United States v. Wilson

1 M.J. 325, 1976 CMA LEXIS 5783

• Court: United States Court of Military Appeals
• Decided: February 27, 1976
• Docket: No. 29,921
• Status: Published

Opinions

OPINION OF THE COURT

FERGUSON, Senior Judge:

Appellant claims that the validity of his special court-martial conviction for larceny of certain stereo equipment¹ is compromised by the erroneous admission into evidence by the military judge of a carbon copy ² of a pawn ticket (prosecution exhibit 3) without the required authentication foundation having been laid therefor. We are of the same mind.

The only significant probative evidence linking the appellant with the theft in question was the complained of writing.³ In an effort to gain its admittance as an exception to the hearsay rule,⁴ trial counsel set out to authenticate the ticket as a business entry.⁵ To do so, the prosecutor called to the witness stand Sergeant Skinner, a military police investigator, who had been on the pawnshop investigation detail for about 4 months at the time of the incident in question. His duties in this connection involved checking the approximately 40 pawnshops in the area of the post for items which had been reported stolen. He testified that he had extensive contact with the particular establishment here involved — the 19th Hole Pawn Shop — having visited it on an average of twice a week for about 2 hours per occasion. He revealed a familiarity with pawnshop procedures generally and he contended that the 19th Hole Pawn Shop followed the described procedures with respect to the completion of pawn tickets and maintenance of records of transactions. However, on cross-examination Investigator Skinner acknowledged that his conclusions about the procedures followed in this particular shop were based solely on his working with its files, because he had not had occasion actually to observe the employees conducting the business and how they did so.

A writing made as a record of a transaction is admissible as evidence of that transaction, as an exception to the general hearsay rule,⁶

if made in the regular course of any business and if it was the regular course of that business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but these circumstances will not affect its admissibility.

However, as the purpose to be served by the hearsay rule is to insure trustworthiness of evidence, the exceptions to that general rule must rise to that level.⁷ Hence, for a document offered as proof of the contents thereof to qualify for admission as a business entry a proper foundation must be laid therefor — that is, it must be shown to be credible as being representative of the routine recordation of day-to-day business operations.⁸

In military practice, the authentication guidelines to be followed in such cases are found in paragraph 144c, MCM:

A writing purporting to be a memorandum or record of an act, transaction, occurrence, or event may be authenticated as a business entry by proof that it came through a reliable source from a business whose regular course it was to make a memorandum or record of the act, transaction, occurrence, or event, for it may be inferred from this proof that the writing was in fact made as a memorandum or record in the regular course of that business. Also, it is not necessary that a business entry be authenticated by the person who made it or that an authentieating witness have personal knowledge that the entry was correct.

It is clear to us that the witness through whom a party seeks to authenticate a document as a business entry must be one intimately familiar with the conduct of the firm’s operation, for no one less familiar could supply the requisite assuredness that the contents of the record rnay be believed because it was made in the regular course of business.⁹ It is not necessarily the status of the witness which will qualify him,¹⁰ though his position may be an indication of his capability to have become intimately familiar with the internal workings of an enterprise.

We do not believe that Investigator Skinner possessed the intimate familiarity with the records of the 19th Hole Pawn Shop to be capable of authenticating a particular pawn ticket as having been made in the regular course of that business. His knowledge of pawnshop procedures was of the industry in general, as opposed to addressing that of this particular enterprise.¹¹ Further, his acquaintance was with this company’s files as same may or may not reflect the business’ operations, rather than with the actual conduct of its transactions. While there is no requirement that the authenticating witness have personal knowledge of the truth of the entries,¹² he surely must have personal knowledge of the firm’s procedures.¹³ In this case, Investigator Skinner did not.¹⁴

Neither do we believe that the existence of the “Texas Pawnshop Act,”¹⁵ which requires certain records be kept and that same be maintained in accordance with specified minimum guidelines, can salvage the trial counsel’s curiously unusual effort to authenticate the pawn ticket herein.¹⁶ The fact that a required record is kept and that required information is reflected thereon adds nothing to the inquiry whether a particular record with that sort of information was in fact maintained by a particular establishment as part of its routine business, for that company may well have required more of itself.17 If a given record deviated significantly from what that business required of itself, then a proffered exhibit which nonetheless complied fully with statutory requirements might well be ruled inadmissible as without the necessary foundation. It is the operation of the particular business in question which is the subject of interest under these circumstances, not the industry norm or the minimum procedural requirements imposed by statute.

The decision of the U.S. Army Court of Military Review is reversed, and the findings of guilty of Additional Charge II and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.

Chief Judge FLETCHER concurs.

1 . Additionally, the appellant unsuccessfully contested two charged failures to repair, an allegation of having been disrespectful toward a superior commissioned officer, and a contention of having willfully disobeyed an order from a superior noncommissioned officer, in violation of Articles 86, 89, and 91, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 889, and 891, respectively.

