Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Ronald J. Wilper, District Judge; Hon. Michael R. McLaughlin, District Judge.
The opinion of the court was delivered by: Schwartzman, Judge Pro Tem
Judgment of conviction for felony driving under the influence, reversed and case remanded; second judgment of conviction for felony driving under the influence, remanded for further proceedings.
Albert R. Moore appeals from his judgment of conviction for felony driving under the influence (DUI) in Case No. 35486, as well as another judgment of conviction for the same charge in Case No. 36033. The cases are consolidated on appeal. In regard to Case No. 35486, we reverse the judgment of conviction and remand for further proceedings. In regard to Case No. 36033, we remand for further proceedings.
On September 3, 2006, Moore was arrested for DUI, Idaho Code § 18-8004, and for driving without privileges (DWP), I.C. § 18-8001.*fn1 Two days later, he entered a not guilty plea to the charges and trial was set for February 21, 2007. On January 23, 2007, a pretrial conference was held, during which Moore waived his right to a jury trial and a bench trial was scheduled for May 14, 2007.
On March 1, 2007, the state filed an amended complaint, charging Moore with an enhanced misdemeanor DUI on the basis that it was his second such offense within ten years. On May 11, 2007, the bench trial was reset for July 23, 2007. On July 23, however, the case was apparently set over to September 12, 2007, for a plea and sentencing hearing. Then, on September 12, the case was again reset for a jury trial to commence on December 14. At a pretrial conference the trial date was again changed to February 15, 2008.
On January 4, 2008, the state filed a second amended complaint elevating the misdemeanor DUI charge to a felony based on the state's allegation that Moore had twice previously been convicted of DUI within the preceding ten years--specifically in Idaho in 2006 and in North Dakota in 1999.*fn2 I.C. §§ 18-8004(1)(a), -8005(5).*fn3 On January 10, Moore filed a motion to dismiss on statutory and constitutional speedy trial grounds. After a preliminary hearing was held, an information was filed charging Moore with felony DUI and DWP on March 26, 2008. Moore eventually filed a brief in support of his motion to dismiss on May 16; a hearing was held on June 12, after which the court allowed supplemental briefing on the issue. The court denied the motion, concluding there had been "good cause" for the delay.
Moore entered a conditional Alford*fn4 guilty plea to the DUI charge on December 1, 2008, retaining his right to appeal the denial of his motion to dismiss on speedy trial grounds and the issue of whether his North Dakota conviction could properly be used to enhance the DUI charge. On December 31, 2008, the court entered a judgment of conviction for felony DUI and sentenced Moore to six years imprisonment with one year determinate to run concurrently with the sentence imposed for his July 2008 DUI conviction. He was given credit for 848 days of incarceration served prior to entry of the judgment.*fn5 Moore now appeals, contending the court erred in denying his motion to dismiss on speedy trial grounds and that the North Dakota conviction was improperly utilized to enhance the DUI charge.
While the above charge was pending, on April 28, 2007, Moore was again arrested for driving while intoxicated.*fn6 He was eventually charged by information with operation of a motor vehicle while under the influence of alcohol with two or more prior convictions within ten years, I.C. §§ 18-8004, -8005(5), based on the 2006 Idaho and 1999 North Dakota convictions. Prior to trial, Moore filed a motion in limine, arguing that his North Dakota conviction could not be used to enhance the current charge because the statute under which he was charged did not substantially conform to Idaho's DUI statute. Anticipating a bifurcated trial whereby the jury would first determine whether Moore had been driving under the influence in the instant case, and if it answered in the affirmative, would then determine whether Moore had been convicted of two substantially conforming charges within ten years, the district court deferred ruling on the motion until the first question had been submitted to the jury. Eventually, the court denied the motion in limine, deciding that the North Dakota statute was substantially conforming to the Idaho DUI statute.
The jury concluded that Moore was guilty of driving under the influence and the case proceeded to the second phase during which Moore objected to the admission of documents pertaining to his North Dakota conviction. The court overruled the objection and the jury ultimately found that Moore had been convicted of two other DUIs within the last ten years. On July 8, 2008, the court entered a judgment of conviction for felony DUI and sentenced Moore to six years imprisonment with one year determinate. Moore timely appealed and now raises the issue of whether the court erred in admitting and determining that the state could utilize the North Dakota conviction as a basis for enhancement.
