State v. Lamorie

610 P.2d 342, 1980 Utah LEXIS 908

• Court: Utah Supreme Court
• Decided: March 28, 1980
• Docket: 16534
• Status: Published

Opinions

HALL, Justice:

This case arises from an appeal to this Court by Jacob J. Lamorie (hereinafter defendant), from a conviction for possession of a dangerous weapon while on parole for a felony, in violation of Utah law.¹

On the afternoon of October 14, 1978, Jesse Powell, a trooper with the Utah Highway Patrol, was driving westward on U.S. Highway 6 between Crescent Junction and Green River, Utah. Trooper Powell was off duty, and was taking a truckload of boy scouts back to Green River from a scout camp. Some ten miles east of Green River, Trooper Powell observed a van which had apparently been involved in an accident. Pulling over near the van, Trooper Powell directed the boy scouts to bring the first-aid kit from the truck, after which he approached the van to see if he could offer assistance. Trooper Powell observed the owner of the van, Dale Lowery, outside the vehicle, and the defendant seated inside. Trooper Powell approached the van, and, believing defendant to be injured, offered first-aid assistance. Defendant, however, refused such assistance, until Trooper Powell identified himself as an off-duty highway patrol officer, after which defendant left the van and received minor first aid.

Following this treatment, defendant again requested that Trooper Powell leave the scene, after which he went around to the other side of the van. Charles Durrant, one of the boy scouts who had brought the first-aid kit from Trooper Powell’s truck, there observed the defendant pick up what appeared to be a sawed-off shotgun, broken into an open-breach position.

At some point during this incident, another car drove up and, upon learning what had happened, offered to take defendant in their car to receive medical assistance. Trooper Powell, however, believing that defendant might have been intoxicated, refused to let him leave the scene.

Following this conversation, Trooper Powell returned to the truck to talk to the boy scouts. Mr. Lowery joined him there. It was at this point that Trooper Powell observed that defendant had left the van, and was running in a crouched position behind a dirt embankment adjacent to the road. Defendant then slipped down into a wash beside the road, underneath an old wooden bridge. Mr. Lowery, believing defendant to be upset and likely to try to run from the scene, left Trooper Powell’s truck and joined defendant in the wash. Trooper Powell made no move to pursue, until joined by Trooper David Bailey, who had been notified of the accident by another car which had stopped to offer assistance. Troopers Powell and Bailey then approached defendant and Mr. Lowery, both of whom emerged from the wash of their own accord. Defendant was carrying a large metal scabbard made to contain a knife or sword. Trooper Bailey, concurring with Trooper Powell’s opinion that Lowery and the defendant were intoxicated, placed the two men under arrest, the defendant for public intoxication and Mr. Lowery for driving under the influence of alcohol. The defendant, though somewhat abusive, did not offer any substantial resistance.

Following the departure of the two men in Trooper Bailey’s vehicle, Trooper Powell and the boy scouts made a search of the wash. In the course thereof, they uncovered a sword which might have gone with the scabbard carried by defendant, and a sawed-off shotgun, which had now been broken down into two parts.

Upon learning that the defendant was allegedly under supervision by the Colorado Parole Board, the Grand County Attorney filed an information charging the defendant with possession of a dangerous weapon, specifically a sawed-off shotgun, while on parole from the state of Colorado, in violation of Utah law.²

At trial, the State produced Joseph L. Waters, who testified that he was a parole agent in the state of Colorado, and that the defendant had been under his supervision. The state then attempted to introduce, as part of Mr. Waters’ testimony, two certified copies of defendant’s parole agreement, together with certified copies of a “Judgment of Conviction — Sentence and Mittimus” and a “Mittimus to the State Reformatory of the State of Colorado.” Defense counsel objected to the admission of the latter two documents, claiming that they were hearsay and that the state had not established an adequate foundation. The objections were overruled and the documents were received.

The jury returned a verdict finding defendant guilty as charged, whereupon the court sentenced him to serve one to fifteen years in the Utah State Prison, such being the penalty imposed for a second-degree felony.³

On appeal, defendant asserts, inter alia, that the admission in evidence of the copies of documents evidencing judgment of conviction of a felony and mittimus to the Colorado state reformatory was prejudicial error, entitling defendant to an acquittal by this Court. Defendant’s argument may be summarized as follows. Under Utah law, the State is required, in pursuing a criminal prosecution, to prove every element of the crime charged beyond a reasonable doubt.⁴ Should the State fail in this charge, a defendant is entitled to acquittal as a matter of law.⁵ The essential elements of the crime charged in this case were (1) possession of a dangerous weapon, (2) while on parole, (3) for a felony. While the State offered a witness to show that defendant was under supervision of the parole board of Colorado, that witness did not have personal knowledge of defendant’s prior conviction of a felony, and therefore could not testify to the same.⁶ The witness, rather, attempted to establish the element of prior conviction of a felony by production of supposedly certified copies of Colorado court records. Such copies should not have been admitted into evidence as (1) they constituted hearsay evidence, not within any exception recognized by Utah law, and (2) they were not properly authenticated as required by the laws of this state. Since, in the absence of the documents erroneously admitted, the State would have failed to establish an essential element of the offense charged, defendant is entitled to an acquittal.

