State v. Long
| Decision Date | 20 June 1986 |
| Docket Number | No. 19354,19354 |
| Citation | 721 P.2d 483,36 Utah Adv.Rep. 11 |
| Parties | The STATE of Utah, Plaintiff and Respondent, v. Anthony L. LONG, Defendant and Appellant. |
| Court | Utah Supreme Court |
Karen Jennings, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Dave B. Thompson, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
Defendant Anthony L. Long was convicted of aggravated assault, a third degree felony, and possession of a dangerous weapon by a restricted person, a second degree felony. Before this Court, Long claims error in the authentication of documents evidencing his earlier felony convictions, the refusal to sever trial of the two charges, and the refusal to give cautionary instructions about the eyewitness identification. We reverse and remand for a new trial.
On the evening of March 1, 1983, just after dark, Joe Rocha was approaching the front door of his home in Salt Lake City when he heard footsteps behind him and a voice say, "Don't move or I will blow your head off." He felt something cold and metallic on the back of his head. The voice ordered Rocha onto the front porch of his house and up against the wall next to the door. He faced the wall, unable to see his assailant. His girlfriend opened the door and stepped out of the house. She saw a black man holding a gun to Rocha's head and another black man coming toward the house. She ran inside, closed the door, and told Rocha's son, Jacob, what she had seen. She then called the police.
Meanwhile, Jacob took a .357 magnum revolver from a desk drawer and went to the front door. As he started to open the door, it was kicked in from the outside. A sawed-off shotgun was fired into the house. Jacob was hit and thrown back into the room. He fired a shot in return. Jacob testified that he saw the face of his assailant for about six seconds, during which he was crying and his vision was "glossy."
Joe Rocha testified that after the shots were fired he saw two men running away from the house. One of Joe Rocha's neighbors testified that he heard two shots fired. He went outside, saw a person approaching a bronze or tan Oldsmobile Cutlass or Seville with its motor running, and heard someone say, "Jessie, let's go." The person got in the passenger side of the car and it drove off.
Robin Lee, an acquaintance of defendant Long's, testified that she was with Long and Jessie Hobsun on the evening of March 1st, that they had parked their car in an alley, and that Long and Hobsun had then left the car. Hobsun returned shortly, got in the car, and told Lee to drive away. Long then approached the car and got in the back seat. He was wounded. Soon after, the three became involved in a high speed chase with the police. When they were finally stopped, all three were arrested. The arresting officers saw that Long had a large blotch of red on his shirt in the abdomen area. Long's coat had two bullet holes in it, one in the back where the bullet had entered and another high under the arm where it had come out.
Three days later, while Jacob Rocha was still in the hospital and on medication, a detective presented him with a photo array and asked him to identify his assailant. The photo array included a picture of Long. Jacob did not pick defendant Long's photo from the array. However, he did select two other photos, one of which was of Hobsun.
At trial, Jacob identified Long in person as the man who shot him, as he had previously done at two face-to-face encounters during preliminary hearings where Long was clearly identified. On cross-examination, however, Jacob did not recall being unable to pick Long's picture from the initial photo array. At the close of trial, Long's counsel requested cautionary instructions, patterned after those suggested in United States v. Telfaire, 469 F.2d 552 (D.C.Cir.1972), regarding Jacob's eyewitness identification. The court refused the instructions. Long was found guilty of aggravated assault and possession of a dangerous weapon by a restricted person. This appeal followed.
Long first challenges his conviction of possessing a dangerous weapon on the ground that the documents used to prove that he was a convicted felon were not properly authenticated. The charge of possession of a dangerous weapon by a restricted person involves three elements: (1) possession of a dangerous weapon (2) by an individual who is on parole (3) from a felony conviction. U.C.A., 1953, § 76-10-503(2) (Repl.Vol. 8B, 1978). To establish that Long was a convicted felon, his Utah parole officer, Flint Mollner, was called as a witness. Through Mollner, the State offered into evidence copies of certified copies of documents from the Davis County clerk's office showing that Long had been twice convicted of felonies. The certified copies from which the copies introduced into evidence had been made were part of Mollner's parole file on Long. Long's counsel unsuccessfully objected to the admission of the copies of the certified copies in Mollner's files on the grounds that they were hearsay and were not within any of the exceptions in the Utah Rules of Evidence. On appeal, Long renews the argument made below.
