State v. Mark J. Turner ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
JANUARY 1998 SESSION
STATE OF TENNESSEE, )
)
FILED
C.C.A. NO. 01C01-9703-CR-00071
Appellee, )
June 16, 1999
) DAVIDSON COUNTY
VS. )
Cecil W. Crowson
) HON. FRANK G. CLEMENT, JR.,
Appellate Court Clerk
MARK JOHN TURNER, ) JUDGE
)
Appellant. ) (Driving Under the Influence)
FOR THE APPELLANT: FOR THE APPELLEE:
C. EDWARD FOWLKES JOHN KNOX WALKUP
172 Second Ave., North Attorney General & Reporter
Suite 214
Nashville, TN 37201-1908 ELIZABETH B. MARNEY
Asst. Attorney General
John Sevier Bldg.
425 Fifth Ave., North
Nashville, TN 37243-0493
VICTOR S. JOHNSON, III
District Attorney General
BERNARD F. McEVOY
Asst. District Attorney General
Washington Square, Suite 500
222 Second Ave., North
Nashville, TN 37201
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
In 1996, the defendant was convicted by a jury of driving under the
influence of an intoxicant (DUI), second offense. The trial court sentenced him to eleven
months, twenty-nine days incarceration, all but fifty-five days suspended,1 with the
balance to be served on probation. He now presents several arguments why
enhancement to second-offense DUI was improper. After a review of the record, we
affirm.
To enhance the defendant’s DUI conviction to second-offense DUI, the
State relied upon a 1990 conviction for DUI. The defendant sought to have the 1990
conviction declared void as an enhancement factor on the basis that the record did not
reflect strict compliance with statutory provisions regarding the election of the special
judge who accepted the guilty plea that led to the conviction. The trial court denied the
defendant’s motion.
During that portion of the defendant’s trial relating to whether his DUI
offense was a second offense, the State introduced into evidence a copy of the judgment
from the 1990 conviction. The 1990 judgment reflected that the defendant in that case,
“Mark Turner,” pled guilty to first-offense DUI and was sentenced to eleven months,
twenty-nine days incarceration, with all but forty-eight hours suspended.2 The copy of this
judgment is not certified and the only stamp reflected on it is one dated March 4, 1997,
which is the date the appellate record was prepared.
1
The judgm ent form is internally inconsistent, in that in one place, it states that all but fifty-five
days is suspended while in another place, it states that all but sixty days is suspended. Both parties
represent in their briefs that all but fifty-five days of the sentence is suspended.
2
While looking at the 1990 judgment form, a Davidson County probate court clerk testified that
the judgment form listed the offender’s name as “M ark J. Turner.” The co py of the judgment form
contained in the record on appeal, however, lists the offender’s nam e merely as “Mark Turner.”
Because neither party questions this discrepancy, however, neither will we.
2
The State also introduced into evidence a copy of the arrest warrant
underlying the 1990 conviction, a copy of the arrest warrant in the present case, and the
testimony of a Davidson County probate court clerk. Through the clerk’s testimony, the
State compared the arrestee’s personal information and physical characteristics listed on
the arrest warrant from the 1990 DUI conviction with those on the arrest warrant in this
case in an effort to prove that the offender in both cases was the defendant. In so doing,
the clerk testified that both arrest warrants reflected that the arrestee was a 5'11" white
male named Mark John Turner and born October 29, 1958. She testified that the arrest
warrant in the present case reflected the defendant weighed 170 pounds and had hazel
eyes and brown hair, while the prior arrest warrant reflected the arrestee weighed 160
pounds and had green eyes. When asked what color of hair the prior arrest warrant
reflected, the clerk noted that the abbreviation “BL” was used and explained that notation
could mean either black or blond hair. The residential addresses listed on the two arrest
warrants were different.
First, the defendant argues that the trial court erred in admitting the
notations of physical characteristics listed on the prior arrest warrant for the purpose of
proving identity, that is, that the defendant was the same person arrested for and
ultimately convicted of DUI in 1990. He argues that the admission of this evidence
violated his rights under the Confrontation Clause of the United States Constitution and
violated the hearsay rule as stated in Tennessee Rule of Evidence 803(8).
This Court has held that the admission of court records into evidence for the
purpose of proving habitual offender status does not violate a defendant’s constitutional
right to confront his or her accusers. State v. Miller, 608 S.W.2d 158, 160-61 (Tenn.
Crim. App. 1980). A defendant does not have the right to re-examine witnesses from
proceedings relating to prior offenses because he or she had the right to confront them
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during the prior proceedings. Id. at 161 (citing People v. Bryan, 83 Cal. Rptr. 291, 303
(Ct. App. 1970)). This reasoning is applicable here. Thus, the defendant’s constitutional
challenge to the admission of the prior arrest warrant must fail.
