STATE of Iowa, Appellee, v. Brian M. KENNEDY, Appellant.
No. 11-1685.
Supreme Court of Iowa.
May 9, 2014.
Rehearing Denied June 4, 2014.
846 N.W.2d 517
APPEL, Justice (concurring specially).
I concur in the result in this case as I do not believe the legislature intended to allow trainers of dogs to vindicate the rights of trainers through a private right of action. The statute is designed to encourage the training of dogs, not provide civil remedies for dog trainers.
I do not believe, however, that finding a private right of action in this case would offend
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Patrick C. Jackson, County Attorney, Tyron T. Rogers and Justin C. Stonerook, Assistant County Attorneys, for appellee.
WIGGINS, Justice.
A defendant seeks further review of a court of appeals decision finding the district court‘s admission of a certified ab
I. Background Facts and Proceedings.
On November 30, 2010, a police officer observed Brian M. Kennedy driving a vehicle in Danville. The police officer knew the State had previously revoked Kennedy‘s driver‘s license. The police officer initiated a traffic stop and gave Kennedy a citation. Subsequently, the State charged Kennedy with driving under revocation in violation of
On the morning of trial, the State presented Kennedy‘s counsel with a proposed exhibit entitled “Certified Abstract of Driving Record.” The exhibit was a fifteen-page document containing four separate certifications. The first two pages contained an abstract of Kennedy‘s driving history as it appeared in the Iowa Department of Transportation (IDOT) records. The director of the Office of Driver Services signed a certification stating the driving history was a true and accurate copy of the official record. The remaining thirteen pages contained three certifications from the manager for the Office of Driver Services attesting to the process the IDOT uses to mail sanction notices and attesting the IDOT mailed sanction notices that responded to Kennedy‘s sanction numbers. Each of these certifications contained the official notices to Kennedy and the corresponding certificates of bulk mailing associated with each notice.
Prior to trial, Kennedy made a motion in limine to exclude the exhibit. His main challenge was the exhibit violated the Confrontation Clauses contained in the
Kennedy waived his right to a jury trial. The district court found Kennedy guilty of driving under revocation in violation of
II. Standard of Review.
A defendant‘s right to confront witnesses in a criminal trial is found in the
III. Preservation of Error.
The court of appeals held Kennedy did not preserve error on his claims involving the last thirteen pages of the exhibit. These thirteen pages contained the three certifications from the manager for the Office of Driver Services attesting to the process the IDOT uses to mail sanction notices and attesting the IDOT mailed the sanctions corresponding to Kennedy‘s sanction numbers.
The test to determine the sufficiency of an objection to preserve error “is
IV. Issue.
We must decide if any part of the fifteen-page exhibit entitled “Certified Abstract of Driving Record” is admissible over Confrontation Clause objections.
V. Elements the State Needs to Prove for Conviction of the Crime of Driving Under Revocation Under Iowa Code Section 321J.21.
The Code defines driving under revocation as follows:
A person whose driver‘s license or nonresident operating privilege has been suspended, denied, revoked, or barred due to a violation of this chapter and who drives a motor vehicle while the license or privilege is suspended, denied, revoked, or barred commits a serious misdemeanor.
The State claims the IDOT revoked Kennedy‘s license three different times and each revocation remained in effect on November 30, the day the police officer initiated the traffic stop. The IDOT claims it first revoked Kennedy‘s license for “OWI test refusal.”
The effective date of revocation shall be ten days after the department has mailed notice of revocation to the person by first class mail, notwithstanding
chapter 17A . The peace officer who requested or directed the administration of a chemical test may, on behalf of the department, serve immediate notice of intention to revoke and of revocation on a person who refuses to permit chemical testing. If the peace officer serves immediate notice, the peace officer shall take the Iowa license or permit of the driver, if any, and issue a temporary license effective for ten days.
The IDOT also claims it revoked Kennedy‘s license for “OWI test failure.”
