Commonwealth v. Mixon

LEIBSON, Justice,

dissenting.

Respectfully, I dissent.

In a well-written Opinion, quoted in its entirety in the Dissent filed herein by Justice Combs, the Court of Appeals reversed the trial court because previous convictions were proved by inadmissible evidence. The reasons for reversal are fully stated by the Court of Appeals, and I need not repeat them here.

The Majority Opinion states the respondent failed to adequately preserve by contemporaneous objection his arguments that inadmissible evidence was used against him. This much his counsel has conceded in his Brief, and if the Majority Opinion *692was limited simply to reversing for lack of preservation, I would understand the decision, although I might differ with the conclusion.

However, the Majority has used this case as a vehicle to destroy long-standing, traditional rules of evidence relevant to proving the contents of judgments and to using the best evidence. Much of what has been written in the Majority Opinion is fundamentally unsound for the reasons stated in the Court of Appeals’ Opinion (quoted in Justice Combs’ Dissent herein).

I cannot agree that the contents of judgments should be proved by means other than the judgment itself or a duly authenticated copy of the judgment. It may be appropriate for clerks to testify from judgments, but certainly it is not appropriate for clerks to testify from miscellaneous, unidentified hearsay sources.

Hopefully prosecutors will still feel constrained to follow the rules of evidence in sentencing procedures, even though this case, as well as our recent decision in Boone v. Commonwealth, Ky., 821 S.W.2d 813 (1992), might suggest that evidence rules no longer have a place in a sentencing hearing.