State of Iowa v. Brian M. Kennedy , 846 N.W.2d 517 ( 2014 )

IN THE SUPREME COURT OF IOWA
No. 11–1685
Filed May 9, 2014
STATE OF IOWA,
Appellee,
vs.
BRIAN M. KENNEDY,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Des Moines County,
Michael G. Dieterich, District Associate Judge.
A defendant seeks further review of a court of appeals decision
finding the district court’s admission of certain evidence did not violate
the Confrontation Clauses of the United States and Iowa Constitutions.
DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT
COURT AFFIRMED.
Richard A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines,
for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant
Attorney General, Patrick C. Jackson, County Attorney, Tyron T. Rogers
and Justin C. Stonerook, Assistant County Attorneys, for appellee.
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WIGGINS, Justice.
A defendant seeks further review of a court of appeals decision
finding the district court’s admission of a certified abstract of his driving
record and affidavits of the mailing of suspension notices did not violate
the Confrontation Clauses of the United States and Iowa Constitutions.
On further review, we find the admission of the certified abstract of the
defendant’s driving record does not violate the Confrontation Clauses.
We do find the district court’s admission of the affidavits of the mailing of
suspension notices violates the Confrontation Clauses. However, we also
find the district court’s admission of the affidavits was harmless error.
Therefore, we affirm the decision of the court of appeals and the
judgment of the district court.
I. Background Facts and Proceedings.
On November 30, 2010, a police officer observed Brian M. Kennedy
driving a vehicle in Danville. The police officer knew the State had
previously revoked Kennedy’s driver’s license. The police officer initiated
a traffic stop and gave Kennedy a citation. Subsequently, the State
charged Kennedy with driving under revocation in violation of Iowa Code
section 321J.21 (2011).
On the morning of trial, the State presented Kennedy’s counsel
with a proposed exhibit entitled “Certified Abstract of Driving Record.”
The exhibit was a fifteen-page document containing four separate
certifications. The first two pages contained an abstract of Kennedy’s
driving history as it appeared in the Iowa Department of Transportation
(IDOT) records. The director of the Office of Driver Services signed a
certification stating the driving history was a true and accurate copy of
the official record. The remaining thirteen pages contained three
certifications from the manager for the Office of Driver Services attesting
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to the process the IDOT uses to mail sanction notices and attesting the
IDOT mailed sanction notices that corresponded to Kennedy’s sanction
numbers. Each of these certifications contained the official notices to
Kennedy and the corresponding certificates of bulk mailing associated
with each notice.
Prior to trial, Kennedy made a motion in limine to exclude the
exhibit. His main challenge was the exhibit violated the Confrontation
Clauses contained in the Sixth Amendment of the United States
Constitution and article I, section 10 of the Iowa Constitution. The
district court denied the motion and admitted the exhibit into evidence.
Kennedy waived his right to a jury trial. The district court found
Kennedy guilty of driving under revocation in violation of Iowa Code
section 321J.21. Kennedy appealed and we transferred the case to the
court of appeals. The court of appeals affirmed the conviction. Kennedy
applied for further review, which we granted.
II. Standard of Review.
A defendant’s right to confront witnesses in a criminal trial is
found in the Sixth Amendment of the United States Constitution and
article I, section 10 of the Iowa Constitution. We review constitutional
claims, including Confrontation Clause claims, de novo. State v. Shipley,
757 N.W.2d 228, 231 (Iowa 2008).
III. Preservation of Error.
The court of appeals held Kennedy did not preserve error on his
claims involving the last thirteen pages of the exhibit. These thirteen
pages contained the three certifications from the manager for the Office
of Driver Services attesting to the process the IDOT uses to mail sanction
notices and attesting the IDOT mailed the sanctions corresponding to
Kennedy’s sanction numbers.
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The test to determine the sufficiency of an objection to preserve
error “is whether the exception taken alerted the trial court to the error
which is urged on appeal.” Dutcher v. Lewis, 221 N.W.2d 755, 759 (Iowa
1974). In making his motion in limine, trial counsel specifically referred
to the last thirteen pages of the exhibit as documents not part of what
the IDOT or an attorney would consider to be an abstract of a person’s
driving record. We believe the district court understood the substance of
trial counsel’s objection and was able to determine whether the objection
had merit as to each page of the exhibit. Accordingly, we find Kennedy
preserved error on this issue.