The effective date of the revocation shall be ten days after the department has mailed notice of revocation to the person
by first class mail, notwithstanding chapter 17A . The peace officer who requested or directed the administration of the chemical test may, on behalf of the department, serve immediate notice of revocation on a person whose test results indicated the presence of a controlled substance or other drug, or an alcohol concentration equal to or in excess of the level prohibited bysection 321J.2 , or a combination of alcohol and another controlled substance or drug in violation ofsection 321J.2 .
Finally, the IDOT claims it revoked Kennedy‘s license for “operating while intoxicated.”
Therefore, to prove its case, the State must prove Kennedy drove his vehicle after the effective date of a revocation and before the IDOT reinstated his license.
VI. Confrontation Clauses.
Kennedy challenges the introduction of the fifteen-page exhibit as a violation of the Confrontation Clauses under the
“[W]e jealously protect this court‘s authority to follow an independent approach under our state constitution” for provisions of the Iowa Constitution that are the same or nearly identical to provisions in the United States Constitution. State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011). However, in his appellate brief, Kennedy does not propose a specific test we should apply under
The Supreme Court interpreted the Confrontation Clause in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). There, the Supreme Court recognized the Confrontation Clause was intended to protect against the principal evil of testimonial statements in the absence of the declarant. See id. at 50, 124 S. Ct. at 1363, 158 L. Ed. 2d at 192. Courts can only admit these testimonial statements in subsequent proceedings if the declarant is unavailable and there has been a prior opportunity for cross-examination. Id. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. Thus, the first inquiry in Confrontation Clause analysis is whether the evidence is testimonial.
Though the Supreme Court did not specifically identify a comprehensive definition of “testimonial,” it provided some guidance in determining which evidence is testimonial. First, the Supreme
For our analysis, we will divide the fifteen-page exhibit into two types of documents. The first two pages of the exhibit are the certified abstract of Kennedy‘s driving record. We will consider these two pages separately from the last thirteen pages, which consist of three notices of revocation and an affidavit of mailing and certificate of bulk mailing attached to each notice. For clarity, we will identify the last thirteen pages as the affidavits of mailing.
A. Certified Abstract of Kennedy‘s Driving Record.
We previously determined a certified abstract of a driving record was nontestimonial. Shipley, 757 N.W.2d at 238. Kennedy argues we should revisit the Shipley decision and overrule Shipley based on two subsequent Supreme Court decisions.
In Shipley, the defendant challenged the admission of a certified abstract of his driving record as violating the Confrontation Clauses of the United States and Iowa Constitutions. Id. at 234. The defendant argued the district court could only admit the certified abstract of driving record if the custodian of his driving records was available for cross-examination. Id. In determining otherwise, we identified two different confrontation issues with the certified abstract of driving record. Id. at 234-35. The first issue was whether the underlying public record required a live witness, and the second issue was whether the record could be authenticated without the custodian‘s testimony. Id.
We first recognized the underlying public record was not testimonial when we considered the purpose of the right of cross-examination. Id. at 237. The IDOT created the driving record prior to the criminal prosecution and it would have existed even if there was not a subsequent criminal prosecution. Id. at 238. Thus, the primary evil Crawford sought to avoid, namely information gathered by an inquisitory investigation, did not exist. Id. at 238. We came to this conclusion based on a particularized analysis of the purpose of the Confrontation Clause and the nature of the information in the public record, rather than a broad view that all public records would be admissible. Id. at 237.
We next recognized the certification of authenticity of the public record was not testimonial. Id. at 239. In Shipley, we specifically compared a certification of a driving record to a certification of other forensics, and determined these certifications were sufficiently distinct. Id. Unlike forensic certificates, the driving record certification merely certified the authenticity of a copy of a preexisting document. Id. at 238-39. Further, access to a driving-record certification is not limited to governmental interrogation, but is available to anyone. Id. at 239. We concluded the certificate of authenticity did not violate the Confrontation Clauses of the United States and Iowa Constitutions. Id.
Kennedy argues Shipley is no longer good law because of two subsequent Supreme Court decisions: Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), and Bull-coming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011). Both of these cases consider whether forensic certificates of analysis violate the Confrontation Clause of the United States Constitution.
