This decision is published in table format in the North Western Reporter.
Appeal from the Iowa District Court for Hancock County, Colleen D. Weiland (trial), and DeDra L. Schroeder (sentencing), Judges. Donald Finch appeals from his conviction of operating while intoxicated (third offense), in violation of Iowa Code section 321J.2 (2009) .
R. A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney General, and Karen R. Kaufman Salic, County Attorney, for appellee.
Considered by Potterfield, P.J., and Doyle and Bower, JJ.
Donald Finch appeals from his conviction of operating while intoxicated (third offense), in violation of Iowa Code section 321J.2 (2009). He contends he was denied due process and a fair trial as a result of prosecutorial misconduct, the trial court's failure to properly admonish the jury after the prosecutor's statement in closing arguments, and the court's having allowed the use of prior testimony from a department of transportation (DOT) hearing to refresh a witness's memory. He also asserts the district court erred in denying his motion for a new trial where a juror stated she abstained from a preliminary vote because she shared the defendant's condition of sleep apnea. Finally, he argues the verdict was against the weight of the evidence. We conclude Finch was not denied a fair trial. Nor did the district court abuse its discretion in its evidentiary rulings or the denial of the defendant's motions for new trial or judgment of acquittal. We therefore affirm.
I. Background Facts and Proceedings.
The following facts are supported by the evidence presented at Donald Finch's trial on the charge of operating while intoxicated (OWI). At nine o'clock in the morning, on April 2, 2009, a man (later identified as Finch) was seen by a passer-by, Donna Quinby, slumped over the steering wheel of a truck, which was in the wrong lane of traffic. Quinby asked Leonard Carter, the driver of the car in which she was riding, to turn around. Quinby exited her car and banged on Finch's window, but he did not respond. Quinby told Carter to call 911. Quinby tried to see if the truck was in gear because she noticed that it was moving. She continued her attempts to get Finch's attention and pounded on the vehicle. She tried to open the door, but it would not open. Finch's truck moved again, which led Quinby to direct an oncoming vehicle from driving in front of the pickup truck.
Finch roused when Britt Police Officer Chris Gobeli arrived on the scene and made his way to the passenger side of Finch's truck. Officer Gobeli noticed the truck was running and rolling forward. He told Finch to put the vehicle in park, which Finch did. Officer Gobeli moved around to the driver's side of the truck. Finch had difficulty lowering the driver's window and removing his license from his wallet. An open beer can was in the drink holder. Tire tracks indicated that the truck had gone into and out of the ditch.
When an ambulance arrived at the scene, emergency responder Andrew Eliason asked to take Finch's vitals. Finch said " no." Eliason asked Finch if he had diabetes or prone to seizures. Finch responded " no." Eliason observed Finch and noted he had slurred speech, bloodshot eyes, and was acting " lethargic." Eliason continued to speak with Finch and moved in closer to smell his breath to determine if he was diabetic. Eliason testified a diabetic's breath would smell fruity. Finch's breath did not smell fruity. Eliason testified he smelled alcohol.
Deputy Sheriff Steven Nelson arrived on the scene. Deputy Nelson smelled the odor of an alcoholic beverage when he approached Finch. He noted Finch's eyes were bloodshot and he had difficulty keeping his eyes open. Deputy Nelson testified Finch was " lethargic, kind of unenergetic, just sluggish." Finch told Deputy Nelson he was headed home--the deputy told Finch he was facing the wrong direction. Finch refused to perform field sobriety tests and refused to sign the implied consent form.
During the subsequent jury trial, on direct examination, Officer Gobeli testified that when he responded to the scene, Finch's diesel truck was running. On cross-examination, defense counsel impeached Gobeli's trial testimony with his testimony at a hearing on a motion to suppress held on August 31, 2010, where Gobeli testified that he could not remember if the truck's motor was running. On redirect, the State inquired as to Officer Gobeli's testimony at another hearing held on June 15, 2010. The following exchange occurred:
Q. Do you recall him [defense counsel] inquiring of you during the June hearing whether or not you recalled the engine of Mr. Finch's vehicle being running?
Q. And do you recall what your answer was?
A. I do not.
Q. Would it refresh your recollection to read a transcript of that hearing to see what ...