from the Iowa District Court for Scott County, Mark R.
Fowler, District Associate Judge.
Walker appeals his conviction of assault with intent to
commit sexual abuse causing bodily injury.
J. O'Flaherty of O'Flaherty Law Firm, Bettendorf, for
J. Miller, Attorney General, and Bridget A. Chambers,
Assistant Attorney General, for appellee.
Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
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.
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.
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.
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.
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
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).
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
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 ...