Malcolm Terrell Bishop, etc. v. Commonwealth ( 1997 )


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  •                      COURT OF APPEALS OF VIRGINIA
    Present: Judges Benton, Elder and Senior Judge Cole
    Argued at Richmond, Virginia
    MALCOLM TERRELL BISHOP, S/K/A
    MALCOLM BISHOP, A/K/A RICHARD SANDERS
    MEMORANDUM OPINION * BY
    v.   Record No.     2397-95-2              JUDGE MARVIN F. COLE
    JUNE 10, 1997
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
    Walter W. Stout, III, Judge
    Patricia P. Nagel, Assistant Public Defender
    (David J. Johnson, Public Defender, on
    brief), for appellant.
    Monica S. McElyea, Assistant Attorney General
    (James S. Gilmore, III, Attorney General, on
    brief), for appellee.
    Malcolm Terrell Bishop (defendant) was indicted on three
    charges of forging a public document in violation of Code
    § 18.2-168 based upon his signing the name "Richard Sanders" on
    three Virginia Uniform Summonses.    The defendant was convicted on
    all three indictments.    He contends that: (1) the evidence was
    insufficient to sustain his convictions because the Commonwealth
    failed to establish that he is Malcolm Bishop; and (2) the court
    erred in admitting evidence of the fingerprint card, the arrest
    sheet and his photograph because they constituted inadmissible
    hearsay evidence.
    During the arraignment, the defendant objected to
    *
    Pursuant to Code § 17-116.010, this opinion is not
    designated for publication.
    identifying himself and suggested that the court needed to
    establish that he was in fact the person charged in the
    indictments without getting into the merits of the case.      Without
    objection, the name of the defendant on the indictments was
    amended to include Malcolm Terrell Bishop, Richard Saunders,
    Richard Sanders, Tyrone Booker and Malcolm Booker.      The defendant
    admitted that he was the person named in the indictments.
    Facts
    On May 15, 1995, Officers Wooten, Baskette, and Mark were on
    routine patrol when they observed the defendant backing his car
    down the street to a stop sign.    They stopped the defendant for a
    driving violation.    Officer Baskette approached him and asked for
    a driver's license.   Because defendant was unable to produce one,
    he was asked to step out of the car for operating a motor vehicle
    without an operator's license.
    The defendant was asked what his name was, his date of
    birth, and his Social Security number.      He stated his name was
    Richard Saunders, date of birth January 2, 1973.      He was asked
    how old he was and he stated he was 23.      When told that he should
    only be 22, according to the information he had given, he said,
    "[W]ell, that's not me, I'll tell you the truth, my name is
    Richard Sanders, my date of birth is 12/10/73.      I still don't
    know my social security number."       This information was run
    through the Division of Motor Vehicles and no further information
    was found there.   When asked if he had a driver's license, the
    2
    defendant said "Well, maybe."
    At the police station, Officer Wooten filled out three
    Virginia Uniform Summonses for the traffic offenses.    He warned
    the defendant if he lied and signed the summonses in the wrong
    name, he would be charged with forgery.   The defendant signed
    each form in Wooten's presence.   The defendant was also charged
    with reckless driving.   Officer Baskette filled out the arrest
    sheet for this misdemeanor.   Wooten testified that he was
    present, went to the magistrate's office, and observed the
    defendant place his thumb print on the arrest sheet.
    Officer Wooten testified that there came a point in time
    when he found that the defendant was using the name of Malcolm
    Bishop.   He was charged with a parole violation, and the papers
    for the violation had already been executed upon him.   Based on
    this information, Wooten obtained warrants for forgery based upon
    the defendant's signature on the three Virginia Uniform
    Summonses.   At trial, Wooten identified the defendant as the
    person who signed the traffic summonses in his presence.
    Detective David S. Tweedie, a detective in the Forensic Unit
    of the Richmond Police Department, qualified as an expert in
    fingerprint analysis.    The forensic unit is the custodian of all
    mug shot records and fingerprint records of all arrestees in the
    City of Richmond.   He testified that the forensic unit maintained
    a fingerprint card in the name of Malcolm Terrell Bishop dated
    November 16, 1993, date of birth August 10, 1975.   He testified
    3
    that the unit did not have a fingerprint card under the name of
    Richard Saunders.   Tweedie received the Sanders arrest sheet
    containing Sanders' thumb print.       Tweedie compared this print
    with the prints in the fingerprint records and found it identical
    with the fingerprint of Malcolm Terrell Bishop.      He testified
    that since no two people have the same fingerprints, he concluded
    that Bishop and Sanders were the same person.      Therefore, the
    person who placed his fingerprint on the Bishop card in the
    forensic unit's files was the same person who placed his
    fingerprint on the arrest sheet.       At trial, the Commonwealth's
    attorney and defense counsel stipulated that if fingerprints were
    taken on that day, the print on the arrest sheet and the
    fingerprints on the fingerprint card would match.
