Ingram v. Com., 0012-84

• Citation: 338 S.E.2d 657,1 Va.App. 335
• Decision Date: 07 January 1986
• Docket Number: No. 0012-84,0012-84
• Parties: Ernest George INGRAM v. COMMONWEALTH of Virginia. Record
• Court: Court of Appeals of Virginia

Page 657

338 S.E.2d 657

1 Va.App. 335

Ernest George INGRAM v. COMMONWEALTH of Virginia.

Record No. 0012-84.

Court of Appeals of Virginia.

Argued Sept. 10, 1985.

Decided Jan. 7, 1986.

William H. Oast, III (Babb, Oast, Hook & Crowe, Portsmouth, on brief), for appellant.

Lucy H. Allen, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Present: COLEMAN, DUFF and HODGES, JJ.

COLEMAN, Judge.

Ernest George Ingram (appellant) raises two issues in this appeal from his conviction for driving on a revoked or suspended operator's permit. The first is whether a Division of Motor Vehicles' transcript of his driving record was properly admitted in evidence. The second is whether the court erred in allowing a state trooper to testify regarding statements made by appellant without appellant having been given the Miranda warnings. We find no reversible error in either instance.

In April, 1984, Trooper David Copley stopped the car appellant was operating on Interstate 264 in Portsmouth, Virginia, because the vehicle had expired state registration tags. When Trooper Copley asked him for his operator's license, appellant first replied that he had left it at home but then admitted that his license had been suspended. Appellant was charged with driving on a revoked or suspended operator's license in violation of Code § 46.1-350.

At trial, the Commonwealth offered a Division of Motor Vehicles' transcript of appellant's driving record to prove that his license or privilege to drive had been suspended or revoked and remained so at the time of the alleged offense. Appellant objected to the admission of the transcript on the ground that it was hearsay evidence. He argued that to be admissible the copy or transcript must be doubly authenticated as required by Code § 8.01-390, which provides that copies of state records "shall be received as prima facie evidence provided that such copies are authenticated to be true copies both by the custodian thereof and by the person to whom the custodian reports." The trial court ruled, however, that double authentication was not required and held the transcript admissible because of compliance with Code § 46.1-34.1. ¹

The trial court concluded that compliance with Code § 46.1-34.1 resolved both the hearsay and the authentication obstacles to the document's admissibility. We hold that the trial judge correctly ruled the transcript admissible, but the justification for doing so is not solely founded upon Code § 46.1-34.1. While that statute allows a copy or transcript to be offered in lieu of the original Division of Motor Vehicles' record and simplifies the procedure for authenticating such a copy or transcript, the hearsay issue is resolved independently of Code § 46.1-34.1. By the language of the statute, a copy of a record of the Division of Motor Vehicles is admissible in lieu of the original only when the record itself is admissible in evidence. Code § 46.1-34.1. Whether or not the original record or document is admissible, either as an exception to the rule excluding hearsay or because it is not hearsay, must be decided separately. Code § 46.1-34.1 does not cure or address the hearsay problem.

I.

Hearsay evidence is a spoken or written out-of-court declaration or a nonverbal assertion offered in court for the truth of the matter asserted therein. C. Friend, The Law of Evidence in Virginia § 223, p. 479 (2d ed. 1983). Such out-of-court statements or assertions traditionally have been excluded because they have been perceived to lack the conventional indicia of reliability, and are not susceptible to cross-examination. Coleman v. Johnson, 574 F.Supp. 360, 361 (W.D.Va.1983). The Division of Motor Vehicles' transcript of the appellant's driving record was hearsay because it was offered to show that appellant's license or privilege had been suspended or revoked by the Commissioner.

Nevertheless, Virginia follows the general view that official written statements are admissible as an exception to the hearsay rule:

It is a generally recognized rule that records and reports prepared by public officials pursuant to a duty imposed by statute, or required by the nature of their offices, are admissible as proof of the facts stated therein.

Williams v. Commonwealth, 213 Va. 45, 46, 189 S.E.2d 378, 379 (1972) (per curiam). This exception arose from the need to obviate the "inconvenience of requiring public officials to appear in court and testify concerning the subject matter of their records and reports." Cleary, McCormick on Evidence § 315 (3d ed. 1984). The underlying rationale which justifies admitting facts contained in official records as an exception to the hearsay rule is that the concern for reliability is largely obviated because the nature and source of the evidence enhance the prospect of its trustworthiness. See Advisory Committee Note, Federal Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 181, 311 (1972) ("Justification for the exception [Rule 803(8)--Public Records and Reports] is the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record."). The hearsay objection is overcome under this exception, however, only if the document "relates facts or events within the personal knowledge and observation of the recording official to which he could testify should he be called as a witness." Williams, 213 Va. at 46, 189 S.E.2d at 379.

The Commissioner of the Division of Motor Vehicles is a public official charged with the responsibility of administering the powers and duties of the Division, which include the issuance, suspension and revocation of operators' and chauffeurs' licenses. Code § 46.1-25. The Commissioner is charged with the duty of receiving and maintaining accurate records of specified motor vehicle related convictions, findings of not innocent in the cases of juveniles, and every bond forfeiture in motor vehicle cases from every district and circuit court in the Commonwealth. Code § 46.1-413. The Commissioner has the statutory responsibility of revoking or suspending the privilege and license of a driver upon receipt of a transcript of conviction or finding of not innocent in the case of a juvenile of certain motor vehicle offenses. Code § 46.1-417.

Upon the facts presented, the Commissioner was charged with the statutory duty of administratively suspending or revoking Ingram's privilege or license to operate a motor vehicle upon receipt of a transcript of conviction for violating Code § 18.2-266 or similar law or ordinance. The Commissioner is further charged with the duty of not reissuing or renewing the privilege or license, during which time the suspension or revocation remains in effect, for a period of three years or until the operator complies with Code §§ 46.1-439 and 46.1-438. The transcript was offered to prove that the Commissioner had administratively revoked or suspended appellant's privilege or license to operate a motor vehicle. See Code § 46.1-441.2. Had the Commissioner been a witness at trial, he would have been able to testify that he had administratively revoked appellant's privilege or license in accordance...