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State v. Kennedy

Supreme Court of Iowa

May 9, 2014

STATE OF IOWA, Appellee,
v.
BRIAN M. KENNEDY, Appellant

Page 518

On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Des Moines County, Michael G. Dieterich, District Associate Judge. A defendant seeks further review of a court of appeals decision finding the district court's admission of certain evidence did not violate the Confrontation Clauses of the United States and Iowa Constitutions.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

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

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.

OPINION

Page 519

WIGGINS, Justice.

A defendant seeks further review of a court of appeals decision finding the district court's admission of a certified abstract

Page 520

of his driving record and affidavits of the mailing of suspension notices did not violate the Confrontation Clauses of the United States and Iowa Constitutions. On further review, we find the admission of the certified abstract of the defendant's driving record does not violate the Confrontation Clauses. We do find the district court's admission of the affidavits of the mailing of suspension notices violates the Confrontation Clauses. However, we also find the district court's admission of the affidavits was harmless error. Therefore, we affirm the decision of the court of appeals and the judgment of the district court.

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 Iowa Code section 321J.21 (2011).

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 corresponded 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 Sixth Amendment of the United States Constitution and article I, section 10 of the Iowa Constitution. The district court denied the motion and admitted the exhibit into evidence.

Kennedy waived his right to a jury trial. The district court found Kennedy guilty of driving under revocation in violation of Iowa Code section 321J.21. Kennedy appealed and we transferred the case to the court of appeals. The court of appeals affirmed the conviction. Kennedy applied for further review, which we granted.

II. Standard of Review.

A defendant's right to confront witnesses in a criminal trial is found in the Sixth Amendment of the United States Constitution and article I, section 10 of the Iowa Constitution. We review constitutional claims, including Confrontation Clause claims, de novo. State v. Shipley, 757 N.W.2d 228, 231 (Iowa 2008).

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

Page 521

whether the exception taken alerted the trial court to the error which is urged on appeal." Dutcher v. Lewis, 221 N.W.2d 755, 759 (Iowa 1974). In making his motion in limine, trial counsel specifically referred to the last thirteen pages of the exhibit as documents not part of what the IDOT or an attorney would consider to be an abstract of a person's driving record. We believe the district court understood the substance of trial counsel's objection and was able to determine whether the objection had merit as to each page of the exhibit. Accordingly, we find Kennedy preserved error on this issue.

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.

Iowa Code § 321J.21(1). To prove Kennedy violated this statute, the State must prove Kennedy drove a motor vehicle while his license was revoked due to a violation of chapter 321J. See id. There is no question Kennedy was driving a motor vehicle at the time of his arrest. The questions in this appeal are when was Kennedy's license revoked under chapter ...


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