In Melendez-Diaz, the Supreme Court determined certificates of analysis stating several seized bags contained cocaine were testimonial and thus subject to the Confrontation Clause. 557 U.S. at 308-11, 129 S. Ct. at 2531-32, 174 L. Ed. 2d at 320-22. The certificates showed the results of the forensic analysis, reported the weight of the bags, and indicated the bags contained cocaine. Id. at 308, 129 S. Ct. at 2531, 174 L. Ed. 2d at 320. The Supreme Court determined the certificates were testimonial for three reasons. First, the description of testimonial statements from Crawford included affidavits. Id. at 310, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321. These certificates were affidavits because they were “‘declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.‘” Id. at 310, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321 (quoting Black‘s Law Dictionary 62 (8th ed. 2004)). Second, the court noted these documents were “functionally identical to live, in-court testimony.” Id. at 310-11, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321. Third, the sole purpose of the affidavits under state law was to provide evidence of the net weight, quality, and composition of the substances being tested, and the analysts were aware of the evidentiary purpose of the affidavits. Id. at 311, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321.
The Supreme Court addressed whether the analysts themselves were witnesses providing testimony against the defendant. Id. at 313, 129 S. Ct. at 2533, 174 L. Ed. 2d at 323. The Supreme Court determined the analysts were witnesses because they provided testimony against the defendant that the substance he possessed was cocaine, and this fact was necessary for his conviction. Id. at 313, 129 S. Ct. at 2533, 174 L. Ed. 2d at 323.
The Supreme Court specifically differentiated between the affidavits in that case and a clerk‘s certificate authenticating an official record for use as evidence. Id. at 322-23, 129 S. Ct. at 2538-39, 174 L. Ed. 2d at 328-29. The Supreme Court stated “[a] clerk could by affidavit authenticate or provide a copy of an otherwise admissible record, but could not do what the analysts did here: create a record for the sole purpose of providing evidence against a defendant.” Id. at 322-23, 129 S. Ct. at 2539, 174 L. Ed. 2d at 329.
In Bullcoming, the Supreme Court determined a forensic laboratory report certifying the defendant‘s blood alcohol content violated the Confrontation Clause when an analyst who had not prepared the report testified. 564 U.S. at 651-52, 131 S. Ct. at 2709-10, 180 L. Ed. 2d at 616. The Supreme Court considered whether a substitute analyst who did not prepare the report could give proper testimony under the Confrontation Clause when the report itself was testimonial. Id. at 651-52, 131 S. Ct. at 2710, 180 L. Ed. 2d at 616. The Supreme Court reasoned the analyst could not be a proper substitute because this testimony could not convey what the actual analyst knew about the particular testing process employed. Id. at 659, 131 S. Ct. at 2715, 180 L. Ed. 2d at 622.
We hold the rulings in Melendez-Diaz and Bullcoming do not overrule or undermine our decision in Shipley. A certified abstract of a driving record is significantly different from a forensic report analyzing drugs or blood alcohol content. A certified abstract of a driving record encompasses the information contained in the IDOT records. That information existed well before the alleged criminal act. The compiling of
Accordingly, the certified abstract of Kennedy‘s driving record, the first two pages of the exhibit, is not testimonial and the admission of these two pages did not violate the Confrontation Clauses of the United States or Iowa Constitutions.
B. Affidavits of Mailing.
These documents require us to do a different analysis. We have not previously considered whether an affidavit of mailing and its attachments are testimonial. In Shipley, we recognized our task in that case was “limited to the consideration of the admissibility of a copy of an existing driving record kept by the custodian of records.” 757 N.W.2d at 237 n. 2.
The last thirteen pages of the exhibit contained three affidavits of mailing with attachments. Each affidavit addressed a separate revocation of Kennedy‘s driving privileges. The first affidavit addressed a notice of revocation mailed on May 21, 2010. The notice revoked Kennedy‘s license for refusing OWI chemical testing. It stated the effective date of the revocation was June 3, 2010. The notice also provided the revocation would last until June 2, 2012.
The second affidavit addressed a notice of revocation mailed on June 16, 2010. The notice revoked Kennedy‘s license for failing OWI chemical testing. It stated the effective date of the revocation was June 29, 2010. The notice also provided the revocation would last until June 28, 2011.
