Johnson v. State, 5 Div. 422

• Decision Date: 27 January 1989
• Docket Number: 5 Div. 422
• Citation: 541 So.2d 1112
• Parties: Mark Randall JOHNSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1112

541 So.2d 1112

Mark Randall JOHNSON v. STATE.

5 Div. 422.

Court of Criminal Appeals of Alabama.

Jan. 27, 1989.

Eric A. Bowen, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and Bryant G. Speed II, Asst. Atty. Gen., for appellee.

TAYLOR, Presiding Judge.

The appellant, Mark Randall Johnson, was serving a sentence of life imprisonment for a felony committed in Jefferson County. He was incarcerated at the Staton Annex Correctional Facility in Elmore County. He escaped from Staton, and upon recapture was convicted of escape in the first degree, a violation of § 13A-10-31, Code of Alabama 1975. Johnson was sentenced by the trial court, pursuant to the Habitual Felony Offender Act, to a term of life imprisonment on the escape charge, that sentence to be served consecutive to the life sentence that he was serving at the time of his escape.

The evidence presented by the State tended to establish that Captain Caldwell of the Department of Corrections was on duty at the Staton Annex on August 5, 1986. She observed four inmates outside the Staton Annex's fence, running toward a nearby highway. Lieutenant Robinson, the shift manager at Staton on the day of the escape, discovered that a two-foot hole had been cut in the fence surrounding the facility. Staton's warden, Charles Boutwell, about an hour after the escape, searched the area and found a pair of wirecutters located about five yards from the hole in the fence. The appellant was apprehended in Florida and was returned to the Alabama authorities four months later on December 1, 1986.

He raises thirteen issues on appeal.

I

The appellant's first contention is that the passage of time between the offense and the trial amounted to a substantial delay which violated his right to a speedy trial. Eighteen months passed between the escape and the trial.

However, the record reflects that this issue has not been preserved for review because at no time either before or during the trial did he raise this issue. A.R.Crim.P. Temp. 16.2(a) provides that objections based on defects in the commencement of the proceeding or in the charge may be raised only by a pre-trial motion. A.R.Crim.P. Temp. 16.2(c) provides that the failure to present an objection constitutes a waiver. An objection on defense based upon the denial of a speedy trial should be raised by a motion under this section. Comment, Temp.Rule 16.2, A.R.Crim.P.

Review on appeal is limited to review of questions properly and timely raised at trial. Dixon v. State, 476 So.2d 1236, 1239 (Ala.Cr.App.1985). Therefore, absent a timely objection, this court may not now consider this issue on appeal. Moreover, had this issue been preserved, the appellant would not prevail. The record does not reveal any reason attributable to the State for the delay, nor does the appellant allege any fault on the State's part in causing the delay. Haywood v. State, 501 So.2d 515, 517 (Ala.Cr.App.1986), provides:

"In determining whether a defendant's right to a speedy trial has been denied because of a pretrial delay, the considerations to be examined include the length of the delay, the reason for the delay, whether and how the defendant asserted his right to a speedy trial, and any resulting prejudice to the defendant.... The mere passage of time does not amount to the denial of a speedy trial." (citations omitted)

The appellant has not shown any prejudice, beside the mere passage of time, that would amount to the denial of a speedy trial, because the "mere passage of time does not amount to the denial of a speedy trial." Therefore, this issue must be decided adversely to the appellant.

II

The appellant's second contention is based on the State's failure to disclose, after giving notice of its intent to prosecute under the Habitual Felony Offender Act and pursuant to the discovery order of the trial court, that the appellant's five prior convictions occurred when he was a juvenile. Specifically, he claims this amounts to withholding exculpatory evidence which is relevant to punishment, since he was 17 years old at the time these prior felonies occurred and the offenses did not show that transfer proceedings were conducted. The appellant claims that transfer proceedings from juvenile court to circuit court should have been shown in order to enhance his sentences according to the Habitual Felony Offender Act. The State offered certified copies of his convictions with the appellant's age noted on the copies.

Section 13A-5-10.1(a) Code of Alabama 1975 provides:

"Certified copies of case action summary sheets on other records of the court are admissible for the purpose of proving prior convictions of a crime...."

