State v. Hughes

• Decision Date: 27 June 1978
• Docket Number: CA-CR,No. 2,2
• Citation: 584 P.2d 584,120 Ariz. 120
• Parties: The STATE of Arizona, Appellee, v. Carlos Billy HUGHES, Appellant. 1298.
• Court: Arizona Court of Appeals

Page 584

584 P.2d 584

120 Ariz. 120

The STATE of Arizona, Appellee, v. Carlos Billy HUGHES, Appellant.

No. 2 CA-CR 1298.

Court of Appeals of Arizona, Division 2.

June 27, 1978.

Rehearing Denied Aug. 8, 1978.

Review Denied Sept. 14, 1978.

John A. LaSota, Jr., Atty. Gen., by William J. Schafer, III, and Barbara A. Jarrett, Asst. Attys. Gen., Phoenix, for appellee

John M. Neis, Pima County Public Defender, by Michael P. Roca, Asst. Public Defender, Tucson, for appellant.

OPINION

HOWARD, Judge.

Appellant was convicted of three counts of forgery with prior convictions and sentenced to concurrent terms in the Arizona State Prison of not less than 10 nor more than 14 years. The record discloses the following facts.

Mr. and Mrs. Walter Clapp resided in Tucson for many years. Mr. Clapp was the vice-president of the Board of Directors of the Great Western Bank. Appellant was employed as a maintenance man at the Clapp residence and lived in a trailer on the premises with one Nellie Perez. Appellant's duties included general maintenance and gardening for which he received a paycheck every two weeks. On August 1, 1975, the Clapps went to Mexico for a vacation and took their checkbook which had been kept in a drawer in the desk in the living room with them. When the Clapps returned from Mexico on August 30, 1975, they found that appellant and Nellie Perez had departed. Appellant left a note which stated:

"My son has been hurt. I have sold my car. I will be back in four or five days. Tell Mrs. Clapp I told Nellie what she said and she left me."

On September 4, 1975, after the mail had arrived, Mr. Clapp started going through his cancelled checks. Within a few moments he came outside and said to Mrs. Clapp, "My God, Betty, Carlos has forged three checks on us almost to the amount of $5,000.00." There were three checks, dated August 6, 7 and 23, 1975, in the amounts of $976.63, $1,170.63 and $2,475.56, respectively. One check bore the notation "Patio wall and pump", another the notation "Wall and patio", and the third the notation "Well and patio wall".

Since Mr. Clapp died in October of 1975, the state relied on the testimony of Mrs. Clapp and an expert witness to prove that the purported signatures of Mr. Clapp were forgeries. The expert testified that these signatures had been traced and that each signature was identical, a circumstance which is impossible since a person cannot write his name exactly the same more than twice. Also, a pencil line appeared either under or over the signatures and the line quality of the ink signatures indicated that they had been drawn on the checks.

Mrs. Clapp also testified that the patio wall had been built long ago and that they had one well on the property which was there when they moved in but that a second well and pump was placed on the property by Ronstadt's.

A grocer, Johnnie Don, testified that he knew Mr. Clapp and knew that his checks were good. He stated that appellant often came into his store to cash paychecks and buy money orders. Appellant came into his store on August 7, 1975 and cashed the check for $1,170.63. When Mr. Don asked why the check was so large, appellant told him that he was a subcontractor for Mr. Clapp in the development of some housing projects in Nogales and Tucson. On August 23, 1975, appellant presented Mr. Don with a check for $2,475.56. He told Mr. Don the check was for some houses he had built for Mr. Clapp and that he was going to use the money to pay for labor and material which he owed.

