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Smith v. State

Court of Appeals of Georgia

July 8, 2015

SMITH
v.
THE STATE

Forgery, etc. Douglas Superior Court. Before Judge James.

Velbert D. Smith, pro se.

Brian K. Fortner, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

BARNES, Presiding Judge. McMillian, J., concurs. Ray, J., concurs fully and specially.

OPINION

Page 212

Barnes, Presiding Judge.

A jury found Velbert Denorris Smith guilty of forgery in the first degree, tampering with evidence, misdemeanor obstruction of a law enforcement officer, and possession of cocaine. Smith filed a motion for new trial, which the trial court denied. On appeal, Smith contends, among other things, that the trial court deprived him of his constitutional right to self-representation by not allowing him to represent himself at trial. We agree with Smith and therefore must

Page 213

reverse his convictions and remand the case to the trial court for a new trial.

Following a criminal conviction, we view the evidence in the light most favorable to the verdict. Sidner v. State, 304 Ga.App. 373, 374 (696 S.E.2d 398) (2010). So viewed, the evidence showed that on December 4, 2009, Smith walked into a branch of Bank of America in Douglas County. Smith approached one of the bank tellers and handed her a check made payable to him for $965. The check was drawn on a restaurant's business account and was signed in the name of the individual who owned the restaurant. Smith told the teller that he did not have an account at the bank but wanted to cash the check.

When the teller entered information about the check into her computer, she received a prompt to verify the signature on the check. After comparing the restaurant owner's signature card that was on file at the bank to the signature on the check, the teller determined that the signatures did not match. The teller then notified her [332 Ga.App. 850] supervisor of the issue and called the restaurant owner to verify if he knew Smith. The restaurant owner denied that he knew Smith and asked the bank to call the police.

While another bank employee called the police, the teller informed Smith that the bank was attempting to verify the signature of the account holder. Smith became agitated and demanded that the teller return the check to him. He then snatched the check away from the teller and went to leave the bank.

To delay Smith from leaving the bank until the police arrived, an assistant branch manager who had been informed of the potential forgery approached Smith, asked if she could help him, and requested to see the check and his identification. Smith handed the check and his identification to the assistant manager and told her that he had performed some work for the restaurant's owner and that this was his payroll check. The assistant manager noted from the check that the restaurant had a Suwanee address and from Smith's identification that he lived in Atlanta. When the assistant manager asked Smith why he had traveled to such a distant bank branch to cash a check from a Suwanee business when he lived in Atlanta, Smith asked for the check and his identification back from the assistant manager and then grabbed the check from her. The assistant manager handed Smith back his identification, and he left the bank.

A police officer who was working off-duty as a security guard for the bank was parked nearby in his marked patrol car. After receiving information about the forgery in progress at the bank, including a description of the suspect, the officer, who was in his police uniform, approached Smith outside the bank and inquired about the check. Smith responded that he had been trying to cash the check, and the officer saw that Smith was holding the check in his left hand. The officer advised Smith that he was under arrest for forgery and attempted to handcuff him, but Smith began struggling with the officer. The officer ultimately was able to subdue Smith and handcuff him, but the officer noticed that the check was missing. The officer searched through Smith's clothing in an effort to find the check, and, in the process of doing so, discovered a glass pipe with cocaine residue inside of it. The officer, however, was unable to find the check in Smith's clothing, and he asked Smith to open his mouth. When Smith complied, the officer saw the check dangling from the roof of his mouth. Smith started to chew it. The officer applied pressure to Smith's cheek to keep him from swallowing the check, and Smith eventually spit it out.

Smith was indicted for forgery in the first degree, tampering with evidence, felony obstruction of a law enforcement officer, and possession [332 Ga.App. 851] of cocaine.[1] At the ensuing jury trial, the forged check and glass pipe with cocaine residue inside of it were introduced into evidence. The bank teller, assistant branch manager, and police officer testified to the events as set out ...


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