State v. Dullard, No. 02-0356.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtCADY, Justice.
Citation668 N.W.2d 585
Decision Date04 September 2003
Docket NumberNo. 02-0356.
PartiesSTATE of Iowa, Appellee, v. Brett Preston DULLARD, Appellant.

668 N.W.2d 585

STATE of Iowa, Appellee,
v.
Brett Preston DULLARD, Appellant

No. 02-0356.

Supreme Court of Iowa.

September 4, 2003.


668 N.W.2d 587
Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant State Appellate Defender, for appellant

668 N.W.2d 588
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee

CADY, Justice.

The principal questions presented in this appeal are whether the district court erred in admitting a note written by an unknown person as evidence in a trial involving the crime of possession with intent to manufacture a controlled substance and whether substantial evidence supported the conviction. On our review, we vacate the decision of the court of appeals and reverse the judgment and sentence of the district court. We remand the case for a new trial.

I. Background Facts and Proceedings.

Police officers from the city of Des Moines police department went to a home in a residential neighborhood of Des Moines in response to a report of a methamphetamine lab located at the house. The officers knocked on the front door of the house, and Brett Dullard eventually opened the door. The officers believed Dullard lived in the home with his mother. Dullard's mother arrived at the home a short time later, and gave permission for the officers to search the residence, as well as a detached garage.

The search of the home revealed a plastic baggy containing a white powder substance. The baggy was located in the ceiling of a downstairs bedroom. The police also found a scanner capable of monitoring police communications. The white substance later tested negative for a controlled substance, but was suitable for use as a cutting agent for pure methamphetamine.

The search of the garage revealed potential methamphetamine precursors and numerous materials commonly used to manufacture methamphetamine, including six cans of starting fluid, a sack containing a white granular substance, two metal cylinders with brass fittings, a one-gallon glass jar, plastic pitchers, a container of acetone, a container of Coleman camping fluid, and three unopened boxes of Benadryl. The brass fittings on the metal cylinders were corroded with a blue substance, indicating the cylinders once contained anhydrous ammonia.

The police also found a small spiral notebook in a wooden desk located in the garage. It contained a handwritten note from an unidentified person. The note read as follows:

B—
I had to go inside to pee + calm my nerves somewhat down.
When I came out to go get Brian I looked over to the street North of here + there sat a black + white w/the dude out of his car facing our own direction—no one else was with him

The police also seized various items from a car parked in the driveway of the home. The police believed the car belonged to a female friend of Dullard's. The items seized included an air tank sprayer and some steel and brass flexible hoses with fittings.

Dullard was charged with possession of ephedrine or pseudoephedrine with intent to use it as a precursor and with possession of ether with the intent to use it as a precursor. At trial, the State, among other evidence, introduced some of the items seized during the search. The police officers also explained how methamphetamine is manufactured from Benadryl and how the items seized can be assembled and used to manufacture methamphetamine. There was also testimony that each tablet

668 N.W.2d 589
of Benadryl contained thirty milligrams of pseudoephedrine

The handwritten note was also introduced into evidence over Dullard's hearsay objection. The State argued the note was not offered to prove the truth of the matters it asserted but to connect Dullard to the items in the garage used to manufacture methamphetamine and the Benadryl. The State argued the note was written to Dullard based on the first letter of his first name.

The jury found Dullard guilty of possession of ephedrine or pseudoephedrine with intent to use it as a precursor and acquitted him of the possession of ether charge. The district court sentenced him as a second offender to a term of incarceration not to exceed eight years.

Dullard appealed and claimed error on three grounds. First, he claimed the district court admitted the handwritten note into evidence in violation of the rule against hearsay. Second, he claimed there was insufficient evidence to connect him to the Benadryl in the garage or the other items found in the garage. Third, he claimed his trial counsel was ineffective.

We transferred the case to the court of appeals. The court of appeals reversed the conviction after concluding the trial court erred in admitting the handwritten note into evidence and after finding the remaining evidence presented by the State was insufficient to show Dullard possessed the Benadryl tablets. We granted further review.

II. Standard of Review.

We typically review rulings on the admission of evidence for an abuse of discretion. State v. Jordan, 663 N.W.2d 877, 879 (Iowa 2003). "Except in cases of hearsay rulings, trial courts have discretion to admit evidence under a rule of evidence." Id. Hearsay, however, must be excluded as evidence at trial unless admitted as an exception or exclusion under the hearsay rule or some other provision. See Iowa R. Evid. 5.802. This means a district court has no discretion to deny the admission of hearsay if the statement falls within an enumerated exception, subject, of course, to the rule of relevance under rule 5.403, and has no discretion to admit hearsay in the absence of a provision providing for it. Similarly, the question whether a particular statement constitutes hearsay presents a legal issue. See United States v. McGlory, 968 F.2d 309, 332 (3d Cir. 1992). Thus, it is within this framework that we review hearsay rulings for correction of errors at law. See State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998). Hearsay inadmissible under the rule is considered to be prejudicial to the nonoffering party unless otherwise established. Id.

Likewise, we review challenges to the sufficiency of evidence for correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997).

III. Hearsay.

Hearsay "is a statement, other than one made by the declarant while testifying at the trial ... offered in evidence to prove the truth of the matter asserted." Iowa R. Evid. 5.801(c). Hearsay is not admissible unless it is exempt from the rule or falls within one of the exceptions. See id. 5.802.