Frank Valenzuela, assistant manager of the Great Western Bank, testified at trial and at the hearing on a motion in limine made by appellant. The motion sought to exclude from evidence three "affidavits of forgery" executed by Walter Clapp on September 4, 1975 wherein Mr. Clapp stated that his signatures on the three checks were forgeries. These affidavits are routinely required by the bank if a person claims forgery and desires the bank to credit his account for the amounts paid. They are then kept by the bank for further investigation or are turned over to the police who require them prior to investigating any forgery. Appellant's motion was based on two grounds. First, that the affidavits were hearsay, and secondly, that their introduction into evidence denied appellant his right of confrontation under the United States and Arizona Constitutions. The motion in limine was denied. The trial judge, who was not the same judge who heard the motion in limine, declined to reconsider the ruling, and allowed the state to introduce the affidavits into evidence. Mr. Valenzuela also testified that the forged check dated August 6, 1975, was deposited to appellant's account at the Great Western Bank.

Nellie Perez testified that she had been living with appellant at the Clapp residence and was living with him in California when he was arrested for these offenses. She was employed as a cleaning woman by the Clapps and worked for them twice a week. She testified that in the latter part of July or early part of August she saw Mr. Clapp give Carlos five checks. Appellant showed her the checks. Two were paychecks and the other three were blank checks signed by Mr. Clapp. The record does not indicate when or where appellant showed her the checks. She stated that appellant hired three men to do some work on the premises after he received the checks but she did not see them do any work. She also said that appellant had replaced some bricks on the patio and patio wall and had replaced some gravel, however she did not remember when he did this work.

Appellant testified that he began working for Mr. Clapp because he had just been released from the Arizona State Prison and could not find a better job. According to appellant, approximately three days before he went on vacation Mr. Clapp told him of some work which he wanted done around the house while he and Mrs. Clapp were gone. Appellant stated that Mr. Clapp did not want Mrs. Clapp to know about the work because he did not want her interfering. It was to be kept a secret. He further stated that Mr. Clapp gave him three blank checks and told him to keep the expenses between $5,000 and $6,000. He was to put in a drain down to the well, replace a sewage line, run a water line from his trailer to the well, replace broken adobe bricks on the patio, clean and repair the roof, put gravel on the driveway and place a drain pipe across the driveway. Appellant also testified that he wrote the memos on the checks which indicated the purpose of each and filled in the amount of each check. He hired three men at the unemployment office who worked for him for three weeks and he used all the money from the checks to pay for their labor and for materials.

Appellant denied leaving the note prior to departure that Mrs. Clapp described. He denied depositing any money in his bank account from the check dated August 6, 1975 for the sum of $976.63, in spite of the fact that the account showed a deposit on the same date for $676.63. He stated that the entry in his account was an error. ¹ Appellant also denied telling Mr. Don, the grocer, that the checks were given to him for subcontracting work on houses in Nogales and Tucson. He admitted that he did leave a note when he left but that it stated he was going to work for a Mr. and Mrs. Price in Oklahoma. Instead, he went to California to work at an apartment house which had been recommended to him by Mr. Clapp. In rebuttal, Mrs. Clapp testified that no new gravel was put on the driveway, no new bricks were placed in the patio wall and that appellant had replaced some broken bricks on the back patio and in the fishpond but that was prior to their trip to Mexico.

The first question to be answered is whether the exclamation made by Mr. Clapp to his wife after opening his bank statement was admissible as an exception to the hearsay rule. Rule 803(2) of the Arizona Rules of Evidence states as an exception to the hearsay rule:

"A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."

The rule in Arizona is that the appellate court will not reverse the trial court's ruling under the excited utterance exception to the hearsay rule absent a clear abuse of discretion. State v. Dale, 113 Ariz. 212, 550 P.2d 83 (1976). The general principle of the exception is found in 6 Wigmore On Evidence (3rd Ed.) Sec. 1747:

"This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or at least as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts. The ordinary situation presenting these conditions is an affray or an automobile accident. But the principle itself is a broad one." (footnote omitted)

While there was no affray or accident here, we believe the broad principle as recognized by Wigmore is operational under the facts of this case and the trial court did not abuse its discretion in admitting the evidence as an excited utterance.

Appellant next contends that the affidavits of forgery executed by Mr. Clapp were improperly admitted into evidence. The state claims that they were properly admitted under Rule 803(6). This rule states that the following are not excluded by the...