201.2Alleging and Proving Prior Convictions at Trial
- The defendant may stipulate to a prior conviction that increases the offense level or punishment, or he may plead guilty to habitual status charge, in which case no further proof is required.
- If the defendant denies the conviction or status, or stands silent, the state must prove the element or status to the jury.
- The state can prove the existence of the prior conviction through self-authenticating court records, but must also prove the defendant is the same person previously convicted.
Court Procedure for Offenses under G.S. 15A-928
As noted in the preceding entry, for "habitual offenses" in which the state has alleged a prior conviction that may subject the defendant to a higher grade of punishment (e.g., habitual misdemeanor assault or habitual DWI), the trial proceedings must take place in accordance with G.S. 15A-928. This means that after commencement of the trial, and before the close of the state’s evidence, the defendant must be arraigned on the special indictment outside the presence of the jury. G.S. 15A-928(c). See State v. Williams, 93 N.C. App. 510 (1989) (when indictment did not charge defendant with a conviction for a prior offense and the state did not prove a prior conviction, the case was remanded for a new sentencing hearing, because both are required before the higher punishment can be imposed). However, technical defects in the arraignment process do not necessarily constitute reversible error. See State v. Jernigan, 118 N.C. App. 240 (1995) (failure to conduct a formal arraignment pursuant to G.S. 15A-928 did not require reversal of defendant’s conviction; defendant was aware of the charges against him and chose to stipulate to his prior convictions).
If the defendant admits the prior conviction, then that element has been established – no further evidence is required, and the state may not offer any proof of it. The judge will just submit the case to the jury without any reference to the prior conviction, as if it were not an element of the offense. G.S. 15A-928(c)(1). The defendant may admit the prior conviction through counsel – he or she need not do so personally. See State v. Silva, 251 N.C. App. 678 (2017).
If the defendant denies (or remains silent on) the prior conviction, then the state needs to prove the existence of the prior conviction as part of its case, just as it would for any other elements of the offense. See G.S. 15A-928(c)(2).
Court Procedure for Status Offenses
A different procedure is used when the state alleges that the defendant has attained “habitual status" in relation to an underlying offense (e.g., habitual felon or habitual breaking and entering). In these cases, the question of the defendant’s status is presented to and decided by the jury only if (and after) the defendant is convicted of the principal or underlying offense. See G.S. 14-7.5 (habitual felon); G.S. 14-7.11 (violent habitual felon); G.S. 14-7.40 (armed habitual felon); G.S. 14-7.30 (habitual breaking and entering). The defendant cannot be required to go to trial on a habitual status charge less than 20 days after the indictment was returned, unless the defendant waives this time requirement. G.S. 14-7.3; 7.9; 7.28; 7.38. Otherwise, except for the fact that the status issue is being decided by the same jury which just rendered the underlying verdict, the second proceeding to determine the defendant’s status is conducted in much the same way as if the issue of status were a principal charge. See, e.g., G.S. 14-7.5.
The defendant must actually be arraigned and formally plead guilty to the alleged status – it is not sufficient for the defendant to merely “stipulate” to the habitual status. Failure to follow the procedures associated with a formal guilty plea will result in a reversal on appeal. See, e.g., State v. Edwards, 150 N.C. App. 544 (2002); State v. Gilmore, 142 N.C. App. 465 (2001). Once the defendant pleads guilty, or is found guilty by the jury, the court enters judgment on the underlying felony indictment in accordance with the habitual sentencing statutes, but does not enter a judgment on the habitual indictment itself. If the jury finds the defendant not guilty of the habitual status, then the court just enters judgment on the underlying felony as it would in any other case.
