Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

COATS, Chief Judge.

Jesse Johnson was convicted of robbery in the first degree,1 burglary in the first degree,2 and assault in the third degree.3 Johnson raises two issues on appeal. First, he argues that Superior Court Judge Eric A. Aarseth erred in denying his motion to dismiss the indictment. At the grand jury, a police investigator testified that he learned that one of the perpetrators of the break-in and robbery had a street name, "Tut." In his motion to dismiss the indictment, Johnson argued that the State presented an inadmissible hearsay statement to the grand jury to establish that he was the "Tut" who committed the offenses. But we conclude that the State presented sufficient information to the grand jury that Johnson was the "Tut" who committed the offenses, even if we disregard the statement in question.

Superior Court Judge Michael L. Wolverton sentenced Johnson as a third felony offender, based on records that Johnson had two prior felony convictions from Louisiana. Johnson points out that AS 12.55.145(b) requires that "prior convictions not expressly admitted by the defendant must be proved by authenticated copies of court records ... ." The original court documents confirming Johnson's Louisiana convictions were destroyed by Hurricane Katrina. In their place, the State submitted attested copies of the pertinent court documents obtained from Johnson's file with the Louisiana Department of Public Safety and Corrections. Johnson argues that, under the statute, these records were not legally sufficient to establish his Louisiana convictions because they were not certified by court personnel. For the reasons explained in this opinion, we conclude that the superior court did not err in relying on these documents to establish that Johnson was a third felony offender.

The evidence presented at the grand jury

The following facts are based upon the evidence presented at the grand jury. Leah Smith testified that in the early morning hours of September 21, 2007, she was at her Muldoon apartment with Gus Macauly and Rodney McGuire. At roughly 4:30 a.m., someone knocked on the door; she could not see their face or recognize their voice, and did not let them in. A few minutes later, someone broke down her door. Smith testified that three men then entered her apartment, pointed guns at her and her companions, and went through her possessions, apparently in search of something.

Smith was asked at the grand jury, "Do you know an individual by the name of Tut?" She replied that she did, but that she did not know his real name. She said that he (Tut) had wanted to come over earlier in that evening, but that she "wouldn't let him in."

Macauly testified that he had been at the apartment when the door was kicked in. He said that one of three people pointed a gun at him while the others ransacked the apartment. He said that he had hidden $700 in cash shortly before the visitors' arrival, but that only $300 was left after the incident. McGuire also testified about the incident. Neither man mentioned knowing someone named "Tut."

Anchorage Police Officer James Estes was the fourth and final witness. He recounted responding to a call at Smith's apartment and conducting an investigation there. The police found Demetroy Davis nearby and arrested him. They also found a delivery van near the scene, with Shelton Quiney inside.

Estes testified about his conversation with Quiney. Quiney said that his cousin, "T," had called him from Mountain View. "T" needed a ride to (what turned out to be Smith's apartment in) Muldoon. Quiney then explained to Estes that his cousin actually goes by "Tut."

Officer Estes then testified as follows (the italicized sentence is the focus of Johnson's current legal challenge):

Quiney allowed Estes to look at the cell phone on which he had received the call from his cousin. Estes established that Quiney had received a telephone call from a number listed on the phone as "Tut." The telephone showed that Quiney had received a call at 4:13 a.m., shortly before the robbery.

Estes also spoke with Davis at the scene. Davis described his involvement in the robbery. He identified the other participants in the robbery as Quiney and Tut.

The district attorney concluded the officer's testimony by having him explain the police investigation into the identity of the third member of Davis and Quiney's party. Officer Estes said that Quiney had provided him with the name "Jesse Johnson," but that there was more than one Jesse Johnson in the police computer system. He said that he was ultimately able to narrow down the potential matches to a Jesse Johnson who fit the information that he had already obtained. This Jesse Johnson used "Tut" as a known alias. Officer Estes then showed Davis a picture of this Jesse Johnson. Davis identified the picture as being the person he knew as Tut.

