Richardson v. State
| Decision Date | 23 December 1985 |
| Docket Number | No. 1-485A88,1-485A88 |
| Citation | 486 N.E.2d 1058 |
| Parties | Verne RICHARDSON, Glenna Wininger a/k/a Glenna Williams, Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Scales, Wissner & Krantz, Boonville, for defendants-appellants.
Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, Stanley M. Levco, Evansville, for plaintiff-appellee.
STATEMENT OF THE CASE
Defendant-appellants, Verne Richardson (Richardson) and Glenna Williams Wininger (Wininger), were convicted by the Daviess Circuit Court of two counts of conspiracy to utter a forged instrument. From sentences of imprisonment and fines, they appeal.
We reverse.
Count I of the Information charged that Richardson and Wininger conspired to utter the forged will of Beryl Jane B. Crawford (Crawford). Count II charged that Richardson and Wininger conspired to utter the forged Crawford assignment of six stock certificates of Interlake, Inc. to Wininger. To support the forgery element, the State produced two examiners of questioned documents who testified that the purported signatures of Crawford on the will and on the six stock certificates were forgeries.
The principal evidence presented by the State to support the conspiracy element is as follows: Richardson is an attorney-at-law practicing in Washington, Daviess County, Indiana, and Wininger is his secretary. In the course of his practice, Richardson did legal work for Crawford. Commencing in 1973, Crawford, who lived near Petersburg in adjoining Pike County, was aged and terminally ill with cancer of the throat and cirrhosis of the liver. She was an alcoholic, drank heavily and took quantities of pain pills. In 1978 she was described Evidence was presented that in 1977, Wininger presented a document bearing Crawford's purported signature to one Rose Erwin for her witness. The circumstances of the presentment were such as to cause Erwin to believe she had been tricked. In 1978 William Hudson II, an attorney in the same building which Richardson's office was located, was asked by Wininger to attest to Crawford's signature on a will. It bore what was purported to be Crawford's signature and Rose Erwin's name was printed under a signature line. Crawford was not present, but upon Wininger's assurances that it was her signature, Hudson signed as a witness. Later Wininger told him that Rose Erwin was the other witness. Two or three months later, Richardson and Wininger asked Hudson to again attest the signature on the will of Crawford. Crawford was not present but Hudson and Richardson signed as witnesses anyway to what was purported to be Crawford's signature on a will. The earlier signature page was destroyed in his presence. Hudson identified the document as the one which formed the basis of the State's charge in Count I, i.e., the will.
by her physician as needing a guardian. Through Richardson, Wininger became her bookkeeper and secretary. As time progressed, Wininger effectively assumed the management of Crawford's estate, then valued at approximately $1,000,000.00.
Crawford died December 9, 1978, and the will was produced for probate. It provided that Wininger would receive 12,976 shares of stock in Interlake, Inc. (then valued at $26.00 per share, or $337,376.00) and the balance in certain bank accounts. In addition, it provided that Wininger would be co-executor. In will contest proceedings and in criminal proceedings before both federal and state grand juries, Hudson admittedly perjured himself concerning the circumstances of the execution of the will, including testimony that he and Richardson had driven to Crawford's home where the will was then properly executed and attested by the witnesses and Crawford in each others presence. During those court proceedings "strategy conferences" were held between himself, Wininger and Richardson. These conferences included driving Hudson to Crawford's home, where he had never been, so that he could accurately describe it. Hudson pleaded guilty in state court to perjury. Numerous joint bank accounts were opened by Wininger for her and Crawford from which Wininger admitted withdrawing $30,716.00 for her personal use over a two-year period. The money admittedly was mostly Crawfords, but Wininger claimed she had permission to make the withdrawals.
The six stock certificates representing the 12,976 shares of stock in Interlake, Inc. were transferred to Wininger upon the Crawford signature being guaranteed on July 5, 1978, by Richard Schrader, an officer of the First National Bank of Oakland City. Richardson and five other investors had taken over the bank on March 1, 1978, after which Richardson had become a director. Thereafter, in April of 1978, Richardson, by letter to Schrader, caused a bank account to be opened in that bank for $25.00, the money being furnished by Wininger in the joint names of Wininger and Crawford. Included in the letter was a signature card purportedly signed by Crawford. No satisfactory explanation was ever made why Crawford needed a $25.00 bank account in Gibson County, far from her home, or why her signature could not have been guaranteed by one of the local bankers. Schrader was given instructions by Richardson to send all matters concerning the account to him and not to Crawford, for Richardson did not want to bother her. In July, Richardson then asked Schrader if he could guarantee a signature to transfer stock for Crawford solely by a comparison with a signature card. Schrader said he could, but it was irregular.
