NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
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THE COURT OF APPEALS OF THE STATE OF ALASKA
VIRGIL BUENING, )
) Court of Appeals File No. A-3583
Appellant, ) Trial Court No. T-374-824
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1146 - July 19, 1991]
Appellee. )
______________________________)
Appeal from the District Court of the State
of Alaska, Fourth Judicial District, Nenana,
Paul Verhagen, Magistrate.
Appearances: Marc Grober, Nenana, for
Appellant. Karla Taylor-Welch, Assistant
District Attorney, Harry L. Davis, District
Attorney, Fairbanks, and Douglas B. Baily,
Attorney General, Juneau, for Appellee.
Before:
Bryner, Chief Judge,
Coats and Mannheimer, Judges.
BRYNER, Judge.
On February 3, 1990, an Alaska State Trooper cited
Virgil Buening for speeding based on a radar reading showing that
Buening was driving at sixty-six miles per hour in a fifty-five
mile per hour zone. At trial, the state offered copies of
Division of Measurement Standards calibration certificates to
establish that the radar unit used in Buening's case was properly
calibrated. The state presented no extrinsic evidence to
authenticate the records. Instead, it submitted them in
conjunction with a written "Attestation of Official Record" in
which Gregory Close certified that he was a custodian of records
for the Alaska State Troopers in Fairbanks, and that the
calibration reports were "true and correct copies of the original
certified record under seal in my control on file in my office .
. . ." Close's signature on the attestation was notarized.1
Over Buening's objection, Magistrate Paul Verhagen
admitted the records into evidence, concluding that they were
adequately authenticated by Close's attestation. On appeal,
Buening challenges this ruling.
The trial court's decision to admit the challenged
documents must be measured against the requirements of Alaska
Rule of Evidence 902, which specifies eleven situations in which
docu-ments and records are self-authenticating -- that is,
admissible without extrinsic evidence to establish authenticity.
Only three of the eleven situations are arguably applicable in
this case:
Rule 902. Self-Authentication.
Extrinsic evidence of authenticity as a
condition precedent to admissibility is not
required with respect to the following:
(1) Domestic Public Documents Under
Seal. A document bearing a seal purporting
to be that of the United States, or of any
state, district, commonwealth, territory, or
insular possession thereof, or the Panama
Canal Zone, or the Trust Territory of the
Pacific Islands, or of a political
subdivision, department, officer, or agency
thereof, and a signature purporting to be an
attestation or execution.
(2) Domestic Public Documents Not Under
Seal. A document purporting to bear the
signature in his official capacity of an
officer or employee of any entity included in
paragraph (1) hereof, having no seal, if a
public officer having a seal and having
official duties in the district or political
subdivision of the officer or employee
certifies under seal that the signer has the
official capacity and the signature is
genuine.
. . . .
(4) Certified Copies of Public Records.
A copy of an official record or report or
entry therein, or of a document authorized by
law to be recorded or filed and actually
recorded or filed in a public office,
including data compilations in any form,
certified as correct by the custodian or
other person authorized to make the
certification, by certificate complying with
paragraph (1), (2), or (3) of this rule or
complying with any enactment of the Alaska
Legislature or other rule prescribed by the
Alaska Supreme Court.
. . . .
Under subparagraph (1), the original radar calibration
records in this case would have been admissible as public
documents without further authentication if they bore Alaska's
state seal or the official seal of any department of the state.
If the original records bore an official seal, then photostatic
copies of those documents would have been equally admissible, at
least in the absence of exceptional circumstances or unless
Buening raised a genuine question as to the authenticity of the
originals.2
In the present case, however, although Close's
attestation represents that the original calibration records were
kept "under seal in my custody," it seems clear from the copies
admitted at trial that the originals do not bear an official
state or departmental seal and therefore do not qualify as
"domestic documents under seal" within the meaning of A.R.E.
902(1).
Under subparagraph (2) of A.R.E. 902, any public
document bearing the signature of an officer or employee of the
state, but not under seal, would be self-authenticating and
admissible if accompanied by a sealed certificate from any other
state official attesting that the signature on the document was
genuine and that the signer had the official capacity claimed in
the document.