IV. Issue.
We must decide if any part of the fifteen-page exhibit entitled
“Certified Abstract of Driving Record” is admissible over Confrontation
Clause objections.
V. Elements the State Needs to Prove for Conviction of the
Crime of Driving Under Revocation Under Iowa Code Section
321J.21.
The Code defines driving under revocation as follows:
A person whose driver’s license or nonresident operating
privilege has been suspended, denied, revoked, or barred
due to a violation of this chapter and who drives a motor
vehicle while the license or privilege is suspended, denied,
revoked, or barred commits a serious misdemeanor.
Iowa Code § 321J.21(1). To prove Kennedy violated this statute, the
State must prove Kennedy drove a motor vehicle while his license was
revoked due to a violation of chapter 321J. See id. There is no question
Kennedy was driving a motor vehicle at the time of his arrest. The
questions in this appeal are when was Kennedy’s license revoked under
chapter 321J and does any admissible evidence in the record support the
fact his license was revoked.
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The State claims the IDOT revoked Kennedy’s license three
different times and each revocation remained in effect on November 30,
the day the police officer initiated the traffic stop. The IDOT claims it
first revoked Kennedy’s license for “OWI test refusal.” Iowa Code section
321J.9 governs revocation for an operating a motor vehicle while
intoxicated (OWI) chemical test refusal. This section requires the IDOT,
under certain conditions, to revoke a license when a driver refuses OWI
chemical testing. Id. § 321J.9(1). It provides in relevant part as to the
effective date of a revocation under this section:
The effective date of revocation shall be ten days after the
department has mailed notice of revocation to the person by
first class mail, notwithstanding chapter 17A. The peace
officer who requested or directed the administration of a
chemical test may, on behalf of the department, serve
immediate notice of intention to revoke and of revocation on
a person who refuses to permit chemical testing. If the
peace officer serves immediate notice, the peace officer shall
take the Iowa license or permit of the driver, if any, and
issue a temporary license effective for ten days.
Id. § 321J.9(4).
The IDOT also claims it revoked Kennedy’s license for “OWI test
failure.” Iowa Code section 321J.12 governs revocation for an OWI
chemical test failure. This section requires the IDOT, under certain
conditions, to revoke a license when a driver fails an OWI chemical test.
Id. § 321J.12(1). It provides as to the effective date of a revocation under
this section as follows:
The effective date of the revocation shall be ten days after the
department has mailed notice of revocation to the person by
first class mail, notwithstanding chapter 17A. The peace
officer who requested or directed the administration of the
chemical test may, on behalf of the department, serve
immediate notice of revocation on a person whose test
results indicated the presence of a controlled substance or
other drug, or an alcohol concentration equal to or in excess
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of the level prohibited by section 321J.2, or a combination of
alcohol and another controlled substance or drug in violation
of section 321J.2.
Id. § 321J.12(3).
Finally, the IDOT claims it revoked Kennedy’s license for “operating
while intoxicated.” Iowa Code section 321J.4 governs revocation for OWI.
This section requires the IDOT to revoke a license “[i]f a defendant is
convicted of a violation of section 321J.2.” See id. § 321J.4(1). In a
criminal proceeding, a conviction is the judgment of conviction entered
after sentencing. See Iowa R. Crim. P. 2.23(1), (3)(d). Consequently, the
effective date of a revocation for operating while intoxicated is the date of
conviction.
Therefore, to prove its case, the State must prove Kennedy drove
his vehicle after the effective date of a revocation and before the IDOT
reinstated his license.
VI. Confrontation Clauses.
Kennedy challenges the introduction of the fifteen-page exhibit as a
violation of the Confrontation Clauses under the Sixth Amendment of the
United States Constitution and under article I, section 10 of the Iowa
Constitution. The Confrontation Clause of the United States
Constitution states the accused has the right “to be confronted with the
witnesses against him.” U.S. Const. amend. VI. Identically, the
confrontation clause of the Iowa Constitution states the accused has the
right “to be confronted with the witnesses against him.” Iowa Const. art.
