State of Iowa v. Michael Wilson White

IN THE COURT OF APPEALS OF IOWA

No. 19-1636
Filed February 17, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

MICHAEL WILSON WHITE,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Brook

Jacobsen, District Associate Judge.

Defendant appeals his convictions for operating while intoxicated and

driving while license revoked. AFFIRMED.

Nicholas Einwalter, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Considered by Mullins, P.J., and May and Schumacher, JJ.
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SCHUMACHER, Judge.

Michael White appeals his convictions for operating while intoxicated (OWI)

and driving while revoked. White argues the district court erred in admitting certain

evidence over his hearsay and Confrontation Clause objections and that the

evidence is insufficient to support the guilty verdict. We find the statements

contained in the admitted evidence fall within a hearsay exception and admission

was not a violation of the Confrontation Clause. The record contains substantial

evidence to support White’s convictions. We affirm.

I. Facts and Proceedings

Late on the evening of April 21, 2017, Black Hawk County Sheriff’s Deputy

C.J. Nichols was off-duty in his personal vehicle, driving home. On his way, he

encountered a vehicle driving erratically. Nichols followed the vehicle and

observed as the vehicle came to a near stop in the middle of multiple intersections,

swerved back and forth between lane lines, varied its speed, and indiscriminately

used its turn signal. Concerned the driver may be intoxicated, Nichols called the

Black Hawk County police dispatch non-emergency line to report the incident.

Nichols continued to follow the vehicle and relay his observations to dispatch. He

provided his location, a description of the vehicle, its movements, and the vehicle’s

direction. Based on the report, two Waterloo Police Department officers, Brad

Walter and Nick Weber were separately alerted to respond to the area.

Still on the phone with dispatch, Nichols continued to follow the erratic driver

until he observed the vehicle pull into appellant Michael White’s driveway. Nichols

told dispatch he was going to make contact with the driver. He exited his vehicle

and approached the driver. Soon after, Officers Walter and Weber arrived on the
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scene. Upon the officers’ arrival, Nichols was standing near the open driver’s door

of the vehicle he had been following, speaking with White. The vehicle’s headlights

were on, and the keys were in the front seat. The responding officers reported that

White seemed intoxicated, that he smelled strongly of alcohol, was unsteady on

his feet, and his speech was slurred.

Officer Walter ran White’s information and found that White’s license was

revoked for a previous OWI test refusal. White was arrested for driving while

revoked and taken to the Black Hawk County Jail. While White was in custody,

officers conducted field sobriety tests and invoked implied consent to request a

breath test. White refused to participate in a breath test.

On April 27, White was charged with OWI, third offense, in violation of Iowa

Code section 321J.2, a class “D” felony; and driving while license is denied or

revoked in violation of Iowa Code section 321J.21, a serious misdemeanor. 1 On

September 13, 2018, White entered a guilty plea. The plea was accepted, and

White was sentenced on October 5. White appealed his plea, claiming several

defects. The State conceded the deficiencies and requested that the plea be

vacated and remanded. On April 8, 2019, this court reversed and remanded the

matter for White to plead again. Upon remand, White elected not to plead guilty

and the matter was set for a bench trial.

At trial, the State sought to introduce a recording of Nichols’s call to the non-

emergency police dispatch line. Nichols was not present at trial. Nichols had been

1 Sentencing in the instant proceeding was held in combination with OW215839.
White was convicted of OWI, third offense, in each case. The State noted at
sentencing that these were the defendant’s “lifetime sixth and seventh” convictions
for OWI.
4

hired as a police officer for the Waterloo Police Department and was at a training

on the day of trial. The evidence was admitted over White’s hearsay and

Confrontation Clause objections. The State called the two responding officers, the

dispatch operator, and a records analyst for driving records. White elected not to

testify at trial or call any witnesses. On September 25, the district court issued a

written order and verdict convicting White on both counts. White appeals his

convictions, arguing the district court erred in admitting the recording of Nichols’s

call to the non-emergency dispatch line, and the evidence is insufficient to prove

he operated a vehicle on the night in question.

II. Nichols’s Call

White alleges admission of Nichols’s call was a violation of the

Confrontation Clause because Nichols did not testify at trial and the statements

contained in the recording constitute hearsay outside of an applicable exception or

exclusion and are testimonial in nature. The Confrontation Clause does not bar

the admission of an unavailable witness’s statement if the evidence falls within a

“firmly rooted hearsay exception” or bears “particularized guarantees of

trustworthiness.” See State v. Newell, 710 N.W.2d 6, 24 (quoting Crawford v.