We are compelled to agree with so much of defendant’s argument as relates to authentication of the documents challenged.

We observe, initially, that the challenged documents were essential to the State’s case. This was so for two reasons.

First, the witness, Mr. Waters, had no personal knowledge of the defendant’s conviction for a felony. Mr. Waters openly stated, on the stand, that he had not been present at the defendant’s conviction, and did not mention any admissions made by the defendant, or other means of gaining personal knowledge of such conviction. Rather, asserted the witness, he had acted, in this case as in all cases, on the basis of copies of documents sent to him as parole agent from the sentencing court.

Second, the assertion that defendant had been convicted for a felony may not validly be inferred from the fact of parole supervision alone. It has been stated by this Court in the past that an element of an offense in a criminal prosecution may be established either directly, by the offering of actual evidence, or indirectly, by an inference drawn from such evidence, where that inference is the only reasonable conclusion to be drawn from the evidence offered.⁷ In the present case, the fact that the defendant was on parole in the state of Colorado does not permit a certain inference that such parole was for a felony. The copies of defendant’s parole agreement (to which no challenge is made) establish that parole was from the Colorado state reformatory. By examination of Colorado’s statutory law,⁸ we learn that the Colorado Parole Board is empowered to consider and grant parole for all inmates of the Colorado state reformatory.⁹ The Colorado state reformatory, in turn, is a state correctional institution which contains both adults who have been convicted of felonies,¹⁰ and individuals between the ages of 18 and 21 who have been convicted of misdemeanors.¹¹ From the fact of a parole agreement, without more, we are hence equally justified in inferring that defendant was a paroled felon and that he was a paroled misdemeanant. Should the latter be the case, an essential element of the charge is absent.

Given, then, that the challenged documents were essential to the State’s case, we turn to a consideration of the propriety of their authentication as evidence.

By Utah law, any document, to be received in evidence, must be authenticated.¹² Absent such authentication, no competent evidence is before the court that the document is what it purports to be. Where the document in question is a copy of an official record, Utah law specifically addresses the mode of authentication. Rule 68(1), U.R.E., states that “An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy . . .” In the present case, the State produced copies of Denver County court records, certified by a duly authorized notary public. Such notary, however, had no custody of the documents, official or unofficial. Neither was she a deputy of the court clerk, the official custodian of the documents. Nowhere in the certification of the copy presented in court does the clerk’s signature appear. The State, then, seems to be relying on the certification of a notary public alone to authenticate the documents. Such procedure does not comply with that laid out by Rule 68(1).

It may be noted, moreover, that the State’s attempted mode of authentication satisfies no other approved means of documentary authentication recognized by Utah law.¹³ No Utah statute recognizes the certifying signature of a notary public, without more, as a proper means of authenticating an official document as evidence. Moreover, the common law of evidence has evolved in this particular area to require the same type of authentication as prescribed by Rule 68(1).¹⁴

We are not in agreement with the defendant, however, in his assertion that an acquittal is mandated by Utah law in the present case. Defendant relies on the statutory statement that “A defendant in a criminal proceeding is presumed to be innocent until each element of the offense charged against him is proved beyond a reasonable doubt. In absence of such proof, the defendant shall be acquitted." (Emphasis added.)¹⁵ This provision is simply a codification of the universal principle of American jurisprudence that an individual accused of a crime is entitled to a presumption of innocence, which the prosecution may overcome only by producing evidence which will satisfy the trier of fact beyond a reasonable doubt that the individual perpetrated each and every element of the crime alleged. It is implicit, however, that the prosecution have full opportunity to establish such proof. Where the prosecution possesses evidence conducive to that end, but due to an erroneous ruling of law, presents it in violation of an evidentiary rule of the court, justice requires that a further opportunity be provided. In short, the accused is entitled to demand that the prosecution prove him guilty, but not to fling each technical inadvertence occurring at trial in the path of such proof.

