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Egbuonu v. State

May 25, 2007

ZEPHYRIUNS C. EGBUONU
v.
STATE OF ALABAMA



Appeal from Jefferson Circuit Court (CC-04-1422).

The opinion of the court was delivered by: Shaw, Judge.

Zephyriuns C. Egbuonu was convicted of two counts of identity theft, violations of § 13A-8-192, Ala. Code 1975. He was sentenced to 10 years' imprisonment for each conviction, to run consecutively.

The evidence adduced at trial indicated the following. In December 2002, James Roberson, deputy chief of operations with the Jefferson County Sheriff's Department, received a telephone call from the credit card division of Capital One, inquiring whether he had attempted to open an account at a TJ Maxx discount department store. He had not, and he was informed that someone had attempted to open an account using his name and his Social Security number, but using other identifying information, such as date of birth and address, that was false. Deputy Roberson then contacted other credit companies and learned that someone had opened an account with Mervyn's department store, owned at that time by Target Corporation, using his name and Social Security number, but otherwise false identifying information. Deputy Roberson further learned that other accounts had been opened using his name and Social Security number at La Redoute, Chadwick's, and Victoria's Secret, all clothing retailers, but again, with other identifying information that was false.

The State presented evidence indicating that the Mervyn's account in Deputy Chief Roberson's name was opened on October 1, 2002. The credit application submitted for the account listed Deputy Chief Roberson as the applicant and his correct Social Security number, but listed the home address as 4859 Slauson Boulevard, No. 268, Los Angeles, California, which was later determined to be a rental mailbox at a Mailboxes, Etc., store. The application listed as a previous address the address where Deputy Chief Roberson resided. The same day as the account in Deputy Chief Roberson's name was opened, another account was opened at Mervyn's under the name Rosemary Roberson. Deputy Chief Roberson testified that his wife's name is not Rosemary. The credit application submitted for this account also listed 4859 Slauson Boulevard, No. 268, Los Angeles, California, as the home address.*fn1 In October and November 2002, respectively, the name Jerome Bivens was added to both of these accounts by telephone. The interactive voice-response system used by Target Corporation captured the telephone number from which the first call came -- the call that added Jerome Bivens to the account in Deputy Chief Roberson's name. The telephone number from which the second call came -- the call that added Jerome Bivens to the account in the name of Rosemary Roberson -- was not captured by the system. Several charges were subsequently made to these two accounts in one of Mervyn's stores in Westchester, California, and multiple checks were sent as payment on the two accounts in December 2002 and January 2003. However, the checks were written on an account in the name of Matthew Kittiko and the account had been closed.

Expert testimony was presented indicating that the handwriting on the credit applications for both of the accounts at Mervyn's was Egbuonu's handwriting, and that the handwriting on the checks signed with the name Matthew Kittiko was Egbuonu's handwriting. The State also presented evidence indicating that the telephone call adding the name Jerome Bivens to the account in Deputy Chief Roberson's name was placed from the number of a cellular telephone later found in Egbuonu's apartment. In addition, the State presented evidence that mailbox 268 at the Mailboxes, Etc., store at 4859 Slauson Boulevard in Los Angeles, California, had been rented in the name of Jerome Bivens only two days before the credit applications had been signed, and that the names James Roberson and Rosemary Roberson were also listed on the mailbox-rental agreement as persons authorized to receive mail at mailbox 268. Although the handwriting on the mailbox-rental agreement was not found to be Egbuonu's writing,*fn2 the owner of the Mailboxes, Etc., store positively identified Egbuonu as the person he knew as Jerome Bivens and who picked up mail from mailbox 268.

I.

Egbuonu first contends that § 13A-8-192 and § 13A-8-196, Ala. Code 1975, are unconstitutional. Egbuonu makes several arguments in this regard, all of which he raised in a pretrial petition for a writ of habeas corpus that was denied by the circuit court. Egbuonu appealed that denial, and this Court, treating Egbuonu's appeal as an original petition for a writ of habeas corpus, addressed and rejected Egbuonu's claims. See Ex parte Egbuonu, 911 So. 2d 748 (Ala. Crim. App. 2004). For the reasons stated in that opinion, Egbuonu's claims are meritless.