Washington, 541 U.S. 36, 40 (2004)). However, the Confrontation Clause prohibits

the introduction of hearsay statements within an exception if they are testimonial.

Id.

A. Standard of Review

Hearsay claims are reviewed for corrections of errors at law. Iowa R. Evid.

5.104(a); see State v. Elliott, 806 N.W.2d 660, 667 (Iowa 2011) (explaining that

while other evidentiary rulings are reviewed for an abuse of discretion because
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admission of hearsay is presumed prejudicial review is for correction of errors at

law). We grant deference to the district court’s factual findings concerning hearsay

determinations, and they will be upheld unless they are not supported by

substantial evidence. See State v. Long, 628 N.W.2d 440, 447 (Iowa 2001)

(explaining the substantial evidence standard for hearsay rulings). Claims

premised on the Confrontation Clause are reviewed de novo. State v. Hallum, 606

N.W.2d 351, 354 (Iowa 2000).

B. Hearsay

White alleges that the statements contained in Nichols’s call constitute

inadmissible hearsay. “Hearsay is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” Iowa R. Evid. 5.801(c). Hearsay evidence is

inadmissible at trial unless an exception or exclusion applies. Iowa R. Evid. 5.802.

The parties do not dispute that the statements contained in the recording of

Nichols’s call constitute hearsay.

At trial, White objected to the admission of Nichols’s call, arguing it was

inadmissible because no hearsay exception applied. The State asserted that

Nichols’s statements qualify for the present sense impression hearsay exception

because Nichols was “giving a play-by-play of what he is observing.” The district

court agreed with the State and admitted the evidence, finding the exception

applicable. The present sense impression hearsay exception applies to hearsay

statements “describing or explaining an event or condition, made while or

immediately after the declarant perceived it.” Iowa R. Evid. 5.803(1). The rationale

for the exclusion is “that substantial contemporaneity of event and statement
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negate the likelihood of deliberate or conscious misrepresentation.” State v.

Flesher, 286 N.W.2d 215, 217 (Iowa 1979) (quoting Advisory Committee Note,

Fed. R. Evid. 803). We agree with the district court’s decision. Nichols’s

statements described his contemporaneous observations of White’s vehicle and

were admissible under the present sense impression hearsay exception.

C. Confrontation Clause

White contends Nichols’s statements to dispatch were testimonial and

therefore barred by the Confrontation Clause. The Confrontation Clause of the

United States Constitution and article I section 10 of the Iowa Constitution

guarantees the right “to be confronted with the witnesses against him.” U.S. Const.

amend. VI. This right prohibits the “admission of testimonial statements of a

witness who did not appear at trial unless he was unavailable to testify and the

defendant had had a prior opportunity for cross-examination.” Crawford, 541 U.S.

at 53-54. As Nichols did not testify at trial, White’s claim hinges on whether the

statements contained in Nichols’s call were testimonial in nature. See State v.

Shipley, 757 N.W.2d 228, 235 (Iowa 2008) (“[T]he fighting Confrontation Clause

issue with respect to admission of hearsay is whether the underlying statements

should be considered ‘testimonial’ or ‘nontestimonial.’”). It is the State’s burden to

show by a preponderance of the evidence that the contested statements are

nontestimonial. State v. Bentley, 739 N.W.2d 296, 298 (Iowa 2007).

In determining whether an out-of-court statement is testimonial, the

Supreme Court has articulated a test that focuses on the “primary purpose” of the

statement. See Ohio v. Clark, 576 U.S. 237, 244-45 (2015) (explaining the Court’s

holdings interpreting the Confrontation Clause and the “primary purpose” test for
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testimonial statements). Nontestimonial statements are those “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.” Davis v. Washington, 547 U.S. 813, 822 (2006). In contrast,

testimonial statements are those made when the “circumstances objectively

indicate that there is no such ongoing emergency, and that the primary purpose of

the interrogation is to establish or prove past events potentially relevant to later

criminal prosecution.” Id. The question is when viewed objectively, in light of all

the circumstances, whether the “primary purpose” of the statements was to

“creat[e] an out-of-court substitute for trial testimony.” Michigan v. Bryant, 562 U.S.

344, 358 (2011).

