILLIAMS, Defendant and Appellant.

Cr. 5485.

Court of Appeal, Third District, California.

Oct. 5, 1970.

[11 Cal.App.3d 972] Clyde M. Blackmon, Sacramento, for defendant-appellant.

Edsel W. Haws and Elliott D. McCarty, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

PIERCE, Presiding Justice.

This appeal is from a conviction of one count of violation of Penal Code, section 470 (forgery) with an admitted prior for for burglary (second degree).

There are three assignments of error: (1) misapplication of the 'multiple admissibility' rule; ¹ (2) misuse of photographic evidence as an aid of identification; and (3) inadequacy of trial counsel. Our overall appraisal after examining the record has convinced us that although contentions (1) and (3) have some substance and that error occurred, it was not prejudicial, and we will affirm the judgment. (People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.)

FACTS

On February 15, 1969, two Negro males presented themselves at a checkout stand in Van's Food Market in Sacramento, and one of them offered to pay for a grocery purchase with a check printed as one of a series purporting to be issued by California-Western States Life Insurance Company under circumstances described in the margin. ²

The check presented was in the amount of.$89.50, bore the purported written signature 'Michael L. Sanders,' as a signing agent for the insurance company (there being no such official), and 'Herman Carter,' as payee (there having been no such disability claimant). The check was already endorsed when presented. Under the endorsement was a fictitious address.

Checkout clerk William Brennan called head clerk Robert Gallegos over to approve the check. Gallegos assumed from the position of the men at the checkstand that one wearing a dirty tan overcoat had presented the check and that the other was his companion. Gallegos asked for a driver's license and was informed that the 'customer' did not have one; a hunting or fishing license was the offered as identification. Gallegos' suspicions aroused, he retained the check and left to phone the Retail Credit Association.

By the time Gallegos returned to the checkout stand the two men had left the store, driving away in a Cadillac, stipulated at the trial to be registered to Williams' wife. The Cadillac was described by one witness as 'maroon,' by another as 'rose pink.'

Gallegos was the only prosecution witness to identify Williams as perpetrator of the check passing attempt at Van's Food Market. Brennan, the clerk who had been present during the entire episode, Cleman, the store detective (not a witness), Annigoni, the store manager, ³ and Gilbertson (the latter not called as a witness) did not identify Williams. Gallegos made an in-court identification. This was preceded by a photographic mug-shot 'identification' Donnetta Armstrong was a prosecution witness. At the time of trial she was serving a 30-day sentence in Sacramento County jail for petty theft (on a charge reduced from forgery). She testified to the following sequence of events involving defendant Excel Williams: She had met him in December 1966 at the home of one Darlene Young. There Williams had shown her a stack of checks an inch thick, all of which were, as other prosecution testimony proved, a part of the misprinted 87,000 checks referred to above. Williams told Miss Armstrong that he had received the checks from a friend who worked for the paper company.

which we will discuss under a separate caption below.

At the first meeting between Williams and Miss Armstrong, the former after exhibiting the stack of checks persuaded her and Miss Young with several other (unnamed) women to embark upon a career of bad-check-passing ('paper hanging') under Williams' direction. Williams was to furnish the supply of checks and was to receive half the 'take.' Under this plan Williams was to remain in the background. The girls were to write in the fictitious signatures of the makers, write in their own (and sometimes possibly fictitious) names as disability payees and fill in the denominations--then pass the checks. (At that first meeting some of the checks were thus made out.) Miss Armstrong started out with four checks on California-Western States Life forms. She unsuccessfully attempted to cash them at two stores.

Later Williams, according to Miss Armstrong's testimony, had given 13 checks to her. These were checks with S & T Produce Co. of Galt printed as the maker. Apparently it was when Miss Armstrong attempted to pass one of these checks that she was apprehended. All of the foregoing testimony by Miss Armstrong was admitted into evidence without objection.