The third affidavit addressed a notice of revocation mailed on August 30, 2010. The notice revoked Kennedy‘s license for his OWI conviction. It stated the effective date of the revocation was July 30, 2010. The notice also provided the revocation would last until July 29, 2016.
Each affidavit of mailing contained the following language:
I, Kathy McLear, being first duly sworn on oath, state as follows:
That I am a Manager for the Office of Driver Services, Iowa Department of Transportation, an agency of the State of Iowa which generates and maintains all the official records of the Iowa Department of Transportation relating to driver licenses, license suspensions, revocations, cancellations, denials, disqualifications and barrment matters, and the mailing of sanction notices concerning the same. As part of my job duties with the Department, I know the process the Department uses to mail sanction notices to drivers.
That as a part of the regularly conducted and regularly recorded activities of the Office of Driver Services of the Iowa Department of Transportation, the Department caused to be mailed by first class mail on or about [date of mailing notice], at the United States Postal Service, 1165 2nd Avenue, Des Moines, Iowa, and to driver(s) at each driver‘s last known address as shown in the records of the Department, the following sanction notices:
Sanction Notices Number(s): [identifying number on notice]
Proof of said mailing is set out in the attached United States Postal Service Certificate of Bulk Mailing, certified to by a knowledgeable employee of the United States Postal Service and prepared in the regular course of its business at its location at 1165 2nd Avenue, Des Moines, Iowa at the time of said mailing.
In Michigan, the Michigan Department of State (DOS) is responsible for mailing notices of revocation to drivers. People v. Nunley, 491 Mich. 686, 821 N.W.2d 642, 643 (2012), cert. denied, 133 S. Ct. 667, 184 L. Ed. 2d 463 (2012). In June 2009, the DOS sent a notice of revocation to the defendant. Id. at 643-44. Contemporaneous with sending notice, the DOS prepared a certificate of mailing and maintained the certificate in its official records. Id. at 644. In September 2009, the police stopped the defendant and charged him with driving while his license was revoked. Id. At trial, the court would not admit the certificate of mailing due to a Confrontation Clause objection under the United States Constitution. Id. The case reached the Supreme Court of Michigan. See id. at 647.
The Michigan court determined a certificate of mailing was not testimonial because the certificate of mailing was a business record created for administrative reasons. Id. at 653. The court recognized the certificate was an objective cataloging intended to show the agency performed its statutory responsibilities. Id. Further, the court pointed out the DOS created the certificate of mailing before any crime, and the mailing was contemporaneous with the notice. Id. Thus, the certificate did not violate the Confrontation Clause because “it was not made under circumstances that would lead an objective witness reasonably to believe that it would be available for use at a later trial.” Id. at 654 (emphasis omitted).
In Massachusetts, the supreme judicial court considered whether a certificate of mailing violated the Confrontation Clause of the United States Constitution when the certificate was created exclusively for trial. Commonwealth v. Parenteau, 460 Mass. 1, 948 N.E.2d 883, 885-86, 891 (2011). On May 30, 2009, an officer stopped the defendant‘s vehicle, and he arrested the defendant for operating a motor vehicle after his license had been revoked. Id. at 886-87. In the subsequent jury trial, the commonwealth introduced the certificate attesting a notice of license suspension or revocation was mailed to the defendant on May 2, 2007. Id. at 887. The registry prepared and dated the certificate on July 24, 2009. Id. at 887. The district court admitted the certificate into evidence. Id. The case reached the Supreme Judicial Court of Massachusetts. Id. at 885-86.
The Massachusetts court noted the certificate was dated two months after the criminal complaint was issued and clearly was made for use at the defendant‘s trial. Id. at 890. Further, the certificate did not merely authenticate and attest to the existence of a record, but made a factual representation that the agency mailed notice on a particular date. Id. Nor could the agency show it mailed the notice by proving the existence of a copy of the notice in the agency‘s filing system. Id.
