State v. Bernard

366 So. 2d 1294
Supreme Court of Louisiana·Decided November 13, 1978·No. 61981·Published·Cited by 14 cases

Opinion

366 So.2d 1294 (1978)

STATE of Louisiana
v.
Guy BERNARD.

No. 61981.

Supreme Court of Louisiana.

November 13, 1978.
Rehearing Denied December 14, 1978.

*1295 James E. Bolin, Jr., Shreveport, for defendant-appellant.

William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Stephen A. Glassell, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.

*1296 DIXON, Justice.

Defendant Guy Bernard was charged by bill of information with armed robbery (R.S. 14:64). After trial by jury he was found guilty of simply robbery (R.S. 14:65). Subsequently defendant was charged by bill of information as a second felony offender and, after a multiple offender hearing, was sentenced to serve ten years at hard labor. Defense filed four assignments of error with the trial court, but Assignments 2 and 4 were not briefed nor argued and are considered abandoned.

Assignment of Error No. 1

Defense contends that the trial court erred at the multiple offender hearing when it admitted into evidence the records of defendant's first conviction (Exhibit S-1). Defense argues that the photocopy of the guilty plea and sentence of a Guy Bernard sent by the Record Clerk of the Texas Department of Corrections was not properly certified according to R.S. 15:529.1 F nor to the federal certification requirements. Defense relies on State v. Washington, 322 So.2d 185 (La.1975) and State v. Curtis, 319 So.2d 434 (La.1975) to argue that careful scrutiny must be given to certification of documents the state uses for proof of prior felony convictions.

This court agrees that Exhibit S-1 does not comply with R.S. 15:529.1 F, which provides:

"The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the finger prints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence on the trial of any person for a second and subsequent offense of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate."

Exhibit S-1 records were certified not by a warden, superintendent or other chief officer of the Texas prison but by the Record Clerk of the Texas Department of Corrections who as such officer has legal custody of the original files and records of persons committed to the Texas penal institution. Otherwise, Exhibit S-1 includes the name of defendant, his photograph, his fingerprints, a copy of his guilty plea, and the date and time of sentence; but it does not include, as required by R.S. 15:529.1 F, the length of time imprisoned and date of discharge from that prison. These latter omissions, however, are not as significant. See, State v. Ralph, 336 So.2d 836 (La.1976) and State v. Maduell, 326 So.2d 820 (La.1976).

Consequently, the certification of the Record Clerk does not satisfy R.S. 15:529.1 F requirements for prima facie evidence of the imprisonment of that person for a prior offense. This court has held, however, that the proof set forth in R.S. 15:529.1 F is neither sacramental nor the exclusive method of proving that defendant is a habitual offender, and the necessary facts constituting proof that the accused is an habitual offender may be established by other competent evidence. State v. Barrow, 352 So.2d 635, 637 (La.1977). See also, State v. Hamilton, 356 So.2d 1360 (La.1978); State v. Curtis, 338 So.2d 662 (La.1976); State v. Jones, 332 So.2d 461 (La.1976); State v. Montana, 332 So.2d 248 (La.1976); State v. Hill, 332 So.2d 475 (La.1976); State v. Maduell, supra. In a habitual offender proceeding the state is only required to establish by competent evidence that there is a prior felony conviction and that the defendant is the same person who was convicted of the prior felony. State v. Curtis, 338 So.2d 662, 664 (La.1976); State v. Washington, 322 So.2d 185, 188 (La.1975).

In the present case the state submitted evidence to establish a prior felony when it introduced the photocopies of the Texas prison records of a Guy Bernard together *1297 with a form of attestation and certification with the seal of the county court. The defendant does not dispute that there is a prior felony conviction nor that he is the same person who was convicted of the prior felony. The defense does not argue that the photocopies of the prison records are not the substantial equivalent of the original Texas prison records on file with the Record Clerk of the Department of Corrections nor does the defense show that the contents of these purported photocopies inaccurately reflect the contents of the original prison records. See State v. Stuart, 344 So.2d 1006, 1009 (La.1977), The defense does object to the form of certification of the prison records and relies on State v. Washington, supra.

This court remanded the Washington case for resentencing because the trial court admitted penitentiary documents that satisfied neither the statutory standards of R.S. 15:529.1 F nor of R.S. 15:457. The documents, including fingerprints, were transmitted by an informal letter from an individual identifying himself as "I.D. Officer, La. State Penitentiary" with no other proper authentication. Washington is distinguishable from the present case because the Texas prison records were transmitted with (1) an attestation by the custodian of records that the attached copies were compared by Billy R. Ware with the originals on file and each copy contains a full, true and correct transcript and copy of the original, (2) a certificate of the presiding judge that Billy R. Ware is the Record Clerk of the Texas Department of Corrections and is the legal keeper and officer having legal custody of the original records of the Texas Department of Corrections and that the certificate is in due form and the signature is his genuine signature, and (3) a certificate of the clerk of the county court certifying to the official character of the presiding judge and the genuineness of the signature of the judge. Also annexed to the certificate of the clerk is the seal of the county court where the Texas prison is located.

Defendant argues, however, that this transmittal form and the photocopy of a certified copy of defendant's judgment of conviction are improperly certified. The transmittal form entitled "U.S.Rev. Statutes, Sec. 906. Attestation by Custodian, Certificate of Presiding Judge, Certificate of Clerk to official character of Judge" was drafted to comply with 28 U.S.C. § 1739[1] which provides a method of certifying nonjudicial records to insure full faith and credit to those nonjudicial records in courts of sister states. Defendant objects to certifying prison records of other states pursuant to 28 U.S.C. § 1739 because he characterizes prison records as judicial records which must be certified pursuant to 28 U.S.C.

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Bernard, 366 So. 2d 1294 (La. 1978).

366 So. 2d 1294 (State v. Bernard) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Brown
235 So. 3d 1314 (Louisiana Court of Appeal, 2017)
State v. Uloho
875 So. 2d 918 (Louisiana Court of Appeal, 2004)
State v. Norman
756 So. 2d 525 (Louisiana Court of Appeal, 2000)
State v. Burns
699 So. 2d 1179 (Louisiana Court of Appeal, 1997)
State v. Langlois
695 So. 2d 540 (Louisiana Court of Appeal, 1997)
State v. Hawthorne
580 So. 2d 1131 (Louisiana Court of Appeal, 1991)
State v. Shepherd
566 So. 2d 1127 (Louisiana Court of Appeal, 1990)
State v. Wheatley
550 So. 2d 724 (Louisiana Court of Appeal, 1989)
State v. Moten
510 So. 2d 55 (Louisiana Court of Appeal, 1987)
State v. Glenn
493 So. 2d 806 (Louisiana Court of Appeal, 1986)
State v. Horton
487 So. 2d 602 (Louisiana Court of Appeal, 1986)
State v. Chaney
423 So. 2d 1092 (Supreme Court of Louisiana, 1982)