State v. Jenkins

• Decision Date: 11 December 1995
• Docket Number: No. 22722,22722
• Citation: 195 W.Va. 620,466 S.E.2d 471
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Elizabeth Ladybird JENKINS, Defendant Below, Appellant.

Page 471

466 S.E.2d 471

195 W.Va. 620

STATE of West Virginia, Plaintiff Below, Appellee, v. Elizabeth Ladybird JENKINS, Defendant Below, Appellant.

No. 22722.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 26, 1995.

Decided Dec. 11, 1995.

Syllabus by the Court

1. Preliminary questions of authentication and identification pursuant to W.Va.R.Evid. 901 are treated as matters of conditional relevance, and, thus, are governed by the procedure set forth in W.Va.R.Evid. 104(b). In an analysis under W.Va.R.Evid. 901 a trial judge must find that the party offering the evidence has made a prima facie showing that there is sufficient evidence "to support a finding that the matter in question is what its proponent claims." In other words, the trial judge is required only to find that a reasonable juror could find in favor of authenticity or identification before the evidence is admitted. The trier of fact determines whether the evidence is credible. Furthermore, a trial judge's ruling on authenticity will not be disturbed on appeal unless there has been an abuse of discretion. Lastly, a finding of authenticity does not guarantee that the evidence is admissible because the evidence must also be admissible under any other rule of evidence which is applicable.

2. " ' " 'Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.' State v. Louk, 171 W.Va. 639, 301 S.E.2d 596, 599 (1983)." Syllabus Point 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).' Syllabus point 7, State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985)." Syl. pt. 10, Board of Education v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990).

3. While ordinarily rulings on the admissibility of evidence are largely within the trial judge's sound discretion, a trial judge may not make an evidentiary ruling which deprives a criminal defendant of certain rights, such as the right to examine witnesses against him or her, to offer testimony in support of his or her defense, and to be represented by counsel, which are essential for a fair trial pursuant to the due process clause found in the Fourteenth Amendment of the Constitution of the United States and article III, § 14 of the West Virginia Constitution.

4. "Errors involving deprivation of constitutional rights will be regarded as harmless only if there is no reasonable possibility that the violation contributed to the conviction." Syl. pt. 20, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

Robert J. O'Brien, Buckhannon, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Dawn E. Warfield, Deputy Attorney General, Charleston, for Appellee.

McHUGH, Chief Justice:

The appellant, Elizabeth Ladybird Jenkins, appeals the October 14, 1994 order of the Circuit Court of Lewis County which sentenced her to one to ten years in the West Virginia Penitentiary after she was convicted by a jury of uttering a forged check in violation of W.Va.Code, 61-4-5 [1961]. ¹ For reasons stated below, we reverse the appellant's conviction and grant her a new trial.

I.

At trial a store clerk from the Giant Eagle, a grocery store in Weston, testified that the appellant signed a check with the name Emerson Herrod and presented it to her for the goods the appellant was purchasing in the grocery store. Subsequently, the check was returned to the grocery store because it was a forged check. The store clerk identified the appellant in the courtroom as being the person who presented the check signed with Emerson Herrod's name. The store clerk stated that she remembered that the appellant had presented the check because the appellant had a black eye on the day she was in the grocery store.

A police officer testified that the store clerk picked the appellant's photograph out of a photographic line-up as being the person who uttered the forged check. The police officer further testified that the driver's license number which the store clerk wrote down on the check for identification purposes was not the appellant's nor Emerson Herrod's license number. Additionally, the description on the driver's license did not match the store clerk's description of the person who uttered the check. The police officer also stated that he had the appellant make a writing sample; however, he could not recall whether the handwriting on the uttered check matched the appellant's handwriting. ²

Emerson Herrod, who is the appellant's stepfather, testified that the signature on the check was not his. Furthermore, he stated that the account upon which the check had been drawn was closed.

