IN THE SUPREME COURT OF IOWA No. 111 / 06–0051
Filed July 18, 2008
STATE OF IOWA,
Appellee,
vs.
BRADLEY DALE SHIPLEY,
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.
The State seeks further review of the court of appeals’ decision, which
held the admission of the defendant’s certified driving record violated the
Confrontation Clause. DECISION OF COURT OF APPEALS VACATED;
DISTRICT COURT JUDGMENT AFFIRMED.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant
Attorney General, Patrick C. Jackson, County Attorney, and Heidi D.
Van Winkle and Tyron Rogers, Assistant County Attorneys, for appellant.
Richard A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for
appellee. 2 APPEL, Justice.
In this case, we are presented with an array of issues arising out of
the admission of a certified abstract of the defendant’s driving record, which
was created and maintained by the Iowa Department of Transportation
(IDOT). The challenged abstract showed that the defendant’s driving
privileges were revoked at the time of his arrest. The defendant maintains
that admission of the abstract was in error as the record failed to meet
statutory requirements for its admission and violated his rights to due process and confrontation. In addition, the defendant claims the admission
of a police officer’s testimony regarding his driving status at the time of
arrest was improper on hearsay grounds.
The district court convicted the defendant of the criminal offense of
driving under revocation. The court of appeals reversed the conviction on
Confrontation Clause grounds. For the reasons expressed below, the
decision of the court of appeals is vacated and the judgment of the district
court is affirmed.
I. Factual and Procedural History.
In December 2004 Kenneth Zahner, a Burlington police officer, observed a moving construction vehicle bearing a “Shipley Construction”
sign. The police officer further recognized the driver as the defendant
Bradley Dale Shipley, whom he believed did not have a valid driver’s license.
After confirming with dispatch that Shipley’s license had been revoked, the
police officer stopped the vehicle and asked Shipley about his driving
status. Shipley claimed to be driving under a valid work permit but could
not produce it. The officer again consulted with dispatch, and was informed
that Shipley’s work permit had expired six months earlier in June 2004.
The police officer then arrested Shipley for driving under revocation
contrary to Iowa Code section 321J.21 (2003). 3 Prior to trial, the State disclosed in its minutes of testimony that it
intended to call Terry L. Dillinger, the director of the Office of Driver’s
Services for the IDOT, as a witness to testify regarding information
contained in Shipley’s “certified driving record.” The State also disclosed in
the minutes an intention to offer Shipley’s “certified driving record” into
evidence. Shipley filed a timely motion in limine to exclude admission of his
driving record on several grounds.
First, Shipley argued that neither the trial information nor the minutes of testimony included a copy of the certified driving record or
indicated its contents. Shipley claimed that this lack of disclosure violated
the fair notice requirements of Iowa Rule of Criminal Procedure 2.5(3) and
thus should preclude the State from offering the record at trial. In the
alternative, Shipley argued the lack of notice of the contents of the certified
driving record violated his state and federal constitutional right to due
process.
Second, Shipley argued that although the certified driving record was
not available at the time of the motion, he anticipated that it would bear a
red-stamped endorsement without any human signature. As a result, Shipley claimed that admission of the document would violate the Iowa
Code and various rules of evidence.
Third, Shipley challenged admission of any testimony of the arresting
officer regarding the status of his license. Shipley argued that the arresting
officer did not have personal knowledge of the revocation, and as a result,
any testimony would be hearsay under Iowa Rule of Evidence
5.803(8)(B)(iii). The trial court overruled the motion in limine. Shipley
reasserted these objections at trial. 4 At trial, Shipley objected when the State offered into evidence a
certified abstract of his driving record. The two-page abstract contained the
following statement stamped upon both pages in red ink.
IN COMPLIANCE WITH SECTION 321A.3, (IOWA CODE) IT IS HEREBY CERTIFIED THAT THIS IS A TRUE AND CORRECT ABSTRACT OF THE OPERATING RECORD ON FILE IN THE DEPARTMENT OF TRANSPORTATION. IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND AND AFFIXED THE SEAL OF SAID DEPARTMENT AT DES MOINES, IOWA THIS DATE: DEC. 27 2004
The stamped signature of Terry L. Dillinger appears beneath the above
recitation with the words “OFFICE OF DRIVER SERVICES” below the
signature.