2 . Appellant, appropriately, does not contest admissibility of the exhibit on the ground that the carbon copy is not the “best evidence” of the writing available, as a complete carbon copy is included within the definition of “original” for purposes of the best evidence rule. Paragraph 143a (1), Manual for Courts-Martial, United States, 1969 (Rev.).

3 . The only other evidence at trial involving the appellant was prosecution exhibit 2 and the testimony of Specialist Five Dunlap. Prosecution exhibit 2 is a plain scrap of white paper on which “Wilson” and “16217” are written. However, the prosecution acknowledged that this item was offered not as evidence of the truth of its contents, but only to show what was attached to the stereo when it was discovered in the pawnshop. Specialist Dunlap indicated that he had seen the appellant climb out of a window in the billets carrying a small box, get into a car, and drive away, near the time when the stereo disappeared. Later, however, the defense and the prosecution stipulated that the window which the appellant exited prior to getting into the car was to his own room.

4 . Paragraph 139, MCM.

5 . Paragraph 144c, MCM.

6 . Id.

7 . See generally 2 Wharton, Criminal Evidence § 265 (13th ed. 1972); McCormick, Evidence § 245 (2d ed. 1972).

8 . Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943).

9 . The entry is not authenticated simply by virtue of having been found among the company’s files. While paragraph 143a (2)(h), MCM, permits certain persons to testify to the effect that records of a business were searched and no entry of a specific nature was found, there is no contrary provision for authentication of a discovered entry by custody of same. The fact sought to be proved in the former instance “is the absence of an entry which is separate from the content of an entry." United States v. Grosso, 9 U.S.C.M.A. 579, 581, 26 C.M.R. 359, 361 (1958). However, “[t]o prove that an entry exists in a record is to prove the contents of the record.” Id. The latter, of course, unlike the former, is subject to the hearsay rule. See Hagans v. Ellerman & Bucknall Steamship Co., 318 F.2d 563 (3d Cir. 1963); Bisno v. United States, 299 F.2d 711 (9th Cir. 1961), cert. denied, 370 U.S. 952, 82 S.Ct. 1602, 8 L.Ed.2d 818 (1962); Schmeller v. United States, 143 F.2d 544 (6th Cir. 1944).

10 . For instance, federal courts have held that even employees of a business may not possess adequate knowledge to authenticate a document in a criminal case when the evidence does not demonstrate a sufficient familiarity with the records in question. See, e. g., United States v. Rosenstein, 474 F.2d 705 (2d Cir. 1973).

11 . Knowledge of industry practice does not necessarily reflect the operational procedure of a particular firm within that industry.

¹²

13 . General familiarity with a company’s files does not assure a familiarity — to the requisite degree — of the operational procedures used to create those files.

14 . Relying, as we are, on application of general evidentiary principles to resolve the issue before us, we in no measure intend to imply approval of trial counsel's use of the law enforcement officer who investigated the charged larceny to lay the necessary foundation for admission of a business record from a commercial establishment. Investigator Skinner, upon whose professional work product the instant prosecution principally relied, cannot be said to be wholly disinterested in these proceedings, and the prosecutor’s use of him, rather than an employee of the 19th Hole Pawn Shop which is just outside the gates of the military installation involved, is both perplexing and troublesome. Emphasizing that in the area of hearsay it is trustworthiness of the entries which is of critical concern, former Chief Judge Darden opined in United States v. Evans, 21 U.S.C.M.A. 579, 582, 45 C.M.R. 353, 356 (1972): “We have not yet accepted that criminal investigators always act with the degree of impartiality that would justify admitting their findings as unexamined evidence.” To permit a law enforcement officer on his own testimony to himself authenticate a business record from a firm wholly unrelated to the police, ferments an anxiety not entirely dissimilar to the apprehension expressed in Evans. Cf. S.Rep. No. 93-1277, 93d Cong., 2d Sess.

15 . Vernon’s Ann.Civ.St. art. 5069-51.01-19 (1974).

16 . Though judicially noticed sua sponte by the Court of Military Review, this statutory provision was not relied upon by the trial judge in making his decision. In fact, Investigator Skinner in his testimony specifically denied the existence of any statewide requirements for pawn tickets. See United States v. Bethea, 22 U.S.C.M.A. 223, 46 C.M.R. 223 (1973), which holds that Article 66 of the U.C.M.J. limits the Court of Military Review to the evidence adduced at trial on the guilt or innocence of an accused.

17 . It scarcely needs mentioning that the particular pawn ticket in question is not evidence of what the particular pawnshop in question required to be entered on its pawn tickets in the regular course of business, for the very questions presented in such a case as this are whether the ticket came from that shop and, if so, whether its completion was in accordance with the shop’s usual procedures. Obviously, therefore, it would be circular logic to use the ticket in question to prove the reliability and trustworthiness of itself.