II.

Egbuonu contends that he was "denied his right to have witnesses appear on his behalf when he was forced to pay for the prosecution's witnesses to appear." (Egbuonu's brief at p. 16.) Specifically, he argues, as he did in his motion for a new trial, that the trial court's ordering him, at his sentencing hearing in August 2005, to pay for the travel and lodging costs of the State's out-of-state witnesses rendered him "unable to pay for a proper defense" at his trial in May 2005 and thereby denied him the right to present a defense. (Egbuonu's brief at p. 18.) The record does not indicate, and Egbuonu does not allege, that he was aware, or even that he had the belief, before or during his trial that, if convicted, he would be ordered to pay for the costs of the State's witnesses. He merely alleges that the trial court's order at sentencing made "him unable to afford to bring his own witnesses from California." (Egbuonu's reply brief at p. 4.) However, we fail to see how the trial court's order at sentencing in August 2005 could have possibly had any retroactive effect on Egbuonu's right to present a defense at his trial, which occurred three months earlier in May 2005, and Egbuonu's argument that it did have such a retroactive effect is specious at best.*fn3 Therefore, we find no merit to this claim.

III.

Egbuonu contends that he was denied a fair trial because, he says, "he was convicted using improperly admitted evidence." (Egbuonu's brief at p. 18.) In his initial brief, Egbuonu appears to make three arguments in this regard. One of these arguments Egbuonu concedes in his reply brief is meritless; thus, that argument will not be addressed by this Court. The remaining two arguments fail to comply with Rule 28(a)(10), Ala.R.App.P.

Rule 28(a)(10), Ala.R.App.P., requires that an argument contain "the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on." "Recitation of allegations without citation to any legal authority and without adequate recitation of the facts relied upon has been deemed a waiver of the arguments listed." Hamm v. State, 913 So. 2d 460, 486 (Ala. Crim. App. 2002). "Authority supporting only 'general propositions of law' does not constitute a sufficient argument for reversal." Beachcroft Props., LLP v. City of Alabaster, 901 So. 2d 703, 708 (Ala. 2004), quoting Geisenhoff v. Geisenhoff, 693 So. 2d 489, 491 (Ala. Civ. App. 1997).

"We have stated that it is not the function of this court to do a party's legal research. See Henderson[ v. Alabama A & M University], 483 So. 2d [392,] 392 [(Ala. 1986)]. Similarly, we cannot create legal arguments for a party based on undelineated general propositions unsupported by authority or argument. Ala.R.App.P. 28(a)(5) [now Rule 28(a)(10), Ala.R.App.P.]; Brittain v. Ingram, 282 Ala. 158, 209 So. 2d 653 (1968) (analyzing the predecessor to Ala.R.App.P. 28); Ex parte Riley, 464 So. 2d 92 (Ala. 1985)."

Spradlin v. Spradlin, 601 So. 2d 76, 78-79 (Ala. 1992). To obtain review of an argument on appeal, an appellant must provide record citations to indicate where the allegedly improper evidence was admitted over a proper and timely objection, citations to relevant cases or other legal authorities, and an analysis of why those cases or other authorities support an argument that an error occurred and that the alleged error should result in reversal.

First, Egbuonu argues that his conviction "was obtained using hearsay evidence." (Egbuonu's brief at p. 18.) After citing and quoting general propositions of law regarding hearsay and the right to confrontation, Egbuonu argues:

"[Egbuonu] was denied the opportunity to confront and cross-examine Dolly Guttirez, R. 268-88, Jerome Bivens, R. 168, 239-241, 285, Rosemary Robertson, R. 246, or Sean Altpeter, R. 1999." (Egbuonu's brief at p. 20.) Egbuonu provides a list of names and citations to pages in the record, but fails to actually identify what hearsay evidence he believes was improperly admitted. Citations to the record without any recitation of facts or any indication as to what occurred during trial that forms the basis for the argument on appeal is not sufficient to comply with Rule 28(a)(10). Nor does Egbuonu provide an explanation of how the general principles of law he cites support his claim of error. Therefore, as to this issue Egbuonu has failed to comply with Rule 28(a)(10), and the issue deemed to be waived.

