State v. TillmanState v. Tillman
Defendant was arrested by two New Orleans police officers on charges unrelated to this prosecution. The officers searched defendant and found a gun concealed in his pants. Defendant was later charged with the crime of carrying a concealed weapon by a person who has been convicted of simple robbery.
During the trial defendant objected to the admissibility of several items of documentary evidence. Because the trial court erred in overruling defendant‘s objections, defendant‘s conviction and sentence must be reversed and the case remanded.
In an effort to prove that the defendant was the same John Tillman who had been convicted of simple robbery on April 17, 1973, the State introduced the following documentary evidence:
1. Documents executed by the arresting officers:
S-2, “rights of arrestee form” and S-3, a “field arrest report.”
2. Documents from the police department archives:
S-4, an “arrest register“; S-5, a police department “disposition report;” S-6 an FBI rap sheet.
3. Document from the district attorney‘s office:
S-7, a closed out assistant district attorney‘s investigative and prosecution file.
4. Document from the clerk of court‘s office:
S-8, a bill of information charging the defendant with the commission of an armed robbery on December 10, 1973.1
Defendant timely objected to the authenticity and admissibility of this evidence.
Of the exhibits only two, S-5 and S-7, tend to show that a John Tillman was convicted of the crime of simple robbery on April 17, 1973. The other exhibits deal with matters not germane to this issue. Therefore, we pretermit the serious questions raised by the trial court‘s failure to exclude them from evidence and devote our discussion to the admissibility of exhibits S-5 and S-7.
Exhibit S-5 was brought to court by a police officer assigned to the police department record room who testified that the document was “a copy of our form which is typed up and prepared when someone is sent off to Angola . . . .” The document bears no certificate that it is a true copy of an original. The witness did not testify that it was an original or a genuine copy of one. Furthermore, it was not established that the officer was the legal custodian of the original or that he had been delegated the duties of maintaining lawful custody and certifying copies. On the contrary, he testified that someone other than himself, the archives officer, had “control” of the document. Thus the document was not authenticated for several reasons. It was not “certified to by the officer who is the legal custodian” as required for the authentication of copies,
Exhibit S-7, a closed out district attorney‘s file, was brought to court by a police officer assigned to the district attorney as an investigator. He testified that he had retrieved the exhibit from the district attorney‘s closed file section. During his testimony the officer described several items which he removed from the file. None of these was related to the defendant‘s alleged simple robbery conviction of April 17, 1973. However, the file was marked “Tillman, John” and one of the handwritten notations appearing on the outside cover read as follows: “4/17/73 P.G. 14:65—Sentence—Refer to Probation for Presentence/6/7/73; Sentence—3 yrs. L.S.P. c/time served“. The witness testified that the file had been closed out by someone other than himself and that he did not know whether the information on the file cover was correct. When the State
Defendant moved for an acquittal on the ground that the State failed to prove an essential element of the crime, i. e., that he had been convicted of simple robbery on April 17, 1973. Although S-5 and S-7 were improperly admitted into evidence, this Court is presently of the view that these inadmissible items may nevertheless be considered as evidence in determining whether to grant the motion for acquittal. City of Monroe v. French, 345 So.2d 23 (La.1977); State v. Batiste, 327 So.2d 420 (La.1976). If the inadmissible exhibits are considered, there is some evidence to support a finding that defendant had been previously convicted as recited in the bill of information. Therefore, the motion for acquittal was properly denied. However, the erroneous admission of these items requires that defendant be granted a new trial. City of Monroe v. French, supra; State v. Batiste, supra.
For the reasons assigned, defendant‘s conviction and sentence are reversed and the case is remanded for further proceedings consistent with this opinion.2
SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent.
Notes
The trial judge found defendant guilty as charged of carrying a concealed weapon by a person who has been convicted of simple robbery. Without the incompetent and inadmissible evidence in exhibits S-5 and S-7 there was insufficient evidence to support rationally a finding beyond a reasonable doubt that defendant had been convicted on April 17, 1973 of simple robbery. In a trial by judge alone the court must render a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of a defendant, after the close of the State‘s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.