State v. SmithState v. Smith
- Reporters:
- ,
- Before:
- Whipple, Fitzsimmons, Downing
DOWNING, J.
The defendant, Virgil Lorenzo Smith, was charged by bill of information with possession of cocaine in violation of
On appeal, defendant relies on two assignments of error for reversal of his multiple offender adjudication and sentence:
1. The trial court erred in admitting an uncertified computer printout of defendant‘s rap sheet;
2. The trial court erred in imposing an excessive sentence.
After a thorough review of the record, we reverse defendant‘s multiple offender adjudication, vacate the sentences, and reinstate the original sentences.
ASSIGNMENT OF ERROR NUMBER ONE
Defendant claims the trial court erred when it allowed the State to introduce into evidence an uncertified copy of his “rap sheet” at the multiple offender hearing. Defendant argues that the rap sheet was hearsay and was, therefore, not competent to establish the date of discharge from his most recent period of confinement on the predicate forcible rape conviction. Without this evidence, he argues, the State did not bear its burden of proving that less than ten years had expired between the date of completion of the forcible rape sentence and the commission of the possession of cocaine offense, as required by
Louisiana Revised Statutes 15:529.1 provides a system of enhancеd punishments for repeat offenders. The State bears the burden of proof that a defendant is a multiple offender within the meaning of the statute. If a defendant denies the allegations of a multiple offender bill, in a case where the predicate conviction was obtained by virtue of a guilty plea, the initial burden is on the State to provе the existence of the prior guilty plea and that the defendant was represented by counsel. State v. Green, 36,741, p. 6 (La.App.2d Cir.3/5/03), 839 So.2d 970, 976, writ denied, 03-0973 (La.11/7/03), 857 So.2d 517.
C. This Section shall not be applicable in cases where more than ten years have elapsed since the expiration of the maximum sentence or sentences of the previous conviction or convictions... and the time of the commission of the last felony for which he has been convicted. In computing the period of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods.
In keeping with the statute, it is well settled that evidence of the date of discharge from a prior felony is an essential element in a multiple offender case. See e.g., State v. Metoyer, 612 So.2d 755, 758 (La.App. 5th Cir.1992). The burden of proof is on the State to demonstrate the ten-year cleansing period for purposes of the multiple offender adjudication hаs not run unless fewer than ten years have elapsed between defendant‘s conviction of the predicate felony and his commission of the latest felony. State v. Watts, 98-1073, pp. 15-16 (La.App. 5th Cir.5/19/99), 735 So.2d 866, 874.4
In order to prove defendant‘s date of discharge on his forcible rape conviction at the multiple offender hearing begun on October 9, 2003, the State introduced State Exhibit 3, a document that purported to be a computer printout from the DPSC, entitled “Cajun II Court Docket Record Summary.” Contrary to the characterization of defense counsel, the document does not appear to be a “rap sheet.” It indicates that Virgil Smith, in case number 270776, received a good time release on July 26, 1995. As this was less than ten years before defendant‘s 2001 possession of cocaine offense, the cleansing period was sufficiently established if this document was admissible as competent evidence.
At the multiple offender hearing, Detective James Folks, an employee of the St. Tammany Parish Crime Lab Division, identified State Exhibit 3 as a computer documеnt from the DPSC showing the release date for defendant‘s predicate forcible rape conviction in case number 270776. The State did not elicit any foundation testimony from Folks establishing the basis of his claimed knowledge that Exhibit 3, which was not certified, was an original. He had, however, already identified State Exhibit 1, a certified copy of the bill of information and minutes showing sentencing in case number 270766, which was matched up with the same case number 270766 addressed in State exhibit 3. The trial court admitted the Exhibit over defense
Thereafter, the hearing was recessed until November 12, 2003. At that time, the State called Justin Allen, a probation and parole officer employed by the State of Louisiana Department оf Public Safety and Corrections. Allen again identified State Exhibit 3 as “a Department of Public Safety and Corrections Services printout from our Cajun II records from our computer system.” Allen further indicated that he reviewed the document to determine the release date on defendant‘s forcible rape conviction.
Defense counsel renewed his objection, this time on the grounds that the document was hearsay and that the witness did not generate it. The trial court asked the witness if he had run the appropriate records that he was testifying from and the witness responded that he had. He then overruled the objection again. However, the witness later testified that he did not “pull up” the Exhibit, which he indicated he first saw about a month before the hearing. However, he insisted that the dates testified to were based on records maintained by the DPSC. He further testified that State Exhibit 3 appeared to be an original and that his department does not have a process for certifying such documents.
When an objection was made again to the doсument, the trial court ruled: “I think the Court usually relies on this type of documentation. And if it‘s identified by the Department, then I think that, if nothing else, it would come under the business record document.” After personally reviewing the exhibit, the trial court further commented: “It appears this is the same type of documentation the Court relies on in these matters, and at this time I again overrule your objection.” At the conclusion of the hearing, the trial court found that defendant was a second-felony offender with respect to the possession of cocaine conviction and that the cleansing period had not elapsed.
Admissibility of Multiple Offender Evidence
Defendant does not contest on appeal the sufficiency of the evidence that he is the same defendant previously convicted of the predicate offense of forcible rape; nor does he complain that his guilty plea in that case was not knowing and voluntary.6 However, he questions whether the State adequately bore its burden of proving that the cleansing period had not elapsed before сommission of his last offense.
La. R.S. 15:529.1F
The Multiple Offender statute,
Public Records Exception
Even so,
Business Records Exception
Such records may also be admissible if they qualify as records of regularly conducted business activity.
(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, events, conditions, opinions, or diagnoses, madе at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in circumstances under which thе statement would not be excluded by the hearsay rule. (Emphasis added.)
To be admitted under a business records exception, the person who actually prepared the documents need not have
Even so, the language of
Louisiana Code of Evidence art. 803(6) also requires that the report be made at or near the time by, or from information transmitted by, a person with knowledge. In the matter before us, there is no evidence when the report was made or who the source of the information was.
Accordingly, the exhibit does not qualify for the business records exception to the hearsay rule.
La. C.E. art. 901 Authentication
While the State only argues that the exhibit qualified as an exception to the hearsay rule as a public record or as a business record, we also look at
Accordingly, without any form of proper authentication, the exhibit was not admissible. Therefore, we conclude that the trial court abused its discretion in admitting State Exhibit 3 into evidence.
There is merit in this assignment of error. We note that wherе the consequences
ASSIGNMENT OF ERROR NUMBER TWO
In this assignment of error, defendant contends that the sentence imposed on him was excessive.12 However, for the above reasons, we reverse the conviction and vacate the sentence imposed by the trial court. This assignment of error is moot.
DECREE
For the foregoing reasons, we reverse the conviction and vacate the sentence imposed by the trial court in this matter. We reinstate the sentence originally imposed by the trial court on Januаry 16, 2003.
MULTIPLE OFFENDER ADJUDICATION REVERSED AND SENTENCE VACATED; ORIGINAL SENTENCE REINSTATED
FITZSIMMONS, J., concurs in the result.
WHIPPLE, J., dissents and would affirm the trial court.