State v. SmithState v. Smith
Dеfendant, Kenneth Smith, was charged by bill of information with four counts of forgery committed on May 4, 1983, a viola
On February 10, 1984, the trial judge, after denying defendant’s Motion for a New Trial, changed the verdict as to Count one to attempted forgery, thereby reducing the original verdict.
On March 16, 1984, defendant, pursuant to a multiple bill under LSA R.S. 15:529.1, was sentenced as a second offender to serve six (6) years on each count concurrently at hard labor.
FACTS:
On May 4, 1983, defendant and his co-defendant, Giles McGhee, approached a check cashing booth located in the Woolworth’s department store on Canal Street in New Orleans. John Mothershead, owner and operator of the booth, testified McGhee presented to him for cashing a social security check payable to “Jose Gonzales”. The check was already endorsed “Jose Gonzales”. Because it was the time of the month when many social security checks are stolen, and because McGhee’s appearance did not fit the Hispanic name, “Jose Gonzales”, Mothershead beсame suspicious. Mothershead asked McGhee for identification. McGhee replied he had none. Defendant, who had opened a check cashing account with Mothershead several days before, vouched for McGhee аnd told Mothershead that McGhee was Jose Gonzales. Mothershead then asked McGhee to sign the check again, which he did as “Jose Gonzales”. Still suspicious, Mothershead summoned the store security officer who alerted officer Harry Taylоr of the New Orleans Police Department.
Taylor escorted defendant and McGhee to the store security office and informed them of their constitutional rights. They responded that they understood these rights. McGhee then voluntarily stated to Taylоr that he did not steal the check but that he received it from defendant. Defendant then told McGhee, “Hey man, Shut up. You only sinking us deeper.”
Jose Gonzales testified he did not know either McGhee or defendant and that he did not give anyone permission tо cash his check, nor did he endorse same.
McGhee testified he received the check from a Ricky Arceneaux who asked him to cash it for his uncle (Jose Gonzales). He claimed he met defendant by chance at the booth and that defendant never identified him as Jose Gonzales but merely attempted to help him cash the check. He also denied ever having told Officer Taylor that defendant gave him the check.
Defendant testified that he met McGhee by chance in the store and when he realized he was. having difficulty cashing the check, interceded on his behalf. He denied telling Mothershead that McGhee was Jose Gonzales.
From his conviction and sentence, defendant asserts the following assignments of error:
1) The triаl court erred in finding the defendant guilty as charged on the first count, when there was insufficient evidence, to show that the defendant was a principal to the forgery of Jose Gonzales’ name.3
*420 2) The conviction of both counts violated the double jеopardy clause of the United States Constitution.
3) The trial court erred in adjudicating the defendant a second offender.
ASSIGNMENT OF ERROR 1.
Count One refers to the unlawful making of a forged instrument, a violation of LSA R.S. 14:72.
The standard of review of sufficiency of evidence under Jackson v. Virginia,
Viewing the evidence in the light most favorable to the prosecution, the following facts were adduced at trial:
1) Defendant was with McGhee at the check cashing booth when McGhee signed the сheck “Jose Gonzales”;
2) Defendant identified McGhee as Jose Gonzales;
3) McGhee told Officer Taylor defendant gave him the check;
4) Defendant and McGhee knew each other;
5) Defendant told McGhee, “Shut up. You only sinking us deeper” when McGhee began explaining defendant’s involvement.
Even though these facts testified to by Taylor and Mothershead were contradicted by defendant and McGhee, viewing the evidence in the light most favorable to the prosecution, every reasonable hypothesis of innocence was excluded. State v. Wright,
Defendant also argues that at the time McGhee signed Jose Gonzales’ name to the check that signature did not have “legal efficacy” because the check already had been endorsed, thus the second endorsement meant nothing, legally. We disagree with this argument. Defendant misreads
Defendant contends that convicting him on both counts of attempted forgery violated his constitutional right against double jeopardy.
