Opinion
Court of Appeals No. A-9998.
April 1, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, Patrick J. McKay, Judge, Trial Court No. 3AN-06-11254 Cr.
Sharon B. Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Che R. Cruz Matus was convicted of violating a domestic violence protective order and two counts of third-degree criminal mischief. In this appeal, he challenges two of the evidentiary rulings at his trial. For the reasons explained here, we conclude that one of the challenged evidentiary rulings was correct but the other was mistaken. However, we further conclude that the evidentiary mistake was harmless. Accordingly, we affirm Matus's convictions.
Underlying facts
In the spring of 2006, Matus began dating Magen Butler. After several months, their relationship soured, and Butler obtained a protective order against Matus. Under the terms of this protective order, Matus was prohibited from coming within 1000 feet of Butler's residence and from having any contact with her.
On October 20, 2006, Matus (using a cell phone) called Butler from the parking lot of a movie theater near her home. He told Butler that he had a gun and that he was going to kill himself. Butler immediately called Matus's sister. Matus's sister called Matus and spoke to him, and then she called Butler back, insisting that Butler agree to see Matus one last time. Butler acquiesced; she agreed to meet Matus and his sister outside her (Butler's) apartment, in the driveway.
When Matus arrived, Butler came out of her apartment, spoke to him briefly and told him goodbye, and then went back inside her apartment. Matus remained outside Butler's apartment, unwilling to end their conversation. Again using his cell phone, he called Butler and demanded that she come back outside. He began kicking Butler's door, and he threatened to smash the rear end of her car (which was parked in the driveway) if she did not come out.
Finally, Matus told Butler that he was going to count down from five, and that she had better come outside by the time he finished. Matus began counting, but Butler remained inside her apartment. After Matus reached the number "one", Butler heard a loud noise outside her apartment, and the apartment building shook. Butler called the police, and then she went outside to see what had happened. She discovered that her car, a red Ford Thunderbird, had been rear-ended — and that the impact had pushed the car into the side of her apartment building and had also damaged an adjoining fence. Matus and his vehicle were gone.
A short time later, Anchorage Police Officer Leah Davies arrived at Butler's apartment. Butler recounted the events to Officer Davies. She also told the officer that Matus lived at 8860 Cordell Circle, that he drove a green Chevrolet truck with the license plate ENB 904, and that this truck had a distinctive "Lawless Riders" sticker on the back. (Butler misidentified the truck as a Chevy Tahoe, when it was in fact a Chevy Blazer.)
While Officer Davies was at Butler's apartment, Matus called again. Over the phone, Davies heard Matus threatening to kill himself.
In response to the information provided by Butler, Anchorage Police Officer Cyndi Addington was dispatched to 8860 Cordell Circle, to see if she could locate the vehicle that Butler had described, and to see if this vehicle had any damage indicating a recent collision with a red car.
When Addington arrived at 8860 Cordell Circle, she found a green Chevy Blazer with the license plate ENB 904 and a "Lawless Riders" sticker on the back. When Addington inspected this vehicle, she observed a vertical gash and transferred red paint on the front bumper. She then ran the license plate number through her computer and learned that the vehicle was registered to Matus.
Based on the foregoing events, Matus was charged with violating a protective order and two counts of third-degree criminal mischief (one count based on the damage he inflicted to Butler's car, and the other count based on the damage he inflicted to the apartment building and adjoining fence). Following a jury trial, Matus was convicted of all counts. The hearsay testimony concerning the fact that the green Chevy Blazer with license plate number ENB 904 was registered to Matus
Officer Cyndi Addington was called as a witness by the State at Matus's trial. Without objection, Addington testified that she was dispatched to 8860 Cordell Circle (the address where Matus was living), and that she found a green Chevy Blazer with license plate number ENB 904. The Blazer had a "Lawless Riders" sticker on the back, and it had a gash and red paint on its front bumper.
Addington also testified that she ran license plate number ENB 904 through the Alaska Public Safety Information Network computer database ("APSIN") to learn the identity of the registered owner of that vehicle. But when the prosecutor asked Addington to tell the jurors who the registered owner was, Matus's defense attorney objected that the officer's proposed answer would be hearsay.
