State v. Riggs

• Decision Date: 11 April 1996
• Docket Number: No. 1,CA-CR,1
• Citation: State v. Riggs, 186 Ariz. 573, 925 P.2d 714 (Ariz. App. 1996)
• Parties: STATE of Arizona, Appellee, v. Donald Martin RIGGS, Appellant. 94-0970.
• Court: Arizona Court of Appeals

Page 714

925 P.2d 714

186 Ariz. 573

STATE of Arizona, Appellee, v.Donald Martin RIGGS, Appellant.

No. 1 CA-CR 94-0970.

Court of Appeals of Arizona Division 1, Department B.

April 11, 1996.

Review Granted Oct. 21, 1996.

[186 Ariz. 574] Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, and Kent E. Cattani, Assistant Attorney General, Phoenix, for Appellee.

Neal W. Bassett, Phoenix, for Appellant.

OPINION

THOMPSON, Judge.

Donald Martin Riggs(defendant) appeals his convictions and sentences for six counts of forgery, claiming that business records and expert testimony were improperly admitted into evidence and that his right to confrontation was violated when he was not permitted to examine victim, Timothy Enos, about Enos's refusal to allow a pre-trial interview.For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Defendant and Enos started a business, Personal Gay Matching Service (PGMS), in June 1993.PGMS had a business checking account with Chase Bank of Arizona and both defendant and Enos were signators on the account.Enos allowed defendant to sign his name to checks in his absence for business advertising purposes.Two months later, Enos moved to Rhode Island, leaving defendant in constructive charge of the now insolvent PGMS.

In December, 1993, defendant attempted to cash a PGMS check at a grocery store, but left the store while the check was being verified.The check was made out to defendant and signed with Enos's name.Alerted police subsequently found defendant in possession of five additional PGMS checks made out to himself and signed with Enos's name.Defendant admitted to police that he believed there were no funds in the PGMS account.

Defendant was consequently indicted on six counts of forgery.At trial, Sharon Bloch, the records custodian for First Interstate Bank (which had acquired Chase Bank prior to trial), was called as a witness to provide foundation for the introduction of PGMS's bank statements and signature card.The statements were to be used for the purpose of showing that there were insufficient funds to cover the check defendant had presented at the store, thereby demonstrating that defendant had a motive to forge checks with Enos's name.Because it was disputed as to whether Bloch was an undisclosed witness, the trial court limited her testimony to laying foundation for admission of the bank documents.

Out of the jury's presence, Bloch testified that the documents had been kept in her custody for the use of the bank in the regular course of business.She testified that the statements would have been made out at or near the time that the checking transactions occurred.She testified that the signature card would have been filled out the day it was dated.On cross-examination, Bloch admitted that she did not have personal knowledge that the records were prepared as indicated or what Chase's business practices had been in regards to preparing records.She further testified that the documents had not been certified as true and authentic.Over defendant's objections, the documents were admitted into evidence.

In the jury's presence, defense counsel asked Bloch to describe five of the checks in question.Bloch noted that the signatures appeared to be written in a different hand than their endorsements.On re-direct, the state then asked Bloch to compare the signature on one of the checks in question to defendant's handwriting on the PGMS signature card.Bloch indicated that the signatures also appeared dissimilar.Defendant objected that Bloch was not a handwriting expert and could not properly render an opinion on the matter.The objection was overruled.

Enos testified that he had not signed or authorized defendant to sign his name to any of the checks in question.On cross-examination, defendant asked Enos if he had refused to be interviewed prior to trial.The trial court sustained the state's objection to the question.However, on re-direct Enos stated that, believing he did not have to grant an interview to the defense attorney, he had declined to do so.On re-direct, Enos affirmed that defendant was a signator on the account.

Defendant was convicted on all six counts of forgery and sentenced to mitigated, repetitive, concurrent eight year sentences for each count.He timely appealed from judgment and sentence and we have jurisdiction pursuant to Ariz.Rev.Stat.Ann. (A.R.S.)§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

DISCUSSION

Admission of the Bank Statements and Signature Card

Defendant alleges that the bank statements and signature card were improperly admitted into evidence.Whether records are sufficiently reliable to be admitted is left to the sound discretion of the trial court.State v. Petzoldt, 172 Ariz. 272, 275, 836 P.2d 982, 985(App.1991).The prosecution presented testimony from the custodian of records for the successor bank in support of the admission of the documents in question.The custodian testified that the documents were kept in the regular course of business and were made at or near the time when the checking transactions relating to that account occurred.The trial court admitted the records, noting that any inconsistencies in the clerical procedures went to the weight that should be accorded the documents, rather than to their admissibility.We concur with the court's analysis and find that the documents were properly admitted.SeeSaks Int'l Inc. v. M/V "Export Champion", 817 F.2d 1011, 1013(2d Cir.1987)(documents may be properly admitted under the business records exception even when their foundation is laid by a witness who is not an employee of the entity that prepared them).