Here, the radar calibration records bore the signature
of Alaska State Metrologist Darrel E. Cavender and would have
been self-authenticating under subparagraph (2) if any other
state official had certified, under seal, that Cavender was a
state metrologist and that his signature was genuine. The
"Attestation of Official Record" submitted by Close, however, did
not meet these requirements, because it was not under seal and
because Close vouched neither for the genuineness of Cavender's
signature nor for his standing as a state metrologist. For these
reasons, the calibration records were not admissible as self-
authenticating under A.R.E. 902(2).
Subparagraph (4) of A.R.E. 902 more broadly allows any
official record or report, or any recorded document, to be
admitted as self-authenticating if its custodian or some other
authorized person submits a certification complying with the
requirements of either subparagraph (1) or (2) of the rule.3
Because Close purported to be the custodian of the radar
calibration records in this case, his own certification would
have rendered those records self-authenticating had it met the
requirements of either subparagraph (1) or (2).
Close's certification, however, did not meet the
requirements of either subparagraph. The "Attestation of
Official Record" submitted by Close was not itself under official
seal, as required under subparagraph (1). Neither was the
attestation accompanied by a sealed certificate from some other
state official, in compliance with subparagraph (2), attesting to
Close's status as custodian of records and to the genuineness of
his signature on the attestation.
Under the circumstances, the disputed calibration
records did not qualify as self-authenticating documents under
A.R.E. 902.4 Because the state failed to present any witnesses
or other admissible extrinsic evidence to establish the
authenticity of the records, we conclude that the trial court
erred in admitting them over Buening's timely objection.
The accuracy of the radar unit used in this case was of
crucial significance at trial. In finding Buening guilty, the
trial court expressly noted that the trooper's visual estimation
of Buening's speed was suspect, but that the radar established
that Buening was speeding. Given the weight that the court
attached to the accuracy of the radar reading, we are unable to
conclude that the admission of the calibration records amounted
to harmless error.
The conviction is REVERSED.5
_______________________________
1. The full text of Close's "Attestation of Official
Record" was as follows:
I, Greg Close am the Custodian for the
Records at the Department of Public Safety,
Division of Alaska State Troopers, in
Fairbanks and I do hereby attest that the
attached radar and/or tuning fork
certification record from the Alaska
Department of Commerce, Division of Weights
and Measures, are true and correct copies of
the original certified record under seal in
my custody on file in my office at 1979 Peger
Road, Fairbanks, Alaska.
The certification for the below listed
radar and/or tuning fork instrument has been
received and reviewed:
Serial Number: Radar 10828/Forks 29164/19283
Verification date: 5/31/90
The attestation was signed by Greg Close on May 31, 1990, and
notarized that same date.
2. See A.R.E. 1003:
Admissibility of Duplicates.
A duplicate is admissible to the same
extent as an original unless (1) a genuine
question is raised as to the authenticity of
the original or (2) in the circumstances it
would be unfair to admit the duplicate in
lieu of the original.
3. Under A.R.E. 902(4), compliance with the certification
requirements set out in A.R.E. 902(3) is also permitted. Because
subparagraph (3) deals entirely with foreign documents, however,
it is plainly inapplicable here and need not be considered.
4. One additional subparagraph in A.R.E. 902 deserves
brief mention, even though it has not been touched upon by the
parties. The calibration records could potentially have been
offered as records of regularly conducted activity under
subparagraph (11) of A.R.E. 902. Subparagraph (11) provides, in
relevant part:
(11) Certified Records of Regularly
Conducted Activity. The original or a
duplicate of a record of regularly conducted
activity, within the scope of Rule 803(6),
which the custodian thereof or another person
certified under penalty of perjury (i) was
made at or near the time of the occurrence of
the matter set forth, by (or from information
transmitted by) a person with knowledge of
those matters, (ii) or kept in the course of
regularly conducted activity and (iii) was
made by the regularly conducted activity as a
regular practice, unless the source of
information or the method or circumstances of
a preparation indicate lack of
trustworthiness. A party intending to rely
on this paragraph must serve on other parties
a notice of this intent and make available
for copying relevant documents at least 20
days before the documents are to be
introduced at a hearing unless the court
shortens this time for good cause shown.
Here, it is unclear whether the preparation of calibration
reports would qualify as regularly conducted activity within the
meaning of A.R.E. 803(6) -- the business record exception to the
hearsay rule. Assuming it did, however, Close's certification
plainly failed to meet the requirements set forth in A.R.E.
902(11)(i)-(iii), and, in any event, the state evidently failed
to comply with the twenty-day notice provision specified in the
subparagraph.
5. We need not address Buening's remaining issues in light
of our reversal.
