State v. Hall

• Decision Date: 02 December 2005
• Docket Number: No. S-04-1478.,S-04-1478.
• Parties: STATE of Nebraska, appellee, v. Gregory G. HALL, appellant.
• Court: Nebraska Supreme Court

Page 209

708 N.W.2d 209

270 Neb. 669

STATE of Nebraska, appellee, v. Gregory G. HALL, appellant.

No. S-04-1478.

Supreme Court of Nebraska.

December 2, 2005.

Syllabus by the Court

1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility.

2. Trial: Evidence: Appeal and Error. A trial court's determination of the admissibility of physical evidence will not ordinarily be overturned except for an abuse of discretion.

3. Sentences: Prior Convictions. Neb.Rev.Stat. § 29-2221(1) (Reissue 1995) provides for enhanced mandatory minimum and maximum sentences for a convicted defendant who has been twice convicted of a crime, sentenced, and committed to prison in this or any other state for terms of not less than 1 year.

4. Sentences: Prior Convictions: Proof. In a proceeding to enhance a punishment because of prior convictions, the State has the burden to prove the fact of prior convictions by a preponderance of the evidence, and the trial court determines the fact of prior convictions based upon the preponderance of the evidence standard.

5. Trial: Evidence: Appeal and Error. Unless an objection to offered evidence is sufficiently specific to enlighten the trial court and enable it to pass upon the sufficiency of such objection and to observe the alleged harmful bearing of the evidence from the standpoint of the objector, no question can be presented therefrom on appeal.

6. Trial: Evidence: Words and Phrases. An objection on the basis of insufficient foundation is a general objection.

7. Trial: Evidence: Appeal and Error. If a general objection on the basis of insufficient foundation is overruled, the objecting party may not complain on appeal unless (1) the ground for exclusion was obvious without stating it or (2) the evidence was not admissible for any purpose.

8. Sentences: Prior Convictions: Right to Counsel: Waiver: Proof. When using a prior conviction to enhance a sentence, the State has the burden to prove the defendant was represented by counsel at the time of conviction and sentencing, or had knowingly and voluntarily waived representation for those proceedings.

9. Prior Convictions: Records: Proof. The existence of a prior conviction and the identity of the accused as the person convicted may be shown by any competent evidence, including the oral testimony of the accused and duly authenticated records maintained by the courts or penal and custodial authorities.

10. Rules of Evidence: Records: Proof. Copies of judicial records that are certified by a deputy clerk for the clerk of the district court and impressed with the court's seal do not require extrinsic evidence of authenticity for admission under Neb. Evid. R. 902, Neb.Rev.Stat. § 27-902 (Reissue 1995).

11. Sentences: Prior Convictions: Right to Counsel: Waiver: Proof. The preponderance of the evidence standard of proof applies to the State's burden to prove that a defendant had or waived counsel at the time of the prior conviction and sentencing.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gregory A. Pivovar for appellant and Gregory G. Hall, pro se.

Jon Bruning, Attorney General, and James D. Smith, Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

HENDRY, C.J.

INTRODUCTION

This is Gregory G. Hall's second direct appeal from his sentencing as a habitual criminal, following this court's remand for a new enhancement hearing. See State v. Hall, 268 Neb. 91, 679 N.W.2d 760 (2004).

BACKGROUND

In September 2002, Hall was charged in Sarpy County, Nebraska, with one count of possession of a controlled substance with intent to deliver, one count of possession of a controlled substance, and two counts of delivery of a controlled substance. Hall was also charged as a habitual criminal. In January 2003, pursuant to a plea agreement, Hall pled guilty to one count of delivery of a controlled substance, a Class III felony, and the State dismissed the three remaining counts, but not the habitual criminal charge. At the evidentiary hearing on the habitual criminal charge, the State introduced evidence of Hall's prior convictions from Platte County and Douglas County, Nebraska, and Bernalillo County, New Mexico. Based on his convictions in Platte and Bernalillo Counties, the district court found that Hall was a habitual criminal and sentenced him to 10 years' imprisonment.

