State v. Brown

¶1James Rankin Brown (Brown) appeals his conviction for one count of perjury under SDCL 22-29-11. We affirm.

¶2FACTS

¶3Brown’s conviction stems from sworn testimony given by him before the South *762Dakota Board of Minerals and Environment (the board) during a contested case hearing on an application for a resource recovery permit. Brown was the president of Consolidated Management Corporation (CMC), the applicant for the permit. CMC sought the permit in furtherance of its plan to transport sewage ash into South Dakota for reprocessing into precious metals. The administrative hearing on CMC’s application was conducted on October 29 and 30, 1986. During the course of the hearing, Brown gave sworn testimony concerning certain technical aspects of the process involved in refining the sewage ash. As part of the foundation for that testimony, CMC’s attorney asked, “Mr. Brown, what is your educational background? What are you by education and training?” Brown’s response included the statement, “I have a bachelor of science degree in geology[.]”

¶4After the contested case hearing, the board granted CMC its resource recovery permit. Information was later relayed to the South Dakota Attorney General’s office that, contrary to his testimony., Brown did not possess a bachelor of science degree in geology. A special prosecutor was appointed to investigate the matter and Brown was ultimately indicted for perjury on August 12, 1988.

¶5On February 17, 1989, Brown filed a pretrial motion in limine:

[t]o disallow the admission in evidence of certified or authenticated copies of the transcript of [Brown’s] academic records at McMaster University, for the reasons that the same are not official public records, as [contemplated] by SDCL 15-6-44(a)(2) and SDCL 19-17-4, and for the additional reason that admitting said records without having the testimony of an official from McMaster University would violate [Brown’s] right to confrontation guaranteed by the Sixth Amendment to the United States Constitution, and Article 6 Section 7, of the Constitution of the State of South Dakota.

¶6Brown also filed a pretrial motion to dismiss his indictment contending an offer by the special prosecutor to reduce the perjury charge in exchange for CMC’s payment of certain financial indebtedness constituted prosecutorial misconduct. The motion was denied and Brown’s jury trial proceeded on February 20 and 21, 1990.

¶7Brown renewed his motion in limine both immediately prior to, and during the course of, his trial. Both motions were denied and state was allowed to introduce Brown’s academic records into evidence. The jury subsequently convicted Brown of penury as charged and a judgment and sentence were entered accordingly. This appeal followed.

¶8ISSUE ONE

¶9WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING THE ADMISSION OF BROWN’S ACADEMIC RECORDS INTO EVIDENCE DURING TRIAL?

¶10The trial court admitted Brown’s academic records into evidence under SDCL 19-16-10, the business records exception to the hearsay rule:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, is not excluded by § 19-16-4, even though the declarant is available as a witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this section includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. (emphasis added).

¶11Notwithstanding the language of the rule emphasized above, the trial court admitted Brown’s academic records without any foundation testimony from their custodian or any other qualified witness. Rather, the records were authenticated with a *763written certificate of authentication signed by the Associate Registrar of Records and Associate Dean of Science of McMaster University in Hamilton, Ontario, Canada, the institution where Brown claimed he received his degree. Brown contends the admission of the records without any live foundation testimony violated his constitutional right to confront adverse witnesses under the Sixth Amendment to the Constitution of the United States and Art. VI, § 7 of the South Dakota Constitution. Accordingly, he asserts his conviction must be reversed.

¶12“Firmly rooted exceptions to the hearsay rule do not violate the confrontation clause.” U.S. v. Baker, 855 F.2d 1353, 1360 (8th Cir.1988). When admitting evidence under the business records exception to the hearsay rule, a trial court acts under such a, “firmly rooted exception.” Id. “ ‘[A] trial court has broad discretion in determining the admissibility of documents such as business records.’ ” U.S. v. Wigerman, 549 F.2d 1192, 1194 (8th Cir.1977) (quoting U.S. v. Page, 544 F.2d 982, 987 (8th Cir.1976)). Accord, State v. Ristau, 290 N.W.2d 487 (S.D.1980). This court will not reverse a trial court’s determination concerning the admissibility of evidence under the business records exception unless an abuse of discretion has occurred. See Ristau, supra.This refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. State v. Pfaff, 456 N.W.2d 558 (S.D.1990).

¶13The Eighth Circuit Court of Appeals has specifically observed that Fed.R.Evid. 803(6)2, “calls for a proper foundation to be made through the ‘testimony of the custodian or other qualified witness.’ A proper foundation consists of testimony ‘that a document has been prepared and kept in the course of a regularly-conducted business activity.’ Kehm v. Procter & Gamble Manufacturing Co., 724 F.2d 613, 626 (8th Cir.1983).” United States v. Azure, 801 F.2d 336, 342 (8th Cir.1986) (emphasis added). Thus, it has been held that, “ ‘[t]he testimony of the custodian or other qualified witness who can explain the record-keeping of his organization is ordinarily essential.’ ” N.L.R.B. v. First Termite Control Co., Inc., 646 F.2d 424, 427 (9th Cir.1981) (quoting, 4 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 803(6)[02] at 151-52). Accord, Liner v. J.B. Talley And Co., Inc., 618 F.2d 327 (5th Cir.1980). But see, In re Japanese Electronic Products, 723 F.2d 238 (3rd Cir.1983), rev’d on other grounds, Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (testimony of custodian or other qualified witness not a sine qua non of admissibility for business record evidence).3 Further, if a witness cannot vouch that the requirements of Fed. R.Evid. 803(6) have been met, “the entry must be excluded.” Liner, 618 F.2d at 329.

