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State v. Tate

You're defending a client charged with domestic violence, and he's got two priors for that crime, making it a third degree felony.  The prosecutor asks you if you're willing to stipulate to the prior convictions.

Before you decide, you need to take a look at the Ohio Supreme Court's decision yesterday in State v. Tate.  

To convict your client of the felony charge, the prosecutor is going to have to prove that he has the two prior convictions; it's an element of the crime.  That brings up the immediate question:  why should you ever stipulate?  In certain situations, such as a notice of prior conviction specification, a stipulation to the prior means the jury doesn't hear about it.  That's not going to be the case with domestic violence:  the jury's going to hear about it anyway.  Still, there may be times when you want to stipulate.  It might be better to have the judge tell the jury that you've got two prior convictions than to bring in the victims or the arresting officers and make a big deal about it.

That takes us to Tate.  Just prior to his trial, the prosecutor announced that she had "a certified copy from the Franklin County Municipal Court [Tate was being tried in Cuyahoga County] of the defendant's two prior first degree misdemeanor domestic violence convictions, and there's a stipulation."  The judge asked the defense attorney, "You stipulate to authenticity?"   The defense attorney said yes, and off everybody went.

RC 2945.75(B)(1) provides how a prior conviction can be proven:   "a certified copy of the entry of judgment in such prior conviction together with evidence sufficient to identify the defendant named in the entry as the offender in the case at bar."  That last part is important.  It's not enough to just have certified copies; the State also has to prove that the guy referred to in those certified copies is the same one who's on trial.  That's where the prosecutor ran into trouble in Tate:  the defense argued at the close of the State's case that all he'd stipulated to was the authenticity of the entry; the State still had to prove identity.  The trial judge didn't buy it, but the 8th District did, and reversed in a split decision (case discussed here).  Yesterday, the Supreme Court unanimously reversed that.

At first blush, it's hard to quibble with the court's decision.  It seems likely that the parties indeed thought they were stipulating to the admissibility of the two convictions, not just the authenticity of the certified copies.  You don't even need a stipulation as to authenticity of certified copies; they're self-authenticating.  Why would the attorney's stipulation be limited to authenticity, when that wasn't even an issue?

Then again, there are some problems with the court's decision.  Unmentioned is the fact the copies weren't self-authenticating; the prosecutor had the Franklin County clerk's office fax them up the morning of trial, and fax copies -- even of certified copies -- aren't going to cut it.  And some of the court's opinion is simply off-base.  It concludes, for example, that the defense request for a jury instruction that the two prior convictions could only be used to prove elements, not to prove character, "belies the defense contention that confusion existed based on the stipulation."  But at that point, the defense had asked for a Rule 29 on the basis that the stipulation was insufficient, and the court had overruled it.  Let's say, for example, that the defense's objection to the introduction of 404(B) evidence had been overruled.  Does the defendant waive that objection by asking for a jury instruction limiting that evidence?

In essence, what the court does is hold that because the prosecutor said he had certified copies "of the defendant's" prior convictions, that constituted not only a stipulation that the documents were authentic, but that Tate was the individual referenced in the certified copy."  In all probability, the case probably turned on the justice's belief that the prosecutor had been gamed.  In fact, while the defense attorney at trial did raise the issue of identity, the appellate attorney did not; he made only a claim of ineffective assistance of counsel.  (There's a bit of irony in claiming that trial counsel was ineffective, and then missing the issue that the appellate court reverses on.)  It may well be that the trial judge's injection of the issue of "authenticity" is the problem here.

But the upshot of Tate is that if you stipulate to a certified copy of a prior conviction, you're going to be deemed to have stipulated to identity, unless you carefully spell out that your stipulation is more limited.

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