In his first direct appeal, Hall conceded that the State had met its burden of proof in regard to his Platte County conviction. Hall, supra. However, this court found merit to Hall's argument that the State's evidence of his New Mexico conviction was insufficient to support enhancing his sentence because it did not show that he had or waived counsel at the time of his conviction. We noted that "contrary to the district court's observations, Hall was not convicted and sentenced on the same day, but, rather, was convicted by a jury on July 16, 1981, and thereafter sentenced on September 8." Id. at 96-97, 679 N.W.2d at 765.

We concluded that although the evidence showed Hall had been represented by counsel at the time he was sentenced, it did not show he had been represented at the time of the jury's guilty verdict. We rejected the State's argument that the issue was controlled by State v. Sherrod, 229 Neb. 128, 134, 425 N.W.2d 616, 621 (1988) (holding that State satisfied its burden to prove prior, counseled conviction by producing evidence that defendant had or waived counsel "at a critical point in the proceedings," which proof then shifts burden to defendant to show that he was unrepresented at prior conviction). We concluded that the issue was controlled by our more recent decision in State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002), in which we held that the State's evidence must show defendant had or waived counsel at the time of his or her prior convictions. We therefore concluded that the district court erred in finding Hall to be a habitual criminal, vacated Hall's sentence, and remanded the cause for a new enhancement hearing. Hall, supra.

On September 24, 2004, the district court conducted a new enhancement hearing. At the hearing, the following exchange occurred:

[Prosecutor]: The first thing I would like to do, Your Honor, is offer any exhibits, any and all exhibits that were offered previously at the enhancement hearing [exhibits 1 through 12] that was held on this case.

[Defense]: Judge, I'm going to object to that. I wasn't counsel of record at the time and I'm not sure all proper objections were made to those exhibits.

THE COURT: Okay. The objection is overruled. The previous exhibits are received, will be considered by the court.

[Prosecutor]: I would also like to —

THE COURT: Except I suppose the one that — how it got back here was the one conviction down in New Mexico.

[Prosecutor]: I think I would still like that exhibit offered and received. It might not be sufficient unless I add to it.

THE COURT: Okay.

[Prosecutor]: That's I guess what I would like to be able to do.

[Defense]: To that particular exhibit [exhibit 7], Judge, I would offer a form and foundation objection.

THE COURT: Okay. And that's overruled.

[Prosecutor]: I would like to offer and mark new exhibits and, Judge, what number are we up to at this point?

THE COURT: I was going to tell you that would be Exhibit No. 13.

[Prosecutor]: I would offer to the Court Exhibit 13, which is a six-page document which has been certified by the clerk's office in Bernalillo County, New Mexico, and I would offer that at this time and, then, I would ultimately make some comments as to what's contained within that exhibit.

[Defense]: Judge, my objection to the six-page document is, again, form and foundation. The documents are simply certified, they're not authenticated. The statute in this particular area calls for an authenticated document in order for it to be valid. The case law in this particular area accepts certified copies of this Court's judgment, but has continuously upheld that out-of-state documents have to be authenticated, and those documents are not authenticated.

The court took under advisement the objection to exhibit 13. The record shows that exhibit 13 includes copies of the same documents contained within exhibit 7. Those documents showed Hall's grand jury indictment, listing the public defender's office as his defense attorney, and the trial court's signed judgment and sentence, showing that Hall was represented by Ron Koch at sentencing. Exhibit 13 also included additional certified copies from Hall's New Mexico proceeding as follows: (1) the appearances page from a deposition taken for trial, showing that Hall was represented by Koch; (2) the prosecutor's notice of witnesses sent to Koch and the attorney for Hall's codefendant; and (3) a court-captioned filing showing Hall's representation by Koch, the charges, disposition, and dates trial commenced and concluded.

On October 4, 2004, the court entered a written order in which it found that the State's evidence showed Hall was represented by Koch at his 1981 jury trial and that Hall was sentenced to more than 1 year of incarceration by the court. The court stated that the documents were certified by the clerk of the district court in New Mexico, without specifically addressing Hall's authentication objection. The court found that Hall was a habitual criminal, ordered a presentence investigation, and set a date for sentencing. On December 27, the court sentenced Hall to a term of 10 years' imprisonment with credit for time served. Hall appeals.

ASSIGNMENTS OF ERROR

Hall assigns that the district court erred in (1) overruling his objections to exhibits 1 through 12 previously offered at the first enhancement hearing, because the exhibits were not...