State v. Couture

• Decision Date: 10 July 1964
• Docket Number: No. MV,MV
• Citation: 2 Conn.Cir.Ct. 683,205 A.2d 387
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: STATE of Connecticut v. Norman E. COUTURE. 17-126.

Page 387

205 A.2d 387

2 Conn.Cir.Ct. 683

STATE of Connecticut v. Norman E. COUTURE.

No. MV 17-126.

Circuit Court of Connecticut, Appellate Division.

July 10, 1964.

Herbert Watstein, Bristol, for appellant (defendant).

Robert P. Sneideman, Pros. Atty., for appellee (state).

KOSICKI, Judge.

On November 26, 1963, the Supreme Court of Errors, on defendant's appeal after granting certification, affirmed the judgment of the Circuit Court in the seventeenth circuit, and of the Appellate Division of the Circuit Court, so far as the defendant was found guilty of the offenses of operating a motor vehicle while he was under the influence of intoxicating liquor; General Statutes § 14-227; and of operating a motor vehicle while his right to so operate was under suspension, § 14-215; but set aside the balance of the judgment and ordered a new trial limited to the issues under the second part of the information, which charged the defendant with being a second offender under § 14-227. State v. Couture, 151 Conn. 213, 220, 196 A.2d 113. After a trial to the court without a jury in response to this mandate, the court found the defendant guilty as a second offender under the second part of the information and imposed sentence. From this judgment the defendant has appealed.

Upon the hearing on the second part of the information, the state was required to prove, beyond a reasonable doubt, (1) the prior conviction through evidence of a record of the judgment, and (2) the identification of the accused as being the same person as the defendant in the previous conviction. State v. Couture, supra; State v. Lenihan, 151 Conn. 552, 553, 200 A.2d 476.

For the purpose of establishing a judgment record, the state introduced what purported to be a copy of a record, with the certificate of the clerk of the Circuit Court for the sixteenth circuit appended to the third page of the document, hereinafter referred to as exhibit B. The only difference between this copy and that found insufficient by the Supreme Court of Errors in State v. Couture, supra, is that the clerk had completed the blank form on page three for the purpose of providing a judgment file. The certificate, at the end of the third page, states that 'the above and foregoing is a true copy of the complaint in the Town Court of the Town of West Hartford in the case of State v. Norman Ernest Couture, and that I have prepared the above and foregoing Judgment File from the records of the Town Court of the Town of West Hartford, the record of which Court constitute records of the Circuit Court per Section 51-273, Connecticut General Statutes, as amended.' Exhibit B was admitted against the defendant's objection, and this ruling, to which exception was taken, is assigned as error.

The claim of the state is that the clerk of the Circuit Court could perform the ministerial duty of perfecting the record of the judgment by completing the judgment file at any time before such document was offered in evidence, citing as authority State v. Lindsay, 109 Conn. 239, 241, 146 A. 290. In that case, to prove a prior conviction, the prosecution introduced a judgment file, made out and signed by the assistant clerk, and also the original complaint and warrant in the action, which had on it the notation that a plea of nolo contendere had been entered and a sentence imposed but which did not bear the signature of the judge or clerk. The judgment file had been prepared by the assistant clerk, on the day before trial and more than sixteen months after the prior conviction, from memoranda and notations on the back of the original file and original docket entries of the court, all unsigned, but the latter were in the handwriting of the clerk. On appeal, after sustaining the action of the trial court in admitting the judgment file as evidence of a prior conviction, the court stated (p. 242, 146 A. p. 292): 'There is a distinction between the judgment of the court, such notations as in the present case appear upon the original complaint and in the docket of the court, and the judgment file. The judgment is the determination or sentence of the law speaking through the court, pronounced or made known in some appropriate way, orally or in writing or partly in each. The notations on the original complaint and in the docket are the entries made when a judgment is rendered in order to preserve accurately and put upon immediate public record the acts of the court. The judgment file consists of the writing out of the judgment for record, giving a history of the various steps in the action leading up to it, and it is prepared and signed at a time subsequent to the rendition of the judgment. Bulkeley's Appeal, 76 Conn. 454, 457, 57 A. 112; Sisk v. Meagher, 82 Conn. 376, 73 A. 785; Hull v. Thoms, 82 Conn. 386, 391, 73 A. 793; Brown v. Cray, 88 Conn. 141, 146, 89 A. 1123; Goldberg v. Krayeske, 102 Conn. 137, 143, 128 A. 27. The notations made by the clerk upon the original papers and in the docket need no particular authentication, but appearing as made by him in the appropriate place, may be presumed to be accurate. Such entries, duly authenticated, may stand as adequate evidence of a judgment. Buckley v. Spirt, 108 Conn. 733, 143 A. 844. But it is the judgment file, signed by the judge or clerk of the court, which is the proper evidence of the rendition of the judgment and its terms. Brown v. Cray, supra. When such a judgment file has been prepared, whether or not entries made upon the original papers or in the docket at the time the judgment was rendered are signed is not of consequence. Such entries having been made, the formal judgment file may thereafter be prepared from them and signed by the clerk or any assistant clerk having authority to act in his stead.' See also Varanelli v. Luddy, 130 Conn. 74, 78, 79, 32 A.2d 61.