Shipley challenged the lack of a human signature and the use of a
seal on the document as violative of his Sixth Amendment right to
confrontation. The district court overruled the motion and the certified
abstract was admitted into evidence. After the close of evidence, the district
court found Shipley guilty of driving while his license was revoked.
Shipley filed a timely notice of appeal, and we transferred the case to
the court of appeals. The court of appeals reversed Shipley’s conviction. While the court rejected Shipley’s statutory challenges to the admission of
the driving record, it held that the record’s admission violated the
Confrontation Clause of the United States Constitution. We granted further
review.
II. Standard of Review.
We review de novo claims involving the Confrontation Clause. State v.
Bentley, 739 N.W.2d 296, 297 (Iowa 2007). On questions involving the
correct interpretation of state law, our review is for correction of errors at
law. State v. Carpenter, 616 N.W.2d 540, 542 (Iowa 2000). We review the 5 admission of claimed hearsay evidence for correction of errors at law. State
v. Musser, 721 N.W.2d 734, 751 (Iowa 2006).
III. Statutory and Procedural Challenges.
A. Fair Notice Under Iowa Rule of Criminal Procedure 2.5(3).
Iowa Rule of Criminal Procedure 2.5(3) provides that upon the filing of a
trial information, the State must also file minutes of evidence, listing the
names of all witnesses and a full and fair statement of the witnesses’
expected testimony. Iowa R. Crim. P. 2.5(3). The State listed Terry Dillinger as a witness to authenticate the “certified driving record” in the minutes of
testimony. Although listed as a prospective witness, Dillinger did not testify
at trial. Shipley asserts that by offering the certified abstract of his driving
record without Dillinger’s testimony, the evidence was “outside the minutes”
and should not have been admitted. Shipley further claims that by not
attaching a copy of the record, he did not have fair notice of its contents.
The State counters that the minutes of testimony advised Shipley that
it intended “to introduce into evidence at trial a copy of the Certified Driving
Record obtained from the Iowa Department of Transportation.” Further, a
police report attached to the minutes indicated that information received by Officer Zahner relayed that dispatch “ran Shipley’s driver’s license” and that
“it came back revoked” on June 21, 2004, for a period of two years for an
OWI test failure. The State thus contends that Shipley had both fair notice
of the contents of the certified abstract and that it intended to offer the
certified abstract into evidence.
We agree with the State. Shipley was explicitly placed on notice that
the State intended to offer his driving record into evidence at trial. Although
the State listed Dillinger as a witness to lay foundation for the record, the
State’s decision to offer a certified abstract of the operating record without a
witness to lay foundation does not violate Iowa Rule of Criminal Procedure 6 2.5(3). While it is true, as Shipley contends, that a witness may not testify
outside the content of the minutes, State v. Walker, 281 N.W.2d 612, 614
(Iowa 1979), rule 2.5(3) does not require the State to call a witness listed in
the trial minutes to offer testimony which the State later determines to be
unnecessary. State v. Castillo, 315 N.W.2d 63, 65 (Iowa 1982).
At trial, Shipley also challenged the adequacy of the minutes because
the minutes did not make clear whether the “certified driving record” would
be introduced pursuant to Iowa Code section 321.10 or section 321A.3. Iowa Code section 321.10 provides that the director of the IDOT or such
officers as may be designated may certify a copy of “any record of the
department.” Iowa Code § 321.10. Iowa Code section 321A.3(1) states that
the department may provide on request “a certified abstract of the operating
record of [any] person. . . .” Id. § 321A.3. Shipley claimed the notice in the
minutes that the State intended to introduce a “Certified Driving Record” is
not sufficient to alert Shipley that the State in fact intended to introduce
“an abstract of the operating record” prepared pursuant to Iowa Code
section 321A.3(1).
