A person who has previously been convicted of three non-overlapping felonies who commits a new felony in North Carolina may be indicted for the new felony and may be separately indicted for obtaining habitual felon status. If the person is convicted of the new felony and of obtaining habitual felon status, the person is subject to more severe punishment for the new felony.
In State v. Waycaster, __ N.C. App. ___ (2018), the court of appeals considered whether the State could prove a prior conviction underlying the defendant’s habitual felon status by offering a printout from the state’s Automated Criminal/Infraction System (“ACIS”) into evidence.
Facts. The defendant in Waycaster was indicted for interfering with an electronic monitoring device (the new felony) and for attaining the status of an habitual felon. The habitual felon indictment alleged three previous convictions in McDowell County:
- A June 4, 2001 conviction for felony breaking and entering on or about February 20, 2001;
- A February 18, 2010 conviction for felony breaking and entering on or about October 29, 2009; and
- A July 22, 2014 conviction for safecracking on or about June 27, 2013.
During the habitual felon phase of the defendant’s trial, the State offered into evidence copies of judgments for the 2010 and 2014 convictions.
The ACIS evidence. To prove the 2001 conviction, the State called the McDowell County Clerk of Court as a witness. The clerk identified a printout from ACIS that showed that on June 4, 2001 the defendant was convicted in McDowell County case 01 CR 1216 of felony breaking and entering for an offense that occurred on February 20, 2001.
The defendant objected to the admission of the printout, arguing that it ran afoul of the original writing, or “best evidence,” requirement in the North Carolina Rules of Evidence as it was not a copy of the judgment.
Best evidence rule. N.C. R. Evid. 1002 requires that to prove the content of a writing, the original writing is required unless an exception applies. A duplicate generally is admissible to the same extent as an original. N.C. R. Evid. 1003. The original writing is not required, and secondary evidence its contents may be introduced, if the original writing is (1) lost or has been destroyed, (2) not obtainable, (3) in the possession of the opponent, or (4) not closely related to a controlling issue.
N.C. R. Evid. 1005 sets forth a special rule for the contents of an official record or of a document authorized to be recorded or filed and actually recorded or filed. Public records of this sort may be proved by a copy, certified as correct in accordance with the rules of self-authentication in N.C. R. Evid. 902, or testified to be correct by a witness who has compared the copy to the original. Rule 1005 provides that if a copy of a public record cannot be obtained by the exercise of reasonable diligence, then the contents of the record may be proved by other evidence.
Trial court’s ruling. The trial court in Waycaster overruled the defendant’s objection, and the jury found that Waycaster had attained habitual felon status. Waycaster appealed.
Court of appeals’ analysis. The court of appeals began by reviewing the Habitual Felon Act’s requirements for proving prior felonies. G.S. 14-7.4 provides that “[a] prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction.” In the earlier case of State v. Wall, 141 N.C. App. 529 (2000), the court had explained that G.S. 14-7.4’s provisions were permissive and did not exclude other methods of proof. Thus, the Wall court held that a faxed, certified copy of a defendant’s prior conviction, which appeared to be a reliable record of the defendant’s prior conviction, was properly admitted in evidence.
The Waycaster court noted that ACIS is an electronic compilation of criminal records in North Carolina that is maintained by the Administrative Office of the Courts (AOC). The information in ACIS is entered on a continuing, real-time basis by individual clerks of superior court and employees in their offices based on the physical records maintained by the clerk. The McDowell County Clerk of Court testified that the printout was a certified true copy of the information in ACIS regarding the judgment and was a “’different way of recording what’s on a judgment[.]’” (Slip op. at 12.) Thus, the court concluded that the ACIS printout was sufficient evidentiary proof of the defendant’s 2001 conviction for purposes of establishing his status as an habitual felon.
The court then held, without lengthy explanation, that the “best evidence” rule did not bar the admission of the ACIS printout. It again referenced the permissive nature of G.S. 14-7.4 and noted that the clerk had certified the ACIS printout as a true copy.
Dissent. Judge Murphy dissented from the majority’s holding that the ACIS printout was properly admitted. He reasoned that while an ACIS printout may serve as secondary evidence of a defendant’s record of a conviction, the original writing rule must be satisfied first. The State in Waycaster failed, in the dissent’s view, to show that the 2001 judgment could not be obtained by the exercise of reasonable diligence. The prosecutor’s explanation that “‘they said that they didn’t have the original,’” did not suffice, the dissent argued, to evince a reasonably diligent search. (Murphy, J., dissenting, slip op. at 8).
Stay tuned. The dissent affords the defendant an appeal of right to the state supreme court. G.S. 7A-30(2). If that court has a different view of the matter, I’ll be sure to keep you posted. In the meantime, I imagine the State will continue to primarily rely on certified copies of judgments to prove a defendant’s habitual felon status. That is, after all, the “‘most appropriate means’” to prove a prior conviction for these purposes, slip op. at 11 (quoting State v. Wall, 141 N.C. App. At 533), and it saves the State the trouble of bringing a live witness to court. But if the certified copies aren’t readily ascertainable, Waycaster sanctions an alternative method of proof based on an ACIS printout.