We do not consider the rule in the cited case to be applicable in the present situation. The proffered document was not a record of the Circuit Court but was offered as a judgment record of the Town Court of West Hartford, which became functus officio at midnight December 31, 1960. Neither the Town Court nor its officials retained any judicial or clerical power after the court ceased to exist; their powers were unqualifiedly ended and did not continue in any vital form by a transference of them to the Circuit Court which was a newly created court, exercising broader jurisdiction and of statewide operation.

In effectuating the transition from the defunct minor courts to the Circuit Court, the legislature provided (§ 51-273) that all judicial business pending before such courts shall be deemed pending before the Circuit Court; and that all judicial files, records and dockets of such courts shall be filed in the appropriate office of the several clerks of the Circuit Court and safely kept therein and shall in all respects constitute records of that court. The performance of the usual ministerial duties of clerks of all courts is limited to the active files and records of the court; and it is specially provided that each clerk of the Circuit Court may store the inactive records of his court in a place of safekeeping designated by the chief judge. § 51-52. Thus, it would appear that, with regard to the judgment records of the former minor courts, the clerks of the Circuit Court exercise the duty of custody and safekeeping; they are not successors in office to the clerks of said courts and are not enabled to amplify or complete any record of such courts in their custody. They may certify only to the authenticity of documents in their custody, without verbal alteration, as records of the Circuit Court kept under the provisions of §§ 51-52 and 51-273. The judgment file offered in this case in proof of a prior conviction was not a certified copy of the entire and literal terms of the original. Russo v. Metropolitan Life Ins. Co., 125 Conn. 132, 138, 3 A.2d 844. It should not have been admitted, and the ruling of the court was in error.

The prosecution next offered the original file of the Town Court of West Hartford through the then clerk of said court, who identified his signature on the fourth page and back of the file, attesting that 'the within and foregoing is the original files and record in said case.' Above the signature was the title of the case, 'State vs. Norman Ernest Couture,' the date, the file number, the 'charge for operating a motor vehicle,' 'Oper. under Infl.--14-227,' the circled plea of guilty and finding of guilty, the order to pay a fine of $105, and the notation 'pd. 10-5-59 105.00 check.' The former clerk of said court testified that he prepared the judgment, that the notations were in his handwriting and that the fine had been paid. This document was admitted as a full exhibit (exhibit D) and no error is assigned because of its admission. The question before us is whether the admitted document meets the test laid down by the Supreme Court of Errors as to proof of a judgment.

In the case of Banach v. Bohinski, 107 Conn. 156, 139 A. 688, it was held error to admit in evidence, in order to prove conviction of a crime, an alleged record consisting of apparently original complaints and warrants containing no record of the disposition of the cases except unsigned, informal and fragmentary notes or memoranda written on the face of the file. The court there said (p. 158, 139 A. p. 690): 'While in the case of city and police courts, as well as justices of the peace, in view of the nature of their duties and the circumstances under which they are discharged, some informalities in nonessential details of their records may well be overlooked, yet, in order to be admissible in evidence, a record must contain the necessary ingredients, at least informally. O'Connell v. Hotchkiss Co., 44 Conn. 51. It also must be authenticated by the signature of the judge or the clerk, as the case may be. A mere unsigned memorandum, such as was here offered, does not constitute an...