We reject Shipley’s argument. Shipley had notice that the State intended to offer into evidence a certified IDOT document reflecting his
driving record. While the document offered into evidence by the State is
more precisely described as “a certified abstract of the operating record” and
not a certified driving record, Shipley knew the certified IDOT document
would show a license revocation at the time of his arrest. The contents of
the certified abstract thus simply do not constitute “inadmissible surprise”
as contended by Shipley.
We further note that even if Shipley did not know the precise form of
the record or its contents, he could have obtained a certified abstract of his
own driving record from the IDOT pursuant to Iowa Code section 321A.3(1) 7 and been in a position to challenge the document offered by the State in the
event of any discrepancies or factual inaccuracies. Further, if notice were a
real issue, Shipley could have asked for a continuance. He did not. Under
the circumstances, we cannot find that the alleged lack of notice regarding
the precise form of the driving record violated Shipley’s due process right to
a fair trial. Cf. State v. Conner, 314 N.W.2d 427, 430 (Iowa 1982) (finding no
surprise or prejudice where the defendant was fully advised of the evidence
against him even if such evidence was outside of the minutes of testimony); State v. Delano, 161 N.W.2d 66, 69 (Iowa 1968) (finding no due process
violation for the admission of a presentence report where defendant’s
counsel either had been permitted to examine the report and defendant’s
confession or had been fully informed as to the contents of both writings
before sentencing).
B. Statutory Requirements for Admission of Driving Abstract.
Shipley raises a number of challenges to the admission of the abstract of his
operating record. Shipley claims the abstract must comply with all of the
certification prerequisites established in the first paragraph of Iowa Code
section 321.10. From this premise, Shipley asserts that under Iowa Code section 321.10, the State, in order to have a certified driving record
admitted into evidence, must show that the record was signed by an
authorized signator, that the signature was authentic and not a facsimile,
and that the abstract bears a proper seal.
The State contends that the abstract was certified under Iowa Code
section 321A.3(1) and admitted under the general requirements of the
second paragraph of section 321.10. As a result, according to the State,
even if the first paragraph of section 321.10 contains heightened
foundational requirements, they have no application to a record certified
pursuant to section 321A.3(1). The State argues that any abstract that 8 meets the certification requirements of section 321A.3(1) is then admissible
“in the same manner and with the same force and effect as if the director or
the director’s designee had testified in person.” Iowa Code § 321.10.
We agree with the State. Iowa Code section 321 is separate and
distinct from Iowa Code chapter 321A. State v. Sonderleiter, 251 Iowa 106,
109, 99 N.W.2d 393, 395 (1959).1 The document that was offered into
evidence was an abstract of Shipley’s operating record prepared pursuant to
Iowa Code section 321A.3(1). Indeed, the abstract itself declares in bold
face that it was prepared in compliance with section 321A.3. Therefore, the
requirements for certification are controlled by Iowa Code section 321A.3(1),
not section 321.10.
The term “certified” is not defined in Iowa Code section 321A.3(1), nor
are its requirements delineated. We hold, nevertheless, that a document
that appears to be an abstract of a driving record, bears the seal of the
IDOT, declares that it is a true and accurate copy of the underlying record,
and bears a facsimile signature of an officer of the department, all of which
have been affixed to the underlying record after the record has been printed
or made, amounts to a “certified” driving abstract under Iowa Code section
321A.3(1). See State v. Irving, 797 P.2d 1237, 1242–43 (Ariz. Ct. App. 1990)
(holding statute allowing introduction of certified records of motor vehicle
division supplements rules of evidence and allows admission of certified
record with facsimile signature if record shows sufficient human
involvement in certification); People v. Meadows, 861 N.E.2d 1171, 1174–75
(Ill. App. Ct. 2007) (holding preprinted signature and certification on a form
satisfy statutory “certification” requirement for admission of driving
abstract); State v. Barckley, 634 P.2d 1373, 1376–77 (Ore. Ct. App. 1981)
1Because of the distinction between chapter 321 and 321A and records certified thereunder, we reject Shipley’s contention that our interpretation of the certification requirements of section 321A.3(1) renders section 321.10 meaningless. 9 (holding where statute does not expressly require “pen and ink” original
signature for certification of driving record, preprinted signature of
certifying officer is sufficient).