The trial judge noted that motor vehicle registration information appeared to fall within two of the hearsay exceptions codified in Alaska Evidence Rule 803: the exception for public records (subsection (8) of the rule) and the exception for business records (subsection (6) of the rule). Accordingly, the trial judge overruled the defense attorney's objection and allowed the officer to testify about the content of the computer record. This was error.
The error was not one of substantive law — for we have little doubt that the challenged testimony was potentially admissible under the public records exception codified in Evidence Rule 803(8) (and, perhaps also, the business records exception contained in Evidence Rule 803(6)). Rather, the error was procedural.
Merely identifying these two pertinent hearsay exceptions was not, of itself, sufficient to justify admission of the officer's testimony. The next step — the next requirement — was for the proponent of the evidence (in this case, the State) to establish the foundational facts that are the prerequisites for invoking either of the hearsay exceptions in Rule 803(8) or Rule 803(6).
For instance, if the trial judge and the prosecutor believed that the computerized vehicle registration records constituted a "public record" within the meaning of Evidence Rule 803(8), it was the prosecutor's burden to establish that the computer records which the officer consulted were, in fact, (1) maintained by a public office or agency (2) pursuant to a duty imposed on that office or agency by law. In addition, the prosecutor was arguably obliged to authenticate the record through testimony, or by introducing a certified copy from the relevant public office or agency, in the format specified by Evidence Rule 902(4).
But the trial judge did not require the prosecutor to present either of the foundations specified in Rule 803(8) or Rule 803(6). Instead, the trial judge simply allowed the prosecutor to elicit the hearsay.
We acknowledge that, following the judge's ruling, the prosecutor asked Officer Addington a series of questions that were apparently an attempt to lay a foundation for the hearsay. But the officer's answers to these questions fell short of what was required.
Addington testified (1) that APSIN is commonly used by the Anchorage Police Department and (2) that, as far as she knew, the information in APSIN is maintained and kept up to date — by unspecified persons. This was not a sufficient foundation for admission of the hearsay under Evidence Rule 803(8).
The State cites several judicial decisions declaring that motor vehicle records are admissible under the public records exception to the hearsay rule. We assume that this is true — but that is not the point. The problem here is lack of foundation. In the cases cited by the State, evidence of motor vehicle registration and licensing was introduced in the form of certified records (or certified print-outs) from the pertinent government agency, or was properly authenticated through testimony. In other words, the proponent of the evidence laid the proper foundation for admission of these motor vehicle records. That did not happen here.
The State cites State v. Floyd, 586 P.2d 203, 206 (Ariz.App. 1978); People v. Vásquez, 155 P.3d 588, 594 (Colo.App. 2006); Coates v. State, 650 N.E.2d 58, 62-63 (Ind.App. 1995); State v. Fontenot, 618 So.2d 915, 921 (La.App. 1993); and State v. Morin, 598 A.2d 170, 172 n. 2 (Me. 1991). The State also relies on two unpublished decisions of this Court, Dolchok v. State, Alaska App. Memorandum Opinion No. 3440 (August 7, 1996), 1996 WL 33686810 at *2 n. 4, and Wenzlick v. State, Alaska App. Memorandum Opinion No. 1468 (July 29, 1987), 1987 WL 1357101 at *1.
The State also attempts to remedy the lack of foundation by asking this Court to take judicial notice of the statutes that charge the Division of Motor Vehicles with screening and approving applications for vehicle registration, and keeping records of all vehicle registrations. It is proper for this Court to take judicial notice of Alaska statutes, but these statutes solve only half of the State's foundation problem. The fact that the Division of Motor Vehicles is under a legal duty to maintain records of vehicle registrations does not establish that the information that Officer Addington retrieved from APSIN was obtained from, and accurately represented, the information contained in the Division of Motor Vehicles' records.
See AS 28.05.061(a) and AS 28.10.071.
On this very point, several courts have ruled that information contained in the FBI's criminal justice database, the NCIC ("National Crime Information Center"), is not admissible as a public record. These courts have noted that the information contained in the NCIC is not generated by the FBI itself, but rather is collected and submitted by numerous law enforcement agencies from around the country. As a result, a police officer who consults an NCIC print-out, or who consults information displayed on an NCIC computer screen, has no direct knowledge of the source of the information, nor any knowledge of how that information was compiled or maintained.