I, § 10. “[W]e jealously protect this court’s authority to follow an
independent approach under our state constitution” for provisions of the
Iowa Constitution that are the same or nearly identical to provisions in
the United States Constitution. State v. Pals, 805 N.W.2d 767, 771 (Iowa
2011). However, in his appellate brief, Kennedy does not propose a
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specific test we should apply under article I, section 10 of the Iowa
Constitution. Rather he only cites caselaw analyzing the Confrontation
Clause under the United States Constitution. Thus, under the facts of
this case, we choose not to interpret the Iowa Constitution any differently
from the United States Constitution. See Shipley, 757 N.W.2d at 234
(“Because Shipley has not contended that the Iowa Constitution should
be interpreted differently than the Confrontation Clause in the Sixth
Amendment to the United States Constitution, we construe the
provisions identically.”).
The Supreme Court interpreted the Confrontation Clause in
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004). There, the Supreme Court recognized the Confrontation Clause
was intended to protect against the principal evil of testimonial
statements in the absence of the declarant. See id. at 50, 124 S. Ct. at
1363, 158 L. Ed. 2d at 192. Courts can only admit these testimonial
statements in subsequent proceedings if the declarant is unavailable and
there has been a prior opportunity for cross-examination. Id. at 59, 124
S. Ct. at 1369, 158 L. Ed. 2d at 197. Thus, the first inquiry in
Confrontation Clause analysis is whether the evidence is testimonial.
Though the Supreme Court did not specifically identify a
comprehensive definition of “testimonial,” it provided some guidance in
determining which evidence is testimonial. First, the Supreme Court
held grand jury testimony, preliminary hearing testimony, former trial
testimony, and statements resulting from police interrogation are
testimonial. Id. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. Next,
the Supreme Court identified several formulations for courts to use to
identify testimonial evidence. Id. at 51–52, 124 S. Ct. at 1364, 158 L.
Ed. 2d at 193. The relevant formulation here is whether the evidence
8
contains statements made in circumstances that would lead witnesses to
objectively believe the statements might be used at trial. See id. at 51–
52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193.
For our analysis, we will divide the fifteen-page exhibit into two
types of documents. The first two pages of the exhibit are the certified
abstract of Kennedy’s driving record. We will consider these two pages
separately from the last thirteen pages, which consist of three notices of
revocation and an affidavit of mailing and certificate of bulk mailing
attached to each notice. For clarity, we will identify the last thirteen
pages as the affidavits of mailing.
A. Certified Abstract of Kennedy’s Driving Record. We
previously determined a certified abstract of a driving record was
nontestimonial. Shipley, 757 N.W.2d at 238. Kennedy argues we should
revisit the Shipley decision and overrule Shipley based on two
subsequent Supreme Court decisions.
In Shipley, the defendant challenged the admission of a certified
abstract of his driving record as violating the Confrontation Clauses of
the United States and Iowa Constitutions. Id. at 234. The defendant
argued the district court could only admit the certified abstract of driving
record if the custodian of his driving records was available for cross-
examination. Id. In determining otherwise, we identified two different
confrontation issues with the certified abstract of driving record. Id. at
234–35. The first issue was whether the underlying public record
required a live witness, and the second issue was whether the record
could be authenticated without the custodian’s testimony. Id.
We first recognized the underlying public record was not
testimonial when we considered the purpose of the right of cross-
examination. Id. at 237. The IDOT created the driving record prior to
9
the criminal prosecution and it would have existed even if there was not
a subsequent criminal prosecution. Id. Thus, the primary evil Crawford
sought to avoid, namely information gathered by an inquisitory
investigation, did not exist. Id. at 238. We came to this conclusion
based on a particularized analysis of the purpose of the Confrontation
Clause and the nature of the information in the public record, rather
than a broad view that all public records would be admissible. Id. at
237.
