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State v. Kennedy

Court of Appeal of Iowa

August 7, 2013

STATE OF IOWA, Plaintiff-Appellee,
v.
BRIAN MICHAEL KENNEDY, Defendant-Appellant

Appeal from the Iowa District Court for Des Moines County, Michael G. Dieterich, District Associate Judge.

Brian Kennedy challenges his conviction for driving while revoked based on Confrontation Clause objections.

Richard A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Tyron Rogers and Justin Stonerook, Assistant County Attorneys, for appellee.

Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.

TABOR, J.

Brian Kennedy appeals his conviction for driving while revoked, contending the State violated his constitutional right to confrontation by offering into evidence a certified abstract of his driving record and attached official notices, affidavits of mailing, and certificates of bulk mailing. Kennedy acknowledges State v. Shipley, 757 N.W.2d 228 (Iowa 2008) rejected a Confrontation Clause challenge to the admission of a defendant's driving record, but contends two subsequent decisions by the United States Supreme Court uproot our supreme court's analysis. He also urges the additional mailing and notice documents require a different approach.

Because Shipley is still good law after Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) and Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), it controls the outcome here. As for the remaining documents, we find Kennedy failed to preserve error on that separate claim.

I. Background Facts and Proceedings

According to the police report accompanying the minutes of testimony, on November 30, 2010, at 6:05 a.m., Deputy Eric Staub was sitting in the bank parking lot when he saw Brian Kennedy driving north down Main Street in Danville, Iowa. Because Deputy Staub knew Kennedy's license was revoked for operating while intoxicated, he pulled Kennedy over. After speaking with Kennedy, Deputy Staub issued a citation for driving while revoked. Since Kennedy was on his way to work, Deputy Staub elected not to arrest him but advised him to obtain a work permit, warning a repeat offense would likely result in his arrest.

On December 30, 2010, the State filed a trial information charging Kennedy with driving while revoked, in violation of Iowa Code section 321J.21 (2009).[1] The information included a notice of the State's intent to enter into evidence a copy of Kennedy's certified driving record from the Iowa Department of Transportation (DOT) and any other state.

During a July 19, 2011 hearing, the district court considered Kennedy's motion in limine contesting the State's introduction of a certified abstract of his driving record into evidence. The abstract contained the following certification:

Pursuant to Iowa Code § 321.10, I, Kim Snook, Director of Office of Driver Services, Iowa Department of Transportation, do hereby certify that I am the custodian of the records held by the Office of Driver Services, that this is a true and accurate copy of an official record currently in the custody of said office, and that I have been authorized by the Director of the Iowa Department of Transportation to so certify.
In witness whereof, I have caused my signature and the seal of the Department to be set upon this document, at ...

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