State v. Brown

480 N.W.2d 761, 1992 S.D. LEXIS 11, 1992 WL 13351
CourtSouth Dakota Supreme Court
DecidedJanuary 29, 1992
Docket17319
StatusPublished
Cited by18 cases

This text of 480 N.W.2d 761 (State v. Brown) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brown, 480 N.W.2d 761, 1992 S.D. LEXIS 11, 1992 WL 13351 (S.D. 1992).

Opinions

WUEST, Justice.

James Rankin Brown (Brown) appeals his conviction for one count of perjury under SDCL 22-29-11. We affirm.

FACTS

Brown’s conviction stems from sworn testimony given by him before the South [762]*762Dakota Board of Minerals and Environment (the board) during a contested case hearing on an application for a resource recovery permit. Brown was the president of Consolidated Management Corporation (CMC), the applicant for the permit. CMC sought the permit in furtherance of its plan to transport sewage ash into South Dakota for reprocessing into precious metals. The administrative hearing on CMC’s application was conducted on October 29 and 30, 1986. During the course of the hearing, Brown gave sworn testimony concerning certain technical aspects of the process involved in refining the sewage ash. As part of the foundation for that testimony, CMC’s attorney asked, “Mr. Brown, what is your educational background? What are you by education and training?” Brown’s response included the statement, “I have a bachelor of science degree in geology[.]”

After the contested case hearing, the board granted CMC its resource recovery permit. Information was later relayed to the South Dakota Attorney General’s office that, contrary to his testimony., Brown did not possess a bachelor of science degree in geology. A special prosecutor was appointed to investigate the matter and Brown was ultimately indicted for perjury on August 12, 1988.

On February 17, 1989, Brown filed a pretrial motion in limine:

[t]o disallow the admission in evidence of certified or authenticated copies of the transcript of [Brown’s] academic records at McMaster University, for the reasons that the same are not official public records, as [contemplated] by SDCL 15-6-44(a)(2) and SDCL 19-17-4, and for the additional reason that admitting said records without having the testimony of an official from McMaster University would violate [Brown’s] right to confrontation guaranteed by the Sixth Amendment to the United States Constitution, and Article 6 Section 7, of the Constitution of the State of South Dakota.

Brown also filed a pretrial motion to dismiss his indictment contending an offer by the special prosecutor to reduce the perjury charge in exchange for CMC’s payment of certain financial indebtedness constituted prosecutorial misconduct. The motion was denied and Brown’s jury trial proceeded on February 20 and 21, 1990.

Brown renewed his motion in limine both immediately prior to, and during the course of, his trial. Both motions were denied and state was allowed to introduce Brown’s academic records into evidence. The jury subsequently convicted Brown of penury as charged and a judgment and sentence were entered accordingly. This appeal followed.

ISSUE ONE

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING THE ADMISSION OF BROWN’S ACADEMIC RECORDS INTO EVIDENCE DURING TRIAL?

The trial court admitted Brown’s academic records into evidence under SDCL 19-16-10, the business records exception to the hearsay rule:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, is not excluded by § 19-16-4, even though the declarant is available as a witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this section includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. (emphasis added).

Notwithstanding the language of the rule emphasized above, the trial court admitted Brown’s academic records without any foundation testimony from their custodian or any other qualified witness. Rather, the records were authenticated with a [763]*763written certificate of authentication signed by the Associate Registrar of Records and Associate Dean of Science of McMaster University in Hamilton, Ontario, Canada, the institution where Brown claimed he received his degree. Brown contends the admission of the records without any live foundation testimony violated his constitutional right to confront adverse witnesses under the Sixth Amendment to the Constitution of the United States and Art. VI, § 7 of the South Dakota Constitution. Accordingly, he asserts his conviction must be reversed.

“Firmly rooted exceptions to the hearsay rule do not violate the confrontation clause.” U.S. v. Baker, 855 F.2d 1353, 1360 (8th Cir.1988). When admitting evidence under the business records exception to the hearsay rule, a trial court acts under such a, “firmly rooted exception.” Id. “ ‘[A] trial court has broad discretion in determining the admissibility of documents such as business records.’ ” U.S. v. Wigerman, 549 F.2d 1192, 1194 (8th Cir.1977) (quoting U.S. v. Page, 544 F.2d 982, 987 (8th Cir.1976)). Accord, State v. Ristau, 290 N.W.2d 487 (S.D.1980). This court will not reverse a trial court’s determination concerning the admissibility of evidence under the business records exception unless an abuse of discretion has occurred. See Ristau, supra. This refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. State v. Pfaff, 456 N.W.2d 558 (S.D.1990).

The Eighth Circuit Court of Appeals has specifically observed that Fed.R.Evid. 803(6)2, “calls for a proper foundation to be made through the ‘testimony of the custodian or other qualified witness.’ A proper foundation consists of testimony ‘that a document has been prepared and kept in the course of a regularly-conducted business activity.’ Kehm v. Procter & Gamble Manufacturing Co., 724 F.2d 613, 626 (8th Cir.1983).” United States v. Azure, 801 F.2d 336, 342 (8th Cir.1986) (emphasis added). Thus, it has been held that, “ ‘[t]he testimony of the custodian or other qualified witness who can explain the record-keeping of his organization is ordinarily essential.’ ” N.L.R.B. v. First Termite Control Co., Inc., 646 F.2d 424, 427 (9th Cir.1981) (quoting, 4 J. Weinstein & M. Berger,

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Bluebook (online)
480 N.W.2d 761, 1992 S.D. LEXIS 11, 1992 WL 13351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brown-sd-1992.