Why we reject Johnson's argument that the identification of Johnson as the third robber relied on inadmissible hearsay

Johnson's argument focuses on Officer Estes's testimony that Quiney contacted a family member who, according to Quiney, informed him that Tut's real name was Jesse Johnson. Johnson argues that the family member's identification was inadmissible hearsay evidence that should not have been presented to the grand jury.4 But even if we assume that Quiney's statement about what the family member told him should not have been admitted, we agree with Judge Aarseth that it is unlikely that this evidence affected the grand jury's decision to indict.5

(Although Johnson does argue that the family member's identification was double hearsay because Quiney did not testify, it does not appear that Johnson is arguing that it was improper for Officer Estes to testify to the other statements that Quiney made to the officer. Because the prosecution can generally assume that a codefendant will exercise his right against self-incrimination, a codefendant's hearsay statements are admissible before the grand jury.6)

We conclude that, even excluding the statement of the family member that the "Tut" who committed the offenses was Jesse Johnson, other evidence that was presented to the grand jury from the police investigation established that connection. In particular, Officer Estes testified that he searched the police computer file and found a Jesse Johnson who had an alias of Tut. Estes obtained a picture of this Jesse Johnson, and codefendant Demetroy Davis identified the picture as the person he knew as Tut.

Why we conclude that Judge Wolverton did not err in sentencing Johnson as a third felony offender

Following Johnson's trial and conviction, both sides prepared sentencing memoranda. The State, apparently relying on the presentence report, contended that Johnson had at least four prior felony convictions from Louisiana. Johnson argued that, because the State had failed to present authenticated copies of court records to prove the prior convictions, it had provided insufficient proof that he had a former felony conviction. Johnson contended that he should be sentenced as a first felony offender. Johnson relied on AS 12.55.145(b), which provides that unless the defendant expressly admits a prior conviction, the conviction "must be proved by authenticated copies of court records ... ."

At a later court hearing, the State explained the actions it had subsequently taken to attempt to secure copies of Johnson's records from Louisiana. The prosecutor represented that he had talked to court clerks in Louisiana. He was informed that all court records prior to 2005 had been destroyed by Hurricane Katrina. The prosecutor said that he had contacted Louisiana probation and parole officials and that he might be able to get authenticated copies of the records of Johnson's convictions from their files. Judge Wolverton gave the State additional time to attempt to obtain "the best records that are available."

The State then obtained additional records from Johnson's Louisiana probation file. Johnson argued that these records did not meet the requirements of AS 12.55.145(b) because they were not court records. Judge Wolverton concluded that the records that the State submitted were sufficient to establish that Johnson had two prior felony convictions from Louisiana, and sentenced him as a third felony offender.

On appeal, Johnson contends that the records from the Louisiana Department of Public Safety and Corrections were not "authenticated copies of court records" and therefore did not comply with AS 12.55.145(b).

Johnson does not question that the documents in question were authenticated by the Louisiana Department of Public Safety and Corrections. That is, Johnson does not contest that these records were certified by a Department official as being true and correct copies of documents contained in Johnson's Public Safety and Corrections file. But Johnson argues that this is not enough to satisfy the statute.

As we noted in Gant v. State,7 the statute speaks of "authenticated copies of court records," but it does not specify that these records must consist of certified copies of the judgment.8 In Gant, we held that the statute was satisfied by a certified copy of an out-of-state court's docket abstract, when that abstract reflected the defendant's conviction.9 But Johnson's case is different because the documents reflecting Johnson's prior convictions were not certified by Louisiana court personnel; rather, they are copies of documents that were retained and certified by the Louisiana Department of Public Safety and Corrections.

Under the facts of Johnson's case, we conclude that this difference is not significant. It is undisputed that the original court documents are no longer physically available. Under Alaska Evidence Rule 1004(a), if the original of a written record is destroyed, "other evidence of the contents of [the] writing ... is admissible ... unless the proponent [of the evidence] in bad faith lost or destroyed [the writing]." Moreover, under Evidence Rule 1003, a copy of a document "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."

Here, it is obvious that the proponent of the evidence — the State of Alaska — did not procure the destruction of the original document in bad faith. Nor is it unfair to admit duplicates in lieu of the originals. The question being litigated here is whether Johnson was convicted of crimes in Louisiana. Thus, the precise physical condition of the original documents is not relevant; rather, the relevant information is the content of those original documents. And to establish the content of these documents, under the circumstances, it is fair to refer to the copies kept by the Department of Public Safety and Corrections — a state agency whose task is to execute criminal judgments issued by the courts of Louisiana.

For these reasons, we conclude that Judge Wolverton did not commit error when he relied on the Department of Public Safety and Corrections documents to establish Johnson's prior convictions.

Conclusion

The judgment of the superior court is AFFIRMED.