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State v. Walker

Court of Appeals of Iowa

February 6, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
KENT E. WALKER, SR., Defendant-Appellant.

          Appeal from the Iowa District Court for Scott County, Mark R. Fowler, District Associate Judge.

         Kent Walker appeals his conviction of assault with intent to commit sexual abuse causing bodily injury. AFFIRMED.

          Thomas J. O'Flaherty of O'Flaherty Law Firm, Bettendorf, for appellant.

          Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee.

          Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.

          Mcdonald, Judge.

         Kent Walker was convicted of assault with intent to commit sexual abuse causing bodily injury, in violation of Iowa Code section 709.11(2) (2017). In this direct appeal, Walker contends his constitutional right to confront and cross-examine his accuser was violated when the accuser did not testify at trial and the district court admitted the entirety of a 911 call into evidence over Walker's objection. Walker also challenges several evidentiary rulings in which the district court overruled Walker's hearsay objections to police-officer testimony regarding statements made by the accuser.

         On the day in question, the Scott County Emergency Communications Center received a 911 phone call from a cell phone belonging to A.G. The phone call was an open-line call. An open-line call is one in which the dispatcher does not speak with the caller or is unable to speak with the caller, but the line remains open. In this case, the dispatcher was able to hear what was occurring in the background. She heard two voices-a male and female voice. The dispatcher testified she heard the woman screaming and saying "get off of me." She testified she heard the man "saying something about trying to take her pants off or take off your pants." Because the phone call originated from a cellular phone, the dispatcher was able to use the phone's GPS function to determine the location from which the call was made.

         Davenport police responded to the emergency call. While driving near the GPS location of the phone, Officer Matthew Johnson heard a woman "yelling help me, over here." A.G. emerged from the tree line and approached the vehicle. A.G. told Officer Johnson that Walker had tried to rape her. At approximately the same time, Officer Ryan Bowers arrived on the scene, and Walker emerged from the tree line. Officer Johnson went to speak with Walker about what had occurred. According to Officer Johnson, Walker's statements regarding events were inconsistent. While Officer Johnson spoke with Walker, Officer Bowers attempted to take A.G.'s statement. Initially, Bowers was unable to understand A.G. because she was too distraught to speak coherently. Bowers encouraged A.G. to breathe deeply. After several minutes, A.G. was able to speak more clearly, and Bowers began to ask questions. Based on the information obtained, the officers arrested Walker.

         At trial, Walker objected to the admission of the 911 call on the basis that it was testimonial evidence that violated Walker's constitutional right to confrontation. The court admitted the recording over Walker's objections. At trial, Officers Johnson and Bowers testified as to statements A.G. made to them when they responded to the scene. Walker objected, arguing the testimony was inadmissible hearsay. The court overruled those objections, finding the testimony was admissible under the excited utterance exception to the rule against hearsay. A.G. did not testify at trial. Walker timely filed this appeal.

         Walker's first claim of error is the district court admitted into evidence the recording of the 911 call in violation of his constitutional right to confront and cross-examine the witnesses against him. The court reviews confrontation claims de novo. See State v. Bentley, 739 N.W.2d 296, 297 (Iowa 2007).

         "Both the Sixth Amendment of the United States Constitution and article I, section 10 of the Iowa Constitution preserve an accused's right 'to be confronted with the witnesses against him.'" In re J.C., 877 N.W.2d 447, 452 (Iowa 2016).

         The Confrontation Clause has been interpreted to bar the "admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54 (2004). In Davis v. Washington, the Supreme Court distinguished testimonial statements from non-testimonial statements:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation ...

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