    The evidence disclosed that arrest sheets customarily are
    prepared by police officers on the street.      Here, Detective
    Wooten was present when the defendant's arrest sheet was prepared
    and he saw the defendant place his thumb print on it.      He
    identified the arrest sheet at trial.
    II.   Sufficiency of the Evidence
    The defendant contends that the Commonwealth failed to
    establish whether his true identify was Malcolm Bishop or Richard
    Sanders.   He asserts that the evidence only showed that on a
    prior occasion, he used the name Malcolm Bishop.      He claims that
    when he was previously arrested, he gave the name of Malcolm
    Bishop and his name may actually have been Richard Sanders.
    4
    Therefore, the evidence was insufficient as a matter of law to
    show that by signing the three summonses as Richard Sanders he
    committed forgeries.   If the defendant is Richard Sanders, then
    the evidence is insufficient to convict him of forgery.
    The Commonwealth asserts that the fingerprint card in the
    forensic unit records establishes that the name "Malcolm Terrell
    Bishop" matched the thumb print on Richard Sanders' arrest sheet.
    At the time of his arrest, the defendant gave the name of
    "Richard Saunders."    After realizing that the birth date he gave
    did not match the age he claimed to be, the defendant changed his
    story and told the police he was "Richard Sanders."   The
    Commonwealth contends that the defendant falsely signed the three
    summonses as "Richard Sanders" in order to mislead the police
    because he was wanted for a parole violation under the name of
    "Malcolm Bishop"; that he lied to the police about his name and
    age; and he previously admitted to law enforcement officials that
    his name was "Malcolm Terrell Bishop."    Therefore, the trial
    court's finding of fact was not plainly wrong and was sufficient
    to support the convictions of forgery and should not be disturbed
    on appeal.
    "On appeal, we review the evidence in the light most
    favorable to the Commonwealth, granting to it all reasonable
    inferences fairly deducible therefrom."    Martin v. Commonwealth,
    
    4 Va. App. 438
    , 443, 
    358 S.E.2d 415
    , 418 (1987).
    "'In testing the credibility and weight to be
    ascribed in the evidence, we must give the
    trial courts and juries the wide discretion
    5
    to which a living record, as distinguished
    from a printed record, logically entitles
    them. The living record contains many
    guideposts to the truth which are not in the
    printed record; not having seen them
    ourselves, we should give great weight to the
    conclusions of those who have seen and heard
    them.'"
    Nicholas v. Commonwealth, 
    15 Va. App. 188
    , 194, 
    422 S.E.2d 790
    ,
    794 (1992) (citations omitted).   It is within the fact finder's
    discretion to determine whether the testimony of witnesses is
    credible.    See Fordham v. Commonwealth, 
    13 Va. App. 235
    , 239, 
    409 S.E.2d 829
    , 831 (1991).
    The issue is not a matter of degree when the law says that
    it is for the fact finder to judge the credibility of witnesses.
    If the witness states facts which, if true, are sufficient to
    support the decision, then the fact that the witness' credit is
    impeached by contradictory statements affects only the witness'
    credibility; contrary statements go to the weight and sufficiency
    of the testimony.   If the fact finder sees fit to base the
    decision upon that testimony, there can be no relief in the
    appellate court.    See Simpson v. Commonwealth, 
    199 Va. 549
    ,
    557-58, 
    100 S.E.2d 701
    , 707 (1957).
    In this case, the trial judge made the following findings:
    The proof offered by the Commonwealth
    suggests from the officers that in their
    presence Richard Sanders signed three
    Virginia Uniform Summons, there's no contest
    to that. He previously and in the records of
    the . . . police department had a fingerprint
    card in the name of Malcolm Terrell Bishop,
    which matches, according to the testimony,
    exactly the fingerprint on the arrest card,
    which the officers also saw taken at the time
    6
    of the arrest at the police station. That
    leads to a photograph, which the Court will
    indicate it has looked at and if it's not Mr.
    Bishop or Mr. Sanders then I would be very
    surprised. It seems to match exactly the
    defendant. He also gave to the officer an
    improper name [Saunders], an improper birth
    date. When caught doing that he changed the
    name [Sanders] slightly and changed the birth
    date to a different birth date than Malcolm
    Terrell Bishop. The indication to the Court
    is that he has attempted to through [sic]
    [throw] off the police about who he is by his
    signing that. It was done so improperly and
    as part of this offense and it meets the
    requirements of this offense.