¶14The reason for the requirement of live foundation testimony as a predicate for admission of business record evidence is clear.

The modern theory behind [the business records] exception is that business records have a special indicia of reliability.

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The provision in the rule that requires that the record be supported by “the testimony of the custodian or other qualified witness” insures the presence of some individual at trial who can testify to the methods of keeping the information. If the witness is not knowledgeable as to the manner in which the *764records are made and kept, he or she cannot be subjected to meaningful cross-examination. Without cross-examination on the keeping of the records, the trier of fact would have no rational basis on which to evaluate the accuracy of the record, and therefore the trustworthiness of the evidence.

¶15N.L.R.B., 646 F.2d at 427.

¶16In this instance, not only was there no foundation testimony or cross examination of a witness knowledgeable as to the manner Brown’s scholastic records were made and kept, there was no foundation testimony from any witness whatsoever. This was in clear contravention of the explicit requirements of SDCL 19-16-10 and the authorities cited above. Accordingly, we hold the trial court abused its discretion in allowing the admission of Brown’s academic records into evidence during trial.

¶17However, “the admission of documentary exhibits does not warrant reversal absent a showing that substantial rights of the party were affected. The burden of demonstrating that such rights were affected rests with the party asserting error.” Liner, 618 F.2d at 329 (citations omitted). See also, SDCL 19-9-3 (error not predicated on ruling admitting evidence unless substantial right of party affected). This rule coincides with the harmless error rule recognized by this court:

SDCL 23A-44-14 defines harmless error as “[a]ny error, defect, irregularity or variance which does not affect substantial right[s].” The harmless error rule governs even constitutional violations, not requiring the automatic reversal of a conviction, provided the court is able to declare a belief beyond a reasonable doubt that the error was harmless and did not contribute to the verdict obtained.

¶18State v. Younger, 463 N.W.2d 834, 838 (S.D.1990). Further, as to evidentiary matters, we have extended the harmless error rule to hold, “[wjhere inadmissible evidence admitted at trial is cumulative only and other admissible evidence supports the re-suit, the cumulative evidence, though inadmissible, is non-prejudicial.” State v. Tribitt, 327 N.W.2d 132, 135 (S.D.1982).

¶19In this instance, Brown’s academic records were merely cumulative evidence of the fact he was never awarded a bachelor’s degree in geology. Brown himself admitted during trial he had never been awarded a diploma from McMaster University but that he felt he had earned a degree.4 “Ordinarily admission of evidence is not prejudicial when the evidence is of matters conceded by the defendant.” State v. Leonard, 243 N.W.2d 887, 891 (Ia.1976). See also, State v. Christiansen, 187 Neb. 73, 187 N.W.2d 303 (1971) (admission of incompetent evidence not prejudicial where same fact was established by defendant’s testimony on cross examination); State v. Burmeister, 65 S.D. 600, 277 N.W. 30 (1937) (no prejudicial error in admission of testimony from state’s witness where defendant admitted same fact on cross examination). Accordingly, we deem the erroneous admission of Brown’s academic records harmless error and decline to reverse his conviction on that foundation.

¶20ISSUE TWO

¶21WHETHER THE TRIAL COURT ERRED IN REFUSING TO DISMISS BROWN’S INDICTMENT FOR PROSECUTORIAL MISCONDUCT?

SDCL 22-11-10 provides:

Any person who accepts, or offers or agrees to accept any pecuniary benefit as consideration for:

(1) Refraining from seeking prosecution of an offender; or

(2) Refraining from reporting to law enforcement authorities the commission or suspected commission of any crime or information relating to a crime;

is guilty of compounding. Compounding a felony is a Class 6 felony. Compounding a misdemeanor is a Class 1 misdemeanor.

¶22*765Brown argued before the trial court that an offer by the special prosecutor to reduce the charge against him in exchange for CMC’s payment of certain financial indebtedness constituted compounding as defined above and resulted in misconduct by the special prosecutor. Brown moved for a dismissal of his indictment on this basis and now appeals the trial court’s denial of that motion.

¶23This argument is lacking in merit. SDCL 22-11-10, “prohibits only the receipt of consideration for refraining from a criminal prosecution.” State v. Ventling, 452 N.W.2d 123, 125 (S.D.1990) (emphasis added). Under SDCL 22-11-10, “all phases of a person’s receipt of consideration for refraining from a criminal prosecution are prohibited. This includes actual acceptance of consideration, an agreement to accept consideration in response to the offer of another, and initiation of the offense by contacting another and ‘offering to accept’ consideration.” Id.(emphasis original).

¶24There is no evidence in this case whatsoever that the special prosecutor ever offered to receive consideration from Brown. Rather, the plea offer was that Brown see to CMC’s payment of its indebtedness to certain creditors in exchange for a reduction of charges. There is no evidence that the special prosecutor was a creditor of CMC. Thus, in no manner did the plea offer fall within the elements of the offense of compounding as this court defined them in Ventling, supra.Accordingly, we find no error by the trial court in denial of Brown’s motion for a dismissal of charges based upon prosecutorial misconduct.

¶25Affirmed.