State v. Pulphus

• Decision Date: 30 August 1983
• Docket Number: No. 81-158-C,81-158-C
• Citation: 465 A.2d 153
• Parties: STATE v. Evelyn K. PULPHUS. A.
• Court: Rhode Island Supreme Court

Page 153

465 A.2d 153

STATE v. Evelyn K. PULPHUS.

No. 81-158-C.A.

Supreme Court of Rhode Island.

Aug. 30, 1983.

Dennis J. Roberts II, Atty. Gen., Margaret R. Levy, Sp. Asst. Atty. Gen., for plaintiff.

William F. Reilly, Public Defender, Barbara Hurst, Chief Appellate Atty., Janice R. Weisfeld, Asst. Public Defender, Providence, for defendant.

OPINION

SHEA, Justice.

The defendant, Evelyn K. Pulphus (Pulphus), appeals from a Superior Court jury conviction of obtaining money from another by means of false pretenses in violation of G.L.1956 (1969 Reenactment) § 11-41-4. ¹ In support of her appeal, Pulphus raises the following issues: (1) the State failed to lay a proper foundation for bank surveillance photographs introduced at trial, and (2) identification testimony was based on an impermissibly suggestive photographic array. We affirm.

We will first recite the facts that were established at trial. In the late morning hours of August 29, 1977, then-seventy-six-year-old Dena Beck (Dena) left her home on Dartmouth Street in Pawtucket. Enroute to the bus stop, Dena encountered two women who were seated in an automobile. They showed Dena a billfold containing a large sum of money and told her they would get her additional money if she gave them some of her money in return. After speaking with the women for about an hour, Dena acceded to their request for money. She then got into the car and the two women drove Dena home where she picked up her bankbook.

The women then took Dena to the main office of People's Savings Bank located at 145 Westminster Street in Providence. Pulphus accompanied Dena into the bank and told her to get the money in cash. The other woman, identified only as a black woman, waited in the car.

Inside the bank, Dena spoke with Guy Buzzell (Buzzell), the then-assistant manager. She told Buzzell that she wanted a passbook loan in the amount of $26,000. Dena stated she needed the money so that her nephew could open up a hardware store. Dena also told Buzzell that in order to satisfy a supplier, she needed cash.

Because the bank did not have $26,000 in cash on hand, Buzzell could only give Dena $16,000 in cash. Dena gave this cash to Pulphus who placed it in her handbag. Buzzell also gave Dena a $10,000 check made out to "cash" and advised her to cash it at the Westminster Mall office of People's Bank located at 256 Westminster Street. Dena and Pulphus left the bank and joined the black woman, who was waiting outside, and proceeded to the Westminster Mall branch. Once again, Pulphus accompanied Dena into the bank while the black woman waited outside. The Westminster Mall branch did not have enough cash to cover the $10,000 check, and the teller returned it to Dena. She and Pulphus left the bank and joined the black woman. The threesome then went to dinner.

After leaving the restaurant, Pulphus and the black woman brought Dena home. Pulphus went inside the house with Dena, and the black woman left. Approximately two hours later, Dena's niece, Hannah Field (Hannah), telephoned and invited Dena to her house. When Dena replied that she had a visitor, Hannah told her to bring the visitor along. Hannah's son picked up Dena and Pulphus and drove them to the house, where they stayed for about an hour. While there, Pulphus spoke with both Hannah and her husband, Paul. She told Hannah that she was the daughter-in-law of one of Dena's friends, and that her husband had recently died in a truck accident. Pulphus said that she was in Providence to settle some matters. Neither Pulphus nor Dena mentioned that they had withdrawn money from the bank. Later, Hannah's son drove Dena and Pulphus back to Dena's home. Later, Pulphus received a telephone call from the black woman. After she hung up, Pulphus told Dena that she had to leave. Dena then said, "This is a flimflam. I want my money." Pulphus quickly absconded with the $16,000.

Two days later, on August 31, Dena returned to the main office of People's Savings Bank. Dena gave the $10,000 check to Buzzell and told him to apply it against the passbook loan because her nephew didn't need the money.

The following day, Dena once again returned to the bank. She informed Buzzell that she wanted to repay the entire loan she had negotiated three days earlier. Eventually, Dena explained that she had been tricked out of the money and that she had notified the Pawtucket police. However, when Buzzell called the police, they informed him that they had no record of any complaint made by Dena. As a result, Buzzell contacted the Providence police and accompanied Dena to the station. At the police station, Dena explained the story to Detective Robert Trafford.

