US v. Wilkinson
Decision Date | 13 August 1992 |
Docket Number | No. 92-NCR-13W.,92-NCR-13W. |
Citation | 804 F. Supp. 263 |
Parties | UNITED STATES of America, Plaintiff, v. Jeffrey T. WILKINSON, Defendant. |
Court | U.S. District Court — District of Utah |
Nicholas J. Angelides, Hill Air Force Base, Utah, for plaintiff.
D. Bruce Oliver, Salt Lake City, Utah, for defendant.
This matter is before the court on defendant Jeffrey T. Wilkinson's Post Trial Motion for the Reconsideration of the Admission of Evidence. Both defendant and the United States submitted memoranda addressing the questions raised by defendant's motion. Neither party requested oral argument and the court deems such unnecessary. Having considered the parties' papers, and the facts and law relating to this matter, the court now renders the following Memorandum Decision and Order.
On June 2, 1992, defendant was convicted by this court of driving under the influence of alcohol in violation of Utah Code Annotated § 41-6-44 (Supp.1992). This conviction arose from an incident at Hill Air Force Base on February 12, 1992, when defendant was cited by Hill Air Force Base Police Officers for allegedly driving while intoxicated and operating a vehicle without a front license plate. The charges against defendant were brought pursuant to the Assimilative Crimes Act, 18 U.S.C.A. §§ 13 (West 1969 & Supp.1992). The court's jurisdiction in this matter is based on 18 U.S.C.A. § 7 (West 1969 & Supp.1992).
At defendant's trial, the United States proffered the results of an intoxilyzer test performed on defendant at Hill Air Force Base shortly following his arrest. This test result showed that, at the time of the test, defendant had a blood alcohol content of approximately 0.195%, which was in excess of the legal limit under Utah law. In addition to the test result, the United States offered the testimony of three Hill Air Force Police Officers. These officers testified about defendant's behavior and appearance following his arrest, and about how the intoxilyzer test was administered.
As foundation for the intoxilyzer test results, the United States submitted three affidavits, which collectively were designated at trial and are referred to in this Order as "Exhibit 2."1 The affidavits in Exhibit 2 establish that the intoxilyzer used to test defendant's blood alcohol content was in proper working order at the time the tests were performed.2 The United States' proffered Exhibit 2 pursuant to the provisions of Utah Code Annotated § 41-6-44.3 (1988). Section 41-6-44.3 sets forth standards for admitting chemical breath test results into evidence in Utah courts.
Defendant objected to the United States' proffer of Exhibit 2. Defendant argued that the provisions of § 41-6-44.3 are procedural in nature and, therefore, not assimilated in to federal law under the Assimilative Crimes Act.
Despite defendant's objections, this court admitted Exhibit 2. At the time defendant's objection was made, neither defendant's counsel nor the government's counsel were able to cite the court to any case law that was pertinent to the objection. The court then overruled the objection but, at the end of the trial, advised the defendant's counsel that he could file this motion. In a letter dated June 3, 1992, the court requested that in their memoranda, the parties also address the issue of whether Exhibit 2 is admissible under Federal Rule of Evidence 803(8), even though the United States did not mention rule 803(8) as the basis for its proffer.
Pursuant to the court's ruling at defendant's trial and its subsequent letter to the parties, consideration of defendant's post-trial motion raises two issues:
Because the court believes that if Exhibit 2 is admissible under rule 803(8), the court's decision to admit it under § 41-6-44.3 was a harmless error, the court does not address the issue of whether the provisions of § 41-6-44.3 are assimilated in this case by the Assimilative Crimes Act. Instead, the court turns directly to the issue of whether the Exhibit 2 is admissible under rule 803(8).
Federal Rule of Evidence 803(8), sets forth an exception to the hearsay rule for certain public records and reports, and provides:
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate a lack of trustworthiness.
Fed.R.Evid. 803(8) (emphasis added).
The court believes that this exception permits the admission of Exhibit 2 into evidence. The United States supports this position. Defendant, however, has presented three arguments as to why Exhibit 2 is not admissible under rule 803(8). First, defendant argues that Exhibit 2 is not admissible under subsection B of rule 803(8). Second, he asserts that this court is being unfair by considering the admissibility of Exhibit 2 under rule 803(8) after the trial, given that rule 803(8) was not a basis for the United States' original proffer. Third, defendant suggests that the United States has failed to establish sufficient foundation for Exhibit 2.
Defendant claims that Exhibit 2 cannot be admitted under rule 803(8) because subsection B of the rule prevents admission against the defendant of public records of criminal matters observed by law enforcement personnel. Although he admits that subsection B has been interpreted by many courts not to bar admission of "nonadversarial" materials prepared by law enforcement officers, defendant claims that the foundational evidence proffered by the United States in Exhibit 2 is adversarial in nature. In support of this claim, defendant argues that because, as a general matter, affidavits such as those in Exhibit 2 are apparently prepared to purposefully conform to the requirements of § 41-6-44.3, they are inherently adversarial. Specifically, he points to language in § 41-6-44.3 stating, among other things, that records offered to prove that an intoxilyzer test is accurate are admissible if "the judge finds that they were made in the regular course of the investigation at or about the time of the act, condition, or event." Utah Code Ann. § 41-6-44.3(2)(a) (1988). According to defendant, this language deems affidavits like those in Exhibit 2 to be part of the state's investigation, and, therefore, makes them adversarial in nature.
Defendant's argument is without merit. Although defendant is correct in stating that rule 803(8)(B) bars the admission of adversarial materials prepared by law enforcement officers, defendant mistakenly characterizes the evidence at issue here as adversarial in nature. Although the United States Court of Appeals for the Tenth Circuit has not yet articulated its approach to rule 803(8)(B),3 in a series of recent cases that are directly on point with this case, the United States Court of Appeals for the Ninth Circuit has concluded that evidence such as that proffered by the United States in Exhibit 2 is admissible under rule 803(8).
In United States v. Wilmer, 799 F.2d 495 (9th Cir.1986), cert. denied, 481 U.S. 1004, 107 S.Ct. 1626, 95 L.Ed.2d 200 (1987), the district court had interpreted the Assimilative Crimes Act as requiring the court to use the state procedures for admitting an intoxilyzer calibration certificate as foundation for introducing the results of an intoxilyzer test. On appeal, the Ninth Circuit found the court's reliance on the state procedures to be error. However, the Ninth Circuit held that the error was harmless because the certificate was admissible under rule 803(8)(B). Id. at 501. In concluding that the evidence was admissible under rule 803(8)(B), the court noted that the rule is "intended to apply to observations made by law enforcement officials at the scene of a crime or the apprehension of the accused and not `records of routine, nonadversarial matters' made in a nonadversarial setting." Id. (citations omitted). The court found that "the calibration report of a breathalyzer maintenance operator is a routine act far removed from the adversarial nature of the on-the-scene investigative report of a crime by a police officer whose perceptions might be clouded and untrustworthy." Id.
The holding of Wilmer was subsequently reaffirmed by the Ninth Circuit in United States v. DeWater, 846 F.2d 528 (9th Cir. 1988), where the court held that the actual results of a breathalyzer test are admissible under the exception to the hearsay rule set forth at rule 803(8)(B). According to the DeWater court:
The performance of wet tests and the recording of test results is clearly within the regularly conducted business of a police department. Justification for the public records and reports exception is the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independent of the record. Further justification lies in the reliability factors underlying records of regularly conducted activities generally.
Id. at 530 (citations omitted).
This court concludes that the foundational evidence proffered by the United States in ...
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