See United States v. Long, 578 F.2d 579, 581 (5th Cir. 1978); United States v. Davis, 568 F.2d 514, 516 (6th Cir. 1978); Vlietstra v. State, 800 N.E.2d 972, 975 (Ind.App. 2003); Harveston v. State, 798 So.2d 638, 640-41 (Miss.App. 2001); Commonwealth v. Travaglia, 661 A.2d 352, 363-64 (Pa. 1995).
Based on the record in the present case, the same would have to be said about the information contained in APSIN. The State presented no testimony concerning who gathers the information contained in APSIN, how that information is gathered, or how that information is placed into, and maintained within, APSIN. In particular, the State failed to present testimony that the vehicle registration information contained in APSIN is taken directly from, or is otherwise an accurate reflection of, the official records of the Division of Motor Vehicles.
In its brief to this Court, the State asks us to take judicial notice of this crucial foundational fact. Relying on information contained on web sites maintained by the Alaska Department of Administration (the parent agency of the Division of Motor Vehicles) and the Alaska Department of Public Safety (the agency that maintains APSIN), the State asserts that the APSIN database and the Division of Motor Vehicles' database are both maintained on the State of Alaska's mainframe computer, and that when a law enforcement officer logs into APSIN and asks to see vehicle registration information, the officer's computer "interfaces directly . . . and seamlessly" with the Division of Motor Vehicles' database.
http://www.state.ak.us/local/akpages/ADMIN/info/ServiceCatalog2008.pdf; http://www.dps.alaska.gov/statewide/apsin/whatsinaspin.aspx; and http://www.dps.alaska.gov/statewide/apsin/docs/APSINbrochure.pdf.
Whether these assertions are true or not, they are not a proper subject for judicial notice. Under Alaska Evidence Rule 201(b), a court may take judicial notice of a fact only when (1) the factual assertion is "not subject to reasonable dispute" and when (2) this lack of reasonable dispute concerning the truth of the factual assertion arises either because the fact is generally known within this state, or because the truth of the assertion is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned".
The State's assertions about the source of the information in APSIN, and the relationship between the APSIN database and the Division of Motor Vehicles' database, do not fall within the categories defined in Evidence Rule 201(b). The truth of these assertions is not generally known within this state. Nor is the truth of these assertions "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned". Here, the sources upon which the State relies are web sites maintained by instrumentalities of the State, and (from the record currently before us) we have no way of knowing whether the accuracy of the assertions on these web sites is beyond reasonable dispute.
We do not mean to say that we actively distrust the assertions of fact contained in the State's brief or on the State's web sites. For all we know, the State's assertions about the relationship between the APSIN database and the Division of Motor Vehicles' database may be completely true, and (consequently) it may also be true that, when Officer Addington consulted the vehicle registration information in APSIN, the information displayed to her was pulled directly from the Division of Motor Vehicles' records.
But these assertions of fact were not presented to the trial court, nor are they proper subjects for judicial notice. And without proof of these matters, the challenged hearsay testimony was not admissible under the public records exception to the hearsay rule.
(Using analogous reasoning, we also conclude that the challenged hearsay testimony was not admissible under the business records exception.)
Nevertheless, we conclude that the erroneous admission of this hearsay testimony was harmless.
The substance of the challenged testimony was that Matus was the registered owner of the vehicle. But this information was only circumstantial evidence of the true issue that the jury needed to decide: whether Matus was driving the vehicle when it smashed into Butler's car and pushed Butler's car into the apartment building and adjoining fence.
As we have explained, Matus was speaking on the phone with Butler at the very time of these events. He was expressly threatening to smash Butler's car, and Butler heard — and felt — the collision just after Matus counted down to "one". Moreover, Butler gave a detailed description of Matus's vehicle to the responding officer, and when Officer Addington located that vehicle, she found damage to the vehicle that was consistent with a recent collision with a red car ( i.e., a gash and a transfer of red paint to the front bumper of the vehicle).
Given this evidence, the erroneous admission of the challenged testimony (that Matus was the registered owner of the vehicle) could not have affected the jury's verdict. Indeed, even if the vehicle registration records had shown that the vehicle was registered to someone else, we doubt that the verdict would have been affected. Butler's landlord's testimony concerning the amount of money needed to repair the damage that Matus inflicted on the apartment building and the adjoining fence
See Love v. State, 457 P.2d 622, 632 (Alaska 1969) (the test for whether non-constitutional error requires reversal of a trial court's judgement is whether the error "appreciably affect[ed] the jury's verdict").