We next recognized the certification of authenticity of the public
record was not testimonial. Id. at 239. In Shipley, we specifically
compared a certification of a driving record to a certification of other
forensics, and determined these certifications were sufficiently distinct.
Id. Unlike forensic certificates, the driving record certification merely
certified the authenticity of a copy of a preexisting document. Id. at 238–
39. Further, access to a driving-record certification is not limited to
governmental interrogation, but is available to anyone. Id. at 239. We
concluded the certificate of authenticity did not violate the Confrontation
Clauses of the United States and Iowa Constitutions. Id.
Kennedy argues Shipley is no longer good law because of two
subsequent Supreme Court decisions: Melendez-Diaz v. Massachusetts,
557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), and Bullcoming
v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011).
Both of these cases consider whether forensic certificates of analysis
violate the Confrontation Clause of the United States Constitution.
In Melendez-Diaz, the Supreme Court determined certificates of
analysis stating several seized bags contained cocaine were testimonial
and thus subject to the Confrontation Clause. 557 U.S. at 308–11, 129
S. Ct. at 2531–32, 174 L. Ed. 2d at 320–22. The certificates showed the
10
results of the forensic analysis, reported the weight of the bags, and
indicated the bags contained cocaine. Id. at 308, 129 S. Ct. at 2531, 174
L. Ed. 2d at 320. The Supreme Court determined the certificates were
testimonial for three reasons. First, the description of testimonial
statements from Crawford included affidavits. Id. at 310, 129 S. Ct. at
2532, 174 L. Ed. 2d at 321. These certificates were affidavits because
they were “ ‘declaration[s] of facts written down and sworn to by the
declarant before an officer authorized to administer oaths.’ ” Id. at 310,
129 S. Ct. at 2532, 174 L. Ed. 2d at 321 (quoting Black’s Law Dictionary
62 (8th ed. 2004)). Second, the court noted these documents were
“functionally identical to live, in-court testimony.” Id. at 310–11, 129 S.
Ct. at 2532, 174 L. Ed. 2d at 321. Third, the sole purpose of the
affidavits under state law was to provide evidence of the net weight,
quality, and composition of the substances being tested, and the
analysts were aware of the evidentiary purpose of the affidavits. Id. at
311, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321.
The Supreme Court addressed whether the analysts themselves
were witnesses providing testimony against the defendant. Id. at 313,
129 S. Ct. at 2533, 174 L. Ed. 2d at 323. The Supreme Court
determined the analysts were witnesses because they provided testimony
against the defendant that the substance he possessed was cocaine, and
this fact was necessary for his conviction. Id. at 313, 129 S. Ct. at 2533,
174 L. Ed. 2d at 323.
The Supreme Court specifically differentiated between the
affidavits in that case and a clerk’s certificate authenticating an official
record for use as evidence. Id. at 322–23, 129 S. Ct. at 2538–39, 174 L.
Ed. 2d at 328–29. The Supreme Court stated “[a] clerk could by affidavit
authenticate or provide a copy of an otherwise admissible record, but
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could not do what the analysts did here: create a record for the sole
purpose of providing evidence against a defendant.” Id. at 322–23, 129
S. Ct. at 2539, 174 L. Ed. 2d at 329.
In Bullcoming, the Supreme Court determined a forensic laboratory
report certifying the defendant’s blood alcohol content violated the
Confrontation Clause when an analyst who had not prepared the report
testified. 564 U.S. at ___, 131 S. Ct. at 2709–10, 180 L. Ed. 2d at 616.
The Supreme Court considered whether a substitute analyst who did not
prepare the report could give proper testimony under the Confrontation
Clause when the report itself was testimonial. Id. at ___, 131 S. Ct. at
2710, 180 L. Ed. 2d at 616. The Supreme Court reasoned the analyst
could not be a proper substitute because this testimony could not convey
what the actual analyst knew about the particular testing process
employed. Id. at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 622.