Iowa Code section 321.10 provides that a certified driving abstract
prepared under Iowa Code section 321A.3(1) is admissible as if the director
or his designee had testified in person. As a result, the certified driving
abstract in this case was admissible without further foundation.
Shipley further contends the requirements of Iowa Rule of Evidence 5.902(1), (2), and (3) apply to the admission of the abstract. Specifically, he
argues the document must bear an original signature and a seal in order to
be self-authenticating or must be accompanied by an affidavit establishing
it is a true and accurate copy of the record. Iowa R. Evid. 5.902(2), (3).
Under Iowa Rule of Evidence 5.902(4), however, a statute may provide
for admission of documents without meeting the requirements of
subsections (1), (2), and (3). Iowa R. Evid. 5.902(4). Iowa Code section
321.10, which allows for the admission of records certified under Iowa Code
chapters 321 and 321A, is such a provision. It is clearly designed to allow
for the routine introduction into evidence of certified driving records with a minimum of foundational requirements. As a result, the requirements of
Iowa Rule of Evidence 5.902(1), (2), and (3) have no application to certified
abstracts prepared pursuant to Iowa Code section 321A.3(1).
C. Challenge to Driving Abstract and Officer Testimony on
Hearsay Grounds. Shipley challenges the admission of the abstract of his
driving record as containing inadmissible hearsay within hearsay as it does
not fall within the public records exception established by Iowa Rule of
Evidence 5.803(8).
We reject the contention that the driving abstract constitutes
inadmissible hearsay. The final unnumbered paragraph of Iowa Rule of 10 Evidence 5.803(8)(B) provides that the rule shall not supersede statutory
provisions regarding the admissibility of evidence. Iowa Code section
321.10 directs that certified copies of abstracts shall be admitted into
evidence with the same force and effect as if the director or his designee had
testified in person. Thus, the first layer of hearsay relating to the document
itself is resolved by statute. Iowa R. Evid. 5.802.
A second hearsay problem arises because the underlying abstract
contains hearsay information concerning Shipley’s prior license revocation. However, with respect to this hearsay issue, it is resolved by Iowa Rule of
Evidence 5.803(8)(A), which allows admission of hearsay contained in public
records setting forth its regularly conducted and reported activities, such as
revocation of driving privileges. Iowa R. Evid. 5.803(8)(A).
Shipley also contends that Officer Zahner’s testimony regarding the
information dispatch relayed concerning the status of his license
constitutes inadmissible hearsay. The State, however, argued that it was
not seeking to introduce this testimony for the truth of the matter asserted,
but only to explain why the officer acted as he did in arresting the
defendant. In State v. Reynolds, 250 N.W.2d 434, 440 (Iowa 1977), we held that a law enforcement officer was permitted to explain his or her actions
based on information received and its source. Based on Reynolds, we
conclude that Officer Zahner’s testimony was admissible for the limited
purpose for which it was offered.
IV. Confrontation Clause.
A. Introduction. Shipley claims the admission of the certified
abstract violates his right to confrontation established by the Sixth
Amendment to the United States Constitution and Article I, section 10 of
the Iowa Constitution. Shipley asserts the certified abstract may not be
admitted consistent with the confrontation clauses unless the custodian of 11 the driving records is available to be cross-examined. 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. In re Detention of
Garren, 620 N.W.2d 275, 280 n.1 (Iowa 2000).
Although the parties do not always clearly distinguish them, there are
two distinct confrontation issues lurking in the shadows of this case. The
first issue is whether the underlying public record—an abstract of Shipley’s driving record—may be admitted without a live witness testifying and being
subjected to cross-examination. For purposes of this question, the out-of-
court statement offered into evidence is that the records of the IDOT show
that Shipley was driving while revoked at the time of his arrest. The second
question is whether statements made by the custodian of records in
authenticating the underlying driving record may be admitted without the
custodian’s testimony. For purposes of this issue, the out-of-court
statement offered into evidence is the certification of the record’s
genuineness.