Proving the Prior Conviction under Rules of Evidence and Related Statutes
If the defendant does not stipulate to an alleged prior conviction under G.S. 15A-928, or if the defendant pleads not guilty (or stands silent) on the charge of having attained an habitual status, then the state is required to prove the existence of the prior conviction to the jury. To prove a prior conviction, the state may introduce the original records of the conviction under several different rules of evidence:
- G.S. 8C-1, Rule 902(1) (public document under seal);
- G.S. 8C-1, Rule 902(2) (public document not under seal);
- G.S. 8C-1, Rule 902(3) (foreign public documents); or
- G.S. 8C-1, Rule 902(4) (certified copy of public record).
G.S. 8C-1, Rule 902 provides that these documents are self-authenticating, and therefore extrinsic evidence of authenticity is not required. See also G.S. 8C-1, Rule 901(b)(7) (authentication of public records) and G.S. 8C-1, Rule 1005 (contents of public records). Therefore, a properly certified copy of a defendant’s record of conviction (or judgment or other pleadings) is admissible without the necessity of calling a custodian of the record as a witness. See State v. McNeil, 165 N.C. App. 777 (2004) (“the trial court did not commit plain error by allowing the State to introduce into evidence the certified copies of defendant's prior felony conviction judgment sheets”); see also State v. Ross, 207 N.C. App. 379 (2010) (no error where state introduced multiple documents marked “certificate of true copy” to prove prior conviction, including judgment, indictment, magistrate’s order, arrest order, and transcript of plea). The prosecutor may have the certified copy marked as an exhibit, and move to introduce the record into evidence.
NotwithstandingMcNeil and the rules of evidence cited above regarding the self-authenticating nature of these records, in practice the prosecutor will often call a records custodian (such as a clerk of court) as a witness through whom to introduce the records. Having a live witness not only aids in presentation of the evidence to the jury, but also helps to avoid any disputes over whether the particular terminology used in the clerk’s stamp or seal on the copies of the records (full, true, certified, genuine, correct, accurate, complete, etc.) satisfies the “attestation or execution” requirements of Rule 902. See 2 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence §224, at 956 (7th ed. 2011) (“[a] certificate need not follow any particular form unless the statute requires it”).
G.S. 15A-924(d) provides that a “certified transcript” (which apparently means a certified copy) of the record of a prior conviction is, upon proof of the identity of the person of the defendant, sufficient evidence of a prior conviction. G.S. 15A-924(d) also sets out a prima facie evidence rule concerning the identity of the defendant as being the same person named in the prior convictions. Under this statute, if the surname of the defendant currently charged is the same as the surname on the prior conviction (e.g., “Presley”), and if there is also a match to either one full given name (“Elvis”) or two given name initials (“E.A.”), and if there is no other evidence that would indicate “the two defendants are not one and the same,” then the matching names constitute sufficient prima facie evidence that the defendant and the person previously convicted are in fact the same person.
The John Doe problem
The fact that the name on the prior conviction matches the name of the defendant currently charged may be “legally sufficient” under G.S. 15A-924(d), but it might not be enough to convince a jury of twelve people beyond a reasonable doubt that this is definitely the same person – especially if the defendant’s name is not particularly unique or distinctive. Therefore, the better practice is to corroborate the defendant’s identity with the prior conviction by having an expert witness conduct a comparison of the fingerprints taken at the time of defendant’s arrest for the current offense with the fingerprints on file from the previous arrest(s). Evidence of a print match will eliminate any arguments from the defendant that the prior conviction might be a different person who just happens to have the same name.
Alternatively, if comparing fingerprints is not an option, the prosecutor may be able to corroborate the defendant’s identity in the prior conviction through testimony from a witness who has direct personal knowledge of that prior crime, such as the victim or an officer who worked on that case. In most cases, the defendant will stipulate or plead regarding the prior conviction issue once he or she is presented with corroborating proof of identity.
Finally, prosecutors should be aware of a few additional statutes that address proof of public records, some of which were passed before the enactment of Rule 902 and thus may overlap its provisions, including:
- G.S. 8-34 (copies of official writings)
- G.S. 8-35 (authenticated copies of public records)
- G.S. 8-35.1 (DMV certified license record admissible to prove DWI convictions)
- G.S. 8-35.2 (records of clerk of court criminal index admissible if prior conviction records have been destroyed)
Defendant’s Attack on Validity of Prior Conviction
In addition to denying the existence or identity of a prior conviction, discussed above, the defendant may attempt to argue that the conviction itself is invalid and therefore cannot be used by the state. The defendant’s ability to raise these arguments is quite limited, as described below.
