State of Iowa v. Brian M. Kennedy. Criminal law, evidence, certified driving records
On November 30, 2010, Brian M. Kennedy was driving a vehicle in Danville, Iowa. This would have been unremarkable except for the detail that Kennedy didn't have a driver's license. His license had been revoked not once, but three times, and had never been reinstated. A police officer who saw him driving was aware of the revocation, so made a traffic stop and gave Kennedy a ticket. Kennedy was charged in Des Moines County District Court with driving after revocation.
At trial, the State relied upon a fifteen page document entitled "Certified Abstract of Driving Record." This consisted of Kennedy's driving record, along with various certifications and copies of official notices.
Kennedy's attorney made a motion to exclude the exhibit, and argued that it violated the Confrontation Clauses of the U.S. and Iowa Constitutuions. The District Court, Judge Michael G. Dieterich, denied the motion and Kennedy was convicted. Kennedy then appealed, and the case ultimately made its way to the Iowa Supreme Court.
On the admissibility of the driving record itself, this issue had previously been decided by the Iowa Supreme Court in State v. Shipley, 757 N.W.2d 228 (Iowa 2008), which held that such a record was admissible. But Kennedy argued that Shipley was no longer controlling because of two recent U.S. Supreme Court decisions. Those cases were Melendez-Diaz v. Massachusetts, 557 U.S. 305 , and Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). Those cases held that certifications of forensic evidence were testimonial, and that certificates as to the identity of a substance as cocaine (Melendez-Diaz) or blood alcohol content (Bullcoming). But the Court held that those two cases were distinguishable, since they contained testimony as to forensic facts. In this case, the driving record already existed, and was available for public inspection by anyone. The mere certification of an existing record was not the same as the forensic reports in the other cases.
The final portion of the document was somewhat different, since it contained affidavits of mailing stating that the notices of revocation had been mailed to Kennedy. This issue had never been decided in Iowa, and the Court looked to a Michigan case, People v. Nunley, 821 N.W.2d 642 (Mich. 2012), cert. denied, 133 S. Ct. 667 (2012), in which similar evidence had been allowed. But in the Michigan case, the affidavit had been prepared before the prosecution, and was a business record, rather than something prepared for a particular case. In another case from Massachusetts, Commonwealth v. Parenteau, 948 N.E.2d 883 (Mass. 2011). In that case, the Massachusetts court had disallowed an affidavit prepared, like the one in this case, for the purpose of use at trial. Because the affidavits in this case had been prepared for trial as well, the Iowa high court followed the lead of Massachusetts and held that it was error to admit them.
Unfortunately for Mr. Kennedy, the Court did not stop its inquiry at that point. It then went on to consider whether the error was harmless. And in this case, the certified driving record already contained proof that the notices were mailed. In other words, the affidavits of mailing didn't really add anything to the case. Since the verdict could have been based on the admissible evidence, the Court held that the error in admitting the affidavits of mailing was harmless error.
No. 11-1685 (Iowa May 9, 2014).
Please see the original opinion for the court's exact language.
Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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