The Michigan and Massachusetts cases contain the proper analysis under the Confrontation Clause. The Michigan court found the DOS made and kept the certificate of mailing well before any prosecution of the criminal charges. Thus, an affidavit of mailing prepared prior to criminal charges kept in the regular course of business as an administrative record does not violate the Confrontation Clause. On the
We find the last thirteen pages contained in the exhibit at issue, the affidavits of mailing and attachments, squarely fit under the reasoning of the Massachusetts court. The affidavits of mailing were prepared after the State filed the complaint against Kennedy. All three affidavits are dated December 10, 2010, after Kennedy‘s traffic stop on November 30. The affidavits did not merely authenticate and attest to the existence of a record in the IDOT‘s possession, but made factual representations the IDOT mailed the notices on particular dates. Applying the Crawford test, we find the IDOT created the affidavits under circumstances that would lead an objective witness to reasonably believe the affidavits would be available for use at a later trial. Therefore, the affidavits of mailing and attachments violated the Confrontation Clauses of the United States and Iowa Constitutions and were not admissible.
VII. Harmless Error.
Reversal of a criminal conviction is not required for a federal constitutional error if the error is harmless. See Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705 (1967). The erroneous admission of evidence in violation of the Confrontation Clause is a constitutional error subject to a harmless-error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674, 686 (1986).
“Harmless-error review looks ... to the basis on which ‘the jury actually rested its verdict.‘” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081, 124 L. Ed. 2d 182, 189 (1993) (quoting Yates v. Evatt, 500 U.S. 391, 404, 111 S. Ct. 1884, 1893, 114 L. Ed. 2d 432, 449 (1991), overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 72 n. 4, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991)). The inquiry is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.
Id. at 279, 113 S. Ct. at 2081, 124 L. Ed. 2d at 189. “[A]ny time an appellate court conducts harmless-error review it necessarily engages in some speculation as to the jury‘s decisionmaking process; for in the end no judge can know for certain what factors led to the jury‘s verdict.” Id. at 284, 113 S. Ct. at 2084, 124 L. Ed. 2d at 192 (Rehnquist, C.J., concurring).
The State must “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained” for it to establish harmless error. Chapman, 386 U.S. at 24, 87 S. Ct. at 828, 17 L. Ed. 2d at 710. We are required to follow a two-step analysis to determine whether the State has met its burden. Yates, 500 U.S. at 404, 111 S. Ct. at 1893, 114 L. Ed. 2d at 449; State v. Hensley, 534 N.W.2d 379, 383 (Iowa 1995). The first step of the analysis requires us to ask what evidence the fact finder actually considered to reach its verdict. Yates, 500 U.S. at 404, 111 S. Ct. at 1893, 114 L. Ed. 2d at 449. We do not conduct a subjective inquiry into the fact finder‘s mind when doing so. Id. at 404, 111 S. Ct. at 1893, 114 L. Ed. 2d at 449.
Here, the district court considered the admissible certified abstract of Kennedy‘s driving record and the inadmissible affidavits of mailing and attachments to find Kennedy‘s license was revoked at the time of his arrest. If we compare the probative force of the admissible certified abstract with the probative force of the inadmissible affidavits, the effect of the erroneously admitted evidence is comparatively minimal to such a degree that we can say there is no reasonable possibility such evidence might have contributed to the conviction.
We reach this conclusion because the admissible certified abstract contained the same information as the inadmissible affidavits. The certified abstract contained the effective date of the revocation for the OWI chemical testing refusal, the effective date of the revocation for the OWI chemical testing failure, and the effective date of the revocation for the OWI conviction. The certified abstract also indicated these revocations were in effect at the time Kennedy was arrested. The information contained in the admissible certified abstract of driving record was sufficient to convict Kennedy of driving under revocation in violation of
VIII. Disposition.
The district court properly admitted the certified abstract of driving record over Kennedy‘s objections. Although the district court should not have admitted the affidavits of mailing and attachments over the Confrontation Clause objections, we find their admission into evidence to be harmless error. Therefore, we affirm the decision of the court of appeals and the judgment of the district court.
DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.
DAVID WIGGINS
JUSTICE OF THE SUPREME COURT OF IOWA