Mickens v. State

• Decision Date: 03 September 1982
• Docket Number: No. 981S268,981S268
• Parties: Carl Edward MICKENS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 591

439 N.E.2d 591

Carl Edward MICKENS, Appellant, v. STATE of Indiana, Appellee.

No. 981S268.

Supreme Court of Indiana.

Sept. 3, 1982.

Richard L. Tandy, Greenwood, for appellant.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Carl Edward Mickens, the defendant-appellant, was convicted of burglary, a class B felony, Ind.Code Ann. Sec. 35-43-2-1 (Burns 1979), and was found to be an habitual offender, Ind.Code Ann. Sec. 35-50-2-8 (Burns 1979). He was sentenced to a term of forty-seven years in prison.

This appeal follows the denial of a motion to correct error and raises three issues:

(1) Whether the trial court improperly admitted into evidence photocopies of fingerprints to prove the habitual offender charge, and whether there was sufficient evidence of past felony convictions to support the habitual offender finding.

(2) Whether there was sufficient evidence to support the burglary conviction.

(3) Whether the defendant was denied his right to a speedy trial.

The evidence, viewed in the light most favorable to the prosecution, reveals that on March 27, 1980, the defendant broke into the home of Agnes Clapp while she was away, ransacked a bedroom of the house, filled a pillowcase with items from the house, but left it in the garage, fled the house upon seeing Clapp driving up the driveway, and left in his car after having a brief conversation with Clapp.

I.

The defendant claims that photocopies of fingerprint cards offered by the State to prove that he was the same Carl Edward Mickens who had accumulated two prior, unrelated felony convictions, were admitted without a proper foundation and that the defense had no opportunity to "cross-examine" the photocopies. At issue are the State's exhibits on the habitual offender charge, H. O. 1 through H. O. 6. The defendant first challenges H. O. 3 and H. O. 4. The record contains photocopies of H. O. 3 including photocopies of a certified copy of an indictment bearing cause number CR 70-334 charging Carl Mickens with robbery in 1970, and of a certified copy of minutes of the Criminal Court of Marion County carrying the same cause number and showing the court's conviction and sentencing of Carl Mickens on the robbery charge. The record also contains photocopies of the contents of H. O. 4 including photocopies of a certified copy of an indictment charging Carl Mickens with possession of a narcotic drug in 1971, and a certified copy of minutes of the Marion County Criminal Court showing the conviction and sentencing of Carl Mickens on the charge. The defendant argues that the State through these exhibits did no more than prove that a person or persons named Carl Mickens had been convicted of the two felonies, but failed to prove that the defendant was the same person as the Carl Mickens named in the exhibits. If these were the only proofs, the defendant would prevail. The record also contains, however, Exhibits H. O. 5 and H. O. 6. H. O. 5 consisted of photocopies of the record of Carl Mickens at Indiana State Farm, including commitment papers relating to cause number CR 70-334, and photocopies of fingerprints and photographs of Carl Mickens taken at the State Farm. They are certified by the keeper of records at the State Farm as true and correct copies of the record maintained at that institution. H. O. 6 contains photocopies of the record of Carl Edward Mickens at Indiana State Prison, including photocopies of photographs, fingerprint cards, and commitment papers relating to cause number 76-323 B, and showing a conviction and sentence for possession of heroin in 1976. They are certified by the keeper of the records as true and correct copies of the record maintained at the state prison. Fingerprint expert witness David Cashdollar testified for the prosecution that fingerprints taken from the defendant were the same as those found in H. O. 5 and H. O. 6.

The defendant argues that the State offered no testimony concerning the accuracy of the fingerprint photocopies and that as a result the habitual offender proceedings violated the standard for accuracy of photographs of fingerprints set forth in Collins v. State, (1981) Ind., 415 N.E.2d 46. Collins, however, was concerned not with photocopies but rather with the problem of accuracy of enlargements from photographic negatives introduced to prove the commission of a crime, and we held that testimony of an expert witness that an enlargement was an accurate representation of the original fingerprints lifted from an object that the defendant allegedly attempted to steal provided a sufficient foundation for its admission into evidence.

The defendant also relies on Bergner v. State, (1979) Ind.App., 397 N.E.2d 1012. In that case the Court of Appeals reviewed the law on the question of the foundation necessary for admission of photographs admitted to prove the commission of a crime, and held that substantive photographic evidence, that is, photographs that "speak for themselves" such as X-rays and photographs taken by automatic cameras, is admissible upon proof that the photographs were not altered in any significant respect.

The evidence at issue here consists of certified photocopies of official records kept by the Indiana Department of Corrections. It is evidence not of substantive crimes but of the original records on file, offered for the purpose of proving identity. The certified copies offered in evidence comport with the requirements of Ind.R.Tr.P. 44 relating to proof of official records, and the defendant addresses no argument to the proposition that the rule was not complied with or is in some way defective. Trial Rule 44 provides:

"(1) Domestic. An official record kept within the United States, or any state, district, commonwealth, territory, or insular possession thereof, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, 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. Such publication or copy need not be accompanied by proof that such officer has the custody. Proof that such officer does or does not have custody of the record may be made by the certificate of a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the...