B. Recent Sixth Amendment Developments. The Confrontation Clause of the Sixth Amendment provides, “In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses
against him. . . .” U.S. Const. amend. VI.
In Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597
(1980), the Supreme Court considered the interplay between the
constitutional requirements of the Sixth Amendment and various common
law exceptions to the hearsay rule. Under the approach in Roberts,
evidence admitted pursuant to various hearsay exceptions did not violate
Confrontation Clause prohibitions as long as the evidence contained 12 sufficient “indicia of reliability.” Roberts, 448 U.S. at 66, 100 S. Ct. at 2539,
65 L. Ed. 2d at 608.
In the seminal case of Crawford v. Washington, 541 U.S. 36, 124
S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court
uprooted the established “indicia of reliability” test for admission of hearsay
statements challenged under the Confrontation Clause. After a detailed
historical exegesis of the purposes of the Confrontation Clause, the
Supreme Court noted that the “principal evil” at which the Confrontation Clause was directed was inquisitorial ex parte examinations by government
officials. Crawford, 541 U.S. at 50, 124 S. Ct. at 1363, 158 L. Ed. 2d at
192. According to the Supreme Court, admission of such statements does
not turn on notions of reliability. Id. at 51, 124 S. Ct. at 1364, 158 L. Ed.
2d at 192–93. Instead, the court held that such statements were
“testimonial” and could be admitted in subsequent proceedings only if the
declarant was unavailable and there had been a prior opportunity for cross-
examination. Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 198.
The Supreme Court in Crawford chose to “leave for another day” a
comprehensive definition of “testimonial.” Id. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. Nonetheless, the Court indicated that, at a minimum,
there were four types of evidence that met the definition of testimonial:
grand jury testimony, preliminary hearing testimony, former trial testimony,
and statements resulting from police interrogations. Id. These are the
types of evidence with the “closest kinship” to historical “abuses at which
the Confrontation Clause was directed.” Id.
In addition to these four categories of evidence, the Supreme Court
provided three “formulations” to aid courts in determining whether other
types of statements are testimonial. Id. at 51–52, 124 S. Ct. at 1364, 158
L. Ed. 2d at 193. The first formulation involved ex parte in-court testimony 13 or its functional equivalent where the declarant would reasonably expect
the statements to be used at trial and where the defendant was unable to
cross-examine the declarant. Id. The second formulation involved
formalized testimonial materials such as confessions and depositions. Id.
The third and most open-ended formulation included statements made
under circumstances that would lead witnesses to objectively believe the
statements might be used at trial. Id. See generally Kimberley McKelvey,
Note, State v. Carter: Rejecting Crawford v. Washington’s Third Formulation as Per Se Definition of Testimonial, 67 Mont. L. Rev. 121 (2006).
The Supreme Court also did not offer a comprehensive definition of
evidence that might be considered “nontestimonial.” The Supreme Court in
Crawford, however, stated that most of the common law exceptions to the
hearsay rule covered statements that “by their nature were not testimonial.”
Crawford, 541 U.S. at 56, 124 S. Ct. at 1367, 158 L. Ed. 2d at 195–96.
Further, the Supreme Court specifically distinguished testimonial
statements from “business records or statements in furtherance of a
conspiracy.” Id. Although the majority opinion did not specifically address
the issue, Chief Justice Rehnquist in a concurring opinion suggested that official records as well as business records fell outside the scope of the
Confrontation Clause. Id. at 76, 124 S. Ct. at 1378, 158 L. Ed. 2d at 208
(Rehnquist, C.J., concurring).
The Supreme Court built onto its new Sixth Amendment approach in
Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224
(2006). In Davis, the Supreme Court held that statements made in
response to an interrogation by a 911 operator could be considered
nontestimonial if viewed objectively since the primary purpose was to
respond to an emergency. Id. at 822, 126 S. Ct. at 2273, 165 L. Ed. 2d at
237. As noted in United States v. Ellis, 460 F.3d 920, 926 (7th Cir. 2006), 14 Davis implies that statements made in a 911 call may be nontestimonial
even though the caller might have had reason to know that the underlying
statements could be used in a criminal prosecution against the accused.