On Friday, September 2, Hannah read a newspaper article about a swindle and realized the story concerned her aunt, Dena. Hannah immediately contacted the Providence police department. Sometime thereafter, she and her husband, Paul, went to the police station and spoke with Detective Trafford. Hannah stated that on August 29, Dena and another woman had visited their home. A few weeks later, on or about September 20, Hannah and Paul returned to the police station for the purpose of examining a group of approximately nine photographs. The group contained two pictures of Pulphus that were taken almost three years apart. Pulphus appeared quite different in each photo. Hannah identified both photographs of Pulphus as the woman who had visited their house on August 29. Paul, on the other hand, only identified one photograph of Pulphus.

As part of his investigation, Detective Trafford requested certain surveillance photographs from the main office and the Westminster Mall branch of People's Bank. When Trafford examined the photographs, he recognized Dena. Later he recognized Pulphus as the woman who had accompanied Dena into the bank.

At trial, the State introduced a group of the bank surveillance photographs of Dena and Pulphus at both the main office and the Westminster Mall branch of People's Bank. Buzzell, the then-assistant manager of the main office, explained that the photographs were taken automatically by bank cameras. He testified that a permanently installed camera, which is directed at a clock and calendar, as well as at the patrons at the tellers' windows, produces a record of the time and date the photograph was taken. Buzzell testified that the four photographs, state's exhibit Nos. 1 through 4, accurately portrayed the main office of People's Bank. Exhibits 1 through 4 indicate that they were taken on August 29, 1977. Buzzell stated that exhibits 1 through 3 portray Dena Beck and that in exhibits 2 and 3, Dena is accompanied by another person who appears to be female. These exhibits were introduced into evidence without objection.

The state also offered two other surveillance photographs taken by the automatic camera inside the Westminster Mall branch of People's Bank, where Dena said she and Pulphus had gone after leaving the main office in order to cash the $10,000 check. Defense counsel objected to the introduction of these photographs on the ground that the calendar in the photographs portrayed an August 25 date rather than an August 29 date.

A security officer for People's Bank, Frank Vincent (Vincent), testified that he is responsible for the security photographs that are taken at the various locations of People's Bank. Vincent had personally checked the records with respect to the photographs taken at the Westminster Mall office on August 29, 1977. He testified that the film, from the various cameras in People's facilities, is processed by a company called Distribution Associates, which maintains a three-year file of all the negatives taken at the various branches. He stated that a roll of film usually lasts for one week and that Distribution Associates assigns each roll a negative number. By checking the records, Distribution Associates determined that negative number 734054 was assigned to the film taken at the Westminster Mall branch during the week of August 29, 1977.

Vincent testified without objection that exhibits 6 and 7 portrayed the inside of the Westminster Mall branch. These photographs were developed from negative number 734054. He also stated that Distribution Associates was able to determine the exact date that these exhibits were taken by verifying them through the daily process. Vincent explained this process to the court and jury as follows. Once one determines what week the film was taken, it is possible, because the equipment is operated automatically, to count the exposed and blank spaces on the film to establish the actual date of a photograph regardless of the date shown on the calendar. Vincent said that the date, August 25, shown beneath the clock in the photograph was incorrect, but that it was not uncommon for the tellers to forget to change the tags that represent the date.

Vincent testified that exhibit 6 portrayed an elderly lady in the company of another woman wearing a striped, hooded jersey with drawstring ties. The woman had short hair and was wearing glasses. He also testified that exhibit 4, which was taken at the main office, portrays the same woman dressed in the same manner. The clock and calendar in exhibit 4 shows that the photograph was taken at 2:25 p.m. on August 29, 1977. The clock in exhibit 6 shows that it was taken at 2:50 p.m. In addition, Dena testified that immediately after leaving the main office, where exhibit 4 was taken, she and Pulphus went to the Westminster Mall branch, where exhibit 6 was taken. The woman portrayed in both of the photographs matched the descriptions provided by Hannah and Paul. Hannah and Paul saw her for approximately one hour during the evening of August 29.

I

Defense counsel moved to exclude and strike from the evidence exhibits 6 and 7, two of the photographs taken at the Westminster Mall branch, on the ground that they were not properly authenticated because they had an incorrect date. The trial justice...