Opinion
Record No. 1674-92-3
October 19, 1993
FROM THE CIRCUIT COURT OF AMHERST COUNTY J. MICHAEL GAMBLE, JUDGE.
P. Scott DeBruin (Joseph R. Johnson, Jr. Associates, on brief), for appellant.
Margaret Ann B. Walker, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Koontz, Elder and Fitzpatrick.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Alfred Jordan, Jr. (appellant) appeals his conviction of third offense petit larceny in violation of Code §§ 18.2-181 and 19.2-297. On appeal, he argues that the trial court erred in taking judicial notice of a 1979 order of conviction to establish his predicate convictions. We agree and reverse the conviction.
The parties are familiar with the facts of this case; therefore, we recite only those facts necessary to explain our decision. On May 15, 1991, appellant wrote a check to the Best Bet Mini-Mart for $23.66 in exchange for merchandise. The check was returned, unpaid, from the bank with the notation that the account was closed. Appellant never paid the amount owed to the store.
The Commonwealth introduced into evidence, over appellant's objection, two previous convictions for similar offenses. It is undisputed that a properly certified copy of a September 29, 1983 conviction for uttering was properly admitted. The second underlying conviction of April 12, 1979 was not properly certified as required by Code § 8.01-389, but the trial judge admitted it into evidence after taking judicial notice of the court's own records in the 1979 case.
At trial, the Commonwealth's attorney offered to take Commonwealth exhibit No. 5 down to the clerk's office for certification. In response, the trial court directed the Commonwealth's attorney to get the conviction certified; however, the court ultimately took judicial notice of its records and admitted the document into evidence on that basis. The record before us fails to disclose any proper certification of Commonwealth exhibit number 5.
In Virginia, the general rule is that trial courts may "not take judicial notice of [the authenticity of] its records, judgments and orders in other and different cases or proceedings, even though such cases or proceedings may be between the same parties." Fleming v. Anderson, 187 Va. 788, 794, 48 S.E.2d 269, 272 (1948). A trial "court will not travel outside the record of the case before it in order to take notice of the proceedings in another case . . . unless the proceedings are put in evidence." Bernau v. Nealon, 219 Va. 1039, 1043, 254 S.E.2d 82, 85 (1979); see also C. Friend, The Law of Evidence in Virginia § 279 (3d ed. 1988) (noting that "a trial court apparently may not take judicial notice of its own records in other cases or proceedings").
The Commonwealth used Exhibit 5, an uncertified 1979 conviction for a violation of Code § 18.2-181, as the second predicate conviction to establish the third larceny offense pursuant to Code § 19.2-297. This conviction was not certified. Both parties agree, however, that attached to this record of conviction was a waiver of counsel form bearing a certification from the trial court's clerk's office. The only waiver form in the record was marked as Exhibit 4 and shows a waiver of counsel signed August 11, 1983. This form is unrelated to the 1979 conviction. Although the parties acknowledge that there may have been an additional waiver of counsel form attached to Exhibit 5 which the trial court misplaced, we are bound by the record before us. Code § 8.01-389(A) provides:
The records of any judicial proceeding and any other official records of any court of this Commonwealth shall be received as prima facie evidence provided that such records are authenticated and certified by the clerk of the court where preserved to be a true record.
(emphasis added).
In this case, the requirements of Code § 8.01-389(A) were not met, and the trial court cannot circumvent this requirement by taking judicial notice of its own records in an unrelated case.
See generally Owens v. Commonwealth, 10 Va. App. 309, 310-11, 391 S.E.2d 605, 606-07 (1990).
For the reasons set forth above, the judgment of the trial court is reversed and the matter is remanded for further proceedings consistent with this opinion, if the Commonwealth be so advised.
Reversed and remanded.