Moore advances several contentions on appeal in regard to Case No. 35486: (1) the court erred in admitting the state's Exhibit 4 which included a copy of the judgment of conviction and a bench warrant for a probation violation because neither document had been properly certified or authenticated; (2) the state did not carry its burden in proving that the North Dakota conviction was constitutionally valid; and (3) the North Dakota statute forming the basis for the enhancement of the charge to a felony was not "substantially conforming" to I.C. § 18-8004. We address each issue in turn.
1. Authentication and Certification
Moore argues the court erred in admitting the North Dakota judgment of conviction where the copy offered as evidence was not certified and therefore was not authenticated pursuant to the Idaho Rules of Evidence. Without this evidence, he contends, there was insufficient evidence to sustain his conviction for the DUI felony enhancement.
A judgment of conviction entered upon a jury verdict must be overturned on appeal where the state did not produce admissible evidence upon which a jury could have found that the state sustained its burden of proving the essential elements of a crime beyond a reasonable doubt. State v. Cortez, 135 Idaho 561, 562, 21 P.3d 498, 499 (Ct. App. 2001). A trial court has broad discretion in the admission of evidence, and its judgment will be reversed only when there has been an abuse of that discretion. State v. Howard, 135 Idaho 727, 731-32, 24 P.3d 44, 48-49 (2001). Specifically, whether sufficient foundation has been laid for the admission of evidence is committed to the discretion of the trial court. State v. Glass, 146 Idaho 77, 81, 190 P.3d 896, 901 (Ct. App. 2008).
During the second portion of the trial when the enhancement of the DUI charge to a felony was at issue, the state moved for admission of Exhibit 4 consisting of three documents, apparently obtained from the North Dakota court, pertaining to Moore's 1999 DUI conviction in that state. The first page was a copy of the judgment of conviction, the second page was a copy of the uniform complaint and summons and was the only page to bear certification (in the form of a seal and a signed averment that the copy was authentic), and the third page was a copy of a bench warrant for a probation violation that was issued several months after the conviction. Moore objected to the exhibit's admission, contending that the judgment of conviction had not been certified as there was "no state seal on the conviction itself" and that the warrant was irrelevant to the issue at hand. The state argued at trial, and continues to do so here, that the judgment was sufficiently authenticated where the second page of the packet bore the requisite certification, the documents all bear the same or similar case numbers, and the prosecutor had represented that the state had received all three documents "in a single envelope together." Without discussion of the authentication issue, the court overruled the objection and admitted the exhibit.*fn7
Pursuant to Article IX of the Idaho Rule of Evidence, evidence must be authenticated before it may be admitted. Specifically, I.R.E. 901 states, in relevant part, that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." The admission of the contents of writings is further governed by Article X. Rule 1002 states, in relevant part, that in order "[t]o prove the content of a writing . . . the original writing . . . is required, except as otherwise provided in these rules . . . ." An exception is made to this requirement for public records, as set forth in Rule 1005 which provides:
(a) Proof of Public Record
The contents of an official record . . . if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 . . . .
Rule 902 states, in relevant part, that [e]xtrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(4) Certified Copies of Public Records. A copy of an official record . . . certified as correct by the custodian or other person authorized to make the certification . . . .
Recently, in State v. Korn, 148 Idaho 413, 224 P.3d 480 (2009), the Idaho Supreme Court addressed the application of Title IX and Title X of the Idaho Rules of Evidence as they pertain to the admission of public records.*fn8 There, Korn had attempted to introduce copies of two orders--purportedly from the court presiding over his bankruptcy case--by testifying that he recognized both documents as orders of the bankruptcy court. The state objected on the basis that the documents were not certified, authentic copies and the magistrate court agreed. On appeal, the Idaho Supreme Court noted that based on the pertinent rules in Titles IX and X of the Idaho Rules of Evidence, Korn could have been excused from I.R.E. 1002's requirement that he produce the original orders if his copies of those orders were certified in accordance with I.R.E. 902. Since the copies of the alleged orders were not certified, the Supreme Court concluded that the magistrate court had acted within the bounds of its discretion and consistently with relevant legal standards in excluding Korn's exhibits. Korn, 148 Idaho at 417, 224 P.3d at 484.
