EVIDENCE OF OUT OF STATE CONVICTION NOT ADMISSIBLE IF UNCERTIFIED…HEARSAY RULE APPLIES

Magyar v. Commonwealth (Ky. App., 2013) 2011-CA-001892-MR May 24, 2013

Next, Magyar claims the trial court abused its discretion by admitting into evidence uncertified court documents from Ohio during the sentencing phase of his trial, thereby violating KRS 422.040 and the rule against hearsay. We agree.

Magyar preserved this issue for review by objecting to the introduction of the Ohio court documents at trial, thus we review for an abuse of discretion. See Meece v. Commonwealth, 348 S.W.3d 627, 645-46 (Ky. 2011).

KRS 422.040 requires that out of state records and judicial proceedings be certified by the presiding judge of that court in order to be given full faith and credit in a Kentucky court. The Commonwealth argues the Ohio records were admissible under Hall v. Commonwealth,817 S.W.2d 228 (Ky. 1991), in which the Supreme Court of Kentucky held that certified Kentucky State Police computer printouts were admissible during the sentencing phase of the trial as proof of a defendant’s prior convictions. The court in Hall stressed that the sentencing phase of trial was governed by KRS 532.055, which permits the admission of background information that assists the jury in its penalty-fixing responsibility. Id. at 229. Due to KRS 532.055, the strict proof requirements normally affixed to evidence did not apply during sentencing proceedings. Id. The court emphasized that the accuracy of the printouts was not challenged, and the printouts were introduced through the testimony of a probation officer who stated the record was kept in the ordinary course of business of the state police. Id. at 230. As a result, the court determined the record fell within the business record exception to the hearsay rule. Id. See also KRE 803(6) (records kept in the ordinary course of a regularly conducted business activity are admissible hearsay exceptions).

Hall was distinguished in Robinson v. Commonwealth, 926 S.W.2d 853 (Ky. 1996), in which our highest court determined that a computer printout from Ohio listing the defendant’s convictions and dismissed charges was erroneous and cause for a new sentencing proceeding. The court acknowledged that, as in Hall, the Ohio records were certified, but noted that the records contained dismissed charges, thereby violating KRS 532.055(2), which only permits the introduction of prior convictions. Id. at 854. The court further distinguished Hall by pointing out that the certified records in Hall were introduced by a Kentucky state police officer with knowledge of their authenticity and the manner in which the printouts were compiled and kept in the ordinary course of business. Id. In Robinson, the Ohio records were introduced by the investigating officer in the Kentucky case, who had no knowledge of the Ohio records’ authenticity or manner in which the printouts were compiled or maintained. Id.

We find the circumstances of this case analogous to Robinson. Most important to this issue, the Ohio records were not certified, and thus their admission violated KRS 422.040. Additionally, the Ohio records were introduced by Magyar’s probation officer from Kentucky, who did not possess knowledge of their authenticity or the manner in which they were compiled or maintained. Therefore, the records do not fall within the business records exception of KRE 803(6). The Commonwealth asserts that any error was harmless because Magyar’s probation officer could properly testify that Magyar was on probation at the time he committed the assault. However, this argument overlooks the difference between evidence of a defendant’s probation status and evidence of the defendant’s specific prior convictions. Thus, we adhere to the reasoning set forth in Robinson and reiterate, “that to allow any further relaxation in the rules of evidence is inappropriate and dangerous to both our system of justice and the right of a defendant to have only admissible evidence presented to the jury.” 926 S.W.2d at 854. Accordingly, the trial court erred by admitting this evidence during the sentencing proceeding, and we remand the matter with instructions to conduct a new sentencing proceeding.

Gwen Billingsley

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