State v. Marcotte, 82-513

• Decision Date: 05 October 1983
• Docket Number: No. 82-513,82-513
• Citation: 466 A.2d 949,124 N.H. 61
• Parties: The STATE of New Hampshire v. Paul R. MARCOTTE.
• Court: New Hampshire Supreme Court

Page 949

466 A.2d 949

124 N.H. 61

The STATE of New Hampshire v. Paul R. MARCOTTE.

No. 82-513.

Supreme Court of New Hampshire.

Oct. 5, 1983.

Gregory H. Smith, Atty. Gen. (Peter W. Mosseau, Asst. Atty. Gen., on brief, and Edna Conway, attorney, orally), for the State.

James E. Duggan, Appellate Defender, Concord, by brief and orally, for defendant.

KING, Chief Justice.

The defendant appeals his conviction of operating a motor vehicle after being ordered not to do so following his adjudication as an habitual offender.

On July 27, 1981, Laconia police officer Gary Kitching observed the defendant, Paul R. Marcotte, operating an automobile in Laconia. Officer Kitching recognized the defendant, and he knew that the name "Paul Marcotte" was included in a list of people whose driver's licenses had been revoked or suspended. Officer Kitching stopped the vehicle and arrested the defendant.

The defendant was indicted for operating a motor vehicle after being ordered not to do so as a result of his adjudication as an habitual offender. See Laws 1973, 584:5. At trial, the State attempted to introduce a certified copy of the defendant's motor vehicle record. The defendant objected to the introduction of the record on the ground that it was irrelevant and prejudicial because the record showed that the defendant had been convicted of a number of other traffic offenses. The Trial Court (Cann, J.) agreed that the record was prejudicial, but permitted Officer Kitching to testify that the motor vehicle record showed that Paul Marcotte was an habitual offender and that his privilege to operate a motor vehicle had not been restored on the date of the incident. The defendant objected and excepted to the admission of this testimony on the ground that it was hearsay, and that it denied the defendant his right of confrontation.

Officer Kitching was the only witness to testify for the State and, at the completion of his testimony, the State rested its case. The defendant was convicted of the charge, and he appealed.

On appeal, the defendant challenges the admission of Officer Kitching's testimony regarding his status as an habitual offender. We reverse and remand for a new trial.

To establish that the defendant violated Laws 1973, 584:5, the State was required to prove that the defendant operated a motor vehicle while the order which prohibited him from driving remained in effect. To prove that the order remained in effect, the State introduced the testimony of Officer Kitching regarding the defendant's habitual offender status, over the objection and exception of the defendant. The defendant claims that Officer Kitching's testimony about the defendant's motor vehicle record was hearsay. The State argues that we should uphold the trial court's admission of this testimony because the testimony was only admitted after the court denied the admission of the defendant's motor vehicle record as prejudicial.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement, Caledonia, Inc. v. Trainor, 123 N.H. 116, 121, 459 A.2d 613, 616 (1983), and is generally inadmissible unless it falls within one of the many exceptions which provide for admissibility. See Town of Weare v. Paquette, 121 N.H. 653, 658-59, 434 A.2d 591, 595-96 (1981). A common-law exception to the hearsay rule exists which provides for the admissibility of an official record made by a public officer in the course of his public duties in order to prove any fact required by law to be reported. Abbott v. Insurance Co., 89 N.H. 149, 152, 195 A. 413, 415 (1937). The basis of the official record exception is that when it is the duty of a public officer to make a statement as to a fact coming within his official cognizance, the great probability is that he does his duty and makes a correct statement. 5 Wigmore on Evidence § 1632, at 618 (1974).

Under the habitual offender statute, the clerk of court was required to file with the Division of Motor Vehicles a copy of the court order revoking the habitual offender's license. See Laws 1973, 584:4. The Director of the Division of Motor Vehicles was required by statute to keep a record of all license revocations. See Laws 1929, 55:1. Accordingly, the Division of Motor Vehicles record of a license revocation after an individual's adjudication as an habitual offender would fall within the hearsay exception for official records. In addition, the legislature provided that a certified copy of...