Opinion
No. 5-755 / 05-0019
Filed December 7, 2005
Appeal from the Iowa District Court for Woodbury County, Gary E. Wenell, Judge.
The defendant appeals from his conviction and sentence for first-degree burglary and assault while participating in a felony. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Patrick Jennings, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.
The defendant-appellant, Roderick Chisley, appeals from the judgment and sentence entered upon his conviction, following a jury trial, for first-degree burglary and assault while participating in a felony. He contends the trial court erred in overruling a hearsay objection to a detective's testimony that the account of what happened, given by a person who did not testify at trial, was the same as the victim's. We affirm.
Background facts and trial court proceedings.
The defendant was arrested following an incident at his former girlfriend's residence in August 2004. The State charged him with first-degree burglary and assault while participating in a felony, based on allegations he entered his former girlfriend's residence without permission, possessed a dangerous weapon, and assaulted her.
At trial, both the defendant and the victim testified, giving disparate accounts of what occurred. A police detective, who interviewed the defendant, the victim, and another person present in the residence at the time, also testified at trial. The following interchange took place:
Prosecutor: When you spoke with all three parties, in particular [the victim] and this third-party, did you get their stories as to what happened that night?Detective: Yes I did.
Q. Did their stories differ at all?
Defense counsel: Objection, Your Honor. Calls for a hearsay statement — for an answer to be based on a hearsay statement as to what [the victim] — what the third-party would have stated to him that night?Court: Overruled.
Prosecutor: Did those two parties' statements appear to differ at all?A. No. They were the same.
The jury rendered a verdict of guilty on both charges.
The defendant filed what was captioned a "Motion in Arrest of Judgment," asking for a new trial and alleging the court erred in several respects, including allowing "the State's Witness to testify to hearsay." Following a hearing on the motion, the trial court denied the motion. The defendant appeals.
Scope and standard of review.
We review the admission of hearsay evidence for errors at law. State v. Tangie, 616 N.W.2d 564, 568 (Iowa 2000). However, we give deference to the district court's factual findings and uphold such findings if they are supported by substantial evidence. State v. Long, 628 N.W.2d 440, 447 (Iowa 2001); see Iowa R. Evid. 5.104( a). Hearsay inadmissible under the rules of evidence is considered to be prejudicial to the nonoffering party unless otherwise established. State v. Dullard, 668 N.W.2d 585, 589 (Iowa 2003).
Discussion.
The defendant contends the detective's testimony about the third person's account of events was inadmissible hearsay. Cf. Hutchinson v. Groskin, 927 F.2d 722, 724-26 (2nd Cir. 1991) (holding testimony by the expert witness that he agreed with the opinions in other experts' opinion letters "simultaneously conveyed hearsay testimony to the jury and improperly bolstered [the witness's] credibility"). In the case before us, the defendant and the victim gave differing accounts of the events that occurred, so credibility was a critical factor in the jury's deliberations. The defendant argues the statement that the third person's account of events was the same as the victim's improperly bolstered the victim's credibility.
In redirect examination in Hutchinson, the following exchanges occurred:
Q. Does [Dr. Karakousis] offer an opinion there as to Mrs. Barton's prognosis? A. Yes, he does.
. . . .
Q. In that letter does Dr. Rigel offer an opinion as to Mrs. Barton's prognosis? A. Yes, he does.
. . . .
Q. Is your testimony as to Mrs. Barton's prognosis consistent with that of Doctors Patterson, Rigel and Karakousis? A. Yes, very much so.
The court ruled:
Such use of the letters was error, to which plaintiff properly objected. By asking Dr. Bronson to identify the documents, offer his own opinion regarding plaintiff's prognosis, and then state whether his opinion was consistent with those expressed in the documents, defense counsel used Dr. Bronson as a conduit for hearsay testimony. Defense counsel thereby introduced the purported opinions of Doctors Patterson, Rigel, and Karakousis, who were not disclosed as experts during discovery and whom plaintiff had no opportunity to examine. Moreover, in closing argument, counsel reminded the jury several times that Dr. Bronson's opinion was consistent with these other physicians'. Thus defense counsel's tactic simultaneously conveyed hearsay testimony to the jury and improperly bolstered Dr. Bronson's credibility.
At the time of oral arguments in this case, the defendant gave notice of authority not previously cited and provided the court with Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The issue in Crawford was based on the Confrontation Clause, which was not raised by the defendant in the case before us.
The State contends the trial court properly admitted the testimony. In the alternative, the State argues the defendant was not prejudiced by the statement. See State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998) (noting the hearsay was cumulative to other testimony); State v. Rice, 543 N.W.2d 884, 887 (Iowa 1996) (finding no prejudice where similar evidence was in the record without objection and evidence of guilt was strong). The State argues the detective's statement, without further detail, did little to bolster the victim's credibility.
Was the statement 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 and 5.803. If hearsay is admitted, prejudice is presumed unless the contrary is affirmatively established. State v. McKettrick, 480 N.W.2d 52, 60 (Iowa 1992). The victim testified before the detective testified. The detective did not specifically recount any of the third person's statements. He opined the victim's and the third person's accounts were the same. The defendant argues this is hearsay because the detective essentially was saying that whatever the victim said, the third person said also. The State disagrees, arguing the detective's statement, without further detail, should not be viewed as improperly attributing the victim's detailed statements to the third person.
Was the detective's statement, "they were the same" a "statement, other than one made by the declarant while testifying at the trial?" Following the reasoning in Hutchinson, the detective's statement "was a conduit for hearsay" and in effect introduced the statements of the third person. Hutchison, 927 F.2d at 725 (emphasis added). The defendant had no opportunity to cross examine the third person, and the jury had no opportunity to observe the third person and assess his credibility.
Was the defendant prejudiced?
The State has the burden to prove a lack of prejudice if the statement was hearsay and improperly admitted. See State v. Horn, 282 N.W.2d 717, 724 (Iowa 1979). This is not a case where substantially the same evidence was in evidence without objection. See McKettrick, 480 N.W.2d at 60. Rather, it turns on the jury's assessment of the credibility of the victim versus that of the defendant. The defendant argues only two eye-witnesses testified — the defendant and the victim — and allowing the detective's statement improperly bolstered the victim's credibility. The State asserts the jury had sufficient other evidence supporting the victim's version of events that more likely swayed the jury than did the detective's statement. The jury heard the 911 call telling the defendant numerous times to get out and to leave her alone, telling the operator the defendant had a knife and was trying to kill her, and screaming hysterically. The jury saw photographs of the victim's injuries. The defendant's statement to an investigating officer was inconsistent with his testimony at trial: he told the officer the other person pushed him off the victim, but at trial he testified he never saw the other person. We conclude the detective's statement, "they were the same" did not prejudice the defendant. The other evidence corroborating the victim's account and the fact her statement to the detective was consistent with her testimony at trial provide a sufficient basis for the jury to assess her credibility and find her credible. In contrast, the defendant's statement to the investigating officer differed from his testimony at trial, providing the jury a sufficient basis to find him not credible. We find no reasonable probability the outcome of the trial would have been different without the challenged statement. Consequently, we conclude the State has met its burden to demonstrate the defendant was not prejudiced. See State v. Rice, 543 N.W.2d 884, 887 (Iowa 1996). We affirm the defendant's conviction.