Wininger v. State, 87A01-8804-CR-140

• Decision Date: 18 August 1988
• Docket Number: No. 87A01-8804-CR-140,87A01-8804-CR-140
• Citation: 526 N.E.2d 1216
• Parties: Glenna WININGER a/k/a Glenna Williams, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1216

526 N.E.2d 1216

Glenna WININGER a/k/a Glenna Williams, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 87A01-8804-CR-140.

Court of Appeals of Indiana First District.

Aug. 18, 1988.

Scales, Wissner & Krantz, Boonville, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

Defendant-appellant, Glenna Wininger (Wininger) appeals her convictions by the Warrick Circuit Court of two counts of conspiracy to utter a forged instrument.

We reverse.

STATEMENT OF THE FACTS

This cause of action was initially commenced on March 11, 1983, at which time an Information was filed in Daviess County charging both Wininger and Verne Richardson (Richardson) with two counts of conspiracy to utter forged instruments. Count I of the Information alleged that Richardson and Wininger conspired to utter the forged will of Beryl Jane B. Crawford (Crawford). Count II alleged that Richardson and Wininger conspired to utter the forged Crawford assignment of six stock certificates of Interlake, Inc., representing 12,976 shares, to Wininger. Stanley Levco (Levco) was appointed as special prosecutor to handle the case, and trial commenced on April 24, 1984.

To support the forgery element the State produced two examiners of questioned documents who testified that the purported signatures of Crawford on the will and on the six stock certificates were forgeries. The jury trial in Daviess County resulted in guilty verdicts against Richardson and Wininger on both counts. These convictions were set aside on appeal, however, due to the admission and use of inadequately proven standards. Richardson v. State (1985), Ind.App., 486 N.E.2d 1058. The prosecutor failed to establish the genuineness of Crawford's signature on any of the exhibits used as standards for comparison by the experts, and we ordered the trial court to grant a new trial. Id.

This cause was subsequently venued to Warrick County for retrial. Levco remained as special prosecutor and retrial commenced on April 20, 1987. As was the case in the first trial, proof that Wininger forged Crawford's signature on the will and the stock certificates was a critical element to be established by the State on retrial. This necessarily involved proving the genuineness of Crawford's signature on the standards of comparison to be used by the expert examiners to determine whether the questioned signatures on the will and stock certificates were forgeries. To this end the State produced Carl Gray (Gray), a 91 year old attorney who had previously represented Crawford. Gray was called by the defense at the first trial to establish the genuineness of Crawford's signature on the exhibits upon which the experts for the defense testified that the will and six stock certificates had not been forged. Through Gray, the State introduced the same series of documents, hereinafter referred to as exhibits 1000-E through 1000-O, purporting to carry Crawford's genuine signature. Although in the previous trial Gray testified that he had seen Crawford sign exhibits 1000-E through 1000-O, he had no current recollection of having seen her sign such documents. After examining a transcript of his previous testimony, Gray acknowledged that in 1984 he testified that he had witnessed Crawford sign exhibits 1000-E through 1000-O. He continued to assert, however, that he had no present recollection as to whether he saw Crawford sign the documents. The trial court admitted the exhibits over Wininger's strenuous objection that the genuineness of Crawford's signature appearing on such had not been properly established. Subsequently, the State produced Clark Mercer (Mercer), an examiner of questioned documents for the Indiana State Police. He testified that he

used exhibits 1000-E through 1000-O as standards of comparison. Over objection, Mercer testified that after comparing the exhibits with the questioned documents, it was his opinion that the will and stock certificates were not authored by the same person. In essence he testified that the will and stock certificates had been forged. From a sentence of imprisonment, Wininger has instituted this appeal.

ISSUES

Wininger presents the following issues for our review:

I. Whether the trial court erred in allowing exhibits 1000-E through 1000-O to be admitted as genuine standards of Crawford's signature, and thereafter allowing an expert to testify as to his opinion concerning the exhibits.

II. Whether the trial court erred in denying Wininger's objection to the appointment and authority of the special prosecutor.

DISCUSSION AND DECISION

ISSUE I: Handwriting Standards

This issue is the principal thrust of Wininger's appeal. Exhibits 1000-E through 1000-O were admitted into evidence for purposes of comparison by the State's expert with questioned documents maintaining Crawford's purported signature. Wininger contends, however, that the trial court erred in admitting the exhibits because the genuineness of Crawford's signature on such was not properly established.

