Napoleon Bonaparte Broward V v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Retired Judge Brown ∗
Argued at Salem, Virginia
NAPOLEON BONAPARTE BROWARD, V
MEMORANDUM OPINION ∗∗ BY
v. Record No. 0743-02-3 JUDGE RUDOLPH BUMGARDNER, III
JULY 1, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
Robert Hurt (H. Victor Millner, Jr., P.C., on
brief), for appellant.
Jennifer R. Franklin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The trial court convicted Napoleon Bonaparte Broward, V, of
possession of a firearm after being convicted of a felony, Code
§ 18.2-308.2(A). He maintains the trial court improperly
admitted a record of prior convictions in Maryland and the
evidence was insufficient to convict. We affirm the conviction.
The Commonwealth introduced two documents to prove the
defendant had been previously convicted of a felony. The
documents were titled "Docket 10[,] No. 9773 [and 9774] Criminal
∗
Retired Judge J. Howe Brown, Jr., took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400.
∗∗
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Circuit Court For Wicomico County, State of Maryland vs.
Napoleon Bonaparte Broward, V." They bore the stamp "True Copy,
Test. Clerk" and the signature "Mark S. Bowen." The documents
were compilations of every docket entry in those proceedings.
They record the defendant's conviction for five felonies
including robbery with a deadly weapon for which he received a
sentence of twelve years. The defendant contends the exhibits
were not properly authenticated because (1) the attestation
failed to identify the court where the original record was
preserved, (2) failed to identify the clerk, and (3) was not
signed. 1
"The records of any judicial proceeding and any other
official record of any court of another state . . . shall be
received as prima facie evidence provided that such records are
authenticated by the clerk of the court where preserved to be a
true record." Code § 8.01-389(A1). "Authentication is merely
the process of showing that a document is genuine and that it is
what its proponent claims it to be." Owens v. Commonwealth, 10
Va. App. 309, 311, 391 S.E.2d 605, 607 (1990) (certified
conviction order). A judicial record may be authenticated by
the written certification of the clerk of the court holding the
1
The defendant does not contend the exhibits were not true
and accurate copies.
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record. Id. Authenticated judicial records 2 qualify for the
official records exception to the hearsay rule. Taylor v.
Commonwealth, 28 Va. App. 1, 11, 502 S.E.2d 113, 117 (1998).
The defendant relies on Medici v. Commonwealth, 260 Va.
223, 532 S.E.2d 28 (2000), as authority that the certification
was inadequate. Medici approved a certificate that bore a seal
providing more information than that provided in this case.
However, Medici is one of a long line of cases that have
approved the exact content in the certifications appended to the
Maryland documents in this case. Wynn v. Harman's Devisees, 46
Va. (5 Gratt.) 157, 159, 165 (1848) ("A copy, teste, John
Hunter, C. L. C."); Morgan v. Haley, 107 Va. 331, 332, 58 S.E.
564, 564 (1907) ("A copy, Teste: H. C. T. Ewing, Clerk.");
Hurley v. Charles, 112 Va. 706, 708, 72 S.E. 689, 690 (1911)
("A. B. Buchanan, Deputy Clerk for S. M. Graham, Clerk of the
Circuit Court of Tazewell County, Virginia" and "A. B. Buchanan,
D. Clerk.").
The criminal docket was a record from the Circuit Court for
Wicomico County, Maryland, and nothing suggested the contents
were altered. As in Owens, the documents bore sufficient
indicia that Mark S. Bowen was the clerk of that court and
responsible for maintaining its records. The docket entries
2
A "record" includes "any report, paper, data compilation
or any record in any form . . . ." Code § 8.01-389(D).
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were properly admissible as prima facie evidence of the public
record of the defendant's criminal convictions in Maryland.
Being public records, the contents were exceptions to the
hearsay rule and proof of what they asserted.
Next, we consider whether the evidence was sufficient to
prove the defendant possessed a firearm and was a violent felon.
We view the evidence and the reasonable inferences fairly
deducible therefrom in the light most favorable to the
Commonwealth. Dowden v. Commonwealth, 260 Va. 459, 467, 536
S.E.2d 437, 441 (2000).
Theresa Haynes saw the defendant put two "long rifle type"
guns in his truck as he packed to move out of her house. She
notified the police, and they arrested the defendant while
driving later that day. They recovered the guns from his truck.
The police later recovered a container of black powder, two
empty boxes of .270 caliber shells, a spent .270 shell, and
firearm cleaning supplies from the closet of the bedroom the
defendant had shared with Haynes. The defendant killed a
groundhog with one gun and used the other for target practice
that summer. He had asked the owner of the property for
permission to hunt on it.
