            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE

                           JANUARY 1998 SESSION




STATE OF TENNESSEE,                )
                                   )
                                                       FILED
                                       C.C.A. NO. 01C01-9703-CR-00071
            Appellee,              )
                                                   June 16, 1999
                                   )   DAVIDSON COUNTY
VS.                                )
                                                   Cecil W. Crowson
                                   )   HON. FRANK G. CLEMENT, JR.,
                                                 Appellate Court Clerk
MARK JOHN TURNER,                  )   JUDGE
                                   )
            Appellant.             )    (Driving Under the Influence)



FOR THE APPELLANT:                     FOR THE APPELLEE:


C. EDWARD FOWLKES                      JOHN KNOX WALKUP
172 Second Ave., North                 Attorney General & Reporter
Suite 214
Nashville, TN 37201-1908               ELIZABETH B. MARNEY
                                       Asst. Attorney General
                                       John Sevier Bldg.
                                       425 Fifth Ave., North
                                       Nashville, TN 37243-0493

                                       VICTOR S. JOHNSON, III
                                       District Attorney General

                                       BERNARD F. McEVOY
                                       Asst. District Attorney General
                                       Washington Square, Suite 500
                                       222 Second Ave., North
                                       Nashville, TN 37201



OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                               OPINION



                  In 1996, the defendant was convicted by a jury of driving under the

influence of an intoxicant (DUI), second offense. The trial court sentenced him to eleven

months, twenty-nine days incarceration, all but fifty-five days suspended,1 with the

balance to be served on probation.                     He now presents several arguments why

enhancement to second-offense DUI was improper. After a review of the record, we

affirm.



                  To enhance the defendant’s DUI conviction to second-offense DUI, the

State relied upon a 1990 conviction for DUI. The defendant sought to have the 1990

conviction declared void as an enhancement factor on the basis that the record did not

reflect strict compliance with statutory provisions regarding the election of the special

judge who accepted the guilty plea that led to the conviction. The trial court denied the

defendant’s motion.



                  During that portion of the defendant’s trial relating to whether his DUI

offense was a second offense, the State introduced into evidence a copy of the judgment

from the 1990 conviction. The 1990 judgment reflected that the defendant in that case,

“Mark Turner,” pled guilty to first-offense DUI and was sentenced to eleven months,

twenty-nine days incarceration, with all but forty-eight hours suspended.2 The copy of this

judgment is not certified and the only stamp reflected on it is one dated March 4, 1997,

which is the date the appellate record was prepared.


          1
         The judgm ent form is internally inconsistent, in that in one place, it states that all but fifty-five
days is suspended while in another place, it states that all but sixty days is suspended. Both parties
represent in their briefs that all but fifty-five days of the sentence is suspended.

          2
         While looking at the 1990 judgment form, a Davidson County probate court clerk testified that
the judgment form listed the offender’s name as “M ark J. Turner.” The co py of the judgment form
contained in the record on appeal, however, lists the offender’s nam e merely as “Mark Turner.”
Because neither party questions this discrepancy, however, neither will we.

                                                        2
              The State also introduced into evidence a copy of the arrest warrant

underlying the 1990 conviction, a copy of the arrest warrant in the present case, and the

testimony of a Davidson County probate court clerk. Through the clerk’s testimony, the

State compared the arrestee’s personal information and physical characteristics listed on

the arrest warrant from the 1990 DUI conviction with those on the arrest warrant in this

case in an effort to prove that the offender in both cases was the defendant. In so doing,

the clerk testified that both arrest warrants reflected that the arrestee was a 5'11" white

male named Mark John Turner and born October 29, 1958. She testified that the arrest

warrant in the present case reflected the defendant weighed 170 pounds and had hazel

eyes and brown hair, while the prior arrest warrant reflected the arrestee weighed 160

pounds and had green eyes. When asked what color of hair the prior arrest warrant

reflected, the clerk noted that the abbreviation “BL” was used and explained that notation

could mean either black or blond hair. The residential addresses listed on the two arrest

warrants were different.



              First, the defendant argues that the trial court erred in admitting the

notations of physical characteristics listed on the prior arrest warrant for the purpose of

proving identity, that is, that the defendant was the same person arrested for and

ultimately convicted of DUI in 1990. He argues that the admission of this evidence

violated his rights under the Confrontation Clause of the United States Constitution and

violated the hearsay rule as stated in Tennessee Rule of Evidence 803(8).



              This Court has held that the admission of court records into evidence for the

purpose of proving habitual offender status does not violate a defendant’s constitutional

right to confront his or her accusers. State v. Miller, 608 S.W.2d 158, 160-61 (Tenn.

