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State v. Doornink

Court of Appeals of Iowa
Dec 11, 2002
No. 2-797 / 01-1572 (Iowa Ct. App. Dec. 11, 2002)

Opinion

No. 2-797 / 01-1572.

Filed December 11, 2002.

Appeal from the Iowa District Court for Sioux County, JOHN ACKERMAN, Judge.

Kit Jay Doornink has appealed his conviction following a jury trial for the crime of serious injury by vehicle in violation of Iowa Code section 707.6A(4) (1999). AFFIRMED.

Randy Waagmeester of Waagmeester Law Office, P.L.C., Rock Rapids, for appellant.

Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, and Mark J. Schouten, County Attorney, for appellee.

Considered by HABHAB, SNELL, and BROWN, Senior Judges.

Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).


Kit Jay Doornink has appealed his conviction following a jury trial for the crime of serious injury by vehicle in violation of Iowa Code section 707.6A(4) (1999). He alleges the trial court erred in admitting evidence and refusing to grant his requests for a mistrial. We find no reversible error and therefore affirm the trial court.

I. Facts and background.

On July 17, 2000 at about 6:00 p.m., Kit Jay Doornink drove his pickup truck into the right side of van driven by Harold Shoemaker at an uncontrolled intersection of two gravel roads in Sioux County, Iowa. The Shoemaker vehicle had the directional right of way. Shoemaker and occupants of his vehicle were injured. When the investigating officers arrived, the drivers of both vehicles and the occupants of Shoemaker's vehicle had been taken to the hospital. Sioux County Deputy Sheriff Waterman looked inside Doornink's pickup and observed soft drink cans and can "cozies" on the floor and a cooler on the front seat, all in plain view from outside the truck. He entered the vehicle and looked in the cooler, observing unopened cans of soft drinks.

Then the deputy examined the tires on the pickup and discovered a broken vodka bottle on the ground inside the rear wheel on the driver's side. He found pieces of broken glass on the rear axle and suspension which he determined came from the vodka bottle. There was a wet brown paper sack on the ground and a wet spot on the ground near the vodka bottle. Because there was no dirt or debris or tire tracks on the sack or bottle, Waterman decided the vodka bottle had been thrown under the truck after the accident.

Deputy Waterman then reentered the truck and retrieved two of the open cans from the floor. He tested the contents using a device used to administer preliminary breath tests (PBT) and concluded the contents contained alcohol.

This information was passed on and, suspecting Doornink may have been drinking, deputies Knight and Hoekstra attempted to contact him at the hospital and found he had been discharged. They proceeded to his home. Doornink met them in his driveway. He acknowledged driving and stated the collision was his fault. In response to inquiries, he twice advised the deputies he had not consumed alcohol since the collision. He also told them he had been drinking the night before, but later stated he had a drink that morning.

Doornink consented to a preliminary breath test and agreed to go to the police station with them for additional tests. On the way, he told the deputy it was ironic that he was supposed to go to an alcohol treatment center a couple of days earlier, but didn't go, and that if he had, he would not be in the trouble he was in now. At the station, with Doornink's consent, standard field sobriety tests were administered as well as a breath test using a 4011A Intoxilyzer. The test, administered at 9:15 p.m., resulted in an alcohol concentration of .122. It was determined the collision occurred at 6:08 p.m. The deputy then told Doornink he was under arrest for operating while intoxicated.

Prior to trial a hearing was held on Doornink's motion to suppress evidence. He claimed the officer's search of his vehicle was not justified, thus the soft drink cans, cozies and cooler, or its contents, should not be permitted in evidence. More importantly, he claimed all subsequent statements attributed to him should be suppressed as well as the sobriety tests and the breath test. He maintained all of these were fruits of an illegal search. The court denied the motion.

Doornink also complains the State erroneously admitted expert testimony and should have granted his mistrial motions.

We will refer to further facts as appropriate in our discussion of the issues involved.

II. Standard of review.

We review constitutional issues, such as Fourth Amendment violations, de novo, but underlying fact findings by the trial court reached in a motion to suppress are accepted by us if supported by substantial evidence. State v. Cline, 617 N.W.2d 277, 280 (Iowa 2000).

Evidentiary issues are reviewed for abuse of discretion. State v. Edgerly, 571 N.W.2d 25, 27 (Iowa Ct.App. 1997).