    The record establishes that the defendant had a motive to
    fabricate his name and age when he discussed the traffic
    infraction and reckless driving charge with the police on May 15,
    1995.    A person's motive or reason for committing a crime can
    generally be shown in order to explain why the offense was
    committed.     See Williams v. Commonwealth, 
    208 Va. 724
    , 730, 
    160 S.E.2d 781
    , 785 (1968).    He had facing him a parole violation.
    The papers on the violation had already been served upon him.
    The judge, in this case, was entitled to conclude from the
    evidence that the defendant was being less than straight-forward
    with the police because further charges would be detrimental at
    the parole hearing.    Thus, he had a motive to give a false name
    and age in order that the violations would not be discovered.
    In Reid v. Commonwealth, 
    16 Va. App. 468
    , 471, 
    431 S.E.2d 63
    , 65 (1993), the defendant had been fingerprinted five times
    previously under the name of Dexter Reid.    When arrested, he gave
    the name "Gary Shaw," but misspelled "Gary" as "Gray."       Id.   We
    7
    found this evidence clearly sufficient to convict for forgery.
    We find that the trial court's findings of fact are
    supported by credible evidence beyond a reasonable doubt and are
    not plainly wrong.
    II.
    "Hearsay evidence is defined as a spoken or written
    out-of-court declaration or nonverbal assertion offered in court
    to prove the truth of the matter asserted therein."     Arnold v.
    Commonwealth, 
    4 Va. App. 275
    , 279-80, 
    356 S.E.2d 847
    , 850 (1987).
    The business records exception allows
    introduction into evidence of regular
    business entries of persons, other than the
    parties, where the entrant is unavailable to
    testify at trial and where the
    trustworthiness of the entries are
    established by showing the regularity of
    preparation of the records and the fact that
    they are relied upon in the transaction of
    business by those for whom they are kept.
    Hooker v. Commonwealth, 
    14 Va. App. 454
    , 456, 
    418 S.E.2d 343
    , 344
    (1992).
    The fingerprint card, arrest sheet and photograph were
    properly admitted as business records exceptions to the hearsay
    rule.    The evidence showed that when a person is arrested, he is
    fingerprinted and photographed, usually by the Sheriff's
    Department.    The fingerprint cards and photographs are then
    transferred to and kept at the forensic unit.    Detective Tweedie
    testified that the fingerprint card and photograph of Malcolm
    Terrell Bishop were maintained in the forensic unit.    The
    forensic unit regularly relies on these records in order to
    8
    conduct its regular business of fingerprint analysis and records
    maintenance.   Therefore, appellant's fingerprint card and
    photograph were properly admitted into evidence under the
    business records exception to the hearsay rule.
    The evidence also showed that police officers prepare arrest
    sheets upon making an arrest.    The arrestee's thumb print is
    included on the arrest sheet.    Depending on the seriousness of
    the offense, all ten fingerprints may be taken after the arrest
    sheet is completed.   Officer Wooten was present when appellant's
    arrest sheet was prepared and appellant's thumb print was taken.
    This arrest sheet was prepared and maintained in the ordinary
    course of police business and qualifies as a business record
    exception to the hearsay rule.   The arrest sheet was properly
    admitted into evidence.
    For these reasons, the trial court's judgment is affirmed.
    Affirmed.
    9
    Benton, J., dissenting.
    To prove forgery under Code § 18.2-168, the Commonwealth
    must prove beyond a reasonable doubt that the defendant's
    signature was false and that he acted with the intent to defraud.
    See Reid v. Commonwealth, 
    16 Va. App. 468
    , 471, 
    431 S.E.2d 63
    ,
    65 (1993).    Because the Commonwealth failed to prove that the
    signature "Richard Sanders" was false, I would reverse the
    conviction.   Accordingly, I dissent.
    I.
    The indictments charged that on May 15, 1995 the defendant
    forged three public records.   The evidence at trial proved that
    on May 15, 1995, the defendant was stopped by Officer Wooten for
    traffic violations.   When the defendant stated that he did not
    have a driver's license, Wooten asked defendant for his name,
    Social Security number, and date of birth.   Wooten testified that
    the defendant "stated his name was Richard Saunders, date of
    birth January 2, 1973."   The defendant said he did not know his
    Social Security number.   Wooten asked the defendant how old he
    was, and defendant said he was 23.    Wooten informed the defendant
    that based on the date of birth he had just given, the defendant
    should only be 22 years old.   In response, the defendant said,
    "I'll tell you the truth, my name is Richard Sanders, my date of
    birth is 12/10/73."   Wooten then informed the defendant that he
    was issuing summonses and warned the defendant that if he signed
    a false name on the summonses, the defendant would be charged
    10
    with forgery.   The defendant signed his name as "Richard Sanders"
    on three summonses.   Each summons charged a separate motor
    vehicle equipment violation.