The Supreme Court in Davis appeared to minimize the scope of
Crawford by emphasizing that the limitation of the Sixth Amendment to
testimonial hearsay was “so clearly reflected in the text” that it “must . . .
mark out not merely [the] ‘core,’ but [the] perimeter” of constitutional
protection. Davis, 547 U.S. at 824, 126 S. Ct. at 2274, 165 L. Ed. 2d at 238. The Supreme Court also observed that only testimonial statements
which cause the declarant to be a “witness” fell within the meaning of the
Confrontation Clause. Id. at 876, 126 S. Ct. at 2276, 165 L. Ed. 2d at 240.
Davis further makes it clear that the Confrontation Clause does not apply to
“nontestimonial” evidence. Id. In light of Crawford and Davis, the fighting
Confrontation Clause issue with respect to admission of hearsay is whether
the underlying statements should be considered “testimonial” or
“nontestimonial.”
C. Application of Sixth Amendment to Admission of Underlying
Public Record. We now turn to the first Confrontation Clause issue in this case, namely, whether the admission of an abstract of Shipley’s driving
record violates the Sixth Amendment. The question of whether an
individual’s driving record is admissible without live testimony at trial has
been considered in several post-Crawford cases in other jurisdictions.
These cases have found that the information contained in a driving record is
not “testimonial” and, as a result, such information may be admitted
without violating the Sixth Amendment. See, e.g., Card v. State, 927 So. 2d
200, 203–04 (Fla. Dist. Ct. App. 2006); State v. Vonderharr, 733 N.W.2d
847, 852 (Minn. Ct. App. 2007); State v. Davis, 156 P.3d 93, 96 (Ore. Ct.
App. 2007); State v. Kronich, 128 P.3d 119, 123 (Wash. Ct. App. 2006). 15 In addition to cases involving driving records, a number of post-
Crawford courts have considered the admissibility of a wide variety of
governmental documents involving or related to forensic analysis or other
governmental acts. Specifically, courts have considered the admission of
certifications regarding the proper operation of breathalyzers, Bohsancurt v.
Eisenburg, 129 P.3d 471, 471 (Ariz. Ct. App. 2006); Neal v. State, 635
S.E.2d 864, 866 (Ga. Ct. App. 2006); Jarrell v. State, 852 N.E.2d 1022, 1027
(Ind. Ct. App. 2006); laboratory reports involving DNA or blood tests, Ellis, 460 F.3d at 927; State v. Caulfield, 722 N.W.2d 304, 310 (Minn. 2006); State
v. O’Maley, 932 A.2d 1, 13 (N.H. 2007); documents certifying that a notice of
suspension was served, People v. Pacer, 847 N.E.2d 1149, 1150 (N.Y. 2006);
records related to prior convictions, United States v. Weiland, 420 F.3d
1062, 1076 (9th Cir. 2005), cert. denied, 547 U.S. 1114, 126 S. Ct. 1911,
164 L. Ed. 2d 667 (2006); State v. King, 146 P.3d 1274, 1278 (Ariz. Ct. App.
2006); and autopsy reports, People v. Durio, 794 N.Y.S.2d 863, 867 (Sup.
Ct. 2005), abrogated by People v. Rawlins, 884 N.E.2d 1019, 1028 (N.Y.
2008).
In some of these post-Crawford cases, courts have taken a broad view that all public records which would generally qualify as “business records”
or “government records” are admissible. See State v. Dedman, 102 P.3d
628, 636 (N.M. 2004); Kronich, 128 P.3d at 123. Other courts, however,
have engaged in a more particularized analysis, focusing on the nature of
the information contained in the record and the purposes of Crawford. See,
e.g., Johnson v. State, 929 So. 2d 4, 7 (Fla. Dist. Ct. App. 2005); Rawlins,
884 N.E.2d at 1028–29. 16 On the narrow question before us,2 namely, whether the hearsay
information contained in an abstract of a driving record may be admitted
without violating the Confrontation Clause, we agree with the conclusion in
the majority of post-Crawford driving record cases that such information is
constitutionally admissible. Rather than rely solely on the characterization
of a document as a business or public record, we reach this decision by
engaging in a more particularized analysis that focuses on the function of
the right of cross-examination as discussed in Crawford.
