Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer, Judge.
The defendant appeals his convictions, arguing the trial court erred in failing to exclude evidence.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Elisabeth Reynoldson, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Jowl Dalrymple, Assistant County Attorney, for appellee.
Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.
Charles David Brown appeals from his convictions for possession of a firearm as a felon and carrying weapons. He argues the court erred in allowing witnesses to testify to a statement made by a bystander to the police officer. We affirm.
I. Background Facts and Proceedings.
On the night of January 10, 2012, Officer Wittmayer was called to the scene of a street fight. He observed fifteen to twenty-five people in the area. Two people were in the street—Brown and his brother, Tawain Cox. As Officer Wittmayer exited his car, a woman in the crowd pointed to Brown and made a statement to the officer. At Brown's trial, the prosecutor asked the officer what the woman said. Defense counsel objected and requested a conference. Outside the presence of the jury, the prosecutor argued:
[The woman's statement, "That motherfucker there has got a gun, " is] not offered for the truth of the matter asserted. We're offering it to explain the officer's behavior, the effect on the listener and the officer's behavior in that it's the identification of that person, subsequent [Brown] running away, that the officer pursues him. [Brown's] leaving the scene is not illegal . . . . The officer's pursuit of him isn't justified simply because [Brown] decides to [go] away from this scene. It's in the context that he's been identified as the person with the gun that the officer pursues him. So it is the effect on the officer, but I think also it's relevant to the effect on [Brown] . . . . It's [Brown] and solely [Brown] who runs in response to that statement, subsequently followed by his brother who recognizes [Brown] is running. So it's the effect on the listener of the officer as well as the effect on the listener of the defendant . . . . [I]t's not even an exception, it's just not hearsay.
After defense counsel conducted a voir dire examination of Officer Wittmayer, he argued the testimony is hearsay and also argued admitting the testimony would be a violation of Brown's right of confrontation. The trial court overruled these objections. Defense counsel next argued there is no foundation to establish the statement's admissibility as a present sense impression. The court ruled: "[T]hat's not why I'm going to admit it, because the State's not even requesting that it be admitted for that purpose, and so I'm not doing it." Finally, defense counsel asserted the prejudicial effect of the evidence outweighs any relevance to a material issue. The court overruled this objection. After the jury returned to the courtroom, Officer Wittmayer testified:
Q. As you then exit your vehicle, what is said to you . . . ?
THE COURT: Before he gives his answer, ladies and gentlemen, let me instruct you that you shall not consider the statement made for the truth of the matter but may only consider the statement for the effect the statement may have had on listeners and to explain why ...