State v. Guttormson
| Decision Date | 17 September 2015 |
| Docket Number | No. 20150035.,20150035. |
| Citation | 869 N.W.2d 737 |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. Chad Scott GUTTORMSON, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Cherie L. Clark (argued) and Reid A. Brady (appeared), Assistant State's Attorneys, Fargo, N.D., for plaintiff and appellee.
Richard E. Edinger, Fargo, N.D., for defendant and appellant.
[¶ 1] Chad Guttormson appeals a district court judgment after a jury found him guilty of refusal to submit to an onsite screening test.1 He argues his Sixth Amendment right of confrontation was violated because the arresting officer did not testify at trial and was not subject to cross-examination, and another officer was allowed to testify regarding the arresting officer's actions. Additionally, Guttormson argues there was insufficient evidence from which the jury could infer the arresting officer formed an opinion that Guttormson had committed a traffic violation or that his body contained alcohol. We affirm the judgment of the district court, concluding Guttormson's Sixth Amendment right of confrontation was not violated and sufficient evidence exists to support his conviction, but remand for the district court to correct the clerical error in the judgment.
[¶ 2] In July 2014, Guttormson was stopped by West Fargo Police Officer Jorge Gonzalez for an alleged traffic violation and was subsequently arrested and charged with driving under the influence and refusal to submit to an onsite screening test. Another West Fargo police officer, Ryan Birney, was sent to assist with the stop. At trial, Officer Gonzalez was not called to testify, but Officer Birney did testify as to what he personally saw and heard. Officer Birney testified he observed Guttormson displaying poor balance, swaying, having difficulty standing without support, and appearing intoxicated from alcohol. He testified he saw Officer Gonzalez retrieve his implied consent advisory form, recite the advisory, and request an onsite screening test. Birney testified Guttormson refused to take the test, and Officer Gonzalez then placed him under arrest for DUI and refusal to submit to an onsite screening test. In addition to Officer Birney's testimony of his observations regarding the incident, the silent video from Officer Gonzalez's squad car was admitted into evidence. On the State's motion, the district court dismissed the DUI charge. The jury found Guttormson guilty of refusal to submit to an onsite screening test.
[¶ 3] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. The appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29–28–06.
[¶ 4] Guttormson argues his Sixth Amendment right of confrontation was violated in two different ways, because the arresting officer, Officer Gonzalez, did not testify at trial. First, Guttormson argues the crime of refusal to submit to an onsite screening test requires the arresting officer to testify he formed an opinion that the defendant's body contained alcohol. He claims that failure to have the arresting officer do so, and to instead allow the jury to infer the officer's state of mind through circumstantial evidence, violates his Sixth Amendment right to confrontation. Second, Guttormson argues his right to confront his accuser was violated by the admission of the arresting officer's squad car video and a backup officer's testimony that he heard the arresting officer recite the implied consent advisory and ask Guttormson to take an onsite screening test.
[¶ 5] We apply a de novo standard in reviewing an alleged violation of a constitutional right. State v. Blue, 2006 ND 134, ¶ 6, 717 N.W.2d 558. The Confrontation Clause of the Sixth Amendment to the United States Constitution states, “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....” In Crawford v. Washington, the United States Supreme Court held the Sixth Amendment prohibits the admission of testimonial hearsay against the accused unless the witness is unavailable to testify and the accused had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). To be “testimonial” the statement must fit into one of the core classes that the Court has defined as such. Id. at 51–52, 124 S.Ct. 1354. To be “hearsay” the statement must be an out-of-court statement offered to prove the truth of the matter asserted. Ehrlich v. Backes, 477 N.W.2d 211, 214 (N.D.1991) ; see also N.D.R.Ev. 801.
[¶ 6] The United States Supreme Court has not specifically defined “a testimonial statement,” but has said “testimony” is “typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Crawford, 541 U.S. at 51, 124 S.Ct. 1354. The Court described the type of “testimonial” statements invoking an accused's confrontation rights: (1) “ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially”; (2) “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions”; or (3) “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”
Crawford, 541 U.S. at 51–52, 124 S.Ct. 1354. The Court further stated, “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Id. at 51, 124 S.Ct. 1354.
[¶ 7] Under N.D.R.Ev. 801(c), hearsay is a statement that “(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” “If an out-of-court statement is not offered to prove its truth, it is not hearsay.” Moen v. Thomas, 2001 ND 95, ¶ 11, 627 N.W.2d 146 ; Ehrlich, 477 N.W.2d at 214 ; State v. Welch, 426 N.W.2d 550, 555 (N.D.1988) ; see also N.D.R.Ev. 801, explanatory note. Similarly, a statement offered simply to prove it was made is not hearsay. Moen, at ¶ 11; Ehrlich, at 214.
[¶ 8] Despite Guttormson's arguments concerning his right to confront the arresting officer in this case, he seems to misunderstand the exact circumstances that trigger the right to confront. In Crawford, the United States Supreme Court made clear the right to confront prohibits the admission of testimonial hearsay against a defendant unless the witness is unavailable and the defendant had an opportunity to cross-examine. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. Therefore, “testimonial hearsay” is the specific type of statement giving rise to the right to confront. Id. Here Guttormson is challenging the admission of Officer Gonzalez's silent squad car video, absent an opportunity to cross-examine Gonzalez. He is also challenging the testimony of Officer Birney concerning Birney's observations of Gonzalez's statements and actions. What he seems to misunderstand is that the squad car video, the recitation of the implied consent advisory, and the request for a breath test do not contain any testimonial hearsay triggering the right to confront.
[¶ 9] Statements admitted to prove a point other than the truth of the matter asserted are not hearsay. Welch, 426 N.W.2d at 555. See also N.D.R.Ev. 801, explanatory note. Officer Birney's testimony regarding Gonzalez's recitation of the implied consent advisory and the request for a breath test were not testimonial hearsay introduced to prove the truth of the matter asserted, but were introduced to establish the verbal act having occurred. See Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354 (). See also Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 1160 n. 11, 179 L.Ed.2d 93 (2011) (). Here the State did not offer evidence the advisory was given by Gonzalez to prove the truth of the statements in the advisory. Nor did the State offer evidence of Gonzalez's request for a breath test to prove the truth of the request, since such a request, by definition, cannot be proven true. Rather, both the advisory and the request were offered through Officer Birney's testimony simply to prove they were said. Officer Gonzalez's statements and actions during the encounter are not testimonial, and therefore admission of his actions without an opportunity for cross-examination did not violate Guttormson's right to confrontation.
[¶ 10] To support his argument, Guttormson relies on the United States Supreme Court's analysis in Bullcoming v. New Mexico, ––– U.S. ––––, ––––, 131 S.Ct. 2705, 2709, 180 L.Ed.2d 610 (2011).
Bullcoming is a felony DUI case in which a forensic report analyst who certified the defendant's blood-alcohol content was unavailable to testify at trial. Id. at 2710. The State instead called another analyst who was familiar with the testing procedures but had not participated in the test on Bullcoming's blood sample. Id. The Court held that surrogate testimony of a non-participating analyst violated the Sixth Amendment Confrontation Clause because the defendant has a right to be confronted with the analyst who actually made the certification. Id. Guttormson argues the silent squad car video and Birney's testimony are the exact surrogate evidence forbidden by Bullcoming. Guttormson's reliance on Bull...
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