Appeal from the Iowa District Court for Black Hawk County, James D. Coil, District Associate Judge.
Robert Campbell appeals from his convictions for domestic abuse assault using a dangerous weapon, domestic abuse assault causing bodily injury, and driving while barred.
Eric D. Tindal of Nidey Erdahl Tindal & Fisher, P.L.C., Williamsburg, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brian Williams, Assistant County Attorney, for appellee.
Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.
Robert Campbell appeals from his convictions after jury trial for domestic abuse assault using a dangerous weapon, domestic abuse assault causing bodily injury, and driving while barred. He argues the district court erred in admitting into evidence recorded out-of-court statements including: recordings of phone conversations between A.S. (the alleged victim) and Campbell while Campbell was in the jail pending trial, an officer's body-microphone recording of his interaction with A.S., and a recording of a 911 call made by A.S. Because his counsel failed to object to the admission of the 911 call, he argues that failure constitutes ineffective assistance. He also argues the court improperly found he forfeited his right to confront A.S. and the court improperly denied his motion for judgment of acquittal as insufficient evidence exists to support his convictions. We affirm, finding the district court properly held the jail call recordings showing Campbell procured A.S.'s absence and thus forfeited his right to confront her, properly admitted the jail call recordings as evidence of Campbell's consciousness of guilt, and properly admitted the body-microphone recording. We also find Campbell was not provided with ineffective assistance when his counsel failed to object to the admission of the 911 call, and sufficient evidence existed to support the convictions.
I. Facts and proceedings.
Campbell and A.S. had been involved in a relationship for three years. They had one child together, who was less than two years old at the time of the incident. In the afternoon of June 29, 2009, A.S. called 911 crying that Campbell had hit her with her own car and drove away. Later that night, she called again.
This time, she reported Campbell had punched her between four and seven times that day, and was still nearby. Several times during the call she yelled at Campbell to stay away from her. She stayed on the phone with the 911 dispatcher until officers arrived. She reported to the responding officer, who was wearing a body microphone, that she had called multiple times; that she didn't know where she was bleeding from; that Campbell had hit her on the face and burnt her ear on the radiator of a car; and that he grabbed her face, pulled her hair, and knocked her glasses off before attempting to run her over. Campbell was arrested and charged with domestic abuse assault by using a dangerous weapon (the car), two counts of domestic abuse assault causing bodily injury, and driving while barred. The court ordered no-contact between Campbell and A.S., but cancelled the order two months later on a request by A.S.
Campbell and A.S. spoke on the telephone hundreds of times while he was in jail awaiting trial. These calls were recorded. During some of these calls, Campbell told A.S. to leave her apartment and hide elsewhere to avoid being subpoenaed. He told her police would try to force her to testify, that by not leaving police could find her and she could go to jail. Campbell told A.S. the worst that could happen if she did not appear at trial is she could be held in contempt, which Campbell said was nothing.
A jury trial was held November 24, 2009. A.S. did not appear to testify, despite being subpoenaed, and a warrant for her arrest for contempt was issued but not successfully executed. After jury selection and opening statements but prior to the presentation of evidence, both counsel and the court met outside the presence of the jury to discuss the State's offer of proof of the jail phone call recordings. The court listened to the four recordings, which included Campbell's repeated requests that A.S. run away and avoid being subpoenaed, and concluded:
So I do find, under the theory of forfeiture by wrongdoing, that statements which might normally be inadmissible as a violation of the defendant's right to confront the witness, and for that reason solely, will be admissible in trial and may be offered by the State in its case in chief. Now counsel, do you wish to address the issue of the admissibility of the statements that you've played here before the jury?
The court then ruled the substance of the tapes could be played before the jury on the grounds that the statements were admissions and evidence of consciousness of guilt. Campbell did object to the evidence as showing a history of past crimes but when the court offered to redact the offending statements, Campbell's counsel stated they wished for the entirety of the calls, rather than a redacted version, to be played before the jury. Campbell also objected to the recording on relevance grounds.
Recordings of the two 911 calls made by A.S., the body-microphone recording of A.S.'s statements to the officer responding to the second call, and four jail telephone call recordings were admitted into evidence and played at trial for the jury. Campbell objected to the body-microphone recording on hearsay and confrontation grounds, and was overruled on both grounds. The jury found Campbell guilty of domestic abuse assault by using a dangerous weapon, one count of domestic abuse assault causing bodily injury, and driving while barred. Further facts will be discussed as relevant below.
II. Scope and Standard of Review.
"We review the trial court's admission of hearsay evidence for correction of errors of law. However, to the extent constitutional issues are raised, our review is de novo." State v. Heuser, 661 N.W.2d 157, 162 (Iowa 2003). Similarly, we review claims of ineffective assistance of counsel de novo. Id. at 166. Claims regarding the sufficiency of evidence to convict are reviewed for the correction of errors at law. State v. Meyers, 799 N.W.2d 132, 138 (Iowa 2011).
Campbell appeals the admission into evidence of several recordings: four recordings of Campbell's conversations with A.S. from the jail, the body-microphone recording of the ...