Crim. App. 1980). A defendant does not have the right to re-examine witnesses from

proceedings relating to prior offenses because he or she had the right to confront them


                                            3
during the prior proceedings. Id. at 161 (citing People v. Bryan, 83 Cal. Rptr. 291, 303

(Ct. App. 1970)). This reasoning is applicable here. Thus, the defendant’s constitutional

challenge to the admission of the prior arrest warrant must fail.



                The defendant also argues that admitting the prior arrest warrant into

evidence violated the rule against hearsay and that this type of evidence is specifically

forbidden by Tennessee Rule of Evidence 803(8). Rule 803 provides, in pertinent part:

                       The following are not excluded by the hearsay rule:

                       ...

                       (8) Public Records and Reports. Unless the source of
                information or the method or circumstances of preparation
                indicate lack of trustworthiness, records, reports, statements,
                or data compilations in any form of public offices or agencies
                setting forth the activities of the office or agency or matters
                observed pursuant to a duty imposed by law as to which
                matters there was a duty to report, excluding, however,
                matters observed by police officers and other law
                enforcement personnel.



                The State argues that because Rule 803(8) has language similar to the

corresponding federal rule, we should follow the federal cases that allow into evidence

as a hearsay exception those police records that are prepared in a “routine, non-

adversarial setting.” United States v. Quezada, 754 F.2d 1190, 1194 (5th Cir. 1985),

cited in United States v. Brown, 9 F.3d 907, 911 (11th Cir. 1993); see United States v.

Grady, 544 F.2d 598, 604 (2d Cir. 1976). These cases are distinguishable from the

instant case.



                In United States v. Grady, Irish police records containing serial numbers of

exported guns were admissible under the public records exception for “the limited

purpose” of showing that specified weapons were found in North Ireland after their

purchase from the defendant dealer. Grady, 544 F.2d at 604. Similarly, in United States


                                              4
v. Quezada, the court held that admitting a warrant of deportation, which included

evidence of the defendant’s prior arrest and deportation such as the defendant’s

thumbprint, was admissible under the public records exception to prove that the

defendant had in fact been previously arrested and deported. Quezada, 754 F.2d at

1194-95. The Quezada court acknowledged that under different circumstances, other

federal courts have applied the public records exception in a more strict manner, but it

determined that the information on the warrant of deportation reflected merely “routine,

objective observations” that were more reliable than observations of law enforcement

personnel investigating crime, the type of observations it perceived was targeted by the

specific exclusion in the public records exception. Id. 1194, 1193 & n.9. Persuaded by

this reasoning, the Eleventh Circuit in United States v. Brown held that a property receipt

for a confiscated gun admissible under the business records exception did not run afoul

of the exclusionary language in the public records exception, where the gun was

accidentally destroyed prior to trial and the property receipt was admitted presumably to

prove the gun had existed. Brown, 9 F.3d at 911-12.



              These federal cases have one thing in common, that is, the information

admitted into evidence---a thumbprint, a property receipt, serial numbers from guns---was

gathered and recorded in a strictly routine manner, such that it could be considered more

reliable than subjective observations. See Brown, 9 F.3d at 911-12; Quezada, 754 F.2d

at 1193-94; Grady, 544 F.2d at 604.          The notations of the arrestee’s personal

characteristics on the prior warrant, however, do not appear to fall into this category. The

trial court surmised that the physical characteristics might have been copied from the

arrestee’s driver license, but the record fails to reflect that this was the case. For as

much as the record shows, the arresting officer could have relied upon his own subjective

observations of the arrestee’s physical characteristics in order to complete this portion of

the arrest warrant. The name and birthdate reflected on the prior arrest warrant would


                                             5
be admissible into evidence because gathering that information does not depend upon

a police officer’s subjective observations. See State v. Woodall, 729 S.W.2d 91, 95

(Tenn. 1987)(where defendant did not challenge identity, arrest warrants were admissible

to prove dates of prior offenses for the purpose of establishing habitual offender status).

Had the record established that the arresting officer did not use his subjective

observations of the arrestee’s physical characteristics and had instead copied these

statistics from the arrestee’s driver license, for example, then these notations might also

have been admissible. See State v. Baker, 842 S.W.2d 261, 264 (Tenn. Crim. App.

1992)(defendant’s driving record admissible under Tenn. R. Evid. 803(8)); see also State

v. Rea, 865 S.W.2d 923, 924 (Tenn. Crim. App. 1992)(Alabama traffic ticket admissible

to prove defendant’s prior DUI conviction, where ticket reflected the case number, court

action, and disposition). However, because this was not the case, we think this evidence

is the type of evidence the plain language of Rule 803(8) excludes from evidence. Thus,

we hold this evidence was improperly admitted under Rule 803(8).



