Defendant, John T. Martin, was convicted by a jury of attempted armed robbery, La. R.S. 14:27 and 14:64, subsequently adjudged an habitual offender, La.R.S. 15:529.1, and sentenced to forty years at hard labor. He appealed and relies on four assignments of error for reversal of his conviction.
"Give me your. . . ." were the only words uttered by defendant before he was seized by two policemen as he held a gun on a third plain-clothes officer in a shopping center parking lot. In assignment number one defendant contends that the trial court erred in failing to grant his motion for a new trial. He argues that because he was interrupted in mid-sentence there was no evidence of his specific intent to commit a theft of anything of value, an essential element of the crime of attempted armed robbery. We disagree. The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La.R.S. 15:438. See, La.R.S. 14:27 and 14:64. Taken in context defendant's words and deed excluded every reasonable hypothesis of innocence. Accordingly, defendant's motion did not present sufficient grounds for a new trial. La.C. Cr.P. art. 851.
Assignment of Error No. 2 was taken when the court curtailed defense counsel's cross-examination of a police witness on the subject of his acquaintance and association with his fellow arresting officers. After the witness responded to a series of inquiries relating to how well he knew them, and how long he had worked with them, the State interposed an objection to the relevancy of his further testimony in this vein. Upon being questioned by the court, defense counsel stated that the evidence was relevant to show bias or prejudice. When the purpose is to show that in the special case on trial the witness is biased, it is competent to question him as to any particular fact showing or tending to show such bias. La.R.S. 15:492. However, the cross-examination in the instant case did not appear to bear on any particular fact showing or tending to show bias, and defense counsel failed to point out any such fact in response to the judge's query. We conclude, therefore, that the exclusion of the evidence as irrelevant to the purpose of showing bias or prejudice was not erroneous.
During his direct examination of the defendant, defense counsel sought to introduce a letter written to him by the defendant relating the events preceding his arrest. A prosecution objection was sustained on the ground that the letter constituted hearsay. The general rule is that hearsay evidence is inadmissible, La.R.S. 15:434 and 15:463, but Louisiana has no statutory definition of hearsay.
We have on occasion indicated that an out-of-court assertion by a testifying witness is not hearsay, although it does not appear that this notion was actually crucial to any of our decisions.
Upon reflection, we conclude that Professor McCormick's formulation is preferable as a brief definition of hearsay. Often an erroneous ruling admitting an unsworn out-of-court assertion by a testifying witness will not present grounds for reversal, but the hearsay character of a proffered out-of-court assertion is not altered by the fact that the statement was made by a person who appears in court as a witness.
Assignment of error number four
The rule of authentication evidencing the genuineness of a particular document has always to be satisfied; for an official document may belong to a class clearly admissible, but still the document actually offered must be authenticated as genuinely that which it purports to be. 5 J. Wigmore, Evidence, §§ 1637, 2129 (1974). In the instant case the documents were stamped "a true copy of the original on file in this office" and signed by an individual identifying himself as "Deputy Sheriff, Jefferson Parish." The State contends that the documents were authenticated in accordance with La.R.S. 15:457, which provides:
This statute is apparently a codification of the general principle that the lawful custodian of a public record has, by implication of his office, and without express order, an authority to certify copies. See, Church v. Hubbart, 6 U.S. (2 Cranch) 187, 236, 2 L.Ed. 249 (1804); United States v. Percheman, 32 U.S. (7 Pet.) 51, 86, 8 L.Ed. 604 (1883); 5 J. Wigmore, Evidence, § 1677 (1974); C. McCormick, Evidence, § 320 (Cleary ed. 1972).
Nevertheless, defendant contends that because the certification does not establish that the deputy sheriff was the legal custodian the documents were not authenticated. Ordinarily, he would be correct. The person having the duty of keeping official records and the person certifying copies
Since the documents were certified as being true copies of the originals on file in the sheriff's office by a deputy sheriff, they were equivalent to the originals in authenticity.
These documents were hearsay evidence, however, and should have been excluded for the same reason that defendant's letter was not allowed in evidence. The documents contained out-of-court assertions offered to show the truth of matters asserted therein. The State advances no reason why they should be admitted as exceptions to the hearsay rule. The mere fact that the documents were entitled to be regarded as authentic copies of the originals on file in the sheriff's office does not render them admissible.
The trial judge's per curiam indicates that he overruled defendant's objections because "the documents in question reflected entries in the ordinary course of business." In this he fell into error. Before such exception may be invoked by the State against the defendant, allowing introduction of a permanent record made in the ordinary course of business from personal knowledge of the facts recorded, or from information furnished by one having a business duty to observe and report the facts, it must be shown that the person who made the record is genuinely unavailable for testimony, that he had no strong motive to misrepresent, and that in all probability the evidence is trustworthy. State v. Monroe, 345 So.2d 1185 (1977). The State failed to make such a showing in at least one particular, i. e., that the person who made the record was genuinely unavailable for testimony.
Because these documents were essential to the proof required for a multiple offender conviction, i. e., that there was
For the reasons stated, we affirm the defendant's conviction but reverse the trial court's adjudication of defendant as an habitual offender and the sentence imposed thereon. The cause is remanded to the trial court for proceedings consistent with the foregoing opinion.
SANDERS, C. J., and SUMMERS, J., dissent.
MARCUS, J., concurs in part and dissents in part and assigns reasons.
MARCUS, Justice (concurring in part and dissenting in part).
I concur in the affirmance of defendant's conviction. I dissent from the reversal of the trial judge's adjudication of defendant as an habitual offender and the sentence imposed thereon.