III. Suppression issues.

The Fourth Amendment imposes a general reasonableness standard upon all searches and seizures. Generally, to be reasonable, a search or seizure must be conducted pursuant to a warrant issued by a judge or magistrate. Unless an exception to the warrant requirement applies, searches conducted without a warrant are per se unreasonable.

State v Kreps, 650 N.W.2d 636, 641 (Iowa 2002) (internal cites omitted). The existence of probable cause and exigent circumstances is an established exception. State v. Gillespie, 619 N.W.2d 345, 350 (Iowa 2000).

Doornink challenges the deputy's search of the interior of the pickup truck because he claims there was neither probable cause nor exigent circumstances. Preliminarily, we doubt there is a viable issue as to any contents of the truck. As a result of Doornink's motion in limine, the State was prohibited from offering evidence concerning the alcohol content of the soft drink cans on the floor of the truck because the PBT device was used. The State had the two cans retrieved from the truck examined by the Iowa crime laboratory, but the contents had evaporated and no alcohol was found. Thus, no incriminating evidence directly resulted from the search. See State v. Bergmann, 633 N.W.2d 328, 333 (Iowa 2001) (challenge to search not appropriate when no evidence seized is sought to be used against defendant). However, Doornink asserts this search tainted the evidence developed as a result of later contact between the officers and Doornink, therefore, we consider it.

The State claims error was not preserved on a probable cause challenge. We choose to address this issue on its merits, without considering the waiver issue.

A State's witness violated the limine ruling in his testimony, which is the subject of one of defendant's mistrial motions. This claim of error will be considered in division V. A, infra.

A. Probable cause. "The standard for probable cause is whether a person of reasonable prudence would believe a crime has been committed or that evidence of a crime might be located in the particular area to be searched." State v. Naujoks, 637 N.W.2d 101, 108 (Iowa 2001). In determining if probable cause exists, we consider all the circumstances including what the investigators hear, know and observe as trained officers. Gillespie, 619 N.W.2d at 351. We think the deputy's discovery of the broken vodka bottle near the rear wheel of the truck would lead a reasonable police officer to suspect there was alcohol involved in this collision, thus providing probable cause to further investigate the opened soft drink cans on the floor of the pickup.

B. Exigent circumstances. Although Doornink strongly disagrees, we think the trial court was correct in concluding no particularized showing of exigent circumstances is required in a warrantless motor vehicle search . Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442, 445 (1999) ("This finding [of probable cause] alone satisfies the automobile exception to the Fourth Amendment's warrant requirement, a conclusion correctly reached by the trial court when it denied respondent's motion to suppress. The holding of the Court of Appeals that the `automobile exception' requires a separate finding of exigency in addition to a finding of probable cause is squarely contrary to our holdings in Ross and Labron."); Wayne R. LaFave, Search and Seizure, § 7.2(b) at 476 (3rd ed. 1996) ("By contrast, if it appears that the car has only recently and suddenly become disabled (perhaps as a result of an accident while pursued by police), then it seems likely that the Carney doctrine is applicable. True, the car is not `readily mobile,' but its recent use as transportation establishes the `reduced expectation of privacy' which the language of Carney . . . makes the dominant consideration.").

Doornink has requested we disregard the well established rule that the Iowa and federal constitutions will be interpreted the same regarding Fourth Amendment issues, with one exception not applicable here, Gillespie, 619 N.W.2d at 349-50, and asks us to require distinct exigent circumstances in motor vehicle cases. We do not consider this appropriate.

However, to the extent exigent circumstances may be required, we think the fact the officers knew the driver of the vehicle was not in custody and therefore the contents of the truck, or the truck itself, might be removed by the driver or someone on his behalf, supplies that ingredient.

C. Original truck entry. The fact the deputy originally entered the truck prior to discovery of the vodka bottle does not taint the subsequent search of the truck cab and seizure of the two soft drink cans. No incriminating evidence was developed as a result of the original entry. Bergmann, 633 N.W.2d at 333 (illegal search does not taint later evidence when nothing discovered which prompted later search). Discovery of the vodka bottle provided independent probable cause to inspect the soft drink cans. See State v. Seager, 571 N.W.2d 204, 211 (Iowa 1997) (evidence obtained through "means independent of the illegal conduct" not excluded).

