State v. Shipley

• Citation: 757 N.W.2d 228
• Decision Date: 18 July 2008
• Docket Number: No. 06-0051.,06-0051.
• Parties: STATE of Iowa, Appellee, v. Bradley Dale SHIPLEY, Appellant.
• Court: United States State Supreme Court of Iowa

757 N.W.2d 228

STATE of Iowa, Appellee, v. Bradley Dale SHIPLEY, Appellant.

No. 06-0051.

Supreme Court of Iowa.

July 18, 2008.

Rehearing Denied November 13, 2008.

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Heidi D. Van Winkle and Tyron Rogers, Assistant County Attorneys, for appellant.

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

APPEL, Justice.

In this case, we are presented with an array of issues arising out of the admission of a certified abstract of the defendant's driving record, which was created and maintained by the Iowa Department of Transportation (IDOT). The challenged abstract showed that the defendant's driving privileges were revoked at the time of his arrest. The defendant maintains that admission of the abstract was in error as the record failed to meet statutory requirements for its admission and violated his rights to due process and confrontation. In addition, the defendant claims the admission of a police officer's testimony regarding his driving status at the time of arrest was improper on hearsay grounds.

The district court convicted the defendant of the criminal offense of driving under revocation. The court of appeals reversed the conviction on Confrontation Clause grounds. For the reasons expressed below, the decision of the court of appeals is vacated and the judgment of the district court is affirmed.

I. Factual and Procedural History.

In December 2004 Kenneth Zahner, a Burlington police officer, observed a moving construction vehicle bearing a "Shipley Construction" sign. The police officer further recognized the driver as the defendant Bradley Dale Shipley, whom he believed did not have a valid driver's license. After confirming with dispatch that Shipley's license had been revoked, the police officer stopped the vehicle and asked Shipley about his driving status. Shipley claimed to be driving under a valid work permit but could not produce it. The officer again consulted with dispatch, and was informed that Shipley's work permit had expired six months earlier in June 2004. The police officer then arrested Shipley for driving under revocation contrary to Iowa Code section 321J.21 (2003).

Prior to trial, the State disclosed in its minutes of testimony that it intended to call Terry L. Dillinger, the director of the Office of Driver's Services for the IDOT, as a witness to testify regarding information contained in Shipley's "certified driving record." The State also disclosed in the minutes an intention to offer Shipley's "certified driving record" into evidence. Shipley filed a timely motion in limine to exclude admission of his driving record on several grounds.

First, Shipley argued that neither the trial information nor the minutes of testimony included a copy of the certified driving record or indicated its contents. Shipley claimed that this lack of disclosure violated the fair notice requirements of Iowa Rule of Criminal Procedure 2.5(3) and thus should preclude the State from offering the record at trial. In the alternative, Shipley argued the lack of notice of the contents of the certified driving record violated his state and federal constitutional right to due process.

Second, Shipley argued that although the certified driving record was not available at the time of the motion, he anticipated that it would bear a red-stamped endorsement without any human signature. As a result, Shipley claimed that admission of the document would violate the Iowa Code and various rules of evidence.

Third, Shipley challenged admission of any testimony of the arresting officer regarding the status of his license. Shipley argued that the arresting officer did not have personal knowledge of the revocation, and as a result, any testimony would be hearsay under Iowa Rule of Evidence 5.803(8)(B)(iii). The trial court overruled the motion in limine. Shipley reasserted these objections at trial.

At trial, Shipley objected when the State offered into evidence a certified abstract of his driving record. The two-page abstract contained the following statement stamped upon both pages in red ink.

IN COMPLIANCE WITH SECTION 321A.3, (IOWA CODE) IT IS HEREBY CERTIFIED THAT THIS IS A TRUE AND CORRECT ABSTRACT OF THE OPERATING RECORD ON FILE IN THE DEPARTMENT OF TRANSPORTATION. IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND AND AFFIXED THE SEAL OF SAID DEPARTMENT AT DES MOINES, IOWA THIS DATE:

DEC. 27, 2004

The stamped signature of Terry L. Dillinger appears beneath the above recitation with the words "OFFICE OF DRIVER SERVICES" below the signature.

Shipley challenged the lack of a human signature and the use of a seal on the document as violative of his Sixth Amendment right to confrontation. The district court overruled the motion and the certified abstract was admitted into evidence. After the close of evidence, the district court found Shipley guilty of driving while his license was revoked.

