Wells v. State

• Decision Date: 17 June 1992
• Docket Number: No. 90-KA-335,90-KA-335
• Citation: 604 So.2d 271
• Parties: MaLinda WELLS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 271

604 So.2d 271

MaLinda WELLS v. STATE of Mississippi.

No. 90-KA-335.

Supreme Court of Mississippi.

June 17, 1992.

Joseph C. Langston, Langston Langston Michael & Bowen, Booneville, for appellant.

Michael C. Moore, Atty. Gen., Ellen Y. Dale, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and PITTMAN and BANKS, JJ.

DAN M. LEE, Presiding Justice, for the Court:

This is an appeal from the Lee County Circuit Court by MaLinda Wells following her conviction for the crime of embezzlement and sentence of five (5) years to the custody of the Mississippi Department of Corrections. Ms. Wells appeals her conviction assigning four (4) errors which are as follows:

I. The trial court erred in allowing into evidence a summary of the business transactions of Toby's Toys which was not properly authenticated.

II. The court erred in allowing into evidence a video tape without the establishment of the proper chain of custody.

III. The court erred in allowing the prosecution to select certain portions of the video tape for viewing by the jury to the exclusion of all other portions of the video tape.

IV. The trial court erred in allowing the testimony of Robert Reznikoff wherein Reznikoff was permitted to state his opinions and interpretations of the defendant's actions depicted upon the video tape which pertained to the ultimate issue of fact before the jury.

In this opinion, we find it necessary to address all of Wells' assignments of error, and we devote particular emphasis to Wells' fourth (IV) assignment of error concerning the scope of lay witness opinion testimony governed by M.R.E. 701. In the end, we affirm Wells' conviction and sentence.

FACTS

From February until May 6, 1988, MaLinda Wells was employed as a part-time cashier at Toby's Toys in Tupelo, Mississippi, working the 4:00 p.m.--9:00 p.m. shift. In April of 1988, less than three months after Wells began her employment there, a routine audit of cash register reports indicated that certain merchandise was leaving the store which was not being "rung up" at the cash register operated by Wells. According to Mr. Robert Reznikoff, store owner, "it was brought to my attention ... that it seemed funny we were coming in with a large overage with checks and bank cards, and a shortage in cash, one off-setting the other." Therefore, Reznikoff consulted with the Tupelo Police Department, and a detective suggested that Reznikoff utilize existing surveillance cameras to tape Wells' activities during her work Wells was discharged from her employment at Toby's Toys. In August of '88, the grand jury returned an indictment charging that Wells embezzled $3,584.26 over a period of approximately three (3) months.

                shift. 1  On May 6, 1988, Reznikoff arranged for the taping of Wells' work shift, from 4:00 p.m. until 9:00 p.m.  Allegedly, the tape revealed at least three instances on this particular afternoon wherein Wells pocketed money from the register
                

There was only one primary witness at trial, Mr. Robert Reznikoff, store owner. Reznikoff explained the events which caught his attention as a result of the April, 1988, audit of the store.

Upon finding out that there was a big discrepancy between the cash short and the checks being over, the first thing I had done was to break out the individual retail tapes of the register. It shows each ring of the register, every transaction for the specific days, to find out how that could be. We verified that the checks were over, that we had received the checks, they were showed in our bank deposit checks in a certain amount, but when we went back to the detail tape there is no place that we could find a check for that amount or a sale rung up for that amount....

As Reznikoff explained, he suspected that merchandise was leaving his store which was not being rung into the register. Therefore, Reznikoff prepared a summary of the occasions when he discovered checks in the bank deposit which were not appearing on the register detail tape. Based on this summary of financial data, Reznikoff observed that this abnormality occurred only on days when Wells worked and only at her register. This time period included various days between February 20, 1988, to May 6, 1988. Reznikoff testified from the financial summary which he prepared. At trial, Reznikoff explained his internal auditing procedures and asserted that he was able to document $3584.26 total amount in actual checks that were allegedly not recorded by Wells during her tenure at Toby's Toys.

