Randolph Edward Carthune, etc v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Senior Judge Hodges
Argued at Norfolk, Virginia
RANDOLPH EDWARD CARTHUNE, A/K/A
JOHN EDGAR NORFLEET, A/K/A
ARLANDERS B. WICHARD
MEMORANDUM OPINION * BY
v. Record No. 2576-93-1 JUDGE WILLIAM H. HODGES
AUGUST 29, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Andrew G. Wiggin (Office of the Public Defender, on
brief), for appellant.
G. Russell Stone, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
The appellant, Randolph Edward Carthune, was convicted by a
jury of concealment of goods valued under $200 after having been
convicted at least twice of like offenses pursuant to Code
§§ 18.2-103 and 18.2-104. On appeal, appellant contends that the
trial judge erred in admitting certain evidence, in refusing to
give a jury instruction, and in refusing to strike the evidence
based on insufficient evidence. Finding no error, we affirm.
THE PRINT CARDS AND MUG SHOTS
"It is a generally recognized rule that records
and reports prepared by public officials pursuant
to a duty imposed by statute, or required by the
nature of their offices, are admissible as proof
of the facts stated therein." Williams v.
Commonwealth, 213 Va. 45, 46, 189 S.E.2d 378, 379
(1972). In Ingram v. Commonwealth, 1 Va. App.
335, 338 S.E.2d 657 (1986), we held that the
official records of the Division of Motor Vehicles
*
Pursuant to Code § 17-116.010, this opinion is not designated
for publication.
were admissible as an exception to the hearsay
rule "if the document 'relates facts or events
within the personal knowledge and observation of
the recording official to which he could testify
should he be called as a witness.'" Id. at 339,
338 S.E.2d at 658; see also Hall v. Commonwealth,
15 Va. App. 170, 421 S.E.2d 887 (1992) (court
order reflecting habitual offender adjudication
recorded by DMV on an operator's driving record
admissible).
In Virginia, "[t]he official records
exception allows the admission of certain official
public documents, without the necessity of
producing the record keeper, so long as the keeper
or entrant had personal knowledge contained in
those records and could be called to testify
regarding them." Hooker v. Commonwealth, 14 Va.
App. 454, 456, 418 S.E.2d 343, 344 (1992).
Smoot v. Commonwealth, 18 Va. App. 562, 565, 445 S.E.2d 688, 690
(1994).
[A] fingerprint card, which Code § 19.2-390
requires the police to prepare and submit to the
Central Criminal Records Exchange (CCRE) on
special forms, is clearly a public record under
the above statutory definition. It is no less a
public record under this definition simply because
the person arrested is required to apply his
signature and fingerprints to it.
Reid v. Commonwealth, 16 Va. App. 468, 470, 431 S.E.2d 63, 64
(1993).
The Commonwealth satisfactorily explained the procedures
used to create the fingerprint cards and mug shots and
established their reliability. Because there was a question as
to appellant's identity, the print cards and mug shots were
relevant. Moreover, the fingerprint cards are public records and
were admissible under that exception. Accordingly, the trial
judge did not err in admitting the print cards and mug shots.
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On appeal, a trial judge's ruling that the probative value
of admitting relevant evidence outweighs any incidental prejudice
to the accused will be reversed only on a clear showing of an
abuse of discretion. Lewis v. Commonwealth, 7 Va. App. 596, 602,
376 S.E.2d 295, 298, aff'd on reh'g en banc, 8 Va. App. 574, 383
S.E.2d 736 (1989). Because the Commonwealth was constrained to
prove that appellant had at least two prior convictions, and
because there was doubt as to appellant's identity, we cannot say
that the trial judge abused his discretion in admitting the two
contested print cards.
THE PRIOR CONVICTION ORDERS
Because the Commonwealth was obligated to prove at least two
prior convictions, the trial court did not err by admitting the
prior conviction orders and refusing to redact the references to
the offenses for which appellant was previously convicted. See
Essex v. Commonwealth, 18 Va. App. 168, 442 S.E.2d 707 (1994)
(holding that conviction order which proves that an accused has
been convicted of a specific felony is relevant and admissible to
prove an essential element of offense); see also Dotson v.
Commonwealth, 18 Va. App. 465, 445 S.E.2d 492 (1994). Also, the
Commonwealth may show as many separate convictions as it wants.
See Pittman v. Commonwealth, 17 Va. App. 33, 34, 434 S.E.2d 694,
695 (1993) (approving introduction of six prior convictions in
prosecution for third offense concealment).
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PRESENT RECOLLECTION REFRESHED
There are two ways to refresh a "witness's memory by
allowing the witness to examine material, usually writings, which
relate to the incident in question." Charles E. Friend, The Law
of Evidence in Virginia § 3-7 (4th ed. 1994).