The admissibility of handwriting standards for purposes of determining the genuineness of other questioned handwriting is governed by IND. CODE 34-3-6-1 which states:

In any proceeding before a court or judicial officer of the State of Indiana where the genuineness of the handwriting of any person may be involved, any admitted or proved handwriting of such person shall be competent evidence as a basis for comparison by witnesses, or by the jury, court or officer conducting such proceeding, to prove or disprove such genuineness.

Before evidence of comparison may be given, however, the genuineness of the handwriting serving as the standard of comparison must be established. Quoting from Plymouth Savings & Loan Ass'n. No. 2 v. Kassing (1919), 72 Ind.App. 1, 125 N.E. 488, this court in Richardson, supra, stated in part:

We believe the true rule deduced from the authorities to be that the genuineness of a "standard" writing may be established (1) by the admission of the person sought to be charged with the disputed writing made at or for the purpose of the trial or by his testimony; (2) by witnesses who saw the standards written or to whom or in whose hearing the person sought to be charged acknowledged the writing thereof; (3) by evidence showing that the reputed writer of the standard has acquiesced in or recognized the same, or that it has been adopted and acted upon by him in his business transactions or other concerns.

486 N.E.2d at 1062. The admission of standards without proper proof is error. Wells v. State (1970), 254 Ind. 608, 261 N.E.2d 865. Exhibits 1000-E through 1000-O were the only documents which the State sought to introduce at trial as standards of Crawford's genuine signature. The State relied upon only the second method listed above in order to establish the genuineness of those signatures. Accordingly, in order for those exhibits to have been properly admissible as standards at trial, the witness through whom the exhibits were introduced must have testified that he saw the individual whose genuine signature is sought to be established sign them.

Exhibits 1000-E through 1000-O were introduced through Gray. Gray testified as related above in the Statement of Facts. In essence he had no present recollection of having witnessed Crawford sign any of the exhibits. After examining a transcript of his prior testimony, however, Gray acknowledged that in 1984 he testified that he had witnessed Crawford sign the exhibits. Over objection, the trial court admitted exhibits 1000-E through 1000-O as genuine standards of Crawford's signature. Further, Mercer expressed his opinion that the will and stock certificates as well as other documents had been forged based upon his comparison of the questioned documents with these exhibits. Wininger assigns this as error on appeal.

The evidence relating to the genuineness of Crawford's signature on the standards was admissible under three distinct theories. Under the rules applicable to the doctrine of present memory refreshed, a witness may refresh his memory by examining a writing prior to or during his testimony. Cheney v. State (1985), Ind., 486 N.E.2d 508; Gaunt v. State (1983), Ind., 457 N.E.2d 211; Carter v. State (1980), Ind.App., 412 N.E.2d 825. The witness is permitted to refresh his memory from a variety of writings including transcripts of prior testimony. Gaunt, supra; Ward v. State (1982), Ind., 438 N.E.2d 966; Ehrisman v. Scott (1892), 5 Ind.App. 596, 32 N.E. 867. However, the testimony given by the witness after examining the writing must be based upon the writing used to refresh his recollection. Southern Railway v. State (1905), 165 Ind. 613, 75 N.E. 272; Johnson v. Culver (1889), 116 Ind. 278, 19 N.E. 129. If the witness's memory is refreshed, he may be examined on the subject but may not testify from the writing itself. Bank of Poneto v. Kimmel (1929), 91 Ind.App. 325, 168 N.E. 604.

If, on the other hand, the witness's memory is not refreshed, the document itself may be received into evidence, or the witness may be permitted to read it to the jury. Gee v. State (1979), 271 Ind. 28, 389 N.E.2d 303; Blinn v. State (1986), Ind.App., 487 N.E.2d 462. The use of a previously recorded statement as substantive evidence rather than as a method to refresh a witness's fading memory is permitted under the rules applicable to past recollection recorded. In order for a writing to qualify as a past recollection recorded, the witness must have personal knowledge of the event which he contemporaneously recorded or adopted, if recorded by another, while he had a clear memory of it. Gee, supra. Under this doctrine, the witness's lack of memory serves as the vehicle for the admission of the written memorialization of the knowledge he once had. The party offering the writing must establish that the witness has no present...