There was no error in connection with the search of the vehicle.

D. Evidence resulting from search. Doornink also claims his subsequent contact with the officers which led to incriminating statements and the intoxilyzer test, was a fruit of this illegal search and all should have been excluded. We have already determined the search was proper which answers this challenge. However, we note the same probable cause that justified the search of the truck made further contact with its driver necessary. The officers had every reason to go to Doornink's home as a part of their investigation in view of the discovery of the vodka bottle. Furthermore, there is no constitutional violation implicated in approaching a citizen and asking questions as part of an investigation. State v. Pickett, 573 N.W.2d 245, 247 (Iowa 1997). Indeed, the officers might well be considered derelict in their duty had they not done so as soon as possible in view of the transient nature of alcohol. See Kreps, 650 N.W.2d at 648.

We recognize one officer relied in part on the presence of alcohol in a soft drink can as reason for contacting Doornink. Without deciding whether that evidence should have been excluded, we note that the officer's actual motivation is not controlling, and, objectively, we determine there was sufficient probable cause without the challenged evidence. State v. Cline, 617 N.W.2d 277, 281 (Iowa 2000).

Finally, the sobriety tests and the intoxilyzer test were administered with Doornink's consent. The officers testified without contradiction to the free and voluntary nature of his consent. We do not understand that Doornink questions this. Consent, of course, is also one of the recognized exceptions to the warrant requirement of the Fourth Amendment. State v. Reinier, 628 N.W.2d 460, 467 (Iowa 2001).

It seems Doornink's primary complaint is that the deputy's original entry into the cab of his truck — made without probable cause — thereafter prohibits all actions of the State directed toward him. As we have explained, this is simply not the case.

IV. Admission of expert testimony.

Doornink urges us to find error in the admission of the testimony of Michael Rehberg. Rehberg testified as an expert and his opinion was that Doornink's blood alcohol level at the time of the collision was approximately .160. No challenge is made to Rehberg's qualifications as an expert in the area of blood alcohol. Rather, Doornink objects to the substance of his testimony. He claims there was no foundation for Rehberg's opinion and that it was not scientifically warranted.

Doornink's blood alcohol level at the time of the collision was highly controverted and the subject of considerable contradictory testimony in this trial. Dr. John Vasiliades, a well-qualified forensic toxicologist, testified there was insufficient factual information available to make a scientifically valid analysis of Doornink's blood alcohol level some three hours before the intoxilyzer test was administered. He testified at length as to how he arrived at that conclusion and why, in his judgment, any opinion which attempted to establish the blood alcohol level at the time of the collision would be flawed.

Conversely, Michael Rehberg, who has taught courses in forensic toxicology, testified there was sufficient information available to render a valid opinion on Doornink's blood alcohol level at the time of the collision, and he fully explained the rationale for his opinion. He acknowledged, however, that he could not be certain his reconstructed scenario of the fluctuation in Doornink's blood alcohol content was totally accurate

The district court properly concluded that Doornink's objections to Rehberg's opinion would only affect the weight it should be assigned, not its admissibility. This was a classic battle of experts. Each witness supported his position with reasonable explanations and interpretations based on the record evidence. Iowa is firmly committed to a liberal policy on the admission of expert testimony, and the trial court is afforded a great deal of discretion in determining its admissibility. Mensink v. American Grain Industries, 564 N.W.2d 376, 380 (Iowa 1997). We observe that a "lack of absolute certainty goes to the weight of the expert's testimony, not to its admissibility." Johnson v. Knoxville Cmty. School Dist. 570 N.W.2d 633, 637 (Iowa 1997). Likewise, an expert's incorrect assumptions affect the weight to be given the opinion rather than its admissibility. Olson v. Nieman's Ltd., 579 N.W.2d 299, 309 (Iowa 1998).

It is the jury's function to determine the weight to be given such testimony unless it so "impossible and absurd and self-contradictory that it should be deemed a nullity by the court." State v Smith, 508 N.W.2d 101, 102-03 (Iowa Ct.App. 1993). This is clearly not such a case. The court instructed the jury that, as with any testimony, they may accept the testimony of an expert or reject it, and that they should give it as much weight as they think it deserves. Iowa Crim. Jury Instructions 200.37 (1998).