    After the defendant was arrested, Wooten took the
    defendant's fingerprints.   David S. Tweedie, a detective in the
    forensic unit, testified that the fingerprints the defendant gave
    in Wooten's presence were identical to other fingerprints listed
    under the name "Malcolm Terrell Bishop."   The fingerprints on the
    card with the name Bishop were taken on November 16, 1993.
    Tweedie testified that the same person gave both sets of
    fingerprints.
    II.
    "[T]he Due Process Clause protects the accused against
    conviction except upon proof beyond a reasonable doubt of every
    fact necessary to constitute the crime with which [the accused]
    is charged."   In re Winship, 
    397 U.S. 358
    , 364 (1970).
    It is not sufficient to create a
    suspicion or probability of guilt, but the
    evidence must establish guilt of the accused
    beyond a reasonable doubt. It must exclude
    every reasonable hypothesis except that of
    guilt. The guilt of the party is not to be
    inferred because the facts are consistent
    with his guilt, but they must be inconsistent
    with his innocence.
    Allen v. Commonwealth, 
    211 Va. 805
    , 808, 
    180 S.E.2d 513
    , 515
    (1971).   "'[W]here a fact is equally susceptible of two
    interpretations one of which is consistent with the innocence of
    the accused, [the trier of fact] cannot arbitrarily adopt that
    11
    interpretation which incriminates him.'"   Corbett v.
    Commonwealth, 
    210 Va. 304
    , 307, 
    171 S.E.2d 251
    , 253 (1969)
    (citation omitted).
    The evidence failed to prove the defendant's true identity
    beyond a reasonable doubt.   At most, the Commonwealth proved that
    the defendant has used in the past the name "Malcolm Terrell
    Bishop."   However, no evidence proved that the defendant's true
    name is not "Richard Sanders."
    The fact that a fingerprint card matching the defendant's
    fingerprints contained the signature of "Malcolm Terrell Bishop"
    as the name of the person fingerprinted does not prove that the
    defendant's true identity is "Malcolm Terrell Bishop."    Indeed,
    Detective Tweedie testified as follows:
    [If] [a] person comes to us . . . for the
    first time as John Doe, he will be carried in
    the police department as John Doe forever.
    If he comes in subsequently with another name
    all of those names are added as alias[es],
    even if it's maintained somewhere along the
    way that one of those subsequent names is
    actually the given name. We carry one name
    throughout as being the name of the person as
    they came through the first time.
    Tweedie's testimony reveals that, regardless of the
    individual's true identity, the name the individual gives during
    his first arrest will be the name used to classify all of that
    individual's fingerprints.   Thus, the defendant's 1993
    fingerprints established, at most, that the defendant told the
    police in 1993 that his name was "Malcolm Terrell Bishop."   That
    evidence did not establish that defendant's true identity is
    12
    "Malcolm Terrell Bishop."
    Furthermore, the indictment in this case did not charge that
    the defendant signed his name as Bishop in 1993 and Sanders in
    1995, and, thereby, did forge one of the two documents.     By
    charging that the defendant forged a public document on May 15,
    1995, the Commonwealth undertook to prove that the defendant's
    name was not "Richard Sanders."     The proof failed.   Indeed, the
    Commonwealth failed to exclude the reasonable hypothesis that the
    defendant's name is in fact "Richard Sanders."
    The evidence in this case is much less probative than the
    evidence this Court found sufficient in Reid, 16 Va. App. at
    471-72, 431 S.E.2d at 65.    In Reid, the evidence proved that the
    accused had signed his name as Dexter Reid five times in the
    past.     See id. at 471, 432 S.E.2d at 65.   The evidence also
    showed that the defendant in Reid misspelled the name he orally
    gave to the police.     See id.   Unlike Reid, the evidence in this
    case proved that the defendant had signed "Malcolm Terrell
    Bishop" only once.    In addition, although the officer testified
    that the defendant initially pronounced his name "Saunders," the
    defendant did not misspell "Sanders," the name the defendant
    later told the officers was his true name.
    The indictment charged that the defendant forged public
    records on May 15, 1995.    Thus, proof that "Richard Sanders" was
    a fictitious or assumed name was an essential element of the
    offense charged in this case.      See Bullock v. Commonwealth, 205
    
    13 Va. 558
    , 560-61, 
    138 S.E.2d 261
    , 263 (1967).   The evidence in the
    record was insufficient to prove beyond a reasonable doubt that
    essential element.
    For these reasons, I would reverse the conviction.
    Accordingly, I dissent.
    14