Egbuonu also argues:

"Also, [Egbuonu] was convicted upon evidence that was not properly authenticated. In order for evidence to be authenticated, sufficient evidence must be presented to support a finding that the matter in question is what its proponent claims.

A.R.E. 901. R. 363, 370, 383." (Egbuonu's brief at p. 21). Again, although Egbuonu provides citations to the record, he fails to identify what evidence he believes was not authenticated, and he does not make any argument as to why he believes the unidentified evidence was not properly authenticated. Although Egbuonu cites to Rule 901, Ala.R.Evid., he makes no argument regarding how Rule 901 supports his claim of error, and he does not provide any other authority in support of his claim. Therefore, this issue also fails to comply with Rule 28(a)(10), and is deemed to be waived.

IV.

Egbuonu next contends that he was denied a fair trial because, he says, the State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Specifically, he argues that the State failed to disclose videotapes from the security cameras at the Mervyn's store in Westchester, California, where the falsified Mervyn's account in Deputy Chief Roberson's name was used. He maintains that these videotapes would have shown that the person using the falsified Mervyn's card was not, in fact, him.

The record indicates that the first mention that there may have been videotapes of the person who made the purchases at the Mervyn's store in Westchester, California, was during the testimony of the State's first witness, a financial investigations coordinator for Target Corporation who began the investigation into the fraudulent Mervyn's accounts. The information regarding the videotapes was brought out on cross-examination by defense counsel. However, counsel lodged no objection at that time. The next mention of the existence of videotapes was during the testimony of the State's fourth witness, a detective with the Los Angeles, California, police department, who testified that he had viewed videotapes from the Mervyn's store in Westchester, California, but that "based on the angle and the graininess" of the videotapes, he could not identify anyone in the videotapes, including Egbuonu. (R. 207.) Egbuonu lodged no objection. The final mention of the videotapes came during the testimony of the State's fifth witness, a detective with the Los Angeles County Sheriff's Department, who testified that, he too, had viewed the videotapes, but was unable to identify anyone. Specifically, he said that during one of the transactions the camera had been moved from focusing on the cash register to focusing on another area of the store and thus did not capture the person who had used the falsified Mervyn's account. Again, Egbuonu did not object. Egbuonu raised this claim for the first time in his motion for a new trial.

In Mitchell v. State, 706 So. 2d 787(Ala. Crim. App. 1997), this Court addressed a similar issue, stating:

"Mitchell contends that he is entitled to an acquittal or a new trial because of alleged prosecutorial misconduct. He argues that the State breached a discovery agreement between the parties by not producing certain material evidence he requested and that the State actively misled him as to the existence of that evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). According to Mitchell, the prosecution failed to disclose information gotten as a result of an interview with Isaac Ruffin contrary to the State's representation in open court before trial that the information did not exist. Mitchell contends that Ruffin's testimony was prejudicial because it contradicted Mitchell's version of the events of that night, thus casting doubt on Mitchell's credibility. Also, Mitchell contends that defense counsel would have changed the way they prepared and presented the case had they been made aware of this information.

"In a tape-recorded statement given to police on July 23, 1993, Ruffin stated that no one was with Mitchell when Mitchell borrowed and then returned Ruffin's car. However, according to the defense, later that same day Ruffin told Detective Long that someone had been with Mitchell when he borrowed the car. 'The knowledge of government agents working on the case, including a deputy sheriff, as to the existence of exculpatory evidence will be imputed to the prosecutor. Sexton v. State, 529 So. 2d 1041, ...


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