State v. Harris

• Decision Date: 13 May 1980
• Docket Number: No. J,J
• Citation: 288 Or. 703,609 P.2d 798
• Parties: STATE of Oregon, Respondent, v. Dorothy Rachel HARRIS, Petitioner. 10557; CA 12989; SC 26506.
• Court: Oregon Supreme Court

Page 798

609 P.2d 798

288 Or. 703

STATE of Oregon, Respondent, v. Dorothy Rachel HARRIS, Petitioner.

No. J 10557; CA 12989; SC 26506.

Supreme Court of Oregon.

Argued and Submitted Jan. 8, 1980.

Decided March 25, 1980.

Rehearing Denied May 13, 1980.

David L. Slader, Portland, argued the cause for appellant. With him on the briefs were Jed C. Macy and Anna M. Moran, Portland.

Al Laue, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and Mary J. Deits, Asst. Atty. Gen., Salem.

Before DENECKE, C. J., TONGUE, HOWELL, LENT and LINDE, JJ., and TANZER, Justice Pro Tem. ^*

TONGUE, Justice.

Defendant was convicted of the crime of "driving while suspended." (ORS 487.560). Defendant was a resident of Camas, Washington, and had a valid Washington driver's license. Previously, while driving in Oregon, her right to drive a motor vehicle in Oregon had been suspended effective August 17, 1977, for an indefinite period because she had failed to appear in Multnomah County District Court on an earlier traffic citation. ¹ (ORS 484.210(2)). On appeal to the Court of Appeals defendant contended that the trial court erred in admitting into evidence that portion of a certificate authenticating a copy of the suspension order which stated that "our records reveal this order was in full effect on 4-30-78" (the date on which defendant was cited for driving while suspended).

On that appeal defendant assigned as error the overruling of her objection that this statement was hearsay and did not fall within any exception to the hearsay rule. The Court of Appeals held that it need not decide that issue because "(t)he introduction into evidence of a certified copy of the suspension order plus the testimony of the arresting officer establishes a prima facie case" and that "(a)ny contention by defendant that the suspension order was no longer in effect was a matter of defense." 41 Or.App. 643, 646, 598 P.2d 1246, 1248 (1979). We allowed defendant's petition for review in order to consider both the question (1) whether the statement that "our records reveal this order was in full effect on 4-30-78" was admissible in evidence and, if not, (2) whether there was sufficient evidence to sustain defendant's conviction.

1. The statement that the suspension was still in effect was not admissible.

The statement "our records reveal this order was in full effect on 4-30-78" is clearly an out-of-court statement that was offered to prove the truth of the fact stated and is thus hearsay evidence. The question is whether the statement was admissible under any recognized exception to the hearsay rule.

The state contends that this statement was admissible under ORS 43.370, which provides:

"Entries in public or other official records, including books, data processing devices and computers, made by a public officer of this state or the United States in the performance of his duty or by another person in the performance of a duty specially enjoined by the law of either are primary evidence of the facts stated." (Emphasis added) ²

In support of that contention the state cites Finchum v. Lyons, 247 Or. 255, 428 P.2d 890 (1967).

The difficulty with such a contention, however, is that ORS 43.370 is limited by its express terms to "entries " in public records. The statement "our records reveal this order was in effect on 4-30-78" was not an "entry" in a public record, but was a hearsay statement included in a certificate appended to a copy of a public record.

The state also contends that the statement in controversy is an "entry" in a public record for the purposes of ORS 43.370 despite the fact that it is in "summary form" and that "the fact that this entry in public records cannot be proven except in summary form should not make it inadmissible." It is well established that written "summaries" of entries in private records can only be offered in evidence through the testimony of the person who prepared such a summary. See Rolfe v. N. W. Cattle & Resources, Inc., 260 Or. 590, 604-5, 491 P.2d 195 (1971). No reason is suggested by the state why the same rule should not apply to "summaries" of entries in public records other than possible inconvenience of producing a witness qualified to give such testimony. As previously noted, however, this statute, by its express terms, is limited to proof of "entries" in public records themselves and for that reason does not extend to "summaries" of such entries.

