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
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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
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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.
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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
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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
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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
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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
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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.
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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
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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
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"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.
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