Hudson saw the stock certificates in Richardson's office bearing only Crawford's signature. Richardson and Wininger requested Hudson's secretary, Virginia Stern, to type in Wininger's name and the date. After this was done, pursuant to
Richardson's instructions, Virginia Stern took the certificates to Schrader at Oakland City where he guaranteed the signatures. Then, upon Richardson's instructions, Wininger took the certificates to Thompson-McKenna, brokers in Evansville, for transfer rather than to Merill-Lynch, where Crawford had an account. Richardson said that Crawford instructed that the transfer be completed in that manner because she did not want Christopher, her son, to know of the transfer. The signatures of Crawford on the stock certificates, dated July 5, 1978, were forgeries and her signature on the signature card at the Oakland City Bank was also a forgery.
Richardson and Wininger present the following issues for review:
I. Whether the trial court committed error by not granting the Motion to Dismiss, specifically concerning the appointment of the special prosecutor herein.
II. Whether the trial court committed error in allowing certain exhibits to be introduced into evidence as "known" signatures of Beryl Jane Crawford, and thereafter allowing certain experts to testify as to their opinions concerning said exhibits.
III. Whether there was sufficient evidence to support the verdicts herein.
Issue I. Special Prosecutor.
On December 20, 1982, E. Brayton Smoot, the incumbent Prosecuting Attorney, whose term expired on December 31 following, filed his petition in the Daviess Circuit Court requesting the appointment of a special prosecutor in the investigation and prosecution of the matters involved here. On the same date the court appointed Stanley Levco, a Deputy Prosecuting Attorney from Vanderburgh County, as Special Prosecutor who thereafter accepted the appointment on January 13, 1983. On January 1, 1983, Daniel Steiner became the new Prosecuting Attorney of Daviess County. The Informations against Richardson and Wininger were filed on March 11, 1983, after being approved by Levco. Prior to the filing of the Informations, a hearing was held concerning the authority of the special prosecutor, and the court ruled that Levco was properly appointed. On March 20, 1983, the new prosecutor, Daniel Steiner, filed his affidavit in support of the appointment of a special prosecutor. He alleged the appearance of impropriety in his acting because of his past professional associations with both Richardson and Wininger. Thereafter, on April 27, 1983, Richardson and Wininger's Motion to Dismiss was filed challenging Levco's authority. The motion was overruled on May 14, 1983. That denial is the issue here.
Relying totally upon State ex rel. Goldsmith v. Superior Court of Hancock County (1979), 270 Ind. 487, 386 N.E.2d 942, Richardson and Wininger argue that Levco was appointed improperly because the outgoing prosecutor could not disqualify the incoming prosecutor. In Goldsmith, a Marion County deputy prosecutor handling a criminal case filed his petition to withdraw requesting the court to appoint other counsel because he was potentially a witness in that case. The petition was filed on December 4, 1978, granted on December 29, and the incumbent prosecutor left office on December 31, 1978. In its order the court disqualified the entire Marion County Prosecutor's staff and appointed outside counsel. In an original action brought by Goldsmith, the newly elected prosecutor, the supreme court held (1) an entire prosecutor's staff is not disqualified because one of its members would merely be a witness, and (2) the petition to withdraw filed by an outgoing prosecutor cannot bind the incoming prosecutor.
IND.CODE 33-14-1-6 provides that the court may appoint a special prosecutor where "(B) the prosecuting attorney agrees that a special prosecutor is needed." When an elected prosecutor admits his disqualification and requests the appointment of a special prosecutor, a factual determination of the basis is not necessary. King v. State (1979), Ind.App., 397 N.E.2d 1260 trans. denied. In King, the defendant, as here, filed a motion to dismiss claiming that the indictment was defective because it had not been signed by the proper person, that is, the duly elected...
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