- Violation of Right to Counsel
Under G.S. 15A-980, a defendant may make a motion to suppress the use of a prior conviction obtained in violation of the defendant’s right to counsel if its use by the state is to impeach the defendant, or (as here) the use of that conviction will: (i) increase the degree of crime of which the defendant would be guilty; (ii) result in a sentence of imprisonment that otherwise would not be imposed; or (iii) result in a lengthened sentence of imprisonment. However, the defendant has the burden of proving by a preponderance of evidence that at the time of conviction, the defendant was indigent, had no counsel, and had not waived the right to counsel.
- Violation of Boykin v. Alabama
A defendant who alleges that a prior conviction was obtained in violation of Boykin rights (that is, the defendant’s understanding of the rights that he or she is waiving by pleading guilty or no contest) may not collaterally attack the conviction in the trial in which the state is seeking to introduce evidence of the conviction. Boykin v. Alabama, 395 U.S. 238 (1969); Custis v. United States, 511 U.S. 485 (1994); State v. Stafford, 114 N.C. App. 101 (1994). Instead, the defendant must file a motion for appropriate relief in the court in which the prior conviction occurred in order to set it aside on this ground. The defendant has the burden of proving a Boykin violation. Parke v. Raley, 506 U.S. 20 (1992); State v. Hester, 111 N.C. App. 110 (1993); State v. Bass, 133 N.C. App. 646 (1999); State v. Smith, 96 N.C. App. 235 (1989); State v. Pickard, 107 N.C. App. 94 (1992). For a more detailed discussion of Boykin issues, see Robert L. Farb, Boykin v. Alabama and Use of Invalid Guilty Pleas, February 1, 2010.
- Ineffective Assistance of Counsel
The same rule prohibiting a collateral attack under Boykin also applies to a defendant’s claim that the prior conviction was obtained when the defendant’s lawyer provided ineffective assistance of counsel. See Custis v. United States, cited above. Again, the appropriate remedy would be for the defendant to file a motion for appropriate relief in the court in which the prior conviction occurred in order to set it aside on this ground. Of course, if the defendant succeeds in challenging the prior conviction, the defendant may then file a motion for appropriate relief in the case in which the prior conviction was used.
Admissibility of Prior Conviction as Character or Impeachment Evidence
Under G.S. 15A-928, if evidence related to a prior conviction would be admissible under some other rule of evidence such as G.S. 8C-1, Rule 404(b) (prior bad acts) or G.S. 8C-1, Rule 609 (impeachment), the state is not barred from proving that conviction under one of those rules, even if the defendant has already stipulated to the conviction. See, e.g., State v. McLawhorn, 43 N.C. App. 695 (1979) (“It was not error to cross-examine defendant on these prior convictions for impeachment purposes in spite of the stipulation pursuant to G.S. 15A-928.”).
Similarly, in cases involving status offenses such as an habitual felon, the fact that the defendant’s habitual status will not be decided (or pled) until after the trial on the principal charge does not bar the state from introducing evidence of the defendant’s prior conduct or prior conviction during the trial on the principal charge for another permissible purpose, such as showing motive, opportunity, or absence of mistake under G.S. 8C-1, Rule 404(b). See, e.g., State v. Welch, 193 N.C. App. 186 (2008) (evidence of prior similar drug sales admitted under Rule 404(b) during first phase of trial, then jury subsequently found defendant guilty of being an habitual felon); State v. Brewington, 170 N.C. App. 264 (2005) (evidence of prior occasion where defendant fled crime scene in another person’s car allowed under Rule 404(b) at first phase of trial, then state proved defendant’s status at habitual felon phase).