Before considering the exemptions and exceptions to the rule against hearsay, an inquiry must first be made to determine if the evidence under consideration is "a statement ... offered in evidence to prove the truth of the matter asserted." Id. 5.801(c). If not, it is not hearsay and is excluded from the rule by definition. 2 John W. Strong, et al., McCormick on Evidence § 249, at 100 (5th ed.1999). Thus, a declaration is excluded from the

668 N.W.2d 590
definition of hearsay when it is not a statement or is not offered to prove the truth of the matter asserted. See 4 Clifford S. Fishman, Jones on Evidence § 24:10, at 218 (7th ed.1992) [hereinafter Jones] ("categorizing a person's words as an assertion... does not answer the question" of whether the evidence is hearsay without also determining if "the statement is being offered to prove the truth of the matter asserted").

A statement is defined under our rules of evidence as "(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion." Iowa R. Evid. 5.801(a). The term assertion is not similarly defined in the Iowa or federal rules of evidence. Nevertheless, it is generally recognized to be a statement of fact or belief. 4 Jones § 24:10, at 217; see also State v. Leonard, 243 N.W.2d 887, 890 (Iowa 1976) ("[The] remark was not an assertion of fact. A nonassertive utterance is not hearsay.").

Under the State's argument in this case, the author of the note asserts he or she is nervous and that the police are watching the house. The State acknowledges this note constitutes a written assertion under the rule, but claims it was not hearsay because it was not offered to prove the truth of the assertion, but a different proposition inferred from the words of warning. The State maintains it was offered to show the declarant's belief that the recipient of the note needed to be told of the events because he was involved in the drug activity in the garage and was in possession of the drug lab materials.

The court of appeals considered the note in a different light. It found the relevant assertion made in the note was not the expressed assertion that the police are watching or that the author of the note is worried and upset. Instead, it found the note contained an implied proposition by the writer that Dullard possessed the methamphetamine materials. Under this approach, the court of appeals determined the note was hearsay because it was offered to show the declarant's belief in this implied proposition, and the declarant was not available at trial to be cross-examined about the proposition. Thus, the resolution of this issue requires us to examine the concept of implied assertions and the extent to which they constitute statements under our definition of hearsay within rule 5.801(c).

The issue we confront has been imbedded in debate and controversy throughout the development of the common law, and has continued to be debated to a large degree following the adoption of the federal rules of evidence. See United States v. Zenni, 492 F.Supp. 464, 465 (E.D.Ky. 1980); 4 Jones § 24:11, at 219; Craig R. Callen, Hearsay and Informal Reasoning, 47 Vand. L.Rev. 43, 45 (1994). Despite the wealth of legal commentary and some scholarly court decisions on the subject, no clear answer or approach has emerged. See Roger C. Park, "I Didn't...

To continue reading

Request your trial
96 practice notes
  • State v. Kern, No. 11–1208.
    • United States
    • United States State Supreme Court of Iowa
    • May 24, 2013
    ...Clause would not permit a retrial of the charges if there was insufficient evidence of guilt presented at trial. State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003) (citing Lockhart v. Nelson, 488 U.S. 33, 39, 109 S.Ct. 285, 290, 102 L.Ed.2d 265, 272–73 (1988)). We review challenges to the su......
  • Aguilera v. Wright Cnty., No. C 13–3034–MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • January 6, 2014
    ...“the nexus of functional equivalency” between the claimed tort and the type of wrong listed under section 669.14(4). Trobaugh, 668 N.W.2d at 585. Consequently, a defendant may successfully assert section 669.14(4) as a defense even though the tort complained of is not itself listed in secti......
  • Stoddard v. State, No. 70 September Term, 2004.
    • United States
    • Court of Special Appeals of Maryland
    • December 8, 2005
    ...hearsay in the same way the actual statement or opinion of the absent declarant would be inadmissible hearsay." State v. Dullard, 668 N.W.2d 585, 591 (Iowa 2003) (citations For our purposes, Baron Parke's reasoning, and the common-law view, may be expressed as follows: (1) An out-of-court s......
  • Minor v. State, No. 09–1010.
    • United States
    • United States State Supreme Court of Iowa
    • June 15, 2012
    ...“the nexus of functional equivalency” between the claimed tort and the type of wrong listed under section 669.14(4). Trobaugh, 668 N.W.2d at 585. Consequently, a defendant may successfully assert section 669.14(4) as a defense even though the tort complained of is not itself listed in secti......
  • Request a trial to view additional results
96 cases
  • State v. Kern, No. 11–1208.
    • United States
    • United States State Supreme Court of Iowa
    • May 24, 2013
    ...Clause would not permit a retrial of the charges if there was insufficient evidence of guilt presented at trial. State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003) (citing Lockhart v. Nelson, 488 U.S. 33, 39, 109 S.Ct. 285, 290, 102 L.Ed.2d 265, 272–73 (1988)). We review challenges to the su......
  • Aguilera v. Wright Cnty., No. C 13–3034–MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • January 6, 2014
    ...“the nexus of functional equivalency” between the claimed tort and the type of wrong listed under section 669.14(4). Trobaugh, 668 N.W.2d at 585. Consequently, a defendant may successfully assert section 669.14(4) as a defense even though the tort complained of is not itself listed in secti......
  • Stoddard v. State, No. 70 September Term, 2004.
    • United States
    • Court of Special Appeals of Maryland
    • December 8, 2005
    ...hearsay in the same way the actual statement or opinion of the absent declarant would be inadmissible hearsay." State v. Dullard, 668 N.W.2d 585, 591 (Iowa 2003) (citations For our purposes, Baron Parke's reasoning, and the common-law view, may be expressed as follows: (1) An out-of-court s......
  • Minor v. State, No. 09–1010.
    • United States
    • United States State Supreme Court of Iowa
    • June 15, 2012
    ...“the nexus of functional equivalency” between the claimed tort and the type of wrong listed under section 669.14(4). Trobaugh, 668 N.W.2d at 585. Consequently, a defendant may successfully assert section 669.14(4) as a defense even though the tort complained of is not itself listed in secti......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT