State v. Monson
| Decision Date | 28 December 1989 |
| Docket Number | No. 56158-3,56158-3 |
| Citation | 113 Wn.2d 833,784 P.2d 485 |
| Parties | STATE of Washington, Respondent, v. Gilbert MONSON, Petitioner. |
| Court | Washington Supreme Court |
Associated Counsel for the Accused Suzanne Lee Elliott, Seattle, for petitioner.
Norm Maleng, King County Prosecutor, Scott A. Peterson, Pamela Mohr and Carol Spoor, Deputies, Seattle, for respondent.
This case involves the admissibility of a certified copy of a defendant's driving record to establish that the defendant's driver's license was suspended or revoked. Three issues are presented: (1) Does RCW 5.44.040 provide for admissibility of a public record (here a certified copy of a defendant's driving record) as an exception to the hearsay rule; (2) If RCW 5.44.040 provides for admissibility of a public record, does admission of the certified copy of the driving record violate defendant's constitutional right to confrontation; and (3) Is there a Washington rule that excludes otherwise admissible hearsay because that hearsay goes "to the heart of an issue" in the case--a theory which apparently originated with State v. White, 72 Wash.2d 524, 530, 433 P.2d 682 (1967).
On October 25, 1985, a state trooper stopped defendant on Interstate 405 after noticing that the car defendant was driving had expired license tabs. The officer ran a computer check on defendant and learned that his driver's license had been revoked. He cited defendant for driving while his driver's license was revoked or suspended and for driving a vehicle with expired tabs. At defendant's trial in Northeast District Court, the State sought to introduce as evidence a certified copy of defendant's driving record obtained from the Department of Licensing in Olympia, in order to establish that defendant's driving privilege was revoked at the time he was cited. Defendant maintained that his license was not revoked.
Defendant objected to admission of the record, on the grounds that it constituted hearsay and that admission of the document would violate his right to confrontation. The trial court overruled the objection, and the record was admitted. The record consists of: (1) a cover letter which includes a certification by the legal custodian of driving records of this state that such records are official and maintained in the office of the Department of Licensing in Olympia, that the information in the record pertains to defendant, that two attached documents (an order of revocation and an abstract of driving record) are true and accurate copies of defendant's official record, and that after diligent search there is no document or other evidence in defendant's official record to indicate that as of October 25, 1985, the Department had reinstated defendant's driving privilege; (2) a copy of the order of license revocation dated September 30, 1985, which was mailed to defendant's last known address and informed him that on October 10, 1985 he must stop driving and must send his driver's license to the Department, and that his driving privilege had been revoked for 1 year for driving while his license was revoked; and (3) an abstract of defendant's 5-year driving record. Clerk's Papers, at 4-6. Defendant was convicted.
Defendant filed an RALJ appeal; King County Superior Court upheld the conviction. He next sought discretionary review by the Court of Appeals, which also affirmed his conviction. State v. Monson, 53 Wash.App. 854, 771 P.2d 359 (1989). Defendant petitioned for review, which this court granted. We affirm.
The first issue is whether RCW 5.44.040 provides for admissibility of the certified copy of defendant's driving record, which disclosed that defendant's driving privilege was revoked at the time he was cited.
The certified copy of defendant's driving record is a hearsay statement. It is a written assertion made out of court and offered at trial to prove the truth of the matter asserted, i.e., that at the time he was cited, defendant's driving privilege was revoked. See generally E. Cleary, McCormick on Evidence § 246, at 729 (3d ed. 1984). The trial court admitted the document pursuant to RCW 5.44.040, which provides:
Copies of all records and documents on record or on file in the offices of the various departments of the United States and of this state, when duly certified by the respective officers having by law the custody thereof, under their respective seals where such officers have official seals, shall be admitted in evidence in the courts of this state.
The language of the statute has been the same since 1891. See Laws of 1891, ch. 19, § 16.
