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10/08/91 DELORES D. GOLDSBERRY v. UNITED STATES

October 8, 1991

DELORES D. GOLDSBERRY, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Joseph M.F. Ryan, Trial Judge.

Rogers, Chief Judge, Ferren, Associate Judge, and Belson, Senior Judge.* Opinion for the court by Associate Judge Ferren. Concurring opinion by Chief Judge Rogers.

The opinion of the court was delivered by: Ferren

A jury convicted appellant of distribution of cocaine, D.C. Code § 33-541 (a)(1) (1988), possession of drug paraphernalia with intent to use, id. § 33-603(a), and willfully failing to appear, id. § 23-1327(a) (1989). *fn1 Appellant challenges only her conviction for willfully failing to appear. She contends the trial court erred: (1) in admitting hearsay evidence comprised of docket entries and a notice to return to court; (2) in permitting this same hearsay evidence to violate her rights under the Confrontation Clause of the Sixth Amendment; and (3) in refusing to grant her motion for judgment of acquittal for insufficient evidence. We affirm.

I.

A.

The trial court permitted the government to introduce Superior Court docket entries for March 3, 1989, and May 15, 1989, to prove that appellant was in court on March 3 and absent on May 15. Arlington G. Sellers, a calendar coordinator and twenty-year Superior Court employee who had served eight years as a courtroom clerk, was qualified as an expert in courtroom procedures. Cf. Smith v. United States, 583 A.2d 975, 984-85 (D.C. 1990) (although courtroom clerk may he qualified as expert to testify on general practice of courtroom clerks, witness had insufficient personal knowledge to provide evidence of non-routine practices). Sellers testified that the case file that contained the challenged docket entries and Notice to Return had been "sealed," and that the seal indicated that it was "a true copy of the court proceedings, Xerox copy of the jacket certified by a Courtroom Clerk as being a true copy of the file." Sellers identified the initials "D.B." on the docket entries as those of Donald Baumgartner, a courtroom clerk whom Sellers had trained, who worked under Sellers, and who was on leave the day of trial. Sellers testified that normal procedures require all parties to identify themselves at a hearing. He then testified that either the courtroom clerk or the Judge informs the defendant, at the Conclusion of the bearing, of the defendant's next scheduled appearance date and of the penalties for failing to appear. Sellers further testified that the defendant is required to sign a written notice reflecting that the defendant has received notice of the next appearance date. Sellers added that normally the defendant signs the notice in the presence of the courtroom clerk. Sellers also testified that if a defendant does not appear at a scheduled hearing, the court will issue a bench warrant for the defendant's arrest and a record entry will reflect that fact. Sellers then testified that, to the best of his knowledge, the March 3 and May 15 docket entries had been made in accordance with established courtroom procedures.

The government concedes the docket entries are hearsay. The critical question is whether these entries were admissible in evidence under a recognized exception to the hearsay rule. The government cites the public records exception:

All documents prepared by public officials pursuant to a duty imposed by law or required by the nature of their offices are admissible as proof of the facts stated therein. * * * The reason the rule is that it would be burdensome and inconvenient to call public officials to appear in the myriad cases in which their testimony might be required in a court of law, and that records and reports prepared by such officials in the course of their duties are generally trustworthy.

Howard v. United States, 108 U.S. App. D.C. 38, 39-40, 278 F.2d 872, 873-74 (1960) (quoting Olender v. United States, 210 F.2d 795, 801 (9th Cir. 1954)); see E. CLEARY, MCCORMICK ON EVIDENCE § 315 (3d ed. 1984).

To come within this exception, the record first must be authenticated as an official record of the governmental body in question. See Super. Ct. Crim. R. 27(a)(1); *fn2 Willingham v. United States, 467 A.2d 742, 744 (D.C. 1983); see also In re D.M.C., 503 A.2d 1280, 1284 n.6 (D.C. 1986) (civil rules). Next, the party proffering the record must prove that "'the facts stated in the document are within the personal knowledge and observation of the recording official'" and that "'the document is prepared pursuant to a duty imposed by law or implied by the nature of the office.'" In re D.M.C., 503 A.2d at 1283-84 (quoting Howard, 108 U.S. App. D.C. at 40, 278 F.2d at 874).

Appellant does not question that the certified copy of the case file identified by Sellers met the authentication requirement of Super. Ct. Crim. R. 27(a)(1), (supra) note 2. Appellant acknowledges, moreover, that the docket entries were made in the course of official duty. *fn3 She argues, however, that the government presented insufficient evidence to satisfy the remaining criterion: that the entries were based on the recording official's personal knowledge. More specifically, she contends that Sellers' testimony was insufficient for this purpose because he did not have personal knowledge of the docket entries and could not state that "D.B." relied on personal knowledge to fill out the form. According to appellant, Sellers could testify only that, pursuant to general courtroom procedure, "D.B." should, and normally would, have signed the entries based on first-hand knowledge and observation. Appellant argues that such testimony is insufficient as a matter of law to admit the docket entries as a public record.

Appellant's argument is unconvincing. The official who prepares a document need not testify to satisfy the personal knowledge requirement of the public record exception. See Howard, 108 U.S. App. D.C. at 39-40, 278 F.2d at 873-74 (United States Commissioner's report disclosing details of narcotics transaction admissible upon defense request under public record exception without opportunity for government to cross-examine Commissioner or whoever prepared report for him). Such testimony is unnecessary because the recorder's official duty to make an accurate statement in itself supplies a sufficient indication of trustworthiness. See also Hara v. United States, 505 F.2d 495, 497 (9th Cir. 1974) (quoting 5 WIGMORE ON EVIDENCE § 1635 (3d ed. 1940)), cert. denied, 420 U.S. 933 (1975). In short, it "is sufficient that the offering witness he able to identify the record as authentic and as made in the ordinary course of business." United States v. Newman, 468 F.2d 791, 795-96 (5th Cir 1972), cert. denied, 411 U.S. 905 (1973). *fn4

The record before us is sufficient to sustain a finding that the docket entries were made with the required personal knowledge. Sellers identified the docket entries as official court records and testified that they appeared to have been made in conformity with normal courtroom procedures, i.e., under personal observation of the courtroom clerk. Moreover, the entries were initialed "D.B.," whom Sellers identified as Donald Baumgartner, a courtroom clerk under his supervision. *fn5 Accordingly, the evidence was sufficient to sustain the court's ruling that the docket entries were admissible under the public record exception. *fn6

B.

Appellant also challenges the admissibility of the Notice to Return to Court dated March 3, 1989 purportedly signed by appellant. This notice advised appellant of the time and place of trial, bore the signature of "Delores Goldsberry," and was witnessed by Deputy Clerk "D. Baumgartner." Appellant argues that the notice was inadmissible hearsay introduced for the truth of the matter asserted, i.e., that appellant had signed the document. Appellant is mistaken. The notice was not hearsay; rather, it was offered merely "to show that certain words had been said to appellant" which, as a result, showed that she had notice of her next appearance date. Jenkins v. United States, 415 A.2d 545, 547 (D.C. 1980); see E. CLEARY, MCCORMICK ON EVIDENCE ยง 249 at 733-34 (3d ed. 1984) ("When it is proved that D made a statement to X, with the purpose of showing the probable state of mind thereby induced in X, such as being put on notice . . . the evidence is not subject to attack as ...


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