After examining the document or other
material, the witness may then be able either
to (1) put aside the material and testify
from an independent recollection or (2)
although without actual independent
recollection, testify directly from the
material placed before him. . . .
The most common (and least technical)
method is to provide the witness with any
material of counsel's choice and ask him to
examine it. Upon completion of his
examination, the witness is required to
testify from independent memory, which has
supposedly returned to him upon sight of the
refreshing material. . . .
Any material which actually stimulates
or revives the witness's memory may be used.
It is not limited to writings, and may
consist of anything which in fact stimulates
memory. It makes no difference whether the
material was prepared by the witness or by
some other person . . . .
There is no requirement that the
material itself be admitted into evidence, or
even that it be admissible. . . .
. . . [T]here seems to be little or no
restriction on [the material's] use, except
that the courts repeatedly emphasize that the
memory must in fact be refreshed, and that
the witness must, after examining the
material, be able to speak from his or her
own refreshed memory, and not from the source
of the refreshment. . . .
The court has discretion to control or
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deny the use of the material if it appears
that the procedure is being used to suggest
or provide answers which are not in fact
remembered by the witness. . . .
Id. (footnotes omitted) (explaining present recollection
refreshed). See also McGann v. Commonwealth, 15 Va. App. 448,
451-52, 424 S.E.2d 706, 709 (1992).
Officer McElligott testified that his memory was refreshed
after looking at the police report, and that he recalled
appellant's "place of birth . . . as Norfolk." Accordingly, the
document was properly used to refresh his memory and the trial
judge did not err in allowing him to refer to it.
THE REFUSED JURY INSTRUCTION
When a trial judge instructs the jury in the law,
he or she may not "single out for emphasis a part
of the evidence tending to establish a particular
fact." The danger of such emphasis is that it
gives undue prominence by the trial judge to the
highlighted evidence and may mislead the jury. On
the other hand, instructions should relate to the
specific evidence of the case; abstract
propositions of law do little to help and much to
mystify a jury.
Terry v. Commonwealth, 5 Va. App. 167, 170, 360 S.E.2d 880, 882
(1987) (citations omitted) (finding that instructions did not
suggest the credibility or weight which should be given any
specific evidence at trial or impermissibly highlight any of the
evidence to the exclusion of other evidence).
Appellant's proposed instruction improperly emphasized
specific pieces of evidence relating to appellant's identity.
Accordingly, the trial court did not err in refusing the
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instruction. Although appellant claims that there was no general
instruction on credibility and fact finding, he failed to proffer
one or bring it to the trial judge's attention. Therefore, he
cannot now complain of the absence of such an instruction. Rule
5A:18.
SUFFICIENCY OF THE EVIDENCE
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
The February 24, 1987 and August 26, 1993 print cards
contain appellant's fingerprints and list him as John Edgar
Norfleet. The three prior conviction orders list John Edgar
Norfleet as the person convicted. The Commonwealth's evidence
was competent, was not inherently incredible, and was sufficient
to prove beyond a reasonable doubt that appellant was John Edgar
Norfleet and that appellant had been convicted on three prior
occasions. See Moffitt v. Commonwealth, 16 Va. App. 983, 987,
434 S.E.2d 684, 687 (1993) (holding that the accused failed to
rebut the prima facie showing that he was person identified in
prior conviction order).
For the aforementioned reasons, we affirm as to all issues.
Affirmed.
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BAKER, J., concurring.
I concur in result with the majority.
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BENTON, J., dissenting.
I.
The trial judge erred in admitting the fingerprint cards and
mug shots. The Supreme Court of Virginia has stated that "the
mere fact that a record or report qualifies as a public document
does not automatically overcome the hearsay objection unless the
document relates facts or events within the personal knowledge
and observation of the recording official to which he could
testify should he be called as a witness." Williams v.
Commonwealth, 213 Va. 45, 46, 189 S.E.2d 378, 379 (1972). See
also Smith v. Woodlawn Constr. Co., 235 Va. 424, 431, 368 S.E.2d
699, 704 (1988). Indeed, hearsay statements "traditionally have
been excluded because they have been perceived to lack the
conventional indicia of reliability and are not susceptible to
cross-examination." Tickel v. Commonwealth, 11 Va. App. 558,
564, 400 S.E.2d 534, 538 (1991).