              The error in admitting that evidence, however, was harmless. The properly

admitted evidence established that the person arrested and ultimately convicted of DUI

in 1990 shared the same name with the defendant, which is prima facie evidence of

identity. State v. Cottrell, 868 S.W.2d 673, 678 (Tenn. Crim. App. 1992). The evidence

also showed that the defendant’s birthdate and the birthdate of the person previously

arrested and ultimately convicted for DUI were identical. The defendant offered no

evidence to rebut the prima facie evidence that he was in fact the person the State

sought to prove he was, i.e., the “Mark John Turner” previously arrested and ultimately

convicted of DUI in 1990.      Thus, the error in admitting the notations of physical

characteristics listed on the prior arrest warrant does not affirmatively appear to have

affected the jury’s conclusion that the defendant had been previously convicted of DUI,

which prevents a reversal on the basis of this error. Tenn. R. Crim. P. 52(a).


                                            6
              The defendant also challenges the sufficiency of the proof regarding his

identity as the person convicted of DUI in 1990. The defendant argues that without the

evidence of physical characteristics noted on the prior arrest warrant, the record contains

no evidence he was previously convicted of DUI. As we have stated, however, the name

and birthdate listed on the prior arrest warrant is ample proof of identity. See Cottrell,

868 S.W.2d at 678. Moreover, the State presented a copy of the 1990 judgment, which

reflects a DUI conviction and sentence for “Mark Turner.” This judgment was not

certified, so it was not self-authenticating under Tennessee Rule of Evidence 902(4). Our

independent review of the transcript reveals that the 1990 judgment was not properly

authenticated by an individual with personal knowledge that the writing met the

requirements of Tennessee Rule of Evidence 901, Neil P. Cohen et al., Tennessee Law

of Evidence § 901.8, at 621 (3d ed. 1995), but our independent review also reveals that

the defendant failed to object to the lack of authentication, which constitutes waiver of

that issue, see State v. Walker, 910 S.W.2d 381, 396 (Tenn. 1995)("A trial court cannot

be held in error when it is not given an opportunity to rule on an issue at an appropriate

time during the course of the trial."); State v. Robert Jay Bridwell, No.

03C01-9708-CC-00326, Blount County (Tenn. Crim. App. filed September 15, 1998, at

Knoxville). The prior arrest warrant and the 1990 judgment provide sufficient evidence

to support the jury’s conclusion that the defendant had been previously convicted of DUI.



              Next, the defendant argues that the trial court erred in denying his motion

to dismiss the indictment and/or strike the enhancement factors because the court

minutes from the 1990 DUI conviction fail to reflect that the special judge who accepted

the guilty plea was duly elected and was administered the oath of office pursuant to

T.C.A. § 17-2-118 and § 17-2-120. He also argues that the trial court erred by not

allowing him to present as a defense to second-offense DUI his contention that the 1990

judgment was facially invalid and thus could not serve as a basis for enhancement.


                                            7
              The record supporting the 1990 judgment consists of the arrest warrant and

the court minutes of a guilty plea hearing. The court minutes begin with the following

statement: “COURT MET PURSUANT TO ADJOURNMENT, PRESENT AND

PRESIDING THE HONORABLE SETH NORMAN, SPECIAL JUDGE FOR THE

HONORABLE JAMES R. EVERETT JR., JUDGE OF THE PROBATE COURT FOR

DAVIDSON COUNTY, TENNESSEE . . . .” The record fails to show that the 1990

judgment was ever reviewed by direct appeal, post-conviction petition, or petition for writ

of habeas corpus.



              The documents in the record pertaining to the 1990 conviction show on their

face that the convicting court had jurisdiction over the subject matter and the parties, and

thus, “<we must indulge every intendment in favor of the validity of the judgments.’” State

v. McClintock, 732 S.W.2d 268, 271 (Tenn. 1987)(quoting Smith v. Leedy, 42 Tenn. App.

117, 123, 299 S.W.2d 29, 31 (1956)). Moreover, the record gives every indication that

the special judge was, at a minimum, a de facto judge, that is, that he acted “with color

of right” and was “regarded as, and [had] the reputation of, exercising the judicial function

he assum[ed].” 48A C.J.S. Judges § 2 (1981), quoted in State ex rel. Newsom v. Biggers,

911 S.W.2d 715, 718 (Tenn. 1995). There was no objection to the special judge’s

exercise of authority at the time the plea was entered in 1990, and no appeal was taken

from the resulting conviction. “[L]ike any judgment, a presumption of regularity in the

proceedings attaches upon becoming final.” McClintock, 732 S.W.2d at 270. Because

the special judge acted with de facto authority and because this authority was not

challenged during trial or on appeal, the defendant cannot now attack the integrity of the

judgment. Biggers, 911 S.W.2d at 719.



              Each of the defendant’s challenges to his conviction lacks merit.

Accordingly, the trial court’s judgment is affirmed.


                                             8
                                     _________________________________
                                     JOHN H. PEAY, JUDGE



CONCUR:



______________________________
JERRY L. SMITH, JUDGE



______________________________
THOMAS T. WOODALL, JUDGE




                                 9