At oral argument, the state admitted that Korn significantly diminishes the efficacy of its argument that the North Dakota documents were properly admitted. Here, the only certification appearing in the packet is an upside down stamp on the uniform citation. This purported certification makes no reference to the other attached pages or otherwise evidences an intent to certify all three documents which comprise the exhibit. Thus, in accordance with Korn's holding that public records must both be authenticated pursuant to Article IX and consist either of the original documents or certified copies, we are bound to conclude that the court erred in admitting the copies pertaining to Moore's North Dakota conviction.*fn9 As such, since this was the sole evidence regarding that issue, we must vacate Moore's conviction for the DUI felony enhancement.
We now must determine the remedy appropriate for such an error. At oral argument, the state contended that if we were to decide that Exhibit 4 was improperly admitted, we should remand the case and order a new trial on the felony enhancement. While the Double Jeopardy Clause of the Fifth Amendment, as interpreted by the United States Supreme Court, protects against a second prosecution for the same offense after conviction, United States v. DiFrancesco, 449 U.S. 117, 129 (1980); North Carolina v. Pearce, 395 U.S. 711, 717 (1969), it is well settled that where a defendant has sought and obtained reversal of a conviction on grounds other than the insufficiency of the evidence, double jeopardy principles do not prevent a second trial. Price v. Georgia, 398 U.S. 323 (1970); State v. Byington, 139 Idaho 516, 518, 81 P.3d 421, 423 (Ct. App. 2003); State v. Avelar, 124 Idaho 317, 321 n.2, 859 P.2d 353, 357 n.2 (Ct. App. 1993). Thus, we must determine whether our conclusion that evidence was erroneously admitted constitutes a reversal on sufficiency of the evidence such that retrial is precluded. More specifically, as framed in a leading criminal procedure treatise, the issue when reviewing the sufficiency of the evidence for the conviction is whether an appellate court should take into consideration all evidence offered at trial, or should exclude the erroneously admitted evidence in its analysis. 6 WAYNE R. LAFAVE, CRIMINAL PROCEDURE 651 (3d ed. 2007). LaFave continues:
Lockhart v. Nelson [488 U.S. 33 (1988)] explained that even in a case requiring remand due to the erroneous admission of evidence, all of the evidence admitted must be considered. Reversals based on "such ordinary trial errors" as the "incorrect receipt or rejection of evidence," remain subject to the Ball rule [based on Ball v. United States, 163 U.S. 662 (1896), which holds that double jeopardy does not bar reprosecution where a conviction is reversed on grounds other than insufficiency of the evidence]. Where the evidentiary insufficiency exists only because of the appellate court's initial conclusion that there was error in admitting prosecution evidence, the reversal, under the logic of Burks [v. United States, 437 U.S. 1 (1978), which held that the Ball rule did not apply where appellate reversal was based on insufficiency of the evidence to uphold the conviction], should be characterized simply as one based upon a "trial error." The "basis for the Burks exception to the general rule is that a reversal for insufficiency of the evidence should be treated no differently than a trial court's granting a judgment of acquittal at the close of all the evidence." Since a "trial court in passing on such a motion considers all of the evidence it has admitted," to "make the analogy complete it must be the same quantum of evidence which is considered by the reviewing court" in determining whether double jeopardy bars a retrial. Thus Burks should bar a retrial only if all of the admitted evidence, even erroneously admitted evidence, was insufficient. Where that is not the case, allowing a retrial following reversal is consistent with giving the prosecution "one fair opportunity to offer whatever proof it could assemble." Had the trial court excluded the inadmissible evidence, the prosecution would have been given the opportunity to introduce other evidence on the same point, and allowing a retrial where the proof is deemed insufficient on appeal only because that inadmissible evidence merely recreates the situation that would have existed if not for the trial court's error. As one court put it, the appellate court applying Burks is "assessing the legal sufficiency of the evidence not at the trial that will be, but at the trial that was. . . ."
Id. at 651-52 (internal footnotes omitted).
Here, we find the Lockhart approach persuasive and thus, taking into account the improperly admitted judgment of conviction, there was sufficient evidence for a jury to conclude that Moore had previously been convicted of two DUI offenses. As a result, we cannot say that retrial would be barred by double jeopardy. Given this conclusion, we proceed to address the remaining arguments raised by Moore for guidance in the event there is a new trial.*fn10
2. Constitutional Validity of Conviction
We next address Moore's contention that the court erred in allowing the North Dakota conviction to form the basis of his felony charge, because the state failed to establish a prima facie showing that his guilty plea to the North Dakota charge was obtained with ...