People v. Warrick

• Decision Date: 27 October 2011
• Docket Number: No. 09CA2783.,09CA2783.
• Citation: 284 P.3d 139
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Nathan Deshawn WARRICK, Defendant–Appellant.
• Court: Colorado Court of Appeals

284 P.3d 139

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Nathan Deshawn WARRICK, Defendant–Appellant.

No. 09CA2783.

Colorado Court of Appeals, Div. VI.

Oct. 27, 2011.

John W. Suthers, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Lynn M. Noesner, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge LOEB.

Defendant, Nathan Deshawn Warrick, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession of a weapon by a previous offender (POWPO) and harassment. We affirm.

I. Background and Procedural History

This case stems from an incident in December 2008 between defendant and a woman with whom he had a long relationship and with whom he was sharing an apartment at the time. In the course of investigating this incident, police found an assault rifle in a car registered to defendant's mother that defendant had been using. In 2004, defendant had been convicted of conspiracy to commit robbery, a class 5 felony.

Defendant was charged with POWPO, obstructing a police officer, menacing, and harassment. The menacing charge was dismissed prior to trial. Following a jury trial, defendant was acquitted of the obstruction charge but was convicted of POWPO and harassment. On appeal, his contentions relate solely to the POWPO conviction, specifically the prosecution's evidence introduced to prove the fact of his prior conviction in 2004, which is an element of POWPO. See§ 18–12–108(1), C.R.S.2011.

As pertinent to the issues in this appeal, at the start of trial, defendant moved to suppress testimony from the prosecution's expert witness, whom the prosecution planned to use to prove defendant's prior conviction for the POWPO charge. Defendant argued, and the trial court agreed, that the prosecution had failed to endorse its expert in accordance with Crim. P. 16. Because of this discovery violation, the trial court gave the prosecution two options: continue the trial to a later date, or proceed to trial without the expert's testimony.

The prosecution chose to proceed to trial. However, the prosecutor asked the trial court to rule on the admissibility of documentary evidence that he intended to use to prove defendant's prior conviction in lieu of the now-suppressed expert testimony, specifically, two booking reports of defendant's prior arrests and the mittimus of his prior conviction for conspiracy to commit robbery.

Over defendant's objections, the trial court admitted the booking reports and the mittimus into evidence during the testimony of another prosecution witness, a police officer. During his testimony, and over defendant's continued objections, the police officer described the booking reports and the mittimus and also identified defendant from photographs on the booking reports.

On appeal, defendant challenges the trial court's admission of the booking reports, the mittimus, and the police officer's testimony on various grounds.

II. Admission of the Booking Reports and Mittimus

Defendant raises several evidentiary contentions challenging the admission of the booking reports and mittimus. Specifically, he contends that these documents were not sufficiently authenticated, that they were hearsay not subject to any exception, and that they violated his confrontation rights. We reject defendant's contentions in turn.

A trial court's evidentiary rulings are reviewed for abuse of discretion and will not be disturbed unless the ruling is manifestly arbitrary, unreasonable, or unfair. People v. Butler, 224 P.3d 380, 386 (Colo.App.2009).

A. Authentication

Defendant first contends that the trial court abused its discretion in admitting the booking reports and the mittimus because they were not sufficiently authenticated. We disagree.

The requirement of authentication as a condition precedent to admissibility is satisfied if there is evidence sufficient to support a finding that the item is what its proponent claims. CRE 901(a); People v. Gregg, ––– P.3d ––––, ––––, 2011 WL 2899622 (Colo.App.2011); People v. Crespi, 155 P.3d 570, 573 (Colo.App.2006). Whether a proper foundation for authenticity has been established is a matter within the sound discretion of the trial court, whose decision will not be disturbed absent an abuse of discretion. Crespi, 155 P.3d at 573–74. Accordingly, a trial court should allow physical evidence to be presented to the jury if a reasonable jury could decide the evidence is what its proponent claims it to be. Id. at 574.

1. The Booking Reports

Defendant first contends the trial court erred in finding that the booking reports were self-authenticating under CRE 902(4).

