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3/16/01

SUPREME COURT OF LOUISIANA No. 2000-K-0589 STATE OF LOUISIANA VERSUS NATASHA MARSTON ON WRIT OF CERTIORARI TO THE COURT OF APPEAL SECOND CIRCUIT, PARISH OF CADDO PER CURIAM The state charged respondent with a single count of forgery in violation of La. Rev. Stat. 14:72 on the basis of two stolen checks made payable to respondent and cashed on the same day at two different branches of the Hibernia National Bank in Shreveport. Jurors found respondent guilty as charged and the court sentenced her to 18 months imprisonment in the parish prison. The court suspended the sentence and placed respondent on active probation for 18 months. On appeal, a majority of the Second Circuit panel reversed respondent's conviction and sentence on grounds that the state's circumstantial evidence at trial had failed to exclude every reasonable hypothesis of innocence. State v. Marston, 32,446 (La. App. 2 Cir. 12/1/99), 748 So. 2d 563. We granted the state's writ application to review the correctness of that determination, 00-0589 (La. 9/29/00), 769 So. 2d 1217, and now reverse. Just before closing time on Friday afternoon, December 6, 1996, three women entered Montgomery Interiors in Shreveport, the place of employment of victim, Janet Meier. Mrs. Meier noticed one of the women bend down near her desk where her purse was stored, but she was busy assisting customers and did not see the woman remove anything from the purse. The three women left the store within minutes. Approximately one hour later, as she was closing the store, Mrs. Meier noticed that

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her wallet, containing her checkbook, credit cards, and cash, was missing. Because the Hibernia bank was already closed, Mrs. Meier was unable to report the missing checkbook until the following morning. On Monday, December 9, 1996, two of Mrs. Meier's checks, drawn on a joint account with her husband, John Meier, were cashed at two different branches of Hibernia National Bank. Check number 11600, in the amount of $400, was cashed at the Youree Drive branch at 5:38 p.m. An unnumbered check, also in the amount of $400, was cashed at the East Kings Highway branch twelve minutes later. Both checks were made payable to respondent, and the tellers accepting them wrote the number of respondent's Louisiana driver's license on the face of the checks. The teller at the Youree Drive branch also recorded respondent's social security number on the check and placed next to that number the initials "PSM." However, respondent's social security number and the initials "PSM" do not appear on the face of the unnumbered check cashed at the East Kings Highway branch. Investigation of the forgeries began with respondent, as she was the payee on the checks. Det. J.D. Germain went to respondent's last known address and spoke with a person identifying herself as respondent's sister. Det. Germain left his card and asked that she have respondent call him, but he never heard from her. A warrant later issued for respondent's arrest. In September, 1997, the police stopped respondent for a traffic violation and she informed the officers that she could not produce her driver's license because it was missing. The officer conducted a computer check of her name and learned of the outstanding arrest warrant for forgery. Thereafter, defendant reported to the police station and was arrested for forging the two Meier checks. After Det. Germain advised her of her Miranda rights, defendant denied ever seeing the checks or having

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any knowledge of the Meiers. She then stated to the officer that her sister-in-law had committed the crimes. However, subsequent handwriting analysis revealed "strong indications," if not a positive identification, that defendant had endorsed the two checks. At respondent's trial, Mr. and Mrs. Meier each denied authorizing defendant to draw from their joint checking account by writing checks. Detective Germain related his participation in the case and acknowledged that two handwriting examinations had to be conducted, because he was unaware that original writing had to be submitted to the North Louisiana Criminalistics Laboratory for an accurate comparison, and he sent only photocopies of the two checks to be compared with the known sample, a photocopy of respondent's signature on her driver's license. After receiving the initial report from North Louisiana Criminalistics, Det. Germain took a proper handwriting exemplar from defendant for comparison with the checks. Both analyses yielded the same result: a strong indication that respondent endorsed the back of the checks. In the hierarchy of likely matches, "strong indications" ranks midway of the seven possible categories ranging from a positive match to probable mismatch. The state also introduced the testimony of Leo Languirand, an employee in the security department of Hibernia Bank, to explain the bank's procedure on check cashing. According to Languirand, the teller must first request that the customer produce a picture identification. The teller must then look at the person to match the face with that depicted on the identification card. Finally, the teller must note on the check what type of identification was used, e.g., driver's license, and then mark the check "PSM," which stands for "picture signature match." After completing this procedure, the teller may then cash the customer's check. Languirand acknowledged that he had no other connection with the case and the state did not call either of the

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two tellers responsible for cashing the checks. Respondent testified and denied forging either of the checks or presenting them for payment. She told jurors that she had lost her driver's license in October, 1996, approximately three months before the theft of Janet Meier's checks, and did not replace it until December 16, 1997. She further denied ever going to Montgomery Interiors. As she had with Det. Germain, respondent blamed the crimes on her sisterin-law. The defense focused on respondent's testimony that she had lost her license well before the theft and forgery of Janet Meiers's checks and that, because respondent's license number, social security number, and signature appeared on the face of the license, anyone who had access to her license could easily replicate defendant's signature. Jurors rejected this hypothesis of innocence. However, the court of appeal found that, in the absence of a positive match in handwriting on the check, and in the absence of any testimony from the tellers who actually cashed the checks that they had followed the correct banking procedure and verified that the person presenting the checks matched respondent's picture on her driver's license, the state's case had otherwise simply invited the jury to speculate about respondent's guilt. Marston, 32,446 at 5-6. The majority on the panel buttressed that conclusion by agreeing with defense counsel's closing argument which prompted jurors to consider that while both checks had been made payable to Natasha Marston, the endorsements on the back of the check number 11600 appeared to spell respondent's name "Masten" and the endorsement on the second check appeared to spell out "Marsten." Marston, 32,446 at 6. In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, taking the evidence in a light most favorable to the

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prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Additionally, "when a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt." State v. Captville, 448 So. 2d 676, 680 (La. 1984). However, jurors must rationally reject the hypothesis advanced by the defendant. While the Jackson standard of review does not permit an appellate court to substitute its own opinion for that of the trier of fact as to what has or has not been proved by the state's evidence, "`the jury cannot be permitted to speculate if the evidence is such that reasonable jurors must have a reasonable doubt.'" State v. Mussall, 523 So. 2d 1305, 1311 (La. 1988) (quoting 2 Charles Wright, Federal Practice & Procedure, Criminal 2d,

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