Reznikoff explained that he arranged to have MaLinda Wells videotaped on May 6, 1988. There were at least three places on the four hour tape which were of consequence to the charge in the indictment against MaLinda Wells. Reznikoff played three sections for the jury and explained standard procedure for operating a cash register and specifically how Wells' actions deviated from standard practice. On cross-examination, Reznikoff explained his theory that Wells would take checks from customers for big ticket items and provide the customer with an internal receipt rather than a true cash register receipt from the store.

A. --we also use another form of a duplicate receipt. When we sold toys which had a price ticket on it, you would come up and she would just ring it in the register and a receipt would come out. We also sold things like swimming pools, casual furniture, which would be a table and chair set, umbrellas. On a large ticket purchase like that, since the items were kept in the warehouse area behind the store, they had to fill out a handwritten receipt document listing the stock number of each item the customer bought, because the table might be one stock number, the chairs would be another stock number, umbrella would be another stock number. From this receipt, we could then go back to the back room and pull the items. The receipt was only an internal document; it was not truly a receipt. What happened, when the receipt was written the clerk was supposed to take it to the cashier who would then enter the amounts of each of the items on the page into the cash register, and that receipt was the one that was supposed to go to the customer. What MaLinda was doing,--and it is on the tape Reznikoff alleged that since checks for some items were never rung into the register, those amounts would appear as overages. According to Reznikoff, Wells would use a calculator at the cashier's counter to figure up the amount of checks she had collected which were not entered into the register. Reznikoff hypothesized that Wells would pocket an amount of money equal to the amount of sales which had not been recorded into the register at an appropriate time when no one was looking. Reznikoff played instances on the tape where Wells would give the customer an internal receipt but would not ring the sale on the register.

though I didn't show it,--is she failed to ring these items in the register, gave the customer half of that receipt form so that the customer walked out with a receipt but not a cash register receipt; it was never rung in the register. That's what created the opening to take money without showing a shortage. There was never accountability in the register. The customer walked away with a handwritten receipt instead of a cash register receipt.

You notice she only hit the drawer with one click to open the drawer, which is not ringing a sale.... The no sale key. And there was no register receipt given to the customer, no receipt came up from the register, given to the customer.

MaLinda Wells did not take the stand to testify. Wells put on two character witnesses and then rested.

I. The trial court erred in allowing into evidence a summary of the business transactions of Toby's Toys which was not properly authenticated.

It is not completely clear what appellant's objection is in assignment I, although she does raise a garden variety of several points which will be addressed. Wells appears to be objecting to State's Exhibit # 2 which is a summary prepared by Mr. Reznikoff. This exhibit is a summary compilation from business records of Toby's Toys for a period of February 20--May 6, 1988. Due to the large volume of business records for this period, Reznikoff prepared the summary and testified from the data reflected therein. On appeal, Wells asserts in her brief that the summary was prepared by someone other than Reznikoff, "a girl." This assertion is unsupported in the record. According to the testimony in the record, the summary was prepared by Reznikoff with the assistance of his bookkeeper.

It represents a summary of some data from the company's records of which, as it was originally prepared, I reviewed the original preparation and went back and personally audited it to the individual detail tapes. I originally had a girl prepare it; I sat down with her and went over it, went over everything on the paper to make sure what she had done was done accurately. That summary was again summarized with human eye on a computer onto this document to make it clear and concise, but we can offer any other documents they wish to see.

Our rules of evidence, specifically Rule 1006, allow the use of business summaries when original records are too voluminous for practical use as evidence.

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

Comment

This rule represents a change in Mississippi practice. Rule 1006 refers to voluminous writings as well as recordings and photographs. Under the rule, a summary of the voluminous material is sufficient as admissible evidence. The underlying material need not be introduced simultaneously into evidence has been the...