In Louisiana, an accused is not only protected from a second prosecution on the same offense, but also protected from multiple punishment for essentially the same criminal conduct. State v. Hayes,
Louisiana courts employ two tests in determining whether a prosecution presents a double jeoрardy problem. State v. Vaughn,
The first, the Blockburger test, enunciated in Blockburger v. United States,
The second, the same evidence test enunciated in State v. Steele,
“If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea qf double jeopardy, and a defendant can be placed in jеopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial ...
The ‘same evidence’ test is somewhat broader in concept than Blockburger the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct.”
Under the Blockburger test, each paragraph of R.S. 14:72 requires proof of an additional fact that the other does not. The first paragraph (the basis for Count 1) requirеs that the defendant, in some way, falsify or alter a document, with intent to defraud. Paragraph two (the basis for Count 2) requires the issuance or transfer of a forged writing with intent to defraud, although the defendant does not have to be the falsifier. Quite clearly, еach paragraph requires the proof of an additional fact that the other does not.
Defendant’s conviction also survives the same evidence test. Acquittal of a defendant on one count of forgery does not necessarily operate as an acquittal on other counts. Whethеr the facts are the same is not the true test. Rather the court must determine whether acquittal of the defendant on the first count necessarily involves acquittal on the other counts. State v. Didier,
In State v. Doughty,
“The false mаking or altering with the intent to defraud, of any signature to, or any part of, any writing purporting to have legal efficacy; or (underlined for emphasis) issuing or transferring, with intent to defraud, a forged writing known by the offender to be a forged writing.”
Thus, according to the language in Doughty, supra, the offense may be committed in two alternative manners, either by the actual making of the false writing or by issuing or transferring a false writing known to be false.
Thus, applying the facts of the instant case to the Blockburger and same evi
ASSIGNMENT OF ERROR 3:
Defendant asserts that his prior guilty plea was improperly used to charge him as a multiple offender as he was not adequately informed of his rights as set forth in Boykin v. Alabama,
1) confusion over the two prongs of self-incrimination (at the time of the entry of the guilty plea and at trial); and
2) The trial judge “rattled” off the defendant’s rights with such speed that the defendant could not make an intelligent waiver.
The state bears the burden of showing the defendant knowingly and intelligently waived his constitutional rights. State v. Holden,
The colloquy of defendant’s prior conviction shows the trial judge asked the defendant if he understood that:
“by pleading guilty, you waive your constitutional right to remain silent now and at the time of trial. You have a right to a jury trial, to appeal, the right to face your accusers from the witness stand, to cross-examine them, and the right to call your own witnesses and testify yourself, if you so wish.” (Emphasis added)
The colloquy indicates the defendant was adequately informed of his right to remain silent both at the time of the plea and at trial. In addition, the Lоuisiana Supreme Court has recognized that the appellate court may “look beyond a colloquy to an expanded record to determine whether voluntary waiver occurred.” State v. Lawson,
In the instant case, the waiver of rights form which defendаnt initialed and signed reflects that he was adequately informed of both his right against self-incrimination at the entering of the guilty plea and at trial. This assignment of error is without merit.
ERRORS PATENT:
We have also reviewed the record for errors patent as mandated by La.C.Cr.P. Art. 920(2). We find none.
For the foregoing reasons defendant’s conviction and sentence are affirmed.
AFFIRMED.
Notes
. LSA R.S. 14:72:
“Forgery is the false making of altering, with intent to defraud, of any signature to, or any part of, any writing purporting to have legal efficacy.
Issuing or transferring, with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute forgery. Whoever commits the crime of forgery shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not more than ten years, or both.”
. Therе is nothing in the record as to what occurred as to Counts three and four.
. Defendant was originally convicted of forgery on Count One. However, on February 10, 1984, the trial court changed the original verdict to that of the lesser included verdict of guilty of attempted forgery on Count One. Thus, this assignment is examined for sufficiency of evidence to convict the defendant of attempted forgery.
.
“The rule as to circumstantial evidencе is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”
. "principal” is defined in
. LSA R.S. 14:27 (attempt)
“A. Any person who having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, hе would havf actually accomplished his purpose. ...”
. La.C.Cr.P. Art. 591:
“No person shall be twice put in jeopardy of life or liberty for the same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.”
. See also State v. Thomas,