William Robinson was a prosecution witness. He testified he had known Williams for seven or eight years. Robinson had been employed by Independent Paper Company for six years. He recounted a conversation with Williams in December 1968. Williams, according to Robinson, had driven up to the plant while Robinson was eating his lunch. Williams asked for another acquaintance, MacDaniels, who had worked for the paper company but was not so employed at that time. Williams then asked Robinson if he could get him any blank checks. Robinson replied: 'He (Williams) gave me his phone number and that was it. I don't remember the extent of the conversation. I may have told him I wasn't interested or something.'

Williams' defense was that of mistaken identity. Specifically it was based upon a contention that a man closely resembling him had been on a bad-check-cashing spree in Sacramento on February 14 and 15. ⁴

Williams did not take the stand in his own defense. He produced three of the victims involved in the counts which had been dismissed. (See fn. 4.) He also produced a handwriting expert and Williams' wife, Mary. The relevancy of the latter's testimony was her statement that she had never seen her husband in a tan coat, that she, herself, did not drive her car, and that Williams who did drive it often loaned it to others. The three check victims called by Williams were Wilbert Lee, Melvin F. Foster and Earl Moors. Each check passed had been, like the one presented at Van's Food Market, one of the insurance company's misprinted forms, each was made payable to 'Herman Carter' and bore as the maker's signature 'Michael Sanders.' Unlike the check involved in the count ultimately charged Lee was a clerk at E--Z Mart. The check passed there was presented by a male Negro. It was endorsed 'Herman Carter' in Lee's presence with the same (fictitious) address, '6649--27th St.,' written below the name. The man wore a dirty tan overcoat. Lee could not identify Williams as the man who had passed the check.

however, at least one had been endorsed in the presence of the person victimized.

Defense witness Foster of Tallac Bottle Shop also had cashed a check for a male Negro. He could not remember whether the check had been endorsed in his presence. That was his practice, a rule that had been sometimes broken. He could not identify Williams as the passer of the check.

Earl Moors was the proprietor of a family run shoe store. Two male Negroes had entered the store, one selected a pair of shoes, then presented a check as described. Unlike the other victims, Lee and Foster, he did identify Williams as the check passer. He also testified, 'God forgive me if I am wrong. I certainly think he is the man.' He also believed that the person had endorsed the check in his presence. He had been writing out the bill for the shoes at the time and testified: 'I didn't look to see if there was ink flowing out of the pen, you know what I mean.' Regarding the identification offered, a driver's license, he noted particularly that the address thereon was different from the address written on the check. The man told him he had moved. From the fact the 'change' of address was noted it is inferable that the license was issued to Herman Carter. It is also inferable that the photograph on the license bore some resemblance to the person passing the check.

Defense witness John Jorgensen was a handwriting expert with 25 years experience. He was employed by the State Bureau of Identification. He had examined ALL of the checks passed or attempted to be passed (including that involved in the Van's Food Market incident, People's Exhibit 1) and had compared these with exemplars of Williams' handwriting. The examination had been made at the request of the Sacramento Police Department before the charges, excepting count 1, had been dropped. His opinion as a result of these examinations was: (1) that none of the checks had been endorsed by Williams; (2) that a different person had endorsed People's Exhibit 1 than the person who had endorsed the others; (3) that Williams had not written any of the purported maker's signatures, 'Michael L. Sanders,' or the payee's name, 'Herman Carter.' The four checks offered in evidence in this case, one by the prosecution and three by the defense, had been four of ten given to him for a handwriting comparison by the police department. ⁵

EVIDENCE OF OTHER CRIMES: THE TESTIMONY OF DONNETTA ARMSTRONG

The general rules as to when evidence of other crimes may and when it may not be received in evidence and the reasons for those rules have been frequently enumerated by our appellate courts and Supreme Court.

Fundamentally involved, of course, is the rule of relevancy (applicable to all evidence): 'whether it tends logically, naturally, and by reasonably inference, to establish any fact material for the People * * *.' (People v. Kelley (1967) 66 Cal.2d 232, 239, 57 Cal.Rptr. 363, 370 This court stated in People v. Adamson (1964) 225 Cal.App.2d 74, 76 (hear. den.), 36 Cal.Rptr. 894, 896: 'Under the foregoing rule evidence is admitted of similar acts which tend to show either guilty knowledge, intent (or motive) or...