We hold the rulings in Melendez-Diaz and Bullcoming do not
overrule or undermine our decision in Shipley. A certified abstract of a
driving record is significantly different from a forensic report analyzing
drugs or blood alcohol content. A certified abstract of a driving record
encompasses the information contained in the IDOT records. That
information existed well before the alleged criminal act. The compiling of
the record does not require a scientist or technician to do any tests in
order to report what already exists in the IDOT records. In other words,
the certified abstract of a driving record is nothing more than a historical
report of what is contained in the records of the IDOT.
Accordingly, the certified abstract of Kennedy’s driving record, the
first two pages of the exhibit, is not testimonial and the admission of
these two pages did not violate the Confrontation Clauses of the United
States or Iowa Constitutions.
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B. Affidavits of Mailing. These documents require us to do a
different analysis. We have not previously considered whether an
affidavit of mailing and its attachments are testimonial. In Shipley, we
recognized our task in that case was “limited to the consideration of the
admissibility of a copy of an existing driving record kept by the custodian
of records.” 757 N.W.2d at 237 n.2.
The last thirteen pages of the exhibit contained three affidavits of
mailing with attachments. Each affidavit addressed a separate
revocation of Kennedy’s driving privileges. The first affidavit addressed a
notice of revocation mailed on May 21, 2010. The notice revoked
Kennedy’s license for refusing OWI chemical testing. It stated the
effective date of the revocation was June 3, 2010. The notice also
provided the revocation would last until June 2, 2012.
The second affidavit addressed a notice of revocation mailed on
June 16, 2010. The notice revoked Kennedy’s license for failing OWI
chemical testing. It stated the effective date of the revocation was June
29, 2010. The notice also provided the revocation would last until June
28, 2011.
The third affidavit addressed a notice of revocation mailed on
August 30, 2010. The notice revoked Kennedy’s license for his OWI
conviction. It stated the effective date of the revocation was July 30,
2010. The notice also provided the revocation would last until July 29,
2016.
Each affidavit of mailing contained the following language:
I, Kathy McLear, being first duly sworn on oath, state
as follows:
That I am a Manager for the Office of Driver Services, Iowa
Department of Transportation, an agency of the State of Iowa
which generates and maintains all the official records of the
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lowa Department of Transportation relating to driver
licenses, license suspensions, revocations, cancellations,
denials, disqualifications and barrment matters, and the
mailing of sanction notices concerning the same. As part of
my job duties with the Department, I know the process the
Department uses to mail sanction notices to drivers.
That as a part of the regularly conducted and regularly
recorded activities of the Office of Driver Services of the lowa
Department of Transportation, the Department caused to be
mailed by first class mail on or about [date of mailing notice],
at the United States Postal Service, 1165 2nd Avenue,
Des Moines, Iowa, and to driver(s) at each driver’s last
known address as shown in the records of the Department,
the following sanction notices:
Sanction Notices Number(s): [identifying number on notice]
Proof of said mailing is set out in the attached United States
Postal Service Certificate of Bulk Mailing, certified to by a
knowledgeable employee of the United States Postal Service
and prepared in the regular course of its business at its
location at 1165 2nd Avenue, Des Moines, Iowa at the time
of said mailing.
To determine whether these thirteen pages are testimonial, we
must determine whether either the underlying public record or the
certificate of authenticity contain statements made in circumstances that
would lead a witness to objectively believe the statements might be used
at trial. See Crawford, 541 U.S. at 51–52, 124 S. Ct. at 1364, 158 L. Ed.
2d at 193. At least two other states’ highest courts have addressed this
issue.
In Michigan, the Michigan Department of State (DOS) is
responsible for mailing notices of revocation to drivers. People v. Nunley,
821 N.W.2d 642, 643 (Mich. 2012), cert. denied, 133 S. Ct. 667 (2012).
In June 2009, the DOS sent a notice of revocation to the defendant. Id.
at 643–44. Contemporaneous with sending the notice, the DOS prepared
a certificate of mailing and maintained the certificate in its official
records. Id. at 644. In September 2009, the police stopped the
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defendant and charged him with driving while his license was revoked.
Id. At trial, the court would not admit the certificate of mailing due to a
Confrontation Clause objection under the United States Constitution. Id.