As we have explained, Matus was convicted of two counts of third-degree criminal mischief under AS 11.46.482(a)(1) — one count for damaging Butler's car, and the other count for damaging the apartment building and the adjoining fence. One of the elements of third-degree criminal mischief under subsection 482(a)(1) is that the property damage inflicted by the defendant must be "in an amount of $500 or more". To prove the amount of damage to the apartment building and fence, the State presented the testimony of Byron Brown, the owner of the apartment building.
Brown testified that, shortly after Matus rammed Butler's car, he arrived at the scene and viewed the damage to the apartment building's siding and the fence. Brown also testified that he owned various residential properties around Anchorage, and that (in his capacity as a property manager) he had both made repairs himself and hired others to make repairs for him — including repairs to siding and fences. Based on his experience, Brown estimated that it would cost approximately $4500 to repair the damage inflicted by Matus.
On appeal, Matus challenges the admissibility of this testimony. He does not argue that Brown was disqualified from testifying about the value of the property damage. Rather, he argues that Brown's estimate of the value was nothing more than speculation.
We note that, under Alaska law, a lay witness with appropriate experience can testify about the value of real property. See Schymanski v. Conventz, 674 P.2d 281, 286-87 (Alaska 1983). Using the supreme court's analysis in Schymanski, we readily conclude that a lay witness with appropriate experience can testify about the value of damage to property ( i.e., the amount of money required to repair the damage).
In either situation, the testimony is, in essence, a prediction of future events. In the case of real property valuation, it is a prediction of what the property would bring if it were sold. In the case of a repair estimate, it is a prediction of how much money would be needed ( i.e., the cost of materials and labor) to restore the property. But in either case, the underlying principle is the same: if the trial judge is convinced that a person has enough experience in these matters to make an informed prediction, that person's testimony is admissible as lay opinion. Schymanski, 674 P.2d at 286.
Matus does not dispute this principle of law, but instead argues that Brown did not have sufficient knowledge and experience to offer an informed opinion as to the cost of the repairs. However, as we noted earlier, Brown testified that, in his capacity as a property manager, he had made repairs to structures himself and had hired (and assumedly paid) others to make repairs for him. When Matus's attorney cross-examined Brown, he did not dispute Brown's assertions concerning his knowledge and experience in this area. In fact, the defense attorney posed only a single question on this issue: he asked Brown to concede that the repair cost of $4500 was not a precise number, but only a "guesstimate". Brown conceded that this was true.
As the Schymanski decision explains, it is for the trial judge to decide whether a witness has sufficient knowledge and experience to offer an informed opinion on these matters — and an appellate court will uphold the trial judge's decision unless it is shown to be an abuse of discretion. 674 P.2d at 286.
Here, the underlying issue was not the precise cost of the repairs, but instead whether the cost of those repairs would equal or exceed $500 — the threshold amount for third-degree criminal mischief. Thus, even if Brown's estimate was off by as much as eighty percent, the amount of damage would still exceed the $500 statutory minimum.
When the trial judge made his ruling, he noted that if Brown's estimate "[had been] $525, [that] would be . . ., perhaps, a different story". In other words, the trial judge perceived that, given the circumstances of this case and the fact that the statutory threshold was $500, Brown's estimate did not have to have an extreme degree of precision. We conclude that the trial judge did not abuse his discretion when he allowed Brown to testify concerning the estimated cost of repairing the damage to the apartment building and the fence.
We note in passing that, even if we had concluded that Brown's testimony was inadmissible, Matus would not be entitled to the relief he asks for — a judgement of acquittal. As this Court explained in Houston-Hult v. State, 843 P.2d 1262, 1265 n. 2 (Alaska App. 1992), and again in Marino v. State, 934 P.2d 1321, 1330 n. 3 (Alaska App. 1997), when a defendant successfully contends on appeal that the trial judge should have excluded a portion of the State's evidence, the defendant can not then argue that the State's remaining evidence was insufficient to withstand a motion for judgement of acquittal. The defendant's remedy for an evidentiary error is a new trial, not dismissal of the charge with prejudice.
Conclusion
The judgement of the superior court is AFFIRMED.