By its terms, the statute (1) describes the way in which a public record is authenticated, and (2) directs admission thereof into evidence despite its hearsay character. As to the first of these, the statute provides for authentication of public records by requiring that the document be duly certified by the respective officer having custody, under seal where the officer has an official seal. ER 902(d) also provides for self-authentication of certified copies of public records. Extrinsic evidence of authentication is not required with respect to:
A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification
by certificate complying with the rule or applicable law of the United States or a state. ER 902(d). The comment to ER 902 explains that ER 902 is the same as the federal rule, but two subsections, including subsection (d), have been modified to adapt the rule to state practice. The comment to the rule explains that statutory methods of authentication are preserved, for example, RCW Ch. 5.44. The comment to subsection (d) explains that the rule defers to statutes such as RCW Ch. 5.44.
As can be seen, the statute, which long preceded the evidence rule, describes the method for self-authentication of public records, and, when adopted, the evidence rule was modified to conform to the statute.
As to the second function of the statute, defendant claims that the statute is only a rule of authentication, and does not provide for admissibility of hearsay. This is incorrect. The language of the statute is clear: "Copies of all records ... when duly certified ... shall be admitted in evidence in the courts of this state." RCW 5.44.040.
Further, this court has treated the statute as a codification of the common law public records hearsay exception. See, e.g., State v. Kelly, 52 Wash.2d 676, 680, 328 P.2d 362 (1958); Steel v. Johnson, 9 Wash.2d 347, 352, 115 P.2d 145 (1941); State v. Johnson, 194 Wash. 438, 78 P.2d 561 (1938). Accord, State v. Malone, 9 Wash.App. 122, 130, 511 P.2d 67 (), review denied, 82 Wash.2d 1011 (1973); State v. King, 9 Wash.App. 389, 393, 512 P.2d 771 (), review denied, 83 Wash.2d 1003 (1973). 1
Defendant's position is concededly supported by a Court of Appeals opinion. In State v. Dibley, 38 Wash.App. 824, 691 P.2d 209 (1984) (Division Two), review denied, 103 Wash.2d 1016 (1985), the defendant was charged with first degree robbery. The State sought admission of a codefendant's statement on plea of guilty. While the court held the statement admissible, it disagreed with the State's contention that RCW 5.44.040, standing alone, provided a sufficient basis to admit the statement. The court said: (Footnote and citations omitted.) Dibley, 38 Wash.App. at 828-29, 691 P.2d 209.
In Dibley, Division Two further noted, though, that the statute has also been interpreted as a codification of the public records exception to the hearsay rule, citing Kaye v. Department of Licensing, 34 Wash.App. 132, 659 P.2d 548 (1983). Dibley, 38 Wash.App. at 828 n. 4, 691 P.2d 209. The court said, however, that it is questionable whether that interpretation is still valid following the adoption of the evidence rules. Even if it is, the court continued, the document at issue in the case would not qualify anyway. Dibley, at 828 n. 4, 691 P.2d 209.
Contrary to Division Two's reasoning, there is no question about the interpretation of the statute as codifying the public records exception to the hearsay rule. When this court adopted the evidence rules it did not adopt as part of ER 803 a hearsay exception for public records and reports. Instead, ER 803(a)(8) states: " " The comment to ER 803(a)(8) explains: "Federal Rule 803(8) is deleted, not because of any fundamental disagreement with the rule, but because the drafters felt that the subject matter was adequately covered by the statute and decisions already familiar to the bench and bar." The reference to the statute in ER 803 and the comment show that the reason the federal public records hearsay exception was not adopted was because the statute already provided for the exception. Further, because existing decisional law was approved, cases in which the courts have treated the statute as codifying the common law hearsay exception continue in force.
The other two cases relied upon by defendant do not compel a different result. In Kaye, 34 Wash.App. at 133-34, 659 P.2d 548, the court expressly recognized that the statute has been interpreted as a codification of the public records hearsay exception. In State v. Thompson, 35 Wash.App. 766, 669 P.2d 1270 (1983), the court held that RCW 5.44.040 does not provide the sole means for authenticating public documents, but did not hold that the statute is a rule of authentication only.
We affirm the Court of Appeals holding that RCW 5.44.040 provides for...
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