Doornink requests we exercise our "gatekeeping function" and exclude Rehberg's testimony. To be admissible the opinion evidence must be "in the form of `scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue.' " Leaf. v. Goodyear Tire Rubber Co., 590 N.W.2d 525,533 (Iowa 1999) (quoting Iowa R. Evid. 702). We conclude the challenged testimony easily satisfies that criterion. We find no error in the admission of Rehberg's opinion testimony.

Iowa is not committed to the evidentiary "gatekeeping" rationale of Daubert v. Merrell Dow., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Leaf, 590 N.W.2d at 533.

V. Mistrial motions.

During the trial, Doornink made two motions for mistrial, both overruled by the trial court. We will consider each in turn.

A. Soft drink can alcohol evidence. Doornink's motion in limine seeking to prohibit testimony as to the alcohol content of the soft drink cans taken from the truck because it was obtained by using a preliminary breath testing device was granted by the trial court. However, deputy Knight said during his testimony that his investigation was based, not only on the broken bottle found under the truck, but also on finding "evidence of alcohol in some pop cans in the vehicle."

Doornink promptly moved for a mistrial, claiming the testimony violated his motion in limine. The trial court found its limine ruling had been breached, but that it was unintentional, and refused to grant a mistrial. The court then told the jury to completely disregard the statement, proceed as if the statement had never been made, and that it should not be considered in their deliberations in any way. The court also gave the jury a final instruction which told them testimony they had been told to disregard could not be considered as evidence.

Generally, where the trial court acts promptly to strike the improper testimony and advises the jury to disregard it, any prejudice to the defendant is avoided . State v. Veal, 564 N.W.2d 797, 809 (Iowa 1997). The testimony at issue was by no means the only evidence of Doornink's consumption of alcohol in the case. That he had an alcohol concentration level of .122 approximately three hours after the collision, with no intervening alcohol consumption, is essentially uncontroverted.

We conclude the court's prompt and unequivocal response to the deputy's testimony averted any necessity for a mistrial in this case.

B. Family medical expense testimony. During cross examination in response to defense counsel's question, Harold Shoemaker, the driver of the car struck by Doornink, testified he had retained a lawyer to pursue damage claims against Doornink. On redirect, he testified to the medical expenses incurred by family members involved in the collision. Defense counsel objected on relevancy grounds. The trial court ruled only the driver's medical expense was relevant, and struck the testimony regarding family medical expense. After the State rested, Doornink moved for a mistrial, claiming irreparable prejudice as a result of the testimony.

Initially, we note discussion of the issues potentially involved in the civil lawsuit was invited by Doornink by opening the subject of the lawsuit in cross-examination. Arguably, as pointed out by the county attorney, Shoemaker was only seeking to justify commencing the civil case by calling attention to the substantial damages incurred by his family. A party may retaliate with otherwise inadmissible evidence when the subject is initially broached by his opponent . State v. Williams, 427 N.W.2d 469, 472 (Iowa 1989) ("[W]hen one party introduces inadmissible evidence, with or without objection, the trial court has discretion to allow the adversary to offer otherwise inadmissible evidence on the same subject when it is fairly responsive."). However, we do agree with the trial court that the family medical expense was not relevant in this trial. Following Doornink's objection, the court sustained the objection for expenses other than for Shoemaker himself and advised the jury the testimony was not relevant and that it was stricken. We are satisfied this immediate response by the court, as in the limine violation discussed earlier, cured any potential prejudice.

Only Harold Shoemaker was claimed by the State to have sustained the "serious injury" which is an element of Iowa Code section 707.6A(4.

We have carefully reviewed all claims of error by the defendant. We are convinced all of the challenged actions of the trial court were appropriate.

AFFIRMED


Summaries of

State v. Doornink

Court of Appeals of Iowa
Dec 11, 2002
No. 2-797 / 01-1572 (Iowa Ct. App. Dec. 11, 2002)
Case details for

State v. Doornink

Case Details

Full title:STATE OF IOWA, Plaintiff-Appellee, v. KIT JAY DOORNINK, Defendant-Appellant

Court:Court of Appeals of Iowa

Date published: Dec 11, 2002

Citations

No. 2-797 / 01-1572 (Iowa Ct. App. Dec. 11, 2002)