The case reached the Supreme Court of Michigan. See id. at 647.
The Michigan court determined a certificate of mailing was not
testimonial because the certificate of mailing was a business record
created for administrative reasons. Id. at 653. The court recognized the
certificate was an objective cataloging intended to show the agency
performed its statutory responsibilities. Id. Further, the court pointed
out the DOS created the certificate of mailing before any crime, and the
mailing was contemporaneous with the notice. Id. Thus, the certificate
did not violate the Confrontation Clause because “it was not made under
circumstances that would lead an objective witness reasonably to believe
that it would be available for use at a later trial.” Id. at 654 (emphasis
omitted).
In Massachusetts, the supreme judicial court considered whether a
certificate of mailing violated the Confrontation Clause of the United
States Constitution when the certificate was created exclusively for trial.
Commonwealth v. Parenteau, 948 N.E.2d 883, 885–86, 891 (Mass. 2011).
On May 30, 2009, an officer stopped the defendant’s vehicle, and he
arrested the defendant for operating a motor vehicle after his license had
been revoked. Id. at 886–87. In the subsequent jury trial, the
commonwealth introduced the certificate attesting a notice of license
suspension or revocation was mailed to the defendant on May 2, 2007.
Id. at 887. The registry prepared and dated the certificate on July 24,
2009. Id. at 887. The district court admitted the certificate into
evidence. Id. The case reached the Supreme Judicial Court of
Massachusetts. Id. at 885–86.
 15
The Massachusetts court noted the certificate was dated two
months after the criminal complaint was issued and clearly was made for
use at the defendant’s trial. Id. at 890. Further, the certificate did not
merely authenticate and attest to the existence of a record, but made a
factual representation that the agency mailed notice on a particular date.
Id. Nor could the agency show it mailed the notice by proving the
existence of a copy of the notice in the agency’s filing system. Id.
The Michigan and Massachusetts cases contain the proper
analysis under the Confrontation Clause. The Michigan court found the
DOS made and kept the certificate of mailing well before any prosecution
of the criminal charges. Thus, an affidavit of mailing prepared prior to
criminal charges kept in the regular course of business as an
administrative record does not violate the Confrontation Clause. On the
other hand, the Massachusetts court found the registry prepared the
certificate of mailing after the complaint and the commonwealth was
using the factual representations in the certificate as testimony to prove
when the mailing occurred. Thus, the Confrontation Clause prohibits
the admission of an affidavit of mailing when the affidavit is both
prepared after the criminal charges and the affidavit makes a factual
representation intended as testimony.
We find the last thirteen pages contained in the exhibit at issue,
the affidavits of mailing and attachments, squarely fit under the
reasoning of the Massachusetts court. The affidavits of mailing were
prepared after the State filed the complaint against Kennedy. All three
affidavits are dated December 10, 2010, after Kennedy’s traffic stop on
November 30. The affidavits did not merely authenticate and attest to
the existence of a record in the IDOT’s possession, but made factual
representations the IDOT mailed the notices on particular dates.
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Applying the Crawford test, we find the IDOT created the affidavits under
circumstances that would lead an objective witness to reasonably believe
the affidavits would be available for use at a later trial. Therefore, the
affidavits of mailing and attachments violated the Confrontation Clauses
of the United States and Iowa Constitutions and were not admissible.
VII. Harmless Error.
Reversal of a criminal conviction is not required for a federal
constitutional error if the error is harmless. See Chapman v. California,
386 U.S. 18, 22, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705, 709 (1967). The
erroneous admission of evidence in violation of the Confrontation Clause
is a constitutional error subject to a harmless-error analysis. Delaware
v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d
674, 686 (1986).
“Harmless-error review looks . . . to the basis on which ‘the jury
actually rested its verdict.’ ” Sullivan v. Louisiana, 508 U.S. 275, 279, 113
S. Ct. 2078, 2081, 124 L. Ed. 2d 182, 189 (1993) (quoting Yates v. Evatt,
500 U.S. 391, 404, 111 S. Ct. 1884, 1893, 114 L. Ed. 2d 432, 449
(1991), overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 72
n.4 (1991)). The inquiry
is not whether, in a trial that occurred without the error, a
guilty verdict would surely have been rendered, but whether
the guilty verdict actually rendered in this trial was surely
unattributable to the error.
