Commonwealth v. Mixon

SPAIN, Justice.

Respondent was convicted by a jury of second-degree assault for slashing another man with a knife, and of being a first-degree persistent felony offender (PFO). His punishment was fixed at ten years for the assault, enhanced to fifteen years by reason of his PFO status. At issue is whether the necessary elements of a PFO charge may be proved by the oral testimony of a circuit clerk from records in her custody, without the necessity of introducing into evidence certified copies of the judgments. The Court of Appeals panel by a 2-1 vote answered the question in the negative, reversing the PFO conviction and sentence, and holding that the respondent could not again be tried thereon. The cause was ordered remanded for resentenc-ing on the assault conviction. We granted discretionary review and now reverse the Court of Appeals and affirm the PFO conviction and enhanced sentence.

First of all, as this Court held in Jackson v. Commonwealth, Ky., 703 S.W.2d 883 (1986), “There is no statutory requirement under KRS 532.080 that any judgment be entered into the record when proving the prior conviction.”

Here a deputy McCracken Circuit Court Clerk testified under oath from criminal records in her possession involving the respondent. The transcript of evidence reflects clearly that she read from those records at length, and in answer to several questions asked by the Commonwealth, read verbatim extracts. The testimony given methodically supplied each element necessary for a first-degree PFO conviction. There was no objection interposed pursuant to RCr 9.22 at any time by the defense, either to the method of proof or to the testimony elicited. After direct examination, defense counsel engaged in a brief cross-examination.

Moreover, at the close of the prosecution’s proof, there was no motion by defense counsel for a directed verdict as to the PFO charge nor did the defense have any objection to the proposed instructions to the jury submitting the PFO charge.

It is abundantly clear that there was no issue preserved for appellate review regarding the proof of the elements of the PFO charge. It is neither unfair nor unreasonable to assume under these circumstances that trial defense counsel was completely satisfied as to the authenticity and correctness of the testimony and the underlying records. Had she not been so convinced, it would have been the simplest matter imaginable to have objected to the testimony. At that point, the Commonwealth could then have moved the introduction into evidence of the written records, and had they not been properly authenticated, the defense could again lodge an objection to preserve the question for appellate review.

There are sound reasons for not offering into evidence complete written records as to prior convictions but rather to permit the jury to hear only relevant testimony extracted therefrom. Frequently there are additional charges which were joined but *691on which the defendant was acquitted. “Laundering” or “sanitizing” is necessary to prevent unnecessary prejudice to the defendant.

This Court has on several occasions condoned or even instructed trial participants to offer oral testimony as to selected contents of written court documents. In Kendricks v. Com., Ky., 557 S.W.2d 417 (1977), the accused was convicted of first-degree robbery and of being a persistent felon. On appeal he attacked the sufficiency of the evidence to support the PFO conviction. In upholding the conviction, the Court stated at page 419:

It is true that the records of the Jefferson Circuit Court, which were read to the jury for the purpose of establishing Ken-dricks’ conviction for two prior felonies, did not affirmatively show that the guilty pleas upon which the convictions were based were freely and voluntarily entered. The Commonwealth did not prove that the trial court ever signed the judgments in the order book. However, Ken-dricks has not alleged that either of these possible defects in the validity of these convictions exist. The record does reveal that on each of the convictions Kendricks was represented by able counsel. Upon being sentenced he was asked in the presence of his counsel if he had any reason to show why he should not be sentenced on the convictions. No reason was shown. This court is of the opinion that the presumption of regularity of the Jefferson Circuit Court orders precludes Kendricks from speculating that the recorded convictions are invalid. Ingram v. Commonwealth, Ky., 427 S.W.2d 815 (1968).

Similarly in Gamer v. Com., Ky., 645 S.W.2d 705 (1983), we held that duly proven records of the Bureau of Corrections would suffice as proof of the defendant’s age and parole status in PFO proceedings. It was therein stated:

Additionally, the information should be received by testimony from the records and not by introduction of the records themselves, as we would restrict this evidence to proof of age and parole status alone. Id. at 707.

In Hayes v. Com., Ky., 698 S.W.2d 827 (1985), this Court held there was insufficient proof as to a PFO charge because the dates of commission of prior offenses had not been established. The opinion recited:

If the indictments were filed with the official records and were available to the clerk when testifying, the circuit clerk should have testified from them as to the date of commission of the prior offenses, as well as to the dates of convictions for the prior offenses. Id. at 831.

In conclusion, we hold that under these circumstances it is not mandatory for certified copies of judgments of conviction to be admitted into evidence in support of a PFO charge. It is sufficient for oral testimony based upon documentary evidence to be received in support of the elements of the charge. In the absence of objection at trial, failure to admit the documentary evidence will not be reviewed on appeal.

The decision of the Court of Appeals is reversed and the judgment and enhanced sentence of the McCracken Circuit Court is affirmed.

STEPHENS, C.J., and LAMBERT, REYNOLDS and WINTERSHEIMER, JJ., join in this opinion. COMBS and LEIBSON, JJ., dissent by separate opinion.