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State v. Kralik12/19/2003
ory with copies of official documents, those documents must satisfy the requirements of authentication under K.S.A. 60-465 to be admissible as an exception to the hearsay rule. State v. Strickland, 23 Kan. App. 2d 615, 618, 933 P.2d 782, rev. denied 262 Kan. 968 (1997). Such authentication may be proven under any of the applicable statutory subsections and need not necessarily be certified or attested under 60-465(3) or (4). State v. White, 23 Kan. App. 2d 363, 368-70, 931 P.2d 1250, rev. denied 261 Kan. 1089 (1997).
A certified copy of a journal entry of conviction is the best evidence of a prior conviction for purposes of determining criminal history. State v. Presha, 27 Kan. App. 2d 645, 646-47, 8 P.3d 14, rev. denied 269 Kan. 939 (2000). When such a document is from a Kansas court, certification of the copy suffices to meet the authentication requirements under K.S.A. 60-465(3). Strickland, 23 Kan. App. 2d at 618. When such copies are offered from courts of other states, however, we have held that they need to be certified or attested and accompanied by the certificate required by K.S.A. 60-465(4) in order to meet the requirements for authentication under subsections (3) and (4). 23 Kan. App. 2d at 618; see State v. Baker, 237 Kan. 54, 55, 697 P.2d 1267 (1985). All of these rules apply when the identity of the defendant has not been questioned; where identity is properly questioned, the better practice would dictate that the State should offer evidence showing that the defendant is the same person who was referenced in documentation of the prior convictions. State v. Cippola, 202 Kan. 624, 629-30, 451 P.2d 199 (1969).
Two previous cases have addressed more difficult issues in proof of criminal history. In State v. Hankins, 19 Kan. App. 2d 1036, 880 P.2d 271 (1994), journal entries of prior convictions for burglary failed to specify whether these were residential burglaries and could be counted as prior person felonies. Because the State supplemented evidence of the prior convictions with certified copies of the complaints, a panel of this court held that there was adequate proof of the prior person felony convictions. 19 Kan. App. 2d at 1050. In State v. Humphrey, 258 Kan. 372, 905 P.2d 664 (1995), a certified copy of a judgment and commitment order was admitted, but the offense was not labeled as a felony within the four corners of the documents. The Supreme Court held that where the applicable criminal code in effect at the time of the offense clearly established that the offense was a felony, there was no deficiency in the proof of the prior felony conviction. 258 Kan. at 373.
The Question Reserved in This Appeal
Here, the 1991 journal entry unquestionably proved the prior DUI in 1991 but merely mentioned a 1988 "prior DUI." The obvious problem is that in the absence of any other proof, this does not establish a prior conviction and could mean only (no matter how unlikely) that the defendant was merely arrested and received diversion or was acquitted of a "prior DUI". This is undoubtedly the basis for the district court's refusal to accept the ambiguous reference as evidence of a prior conviction for purposes of criminal history. In the absence of the additional information provided within the journal entry as discussed below, we would likely have affirmed the district court.
Following the rationale of Humphrey, however, we have examined the balance of the 1991 journal entry to determine whether there is additional information that may establish that the 1988 reference is to a prior conviction. K.S.A. 8-1567 has been amended numerous times, but the law in effect on April 9, 1991, the date of the subject prior DUI, was L. 1990, ch. 47, § 3, requiring
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