Shipley filed a timely notice of appeal, and we transferred the case to the court of appeals. The court of appeals reversed Shipley's conviction. While the court rejected Shipley's statutory challenges to the admission of the driving record, it held that the record's admission violated the Confrontation Clause of the United States Constitution. We granted further review.

II. Standard of Review.

We review de novo claims involving the Confrontation Clause. State v. Bentley, 739 N.W.2d 296, 297 (Iowa 2007). On questions involving the correct interpretation of state law, our review is for correction of errors at law. State v. Carpenter, 616 N.W.2d 540, 542 (Iowa 2000). We review the admission of claimed hearsay evidence for correction of errors at law. State v. Musser, 721 N.W.2d 734, 751 (Iowa 2006).

III. Statutory and Procedural Challenges.

A. Fair Notice Under Iowa Rule of Criminal Procedure 2.5(3). Iowa Rule of Criminal Procedure 2.5(3) provides that upon the filing of a trial information, the State must also file minutes of evidence, listing the names of all witnesses and a full and fair statement of the witnesses' expected testimony. Iowa R.Crim. P. 2.5(3). The State listed Terry Dillinger as a witness to authenticate the "certified driving record" in the minutes of testimony. Although listed as a prospective witness, Dillinger did not testify at trial. Shipley asserts that by offering the certified abstract of his driving record without Dillinger's testimony, the evidence was "outside the minutes" and should not have been admitted. Shipley further claims that by not attaching a copy of the record, he did not have fair notice of its contents.

The State counters that the minutes of testimony advised Shipley that it intended "to introduce into evidence at trial a copy of the Certified Driving Record obtained from the Iowa Department of Transportation." Further, a police report attached to the minutes indicated that information received by Officer Zahner relayed that dispatch "ran Shipley's driver's license" and that "it came back revoked" on June 21, 2004, for a period of two years for an OWI test failure. The State thus contends that Shipley had both fair notice of the contents of the certified abstract and that it intended to offer the certified abstract into evidence.

We agree with the State. Shipley was explicitly placed on notice that the State intended to offer his driving record into evidence at trial. Although the State listed Dillinger as a witness to lay foundation for the record, the State's decision to offer a certified abstract of the operating record without a witness to lay foundation does not violate Iowa Rule of Criminal Procedure 2.5(3). While it is true, as Shipley contends, that a witness may not testify outside the content of the minutes, State v. Walker, 281 N.W.2d 612, 614 (Iowa 1979), rule 2.5(3) does not require the State to call a witness listed in the trial minutes to offer testimony which the State later determines to be unnecessary. State v. Castillo, 315 N.W.2d 63, 65 (Iowa 1982).

At trial, Shipley also challenged the adequacy of the minutes because the minutes did not make clear whether the "certified driving record" would be introduced pursuant to Iowa Code section 321.10 or section 321A.3. Iowa Code section 321.10 provides that the director of the IDOT or such officers as may be designated may certify a copy of "any record of the department." Iowa Code § 321.10. Iowa Code section 321A.3(1) states that the department may provide on request "a certified abstract of the operating record of [any] person...." Id. § 321A.3. Shipley claimed the notice in the minutes that the State intended to introduce a "Certified Driving Record" is not sufficient to alert Shipley that the State in fact intended to introduce "an abstract of the operating record" prepared pursuant to Iowa Code section 321A.3(1).

We reject Shipley's argument. Shipley had notice that the State intended to offer into evidence a certified IDOT document reflecting his driving record. While the document offered into evidence by the State is more precisely described as "a certified abstract of the operating record" and not a certified driving record, Shipley knew the certified IDOT document would show a license revocation at the time of his arrest. The contents of the certified abstract thus simply do not constitute "inadmissible surprise" as contended by Shipley.

We further note that even if Shipley did not know the precise form of the record or its contents, he could have obtained a certified abstract of his own driving record from the IDOT pursuant to Iowa Code section 321A.3(1) and been in a position to challenge the document offered by the State in the event of any discrepancies or factual inaccuracies. Further, if notice were a real issue, Shipley could have asked for a continuance. He did not. Under the circumstances, we cannot find that the alleged lack of notice regarding the...