Sanville v. State
| Decision Date | 19 April 1979 |
| Docket Number | No. 4964,4964 |
| Citation | 593 P.2d 1340 |
| Parties | Andrew SANVILLE, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Patricia Schick, Laramie, signed the brief and appeared in oral argument on behalf of the appellant.
John J. Rooney, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen. and Thomas C. Bogus, Asst. Atty. Gen., signed the brief of appellee. Leonard D. Munker, Senior Asst. Atty. Gen., appeared in oral argument on behalf of the appellee.
Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired. *
The principal issues in this case involve an application of the concepts of opening the door to ordinarily inadmissible evidence and invited error. The appellant-defendant was convicted of one count of obtaining money by false pretenses in violation of § 6-3-106, W.S.1977, 1 and one count of delivering a fraudulent check in violation of § 6-3-110, W.S.1977. 2 He was sentenced to a term of imprisonment of not less than two years nor more than five years on the former conviction and six-months imprisonment on the latter, the sentences to run concurrently. He appeals the judgment of the district court asserting: (1) the trial court committed reversible error in admitting, over defendant's objection and on the ground that defense counsel had "opened the door," hearsay testimony that the F.B.I. had identified fingerprints on certain checks as defendant's; (2) defendant's constitutional right to confront the witnesses against him was violated by admission of hearsay testimony as to F.B.I. identification of his fingerprints; (3) it was error to admit, over defendant's objection, evidence that other bad checks signed with defendant's name had been received by the payor bank where there was no testimony identifying defendant as the person who passed the other checks; (4) the prosecution failed to meet its burden of proof as to all the elements of the offense charged in that it failed to prove that fraudulent representations were made to the person who suffered the loss; and (5) the Wyoming Fraudulent Check Statute preempts and takes the place of the Wyoming False Pretenses Statute where check offenses are charged.
We will affirm.
The defendant was charged with two counts of obtaining money by false pretenses in violation of § 6-3-106, W.S.1977, (footnote 1). 3 Testimony from police officers established that defendant was arrested in Cheyenne and a driver's license issued to Andrew Sanville was taken from his wallet at the time he was booked. This driver's license was later introduced in evidence as an exhibit of the State.
Danny Graham, an officer of the First Wyoming Bank, Laramie, Wyoming, testified that defendant was referred to him on February 2, 1977, because he wished to cash a payroll check on a Greeley, Colorado bank, drawn on the account of Miller Construction Company. Defendant related to the witness that the company was doing various sorts of work around the county, he lived on County Road 22 and that his landlord was Fred James. Mr. Graham testified further that defendant presented him with a driver's license, the photograph on which matched his person, and he then okayed the check to be cashed. Some of the information on the original check in evidence was faded or obliterated through processing done by the F.B.I. Mr. Graham identified markings which he made underneath defendant's endorsement which included defendant's address, the name of his purported landlord, and the number from his Wyoming driver's license, the same as that taken from defendant when booked. The check was in fact cashed and money paid to defendant in the amount of $140.96. The check was later returned marked account closed after which it was delivered to the Laramie Police Department.
Officer Valdez of the Laramie Police Department took into custody the check which he identified and traced as to chain of custody, including that it had been sent to the F.B.I. for processing and that its appearance was altered during that process.
An officer of the Bank of Laramie, Laramie, Wyoming, identified as an exhibit and testified about a check which was the subject of the second count of the charges against defendant. She related that the check, when handed to her, was endorsed and bore a driver's license number, the same as on that taken from defendant when booked. She cashed the check in the amount of $118.59, later dishonored by the Greeley, Colorado bank on which it was drawn and then referred to the Laramie Police Department.
Defendant's purported landlord testified that defendant had rented a house from him for a few months in 1974 but that he had not seen him since.
An officer of the First National Bank of Greeley, Colorado testified and identified the checks which were the subject of the charges against defendant as well as ten other checks all drawn on the Greeley bank and payable to and endorsed by the name and signature of Andrew Sanville, all on the same account. The checks were written during the period of January 26 through January 31 of 1977. He stated that the account was opened on November 22, 1976, in the name of Russell C. Miller and that only one deposit of $50.00 was made to the account. The account was subsequently closed because the first statement on the account mailed out was returned and the balance had been drawn to below zero.
A representative of the Wyoming Department of Revenue testified about the issuance of the driver's license which was obtained from Andrew Sanville at the time of his arrest. At this point, the State closed its evidence. The defendant presented no evidence.
Defendant's first two assigned errors will be treated together. At the time Officer Valdez was testifying, he mentioned that the checks were changed somewhat in appearance as a result of processing by the F.B.I. On cross-examination, the following exchange took place:
Defendant asserts that the evidence elicited by the prosecutor that Andrew Sanville's latent fingerprint was identified in the F.B.I. report as being on the check is hearsay and inadmissible even under the "open door" doctrine. He further asserts that it resulted in a denial of his rights under the Sixth Amendment of the United States Constitution 4 and Art. I, § 10 of the Wyoming Constitution. 5
We will discuss defendant's allegation of error in the light of the two important legal principles, the "open door" doctrine and the rule of invited error. It is readily apparent to us that the defense counsel, with full knowledge that the State did not intend to use the fingerprint evidence developed by the F.B.I., opted to pursue the matter for the purpose of creating a negative pregnant in the minds of the jury, i. e. the fact that the F.B.I. report implicated somebody and, since the State was not going to use the F.B.I., the conclusion must be that the report implicated someone other than the defendant. Defense counsel pressed his questioning to the very brink and then stopped. He actually did so twice, by asking the question a second time for emphasis. In order to counter an implication which had the appearance of hurting the State's case, the prosecutor sought to have answered one question: who was the unidentified "someone" the defense counsel alluded to in his questioning? There is no evidence of bad faith by the State that the F.B.I. had not in fact identified the fingerprints as those of the defendant.
We would readily concede that this is not the appropriate method for introducing fingerprint evidence and had the prosecutor pursued such a method in the first instance, it would be both inadmissible hearsay and a violation of defendant's right to confront witnesses against him. Here the door was opened by defendant's counsel in a glaringly deliberate manner designed to create an impression that, as the record reveals, simply did not exist. The matter was partially exposed for the jury's consideration and under the doctrine of the open door the State was, under the circumstances of this case, entitled to complete the story. The State is entitled to be treated fairly, just as is the defendant.
It is usually a basic function of redirect examination to allow a witness to explain...
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