The copies were admitted under Utah Rule of Evidence 63(17)(a), the official records exception to the hearsay rule. 1 Under this provision, the content of an official record is admissible to prove the truth of the matter asserted if the requirements of both Rule 64 and Rule 68 of the Utah Rules of Evidence are met. Long argues that the prosecutor did not deliver copies of the documents to opposing counsel within a reasonable time before trial, as required by Rule 64, and that the copies were not adequately authenticated, as required by Rule 68(1).
Long's Rule 64 argument is without merit. Rule 64 specifically provides that even if a copy of the document sought to be admitted is not delivered to opposing counsel within a reasonable time before trial, it still may be admitted if "the judge finds that [the] adverse party has not been unfairly surprised by the failure to deliver such copy." The lower court's finding that there was no unfair surprise is supported by the facts. The documents related only to prior felony convictions, and Long and his counsel certainly knew that proof of at least one such conviction would be introduced at trial. Moreover, defense counsel's detailed and capably presented objection to the exhibit at trial belies any claim of unfair surprise. We find no abuse of discretion in the court's ruling.
There is merit, however, to Long's Rule 68(1) argument. That rule states: "An official record ... may be evidenced ... by a copy attested by the officer having the legal custody of the record, or by his deputy, and ... accompanied with a certificate that such officer has the custody." Long argues that Mollner was not "the officer having the legal custody of the record" because the originals of the documents at issue were official records of the Weber County clerk's office, not of the Utah Adult Probation and Parole section. The certification of a Utah parole officer, therefore, could not suffice to bring the copies within the ambit of Rule 68(1) or, consequently, Rule 63(17). Mollner had only copies of copies that had been certified by the Weber County clerk and was in no position to testify that the copies in his possession were copies of originals because he had never seen the originals. Long asserts that to accept Mollner's authentication would make the hearsay rule meaningless in cases involving copies of official records.
To support his position, Long relies on State v. Lamorie, 610 P.2d 342 (Utah 1980). In that case, the defendant was also charged with possession of a dangerous weapon by a restricted person. A parole officer introduced copies of court records, certified only by a notary public, to show the defendant's prior felony convictions. Because the certification was executed by someone who neither had legal custody of the records nor was a deputy of the legal custodian, this Court held that the authentication was inadequate under Rule 68(1) and ordered a new trial.
The State seeks to distinguish Lamorie. It argues that in Lamorie the person certifying the copies of the judgment of conviction was only a notary public and not the custodian of the court records. In contrast, Mollner, who certified the copies, was legal custodian of Long's parole file. Therefore, the State asserts that as an official record of the Adult Probation and Parole section of the Division of Corrections, the contents of the file were admissible. In making this argument, the State relies on People v. Howard, 72 Cal.App. 561, 237 P. 780 (1925). Our reading of Howard, however, leads us to the opposite conclusion.
In Howard, the prosecution also attempted to prove the fact of a prior felony conviction by introducing a copy of a certified copy of a judgment and commitment to state prison. The original document was certified by the clerk of the court entering the judgment of conviction. The copy of this document was accompanied by a document executed by the warden of San Quentin and impressed with the state prison seal certifying that the introduced copy was a "true and correct" copy of the defendant's commitment papers. The California Supreme Court upheld the admission of the copy into evidence, stating that when a certified copy of a judgment of conviction is delivered with a convict to the state prison warden, as required by statute, that copy becomes an official document of the state prison, and a certified copy of the copy, authenticated by the warden, is admissible into evidence. Id. 237 P. at 781.
In the case before us, the copies introduced into evidence were analogous to those introduced in Howard. Under Howard, certification by the Utah state prison warden that the copies were copies of official documents of the Department of Corrections and that he was their custodian would have been sufficient to permit their...
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