The dissent by Denecke, C. J., appears to recognize that the statement "our records reveal this order was in full effect on 4-30-78" is not admissible either under the terms of any Oregon statute, including ORS 43.370, or under the recognized common law exception to the hearsay rule for "official statements." It is nevertheless contended by the dissent that the court should recognize a new and additional exception to the hearsay rule in order to make such statements admissible in evidence. ³

For this court to do so would be contrary both to its prior decisions (which will be discussed) and also to the rule of law as stated in McCormick on Evidence, 742, § 320 (2d ed. 1972) as follows:

"No common law authority exists, however, for the admissibility of a paraphrase or summary of records by the custodian. In the absence of specific statutory authority, a certification by the custodian or official written statements that 'our records show X ' is not admissible to prove X.

"For similar reasons, the common law rule did not permit the introduction of the certification of the custodian as to the absence of an official written statement or of the absence of an entry in such a statement to prove the lack of statement or entry. Only the custodian himself could testify as to due search and inability to find the relevant document. Wigmore refers to this rule as 'one of the stupid instances of legal pedantry in our annals,' and it has been modified by statute or court rule in many jurisdictions." (Emphasis added)

It is true, as stated by McCormick, that this rule has been criticized in 5 Wigmore on Evidence 868 (Chadbourn ed. 1974) in which it is stated that:

"The certificate of a custodian that he has diligently searched for a document or an entry of a specified tenor and has been unable to find it ought to be usually as satisfactory for evidencing its nonexistence in his office as his testimony on the stand to this effect would be; and accordingly by statute or court rule custodians' certificates of this sort have been expressly made admissible." (Emphasis added) ⁴

Wigmore (by footnote 3 on pp. 867-68) lists the many decisions by courts of other states holding that such statements in certificates are inadmissible, with only two cases to the contrary, both decided prior to 1850. Wigmore then (by footnote 4 on pp. 868-70) lists the 36 states and the federal courts which have made such statements admissible, but only by statute or rule of civil procedure.

It may be that the rule proposed by Denecke, C. J., in his dissent is one which should be adopted by statute in Oregon. No cases are cited by him, however, in which courts have adopted such a rule other than by statute or by court rule (by courts authorized to adopt rules of civil procedure).

In an opinion by Rossman, J., in Allan v. Oceanside Lumber Co., 214 Or. 27, 48, 328 P.2d 327, 337 (1958), in holding an "abstract" of the contents of an official record with an attached certificate to be inadmissible, this court said that:

"If the document is admissible it must be under one of the exceptions to the hearsay rule authorized by the laws of this state."

The analysis adopted by the opinion in that case was to then consider whether such evidence was admissible under either ORS 41.690 (the Oregon Uniform Business Records as Evidence Act) or ORS 43.370 (relating to what it referred to as "official statements") and to hold that because the "abstract" of the contents of that official record did not satisfy the requirements of either statute it was inadmissible.

That analysis of the problem is also consistent with previous decisions by this court. Thus, in McIntosh Livestock Co. v. Buffington, 116 Or. 399, 241 P. 393 (1925), this court held inadmissible a certificate by the Idaho Secretary of State to the effect that a corporation had not only filed Articles of Incorporation in 1920, but "(had) remained in good standing . . . until December 1, 1922. * * * ", holding (at 408-9, 241 P. at 396) that:

"The law as stated in 22 C.J. § 980, is particularly applicable:

" 'To prove a fact of record without the production of the record itself, a duly authenticated copy of the record, or so much thereof as relates to the fact in question, is required. A certificate by a public officer having the lawful custody of public records as to any fact appearing on the records of his office or as to any conclusion he may draw from an inspection of the records is not competent evidence, unless made so by statute ' (citing numerous authorities) * * *.

"Judge Sanborn, considering a similar question in U.S. Slicing Machine Co. v. Wolf, Sayer & Heller, Inc., (D.C.) 243 F. 413, says:

" 'The general governing rule is that the official certification of a fact drawn or gathered from a public record is mere legal conclusion, or the opinion of the certifying officer, and so not admissible as evidence. He should copy the record verbatim, certifying that he has done so, and that the copy is an accurate transcript of the original.' " (Emphasis added)

The dissent by Denecke, C. J., refers to "another portion of McIntosh," presumably for the proposition that the certificate in this case is admissible because it is similar to a certificate of the Oregon Corporation Commissioner which this court held to be admissible. What the dissent fails to point out is that in McIntosh, this court determined that the certificate of the Oregon Corporation Commissioner was...