In holding that a minor's arrest records were not admissible
under the public documents exception to the hearsay rule, the
Supreme Court reasoned that the minor's age could not be proven
by these records because the "date of birth was what [the minor]
told the recording officer, who had no personal knowledge of the
truth of the statements." Williams, 213 Va. at 47, 189 S.E.2d at
380. Consistent with that decision, this Court held in Tickel v.
Commonwealth, 11 Va. App. 558, 400 S.E.2d 534 (1991), that "the
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official documents exception to the hearsay rule is narrow in
scope, encompassing only that information within the knowledge of
the record keeper." Id. at 568, 400 S.E.2d at 540. Thus, in
Tickel, the sales price of a car, its odometer reading, and its
transfer date were "facts that the record keeper had obtained
from a third person" and were excluded as hearsay. Id.
Charles W. Johnson, an employee of the Virginia Beach
police, was offered by the Commonwealth as the custodian of the
fingerprint cards. Johnson testified concerning routine
procedures involved in producing fingerprint cards. He explained
that after the arrestee's fingerprints are placed on a clean
card, the arrestee is required to sign the card. The employee
who oversees the arrestee's fingerprints being made also must
sign the card. A photograph of the arrestee is also taken at
this time by a clerk. An officer then enters the fingerprints
into the Automated Fingerprint Identification System to check for
a criminal history in the computer files. The fingerprint card
then goes to a clerk who types information from the arresting
officer's worksheet. The information on the officer's worksheet,
such as alias name, date of birth, height, weight, place of
birth, social security number, previous state number or an FBI
number is usually compiled by the officer from the person that
was arrested.
All three fingerprint cards admitted in evidence had typed
onto them alias names, date of birth, place of birth, and social
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security number. That information had been gotten from the
individuals being fingerprinted at the times those cards were
created. None of the intake officers who typed those cards had
personal knowledge of these facts. Thus, the trial judge erred
in admitting the cards with these facts which were obtained from
a third party and not within the personal knowledge of the record
keeper. Williams, 213 Va. at 47, 189 S.E.2d at 380.
II.
These cards contained information that Carthune had
committed other, unrelated criminal offenses in Virginia Beach
for which he was not on trial. The prejudicial effect of this
evidence of unrelated arrests is apparent from the following
events which occurred during jury deliberations:
COURT: [The jury has] handed me exhibit -- For
the record they've handed me out Exhibit
Number 5 [fingerprint card #3] and placed
above it what does the fingerprint card --
and in parenthesis -- August 1993 -- pertain
to?
BAILIFF: What they mean is they want to know what
charge it is.
COURT: And the only guidance I'm going to be able to
give them is that they're just going to have to
look at the exhibits they have and remember the
evidence that they heard and I can't give them any
other guidance to answer that question for them.
* * * * * * *
(jury recalled to the courtroom)
Ladies and gentlemen, the bailiff has handed
me out Exhibit Number 5 [fingerprint card #3] with
a written question asking, What does the
fingerprint card dated August 1993 pertain to?
* * * * * * *
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The only guidance that I can give you is you
have to search your own recollections, look at the
evidence that you heard, look at the exhibits that
you have and solve the questions for yourself; and
I know that that doesn't seem like I'm answering
your question, and I guess the answer to your
question is I can't answer the question for you.
You're going to have to deliberate among
yourselves using whatever evidence it was that you
heard during the trial, your recollection of the
testimony and the exhibits and the instructions
that you have back there, and I really can't give
you any more guidance than that.
The trial judge did not instruct the jury that the evidence was
admissible for the limited purpose of proving Carthune's
identity. See Rider v. Commonwealth, 8 Va. App. 595, 599, 383
S.E.2d 25, 27 (1989). Without the guidance of the judge to
instruct the jury to limit their consideration of this evidence
to Carthune's identity only, the jury was left to use the
information on those fingerprint cards in any manner. Thus, the
trial judge erred in admitting the two fingerprint cards without
limiting the scope of their admissibility.
III.
The trial judge further erred in admitting the mug shots.
In Johnson v. Commonwealth, 2 Va. App. 447, 345 S.E.2d 303(1986), this Court adopted a three part test to determine the
admissibility of "mug shots." To be admissible, each of the
following three conditions must be met:
(1) The Government must have a demonstrable
need to introduce the photographs;
(2) The photographs themselves, if shown to
the jury, must not imply that the defendant
has a prior criminal record; and
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(3) The manner of introduction at trial must
be such that it does not draw particular
attention to the source or implications of
the photographs.
Id. at 454, 345 S.E.2d at 307.
The evidence proved that a mug shot is taken each time a
fingerprint card is produced. The mug shots were of a typical
nature, with a placard of information shown at chest level. The
placard bore a number, contained dates unrelated to the prior
convictions at issue, and identified the Virginia Beach Police
Department. Thus, like the fingerprint cards, these mug shots
implied that Carthune had a criminal record other than the prior
convictions that the Commonwealth was required to prove.
Accordingly, the trial judge erred in admitting these
photographs.
For these reasons, I would reverse Carthune's conviction and
remand for a new trial.
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