The defendant also argues that admitting the prior arrest warrant into
evidence violated the rule against hearsay and that this type of evidence is specifically
forbidden by Tennessee Rule of Evidence 803(8). Rule 803 provides, in pertinent part:
The following are not excluded by the hearsay rule:
...
(8) Public Records and Reports. Unless the source of
information or the method or circumstances of preparation
indicate lack of trustworthiness, records, reports, statements,
or data compilations in any form of public offices or agencies
setting forth the activities of the office or agency or matters
observed pursuant to a duty imposed by law as to which
matters there was a duty to report, excluding, however,
matters observed by police officers and other law
enforcement personnel.
The State argues that because Rule 803(8) has language similar to the
corresponding federal rule, we should follow the federal cases that allow into evidence
as a hearsay exception those police records that are prepared in a “routine, non-
adversarial setting.” United States v. Quezada, 754 F.2d 1190, 1194 (5th Cir. 1985),
cited in United States v. Brown, 9 F.3d 907, 911 (11th Cir. 1993); see United States v.
Grady, 544 F.2d 598, 604 (2d Cir. 1976). These cases are distinguishable from the
instant case.
In United States v. Grady, Irish police records containing serial numbers of
exported guns were admissible under the public records exception for “the limited
purpose” of showing that specified weapons were found in North Ireland after their
purchase from the defendant dealer. Grady, 544 F.2d at 604. Similarly, in United States
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v. Quezada, the court held that admitting a warrant of deportation, which included
evidence of the defendant’s prior arrest and deportation such as the defendant’s
thumbprint, was admissible under the public records exception to prove that the
defendant had in fact been previously arrested and deported. Quezada, 754 F.2d at
1194-95. The Quezada court acknowledged that under different circumstances, other
federal courts have applied the public records exception in a more strict manner, but it
determined that the information on the warrant of deportation reflected merely “routine,
objective observations” that were more reliable than observations of law enforcement
personnel investigating crime, the type of observations it perceived was targeted by the
specific exclusion in the public records exception. Id. 1194, 1193 & n.9. Persuaded by
this reasoning, the Eleventh Circuit in United States v. Brown held that a property receipt
for a confiscated gun admissible under the business records exception did not run afoul
of the exclusionary language in the public records exception, where the gun was
accidentally destroyed prior to trial and the property receipt was admitted presumably to
prove the gun had existed. Brown, 9 F.3d at 911-12.
These federal cases have one thing in common, that is, the information
admitted into evidence---a thumbprint, a property receipt, serial numbers from guns---was
gathered and recorded in a strictly routine manner, such that it could be considered more
reliable than subjective observations. See Brown, 9 F.3d at 911-12; Quezada, 754 F.2d
at 1193-94; Grady, 544 F.2d at 604. The notations of the arrestee’s personal
characteristics on the prior warrant, however, do not appear to fall into this category. The
trial court surmised that the physical characteristics might have been copied from the
arrestee’s driver license, but the record fails to reflect that this was the case. For as
much as the record shows, the arresting officer could have relied upon his own subjective
observations of the arrestee’s physical characteristics in order to complete this portion of
the arrest warrant. The name and birthdate reflected on the prior arrest warrant would
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be admissible into evidence because gathering that information does not depend upon
a police officer’s subjective observations. See State v. Woodall, 729 S.W.2d 91, 95
(Tenn. 1987)(where defendant did not challenge identity, arrest warrants were admissible
to prove dates of prior offenses for the purpose of establishing habitual offender status).
Had the record established that the arresting officer did not use his subjective
observations of the arrestee’s physical characteristics and had instead copied these
statistics from the arrestee’s driver license, for example, then these notations might also
have been admissible. See State v. Baker, 842 S.W.2d 261, 264 (Tenn. Crim. App.
1992)(defendant’s driving record admissible under Tenn. R. Evid. 803(8)); see also State
v. Rea, 865 S.W.2d 923, 924 (Tenn. Crim. App. 1992)(Alabama traffic ticket admissible
to prove defendant’s prior DUI conviction, where ticket reflected the case number, court
action, and disposition). However, because this was not the case, we think this evidence
is the type of evidence the plain language of Rule 803(8) excludes from evidence. Thus,
we hold this evidence was improperly admitted under Rule 803(8).