Defendant’s reliance on the provision quoted, moreover, ignores other statutory provisions permitting the action taken here. Both the trial court¹⁶ and this Court¹⁷ are vested with the right to grant a new trial under the present circumstances. Such provisions are to be regarded as consistent with,¹⁸ and a qualification of,¹⁹ the more general provision, which applies only as indicated above.

Defendant also asserts a right to acquittal at the hands of this Court, on the basis of his right under the Fifth Amendment, to the United States Constitution not to be placed in double jeopardy. He urges that such a result required by a recent ruling of the United States Supreme Court, holding that the double jeopardy clause of the Fifth Amendment precludes a second trial when conviction in the former trial is reversed for lack of sufficient evidence to sustain the jury’s verdict.²⁰ Double jeopardy does not reach the circumstances of the present case. Reversal and remand for a new trial does not place the accused in double jeopardy where the error giving rise to the reversal is merely trial error, as distinguished from insufficiency of the evidence.²¹ As stated by the United States Supreme Court,

[Rjeversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e. g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct.²² [Emphasis added.]

The state and the accused share the right to a fair, error-free determination of the guilt or innocence of the accused, and the double jeopardy clause may not deny either side that right²³

The conviction and judgment of the trial court is vacated and set aside and the case is remanded for a new trial in accordance with this decision.

CROCKETT, C. J., concurs.

1 . U.C.A., 1953, 76-10-503(2).

2 . Id.

3 . U.C.A., 1953, 76-3-203(2). U.C.A., 1953, 76-10-503(2) provides that “Any person who violates this section is guilty of a felony of the third degree, and if the dangerous weapon is a firearm, explosive or infernal machine, he shall be guilty of a felony in the second degree.”

4 . U.C.A., 1953, 76-1-501(1).

⁵

6 . Rule 19, U.R.E.

7 . State v. Hall, 105 Utah 162, 145 P.2d 494 (1944); State v. Housekeeper, Utah, 588 P.2d 139 (1978).

8 . We are entitled to make such an examination on our own impetus, by reason of the provisions of Rule 68(5), U.R.E.

9 . Colo.Rev.Stat., 1973, 17-2-20l(3)(c).

10 . Colo.Rev.Stat., 1973, 16-11-301(1).

11 . Colo.Rev.Stat., 1973, 16-11-301(2).

12 . Rule 67, U.R.E.

13 . Rule 68(1), U.R.E., is specifically stated in the permissive, rather than the mandatory, sense. Rule 68(2) states that “This rule does not prevent the proof of official records or of entry or lack of entry therein by any method authorized by any applicable statute or by rules of evidence at common law.”

14 . Wigmore on Evidence, 1974, § 1677.

¹⁵

16 . U.C.A., 1953, 77-38-3(5).

17 . U.C.A., 1953, 77-42-3.

18 . Greaves v. State, Utah, 528 P.2d 805 (1974); In re Utah Savings & Loan Ass'n, 21 Utah 2d 169, 442 P.2d 929 (1968); Glenn v. Ferrell, 5 Utah 2d 439, 304 P.2d 380 (1956).

19 . Bateman v. Board of Examiners, 7 Utah 2d 221, 322 P.2d 381 (1958); Pacific Intermountain Express v. State Tax Commission, 7 Utah 2d 15, 316 P.2d 549 (1957).

20 . Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

21 . Id., at p. 14, 98 S.Ct. at p. 2148.

22 . Id., at p. 15, 98 S.Ct. at 2149.

23 . See 31 University of Chicago Law Review 365 (1963-64) for an able discussion as to the applicability of the principles of double jeopardy in instances as discussed herein. At page 371 thereof, the following pertinent statement appears:

The distinction between reversal for error and reversal for insufficient evidence will not, of course, present itself as a perfect dichotomy in every case. The trial court may have erroneously excluded prosecution evidence which would have been sufficient to support the conviction. Or the appellate court may find that after erroneously admitted evidence is struck from the record there is insufficient evidence remaining to support the conviction. In both cases the considerations which permit a new trial after reversal for error should control over the considerations which should prohibit a new trial after reversal for insufficient evidence. Where the trial court erroneously excluded the state’s evidence, the prosecution was kept from proving its case only by the trial court’s error. Permitting a new trial in that situation would have the added advantage of giving the appellate court some opportunity to rule on errors favorable to the government. Where the appellate court holds admission of evidence error, leaving insufficient evidence in the record to support the conviction, it would be difficult to determine what other evidence the prosecution might have presented had it not succeeded in getting in the evidence which the appellate court considers inadmissible.