Clearly, a juvenile would not be adjudicated convicted of a felony in circuit court had he not been transferred from juvenile to circuit court. Moreover, the proper forum for attacking the validity of a prior conviction would be by a petition for a writ of error coram nobis. Jones v. State, 431 So.2d 1367, 1372 (Ala.Cr.App.1983). The proper forum for attacking the validity of prior convictions used for enhancing punishment in Habitual Felony Offender Act proceedings would be by a separate petition for a writ of error coram nobis filed in the court wherein the prior conviction took place. Gullat v. City of Hoover, 459 So.2d 1006, 1008 (Ala.Cr.App.1984).

The record does not reflect that the State violated the discovery order or that the State failed to give notice of its intent to apply the Habitual Felony Offender Act in order to enhance the appellant's sentence. Therefore, this issue is to be decided adversely to the appellant.

III

The appellant's third contention is that the State's exhibit one, a certified copy of the appellant's robbery conviction in Jefferson County, was unlawfully received into evidence because it was not certified and was not the best evidence of the conviction.

The record reflects that State's exhibit one is a two-page document. Page one of the document is a certified copy from the Department of Corrections' central records office that certifies the copy of page two, a case action summary sheet, as a true and correct copy of the original conviction record. Page one is signed by the custodian of the record and is notarized. Moreover, the custodian of the record testified that this was a true and correct copy of the original.

Certified copies of public records, signed and certified by the officer who has lawful custody, are properly authenticated and are admissible into evidence. Bentley v. State, 450 So.2d 197, 199 (Ala.Cr.App.1984). Moreover, for purposes of the Habitual Felony Offender Act, the proper method of proving prior convictions is by the introduction of certified copies of the defendant's previous convictions. Skinner v. State, 452 So.2d 917, 920 (Ala.Cr.App.1984).

IV

The appellant's fourth contention is that the State's exhibit two, a certified copy of a case action summary sheet showing his second degree robbery conviction, was not correctly certified and was not the best evidence of the proceedings.

The record reflects that the case action summary sheet was certified as a true, complete, and correct copy. The sheet was witnessed to and signed by the clerk of the Jefferson County Circuit Court. As discussed in issue three, a case action summary sheet, pursuant to § 13A-5-10.1 Code of Alabama 1975, is admissible for the purpose of proving prior convictions. The record further reflects that the attestation requirements of § 12-21-67, Code of Alabama 1975, were met. Therefore, the case action summary sheet was correctly certified and admitted into evidence to prove the appellant's prior conviction of robbery in the second degree.

A "case action summary sheet" maintained by the district court clerk's office, or a certified copy thereof, properly entered and duly certified, may be offered as proof of prior convictions. Sargent v. State, 515 So.2d 729 (Ala.1987).

V

The appellant's fifth contention is that Sergeant Anderson's testimony was not the best evidence of the facts to which he testified and thus, was not admissible. We disagree.

Officer Anderson testified that he was checking out inmates on work squads on the day of the escape and that he made checkout cards on each inmate. When asked by the State if he had the cards, he answered affirmatively. Officer Anderson, when asked if he recalled which squad the appellant was assigned to, responded by saying "vaguely." Appellant then objected and stated that the cards would be the best evidence. The State then rephrased the question and Officer Anderson testified that, to his knowledge, the appellant was assigned to that particular squad and area.

The record reflects that the cards in question were never introduced into evidence. Officer Anderson testified from his knowledge or memory and not from the contents of any documents. The best evidence rule applies to documents. The matter to be proved was within the knowledge of the witness, independent of the document. As stated in C. Gamble, McElroy's Alabama Evidence § 212.01 (3d ed.1977):

"When a party wishes to prove the terms of a writing, the original itself must be introduced into evidence...." (emphasis added)

VI

The appellant's sixth contention is that the trial court erred in allowing Warden Boutwell to testify that his records reflected that the appellant should have been at the Staton Annex on the day of the escape. He contends that Boutwell's testimony was not the best evidence.

The appellant objected at trial: "We are going to object to his knowledge on hearsay or whatever he is basing it on." Now, the appellant claims that Warden Boutwell's testimony violated the best evidence rule.

A specific ground of objection waives all other grounds. Murray v. State, 494 So.2d 891, 893 (Ala.Cr.App.1986); Cooper v. State, 474 So.2d 182, 183 (Ala.Cr.App.1985). It is well settled that all grounds of objection not specified are waived, and that the trial court will...