Another witness, William Lee Adkins, testified that in the past he had signed Emerson Herrod's name on Mr. Herrod's checks. Mr. Adkins' sister, Betty Adkins, whom the store clerk identified in a photographic line-up as being with the appellant when she uttered the check, testified that she and the appellant found Emerson Herrod's checkbook in her brother William's room. Betty Adkins stated that she had confronted her brother about whether he was forging checks. Additionally, Ms. Adkins admitted that she was on house arrest for writing bad checks during the time the appellant allegedly presented the forged check to the Giant Eagle grocery store.

The appellant testified that she had never been in the Giant Eagle grocery store in Weston. Therefore, she maintains she could not have uttered the forged check in question.

II.

The issue before us is whether the trial judge erred by refusing to allow the jury to examine a handwriting sample prepared by the appellant in court for comparison with the check which the appellant was accused of signing.

This issue arose when the appellant was testifying. Her attorney handed her a sheet of paper and asked her to write the name "Emerson Herrod" several times along with the following sentence: "In the tree is a giant eagle with six feathers." The appellant's counsel moved to have this sheet of paper admitted into evidence. The trial judge refused stating that the members of the jury were not handwriting experts. Additionally, the trial judge stated that he questioned the competency and relevancy of the writing sample because individuals "who are involved in forgery ... usually try to disguise their signatures."

The State argues that there is no need to determine the admissibility of the handwriting sample because whether or not the appellant signed the check is not an element of the crime of uttering. The State relies on syllabus point 1 of State v. Nichols, 177 W.Va. 483, 354 S.E.2d 415 (1987) in which this Court held:

To sustain a conviction under W.Va.Code, 61-4-5 [1961] [which makes uttering a crime], the prosecution must prove four elements: (1) the writing uttered was forged; (2) the accused uttered or attempted to employ as true the forged writing; (3) the accused knew the writing to be forged; and (4) the writing itself was of such a nature as to prejudice the legal rights of another.

We agree with the State's contention that whether or not the appellant signed the check is not an element of the crime of uttering.

However, the appellant argues that she is not offering the writing sample to prove that the check was not uttered. Instead, the appellant maintains that she is offering the writing sample to prove that the store clerk wrongfully identified her as being the person who uttered the forged check. The store clerk testified that the appellant signed the check in her presence and handed it to her to pay for the goods. The appellant maintains that she was never in the Giant Eagle. Therefore, the appellant concludes that the writing sample is necessary to support her only defense.

We find the appellant's contention to be persuasive. Thus, did the trial judge err when he excluded the handwriting sample? We conclude that the trial judge violated the appellant's due process rights under the Fourteenth Amendment of the Constitution of the United States and her right to a fair trial pursuant to article III, § 14 of the Constitution of West Virginia by excluding the appellant's handwriting sample. Although we decide the case on a constitutional basis, we deem it appropriate to address the authentication requirement set forth in W.Va.R.Evid. 901.

A.

W.Va.R.Evid. 901(a) states: "Requirement of Authentication or Identification. (a) General Provision.--The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." ³ (footnote added).

We are mindful that the authentication requirement existed prior to the adoption of the West Virginia Rules of Evidence, ⁴ and "stems from a healthy common law skepticism that courts should not blindly assume that an offered piece of evidence is what it appears to be or what the proponent claims it is." 2 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers § 9-1(A) at 300 (3d ed. 1994). Indeed, "[t]he rules relating to authentication and identification speak to three related concerns: preventing fraud upon the court; preventing innocent mistakes; and guarding against 'jury credulity,' the natural tendency to take matters at face value." Id. See also 5 Jack B. Weinstein et al., Weinstein's Evidence p 901(a) at 901-26 (1995).

The requirement of authentication is a special aspect of relevancy: " 'an inherent logical necessity' 7 Wigmore § 2129, p. 564." 28 U.S.C.Fed.R.Evid. 901 (Notes of Advisory Committee on Proposed Rules). "This requirement of showing authenticity or identity falls in the category of relevancy dependent upon fulfillment of a condition of fact and is governed by the procedure set forth in Rule 104(b)." Id. See also 2 Cleckley, supra at p. 301. W.Va.R.Evid. 104(b) states: "Relevancy conditioned on Fact.--When the relevancy of evidence depends upon the...