Id. at 279, 113 S. Ct. at 2081, 124 L. Ed. 2d at 189. “[A]ny time an
appellate court conducts harmless-error review it necessarily engages in
some speculation as to the jury’s decisionmaking process; for in the end
no judge can know for certain what factors led to the jury’s verdict.” Id.
at 284, 113 S. Ct. at 2084, 124 L. Ed. 2d at 192. (Rehnquist, C.J.,
concurring).
17
The State must “prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained” for it to
establish harmless error. Chapman, 386 U.S. at 24, 87 S. Ct. at 828, 17
L. Ed. 2d at 710. We are required to follow a two-step analysis to
determine whether the State has met its burden. Yates, 500 U.S. at 404,
111 S. Ct. at 1893, 114 L. Ed. 2d at 449; State v. Hensley, 534 N.W.2d
379, 383 (Iowa 1995). The first step of the analysis requires us to ask
what evidence the fact finder actually considered to reach its verdict.
Yates, 500 U.S. at 404, 111 S. Ct. at 1893, 114 L. Ed. 2d at 449. We do
not conduct a subjective inquiry into the fact finder’s mind when doing
so. Id. at 404, 111 S. Ct. at 1893, 114 L. Ed. 2d at 449.
In the second step of the analysis, we weigh the probative force of
that evidence against the probative force of the erroneously admitted
evidence standing alone. Id. at 404, 111 S. Ct. at 1893, 114 L. Ed. 2d at
449. Again, we cannot inquire subjectively into the fact finder’s mind.
Id. at 404–05, 111 S. Ct. at 1893, 114 L. Ed. 2d at 449. We are required
to ask whether the force of the evidence “is so overwhelming as to leave it
beyond a reasonable doubt that the verdict resting on that evidence
would have been the same” without the erroneously admitted evidence.
Id. at 405, 111 S. Ct. at 1893, 114 L. Ed. 2d at 449. “It is only when the
effect of the incorrectly admitted evidence is comparatively minimal to
this degree that it can be said . . . there is no reasonable possibility that
such evidence might have contributed to the conviction.” Hensley, 534
N.W.2d at 383 (citing Yates, 500 U.S. at 404–05, 111 S. Ct. at 1893–94,
114 L. Ed. 2d at 449, and Chapman, 386 U.S. at 24, 87 S. Ct. at 828, 17
L. Ed. 2d at 710).
Here, the district court considered the admissible certified abstract
of Kennedy’s driving record and the inadmissible affidavits of mailing and
18
attachments to find Kennedy’s license was revoked at the time of his
arrest. If we compare the probative force of the admissible certified
abstract with the probative force of the inadmissible affidavits, the effect
of the erroneously admitted evidence is comparatively minimal to such a
degree that we can say there is no reasonable possibility such evidence
might have contributed to the conviction.
We reach this conclusion because the admissible certified abstract
contained the same information as the inadmissible affidavits. The
certified abstract contained the effective date of the revocation for the
OWI chemical testing refusal, the effective date of the revocation for the
OWI chemical testing failure, and the effective date of the revocation for
the OWI conviction. The certified abstract also indicated these
revocations were in effect at the time Kennedy was arrested. The
information contained in the admissible certified abstract of driving
record was sufficient to convict Kennedy of driving under revocation in
violation of Iowa Code section 321J.21 without the need for the district
court to consider the inadmissible affidavits of mailing. Therefore, the
inadmissible affidavits of mailing did not have an effect on the verdict
and the district court’s admission of the affidavits of mailing constituted
harmless error.
VIII. Disposition.
The district court properly admitted the certified abstract of driving
record over Kennedy’s objections. Although the district court should not
have admitted the affidavits of mailing and attachments over the
Confrontation Clause objections, we find their admission into evidence to
be harmless error. Therefore, we affirm the decision of the court of
appeals and the judgment of the district court.
DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.