We find that Nichols’s statements to dispatch were nontestimonial. The

statements were made for the primary purpose of enabling police officers to

investigate and meet an ongoing emergency. See Davis, 547 U.S. at 827 (“A 911

call . . . is ordinarily not designed primarily to establish or prove some past fact, but

to describe current circumstances requiring police assistance.” (cleaned up)).

When Nichols encountered White driving erratically, he was off duty and in his

personal vehicle driving home. The danger posed by the situation prompted

Nichols to call the non-emergency line so that on-duty police could intervene.

Nichols followed the vehicle to monitor its movements. He continued to relay

information to dispatch that would be useful to responding officers. His statements

described his current location, the make, color, and model of the vehicle, its license
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plate, and direction of travel. The operator took this information and dispatched

officers accordingly. 2

By describing the location and movements of a presently dangerous vehicle

on the public roadways, we believe Nichols’s primary purpose was to aid police in

responding to an ongoing emergency.3 Therefore, the statements were

nontestimonial, and we find no constitutional violation.

III. Sufficiency of the Evidence

White claims the evidence presented at trial is insufficient to prove he

operated a vehicle on the night in question.

A. Standard of Review

Sufficiency of evidence claims are reviewed for a correction of errors at law.

State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). A verdict is binding upon this

court and will be upheld unless it is not supported by substantial evidence. State

v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017). Substantial evidence is evidence

that would convince a rational trier of fact that the defendant is guilty beyond a

reasonable doubt. Id. If evidence raises only suspicion, speculation, or conjecture,

2 As noted by the Crawford court, a conversation that begins as an interrogation to
determine the need for emergency assistance, and is not subject to the
Confrontation Clause, may evolve into testimonial statements subject to the
Confrontation Clause once that purpose has been achieved, and that trial courts
should recognize the point at which, for Sixth Amendment purposes, statements
in response to interrogations become testimonial. In the instant case, the trial court
ruled that any statements made by Nichols on the video from Officer Weber’s
squad and body camera were inadmissible to prove the matters asserted and
would only “be admitted for their (e)ffect on the listener or to explain any admission
made by the defendant . . . .”
3 However, the Supreme Court has been clear—an ongoing emergency is not

determinative to the analysis; it is just one factor that strongly indicates the primary
purpose of the statements, which is the true test for whether a statement is
testimonial. Bryant, 562 U.S. at 131.
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it is not substantial. State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016). We

consider all evidence in the record, not just the evidence supporting guilt. Tipton,

897 N.W.2d at 692. We view all relevant evidence in the light most favorable to

the State. Id.

B. Merits

At trial, to convict White of the charges against him, the State was required

to prove beyond a reasonable doubt that he operated a vehicle while intoxicated

and while his license was revoked. Iowa Code §§ 321J.2, .21. White argues the

State failed to prove he operated a vehicle because it was Nichols who

encountered the erratic driver and he did not testify at trial identifying White as the

driver.

The State submitted direct and circumstantial evidence proving White

operated a vehicle on the night in question. The recording of Nichols’s call to the

non-emergency dispatch line details Nichols’s observations as he followed White’s

vehicle from the public roadways to White’s driveway, where White was identified

as the driver. Additionally, body camera evidence from officers Weber and Walter

show that upon their arrival to White’s driveway, Nichols is speaking with White

immediately outside the open driver’s door of White’s vehicle. The headlights of

the vehicle are on and the keys are in the driver’s seat. Nichols’s vehicle is parked

behind White’s vehicle blocking the street. No one else is present.

In addition to Nichol’s call to law enforcement, White’s statements to law

enforcement, as reflected on the officers’ bodycam videos, acknowledge that he

was driving his vehicle. His statements in response to law enforcements remarks

that he had been observed driving were, “But I’m home now,” and when he was
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confronted with information that he was followed from “the other side of the 18th

Street Bridge,” White responded, “But he didn’t stop me.”

We find Nichols’s call was properly admitted and therefore could be relied

on by the trial judge. When viewed in the light most favorable to the State, the

evidence presented at trial provides substantial proof that White operated a vehicle

on the night in question. We find sufficient evidence to support White’s convictions.

IV. Conclusion

We find no error in the district court’s decision admitting the recording of

Nichols’s call to the non-emergency dispatch line because the statements in

evidence fall within the present sense impression hearsay exception and were not

a violation of the Confrontation Clause because they were nontestimonial in

nature. Additionally, we find the record contains substantial evidence to prove

White operated a vehicle on the night in question and there is sufficient evidence

to support his convictions.

AFFIRMED.