The error in admitting that evidence, however, was harmless. The properly
admitted evidence established that the person arrested and ultimately convicted of DUI
in 1990 shared the same name with the defendant, which is prima facie evidence of
identity. State v. Cottrell, 868 S.W.2d 673, 678 (Tenn. Crim. App. 1992). The evidence
also showed that the defendant’s birthdate and the birthdate of the person previously
arrested and ultimately convicted for DUI were identical. The defendant offered no
evidence to rebut the prima facie evidence that he was in fact the person the State
sought to prove he was, i.e., the “Mark John Turner” previously arrested and ultimately
convicted of DUI in 1990. Thus, the error in admitting the notations of physical
characteristics listed on the prior arrest warrant does not affirmatively appear to have
affected the jury’s conclusion that the defendant had been previously convicted of DUI,
which prevents a reversal on the basis of this error. Tenn. R. Crim. P. 52(a).
6
The defendant also challenges the sufficiency of the proof regarding his
identity as the person convicted of DUI in 1990. The defendant argues that without the
evidence of physical characteristics noted on the prior arrest warrant, the record contains
no evidence he was previously convicted of DUI. As we have stated, however, the name
and birthdate listed on the prior arrest warrant is ample proof of identity. See Cottrell,
868 S.W.2d at 678. Moreover, the State presented a copy of the 1990 judgment, which
reflects a DUI conviction and sentence for “Mark Turner.” This judgment was not
certified, so it was not self-authenticating under Tennessee Rule of Evidence 902(4). Our
independent review of the transcript reveals that the 1990 judgment was not properly
authenticated by an individual with personal knowledge that the writing met the
requirements of Tennessee Rule of Evidence 901, Neil P. Cohen et al., Tennessee Law
of Evidence § 901.8, at 621 (3d ed. 1995), but our independent review also reveals that
the defendant failed to object to the lack of authentication, which constitutes waiver of
that issue, see State v. Walker, 910 S.W.2d 381, 396 (Tenn. 1995)("A trial court cannot
be held in error when it is not given an opportunity to rule on an issue at an appropriate
time during the course of the trial."); State v. Robert Jay Bridwell, No.
03C01-9708-CC-00326, Blount County (Tenn. Crim. App. filed September 15, 1998, at
Knoxville). The prior arrest warrant and the 1990 judgment provide sufficient evidence
to support the jury’s conclusion that the defendant had been previously convicted of DUI.
Next, the defendant argues that the trial court erred in denying his motion
to dismiss the indictment and/or strike the enhancement factors because the court
minutes from the 1990 DUI conviction fail to reflect that the special judge who accepted
the guilty plea was duly elected and was administered the oath of office pursuant to
T.C.A. § 17-2-118 and § 17-2-120. He also argues that the trial court erred by not
allowing him to present as a defense to second-offense DUI his contention that the 1990
judgment was facially invalid and thus could not serve as a basis for enhancement.
7
The record supporting the 1990 judgment consists of the arrest warrant and
the court minutes of a guilty plea hearing. The court minutes begin with the following
statement: “COURT MET PURSUANT TO ADJOURNMENT, PRESENT AND
PRESIDING THE HONORABLE SETH NORMAN, SPECIAL JUDGE FOR THE
HONORABLE JAMES R. EVERETT JR., JUDGE OF THE PROBATE COURT FOR
DAVIDSON COUNTY, TENNESSEE . . . .” The record fails to show that the 1990
judgment was ever reviewed by direct appeal, post-conviction petition, or petition for writ
of habeas corpus.
The documents in the record pertaining to the 1990 conviction show on their
face that the convicting court had jurisdiction over the subject matter and the parties, and
thus, “732 S.W.2d 268, 271 (Tenn. 1987)(quoting Smith v. Leedy, 42 Tenn. App.
117, 123, 299 S.W.2d 29, 31 (1956)). Moreover, the record gives every indication that
the special judge was, at a minimum, a de facto judge, that is, that he acted “with color
of right” and was “regarded as, and [had] the reputation of, exercising the judicial function
he assum[ed].” 48A C.J.S. Judges § 2 (1981), quoted in State ex rel. Newsom v. Biggers,
911 S.W.2d 715, 718 (Tenn. 1995). There was no objection to the special judge’s
exercise of authority at the time the plea was entered in 1990, and no appeal was taken
from the resulting conviction. “[L]ike any judgment, a presumption of regularity in the
proceedings attaches upon becoming final.” McClintock, 732 S.W.2d at 270. Because
the special judge acted with de facto authority and because this authority was not
challenged during trial or on appeal, the defendant cannot now attack the integrity of the
judgment. Biggers, 911 S.W.2d at 719.
Each of the defendant’s challenges to his conviction lacks merit.
Accordingly, the trial court’s judgment is affirmed.
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_________________________________
JOHN H. PEAY, JUDGE
CONCUR:
______________________________
JERRY L. SMITH, JUDGE
______________________________
THOMAS T. WOODALL, JUDGE
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