Although we agree with the trial court that the booking reports were sufficiently authenticated, we base our conclusion on different reasoning. People v. Quintana, 882 P.2d 1366, 1371 (Colo.1994); People v. Gonzales–Quevedo, 203 P.3d 609, 612 (Colo.App.2008) (a trial court's decision may be upheld on any ground supported by the record, even if that ground was not articulated or considered by the trial court).

We agree with the People that the booking reports were separately admissible as public records under CRE 901(b)(7). Under CRE 901(b)(7), public records can be authenticated by evidence showing that the public record “is from the public office where items of this nature are kept.” This fact can be established with a certificate executed by the appropriate custodian of records. See People v. Martinez, 83 P.3d 1174, 1179 (Colo.App.2003) (“The prosecution may also carry its burden of proof by using certified copies of public records or documents which are admissible as public records under CRE 901(b)(7)....”).

Here, the booking reports contained a certification from the Arapahoe County Sheriff's Office that was signed by the custodian of records. This certification was sufficient evidence to authenticate the booking reports as public records under CRE 901(b)(7). SeeCRE 901(a) (“The requirement of authentication ... is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”). It is immaterial that, in making this sufficiency determination, the trial court relied on the certification statement, which is hearsay. SeeCRE 104(a) (the court is not bound by the rules of evidence, except those with respect to privileges, when making admissibility determinations). Therefore, the booking reports were sufficiently authenticated as public records under CRE 901(b)(7). See People v. Deskins, 904 P.2d 1358, 1362 (Colo.App.1995) (record of defendant's conviction in Kansas was sufficiently authenticated as a public record because it contained his name and identification number), aff'd in part and rev'd in part on other grounds,927 P.2d 368 (Colo.1996); see also Gregg, ––– P.3d at ––––. Accordingly, we perceive no abuse of discretion in the trial court's ruling that the booking reports were sufficiently authenticated.

Because we conclude that the booking reports were admissible as public records under CRE 901(b)(7), we need not address whether this evidence would be separately admissible under CRE 902. See People v. Kyle, 111 P.3d 491, 505 (Colo.App.2004).

2. The Mittimus

Defendant also contends that the certification on the mittimus was deficient because the signer did not attest to his or her official title and did not certify that the judge's signature on the mittimus was authentic. We disagree.

Under CRE 902(4), a certified copy of a public record is self-authenticating when it is certified as correct by the record's custodian, and the certification complies with CRE 902(1), (2), or (3). To comply with CRE 902(1), the record must bear a seal.

The trial court found the mittimus self-authenticating under CRE 902(4), with no objection from defense counsel. Our review of the mittimus confirms the trial court's ruling. It is certified, signed, and bears the seal of the Arapahoe County District Court. CRE 902(1) and (4) require nothing more. Accordingly, there was no abuse of discretion.

B. Hearsay

Defendant also contends that the booking reports and the mittimus were hearsay and that the trial court abused its discretion in admitting them under the public records exception. We are not persuaded.

Defendant's booking reports list his basic biographical information, such as his age and date of birth, and his arrest dates. They also contain his booking photographs. The mittimus also includes defendant's date of birth along with information relating to defendant's prior conviction for conspiracy to commit robbery, including the statute under which he was convicted and the level of his offense. The People concede these documents are hearsay when offered to prove the truth of what they assert and are inadmissible unless an exception applies. SeeCRE 801, 802.

CRE 803(8) provides an exception to the hearsay rule for public records. The rule states, in pertinent part:

Unless the sources of information or other circumstances indicate lack of trustworthiness, records ... of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel ... [are not excluded by the hearsay rule].

The trial court found the booking reports and mittimus admissible under both CRE 803(8)(A) and (B). We discern no abuse of discretion in the trial court's ruling.

1. CRE 803(8)(A)

Under CRE 803(8)(A), records of public offices or agencies setting forth “the activities of the office or agency” are admissible despite their hearsay character.

We agree with the trial court that the booking reports and the mittimus set forth the activities of the Arapahoe County Sheriff's Department and the Arapahoe...