Further, because the statements were simply cumulative evidence of insufficient funds, because defendant admitted that he believed there were insufficient funds to cover the checks, and because the authenticity of the signature card was not at issue, any conceivable error was necessarily harmless.SeeState v. Turrentine, 152 Ariz. 61, 66, 730 P.2d 238, 243(App.1986)(error in admitting evidence already admitted to by defendant is essentially harmless).We do not see how testimony that the signatures on the checks did not match the defendant's signature as it appeared on the signature card prejudiced the defendant.

Custodian's Expert Testimony

Defendant contends that he was unduly prejudiced when Bloch, an assertedly undisclosed witness, was allowed to go beyond the limitations on her testimony imposed by the trial court by giving her opinion on his signature when she was not a recognized handwriting expert.The admission of expert testimony will not be disturbed on appeal absent a clear abuse of discretion.State v. Mincey, 141 Ariz. 425, 441, 687 P.2d 1180, 1196(1984), cert. denied, 469 U.S. 1040, 105 S.Ct. 521, 83 L.Ed.2d 409(1984);McGuire v. DeFrancesco, 168 Ariz. 88, 92, 811 P.2d 340, 344(App.1990).It is not necessary that an expert have the highest possible qualifications or degree of skill or knowledge in order to testify.Lay v. City of Mesa, 168 Ariz. 552, 554, 815 P.2d 921, 923(App.1991).An expert is one whose opinions are based on special knowledge acquired through experience or careful study which is unknown to people in general.State v. Superior Court, 152 Ariz. 327, 330, 732 P.2d 218, 221(App.1986).

At trial, Bloch testified about her special knowledge of signature comparison acquired from her past experience working in a bank.The trial court did not abuse its discretion in allowing Bloch to testify that the signature on the checks did not match the defendant's handwriting on the signature card.Because defendant's defense was that he had permission to cash the checks in question, Bloch's opinion on his handwriting was inconsequential in any event.

Cross-Examination of Enos

Defendant asserts that when the trial court sustained the state's objection to defense counsel's question to Enos regarding the refusal to grant a pre-trial interview, his right to confrontation was violated.The state argues that the ruling was proper given the implications of A.R.S. § 13-4433(E).This statute provides that, if a defendant comments at trial on the victim's refusal to be interviewed, the jury is to be instructed that the victim has the right to refuse an interview, pursuant to the Arizona Constitution.In light of our analysis of the right to refuse a defense interview, set forth below, we construe § 13-4433(E) as providing a remedy in the event comment on the victim's constitutional right is in fact made.The statute does not recognize a defendant's right to inquire as to the reason a victim has declined to be interviewed, as there is no such right.

The right to cross-examine a witness is a vital part of the right of confrontation.Pointer v. Texas, 380 U.S. 400, 403-04, 85 S.Ct. 1065, 1067-68, 13 L.Ed.2d 923(1965);State v. Correll, 148 Ariz. 468, 473, 715 P.2d 721, 726(1986).Furthermore, A.R.S. § 13-4433(E) clearly contemplates the possibility that a defendant might comment about the victim's refusal to be interviewed and provides a corrective instruction.Nothing in the statute expressly prohibits a defendant from questioning a victim about the exercise of the right to refuse defendant's discovery request.

However, Article II, § 2.1(A) of the Arizona Constitution expressly permits unwilling victims to refuse defendant's discovery requests.State v. O'Neil, 172 Ariz. 180, 181-82, 836 P.2d 393, 394-95(App.1991).Although this right does not permit a victim to refuse to testify at defendant's trial, S.A. v. Superior Court, 171 Ariz. 529, 831 P.2d 1297(App.1992), the provision does recognize a victim's "right to remain silent" in the face of attempts by a defendant to conduct pretrial interrogation.We hold that the trial court properly precluded defendant's attempt to impeach the victim's trial testimony through inquiries regarding the exercise of the constitutional right...