State v. Guttormson, 2015 ND 235

Background

In July 2014 Chad Guttormson was stopped by Officer Jorge Gonzalez, assisted by Officer Ryan Birney; Gonzalez’s squad-car silent video was recorded. Gonzalez was not called to testify at trial; Birney testified about what he personally observed and what he heard Gonzalez say.
Birney observed signs of intoxication (poor balance, swaying, difficulty standing); Birney testified Gonzalez recited the implied-consent advisory and requested an onsite breath screening, and that Guttormson refused.
The State dismissed the DUI charge; a jury convicted Guttormson of refusal to submit to an onsite screening test under N.D.C.C. § 39-08-01(1)(e)(3).
Guttormson appealed, arguing: (1) Sixth Amendment Confrontation Clause violation because Gonzalez did not testify and his statements/actions were admitted via the video and Birney’s testimony; and (2) insufficient evidence that Gonzalez had reason to believe a moving violation occurred and had formulated an opinion that Guttormson’s body contained alcohol.
The North Dakota Supreme Court affirmed the conviction, concluding no confrontation violation (the squad video and Birney’s testimony were non-testimonial/verbal acts or Birney’s own observations) and that circumstantial evidence was sufficient to support the statutory elements; it remanded to correct a clerical error in the judgment.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Guttormson)	Held
Whether admission of Gonzalez’s squad-car video and Birney’s testimony violated the Sixth Amendment confrontation right	Video and Birney’s testimony are non-testimonial (either verbal acts or Birney’s own observations), so Confrontation Clause not triggered	Gonzalez’s recorded actions/statements and Birney’s recounting of them are testimonial hearsay and require Gonzalez’s live testimony	Court held no Confrontation Clause violation: the video and recitation of the advisory/request were not testimonial hearsay and Birney testified to his own observations
Whether Birney’s testimony amounted to impermissible surrogate testimony under Bullcoming (i.e., someone testifying about another officer’s state of mind)	Birney personally observed and participated in the encounter and testified to his own perceptions; unlike Bullcoming, this is not a forensic report or surrogate certification	Relied on Bullcoming to argue surrogate testimony of Gonzalez’s opinion was impermissible when Gonzalez did not testify	Court distinguished Bullcoming: Bullcoming involved a forensic report (testimonial) and a non-participating surrogate; here Birney observed the events and testified to his own observations
Whether the squad-car video itself is testimonial hearsay (nonverbal conduct constituting an assertion)	Video shows non-assertive conduct and was automatically recorded; it was offered to show that acts occurred, not to prove the truth of any asserted matter	Video was created for evidentiary purposes and therefore testimonial; admission without Gonzalez violated confrontation	Court held the video did not contain testimonial hearsay: Gonzalez’s nonverbal actions were not intended as assertions and were admissible as circumstantial evidence of Gonzalez’s opinion
Sufficiency of evidence for conviction under N.D.C.C. §§ 39-08-01(1)(e)(3) and 39-20-14 (reason to believe a moving violation occurred and officer formed opinion defendant’s body contained alcohol)	Circumstantial evidence (video, Birney’s observations of driving on center line, swaying, balance problems, leaning on vehicle) allowed the jury to infer Gonzalez had reason to believe a moving violation occurred and formed an opinion that defendant’s body contained alcohol	Argued insufficient proof that Gonzalez had reason to believe a traffic violation occurred and that he formed an opinion defendant’s body contained alcohol	Court held evidence was sufficient: a rational factfinder could infer the statutory prerequisites from the video and Birney’s testimony

Key Cases Cited

Crawford v. Washington, 541 U.S. 36 (Confrontation Clause prohibits admission of testimonial hearsay unless witness unavailable and defendant had prior opportunity for cross-examination)
Bullcoming v. New Mexico, 564 U.S. 647 (Surrogate testimony about forensic certification is testimonial; defendant has right to confront the certifying analyst)
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (Forensic reports prepared for prosecution are testimonial)
Davis v. Washington, 547 U.S. 813 (Distinguishes testimonial from nontestimonial statements based on primary purpose)
Michigan v. Bryant, 562 U.S. 344 (Statements or questions not asserting truth may be non-testimonial; context matters)