The docket entries from Maryland proved the defendant had
been convicted of armed robbery. In addition to the court
records, the defendant admitted to witnesses that he had felony
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convictions and had been convicted of robbery in Maryland. His
sister had visited him in a Maryland prison.
The evidence proved beyond a reasonable doubt that the
defendant possessed a firearm and that he had been convicted of
a violent felony. Accordingly, we affirm the conviction.
Affirmed.
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Benton, J., dissenting.
"Code § 8.01-389 'codifies as part of the official records
exception to the hearsay rule judicial "records" which are
properly authenticated.'" Taylor v. Commonwealth, 28 Va. App.
1, 11, 502 S.E.2d 113, 117 (1998) (citation omitted). In
pertinent part, it provides as follows:
A1. The records of any judicial proceeding
and any other official record of any court
of another state or country, or of the
United States, shall be received as prima
facie evidence provided that such records
are authenticated by the clerk of the court
where preserved to be a true record.
* * * * * * *
D. "Records" as used in this article, shall
be deemed to include any memorandum, report,
paper, data compilation, or other record in
any form, or any combination thereof.
Code § 8.01-389(A1) and D.
The Supreme Court has held, "the requirement of
authentication . . . is the providing of an evidentiary basis
sufficient for the trier of fact to conclude that the writing
came from the source claimed." Walters v. Littleton, 223 Va.
446, 451, 290 S.E.2d 839, 842 (1982). Applying this rule in a
case where an objection was made that authentication was lacking
for a document offered pursuant to Code § 8.01-390 (copies of
public documents "shall be received as prima facie evidence
provided that such copies are authenticated to be true copies
both by the custodian thereof and by the person to whom the
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custodian reports"), the Supreme Court held that "proper
authentication . . . was lacking . . . [because] nothing in the
exhibit . . . showed that [the certifying] officer was the
custodian of the disputed records." Taylor v. Maritime Overseas
Corp., 224 Va. 562, 565, 299 S.E.2d 340, 342 (1983).
In Morgan v. Haley, 107 Va. 331, 58 S.E. 564 (1907), the
Supreme Court indirectly questioned the validity of a
certificate, which was written "A copy, Teste: II. H.C.T. Ewing,
Clerk." Id. at 332, 58 S.E. at 564. The Court noted that "[i]f
the certificate stated that the person making it was the clerk
of the court, in whose office the deed was recorded, or had used
initials to show that fact . . . it would clearly have been
prima facie sufficient." Id. In a more recent case, the
Supreme Court again has indicated what writing is sufficient to
meet the statutory requirements.
The prior convictions order admitted in the
present case was marked on the back with a
stamp reading, "Allen Slater, Executive
Officer and Clerk of the Superior Court of
the State of California, in and for the
County of Orange." The order also contained
the seal of the Orange County Superior Court
and was signed by "Flor L. Perez," whose
signature appears next to the word,
"Deputy."
Code § 8.01-389(A1) provides that "[t]he
records of any judicial proceeding and any
other official record of any court of
another state or country, or of the United
States, shall be received as prima facie
evidence provided that such records are
authenticated by the clerk of the court
where preserved to be a true record." We
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think the California order complies with the
requirements of Code § 8.01-389(A1), and,
therefore, the trial court properly admitted
it into evidence.
Medici v. Commonwealth, 260 Va. 223, 230-231, 532 S.E.2d 28,
32-33 (2000).
The deficiency in this record concerning authentication of
the record is glaring. As Broward's trial attorney stated when
objecting, no evidence in this record indicates either that the
person who signed above the word "Clerk" was the clerk of the
Circuit Court for Wicomico County, Maryland, or that the person
was the clerk of the court where the record was preserved.
Nothing on the document asserts either proposition.
Furthermore, the document does not contain the seal of any
court. See Wilkerson v. Wilkerson, 151 Va. 322, 328, 144 S.E.
497, 499 (1928) (under the common law a seal was a sufficient
means of authenticating a document); Taylor, 28 Va. App. at 19,
502 S.E.2d at 121 (Benton, J., dissenting) (noting that "under
the common law, the act of a public official fixing the seal of
that official's office to a document was a means of
authentication"). See also McDonald v. West Branch, 466 U.S.
284, 288 n.6 (1984) (indicating that under the full faith and
credit statute a seal is sufficient to authenticate an act).
In summary, nothing on the face of the document permits the
conclusion, except by speculation and conjecture, that the
document was properly authenticated or was what the prosecutor
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purported it to be. For these reasons, I would hold that the
trial judge erred when he ruled this record satisfied the
requirements of Code § 8.01-389(A1). Thus, I would reverse the
conviction.
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