In this case, Shipley’s driving record was created prior to the events
leading up to his criminal prosecution. As a result, Shipley’s driving record
would exist even if there had been no subsequent criminal prosecution.
King, 146 P.3d at 1280; Vonderharr, 733 N.W.2d at 852. The government
functionaries that entered the data establishing Shipley’s driving record
cannot be considered witnesses against him when no prosecution existed at
the time of data entry. King, 146 P.3d at 1280. They were simply
government workers with no axe to grind who performed their routine,
ministerial tasks in a nonadversarial setting pursuant to a statutory
mandate. See Iowa Code § 321.199(3); see also Musser, 721 N.W.2d at 750
(holding pre-crime HIV lab reports in possession of state officials pursuant
to statutory duty admissible).
2A number of cases have also considered whether a certification of the absence or nonexistence of a government record is nontestimonial and thus admissible without violating the Confrontation Clause. See, e.g., United States v. Cervantes-Flores, 421 F.3d 825, 832 (9th Cir. 2005) (holding INS certification of nonexistence of record nontestimonial); United States v. Rueda-Rivera, 396 F.3d 678, 680 (5th Cir. 2005); State v. Kirkpatrick, 161 P.3d 990, 995 (Wash. 2007) (holding certification of the absence of a driving record nontestimonial). Other cases address the admissibility of out-of-court statements that certain procedures have been followed in connection with a public record. People v. Capellan, 791 N.Y.S.2d 315, 317 (Crim. Ct. 2004) (holding proof of mailing of suspension order testimonial). Our task in this case is limited to the consideration of the admissibility of a copy of an existing driving record kept by the custodian of records, not a certification of the absence of a record or an attestation that certain procedures have been followed with respect to a record. 17 Shipley’s driving record was thus created under conditions far
removed from the inquisitorial investigative function—the primary evil that
Crawford was designed to avoid. Crawford, 541 U.S. at 50, 124 S. Ct. at
1363, 158 L. Ed. 2d at 192. We, therefore, hold that Shipley’s underlying
driving record is “nontestimonial” under Crawford and admissible without
the testimony of a live witness.
D. Applicability of Sixth Amendment to Authentication of Public
Record. The second Confrontation Clause question in this case is whether Crawford principles were violated when the district court allowed an out-of-
court certification of authenticity to establish the foundation for the
admission of Shipley’s driving record.
There is a paucity of authority on the precise issue of certifications of
authenticity with respect to state driving records. In Jasper v.
Commonwealth, 644 S.E.2d 406 (Va. Ct. App. 2007), a Virginia appellate
court curtsied to Crawford by recognizing that it would have been obvious
to a reasonable person making the certification that the driving record could
be used prosecutorially. Jasper, 644 S.E.2d at 409. The court, however,
found that the admission of the certificate of authenticity was not sufficiently related to the principal evil of Crawford to bar its admission and
was thus “nontestimonial.” Id. at 410. At least one federal appellate court
has held in a case involving government documents other than driving
records that certificates of authenticity may be admitted without live
testimony. See Weiland, 420 F.3d at 1062.
Some cases that are labeled as involving “authentication” or
“certification” actually involve forensic records that did not exist prior to the
criminal prosecution in question. For instance, in Caulfield, 722 N.W.2d at
310, the Minnesota Supreme Court determined that a “certification” of a
laboratory test for cocaine was “testimonial” and could not be admitted 18 without an opportunity to cross-examine the author. The Caulfield court
noted that the certified lab tests were prepared for litigation and were the
equivalent of testimony identifying the substance seized from the defendant.
Id.
A number of other courts have held that certifications or affidavits
that provide information based on laboratory reports specifically prepared
for criminal prosecution are testimonial under Crawford and must be
excluded without testimony from a live witness. See People v. Lonsby, 707 N.W.2d 610, 618 (Mich. Ct. App. 2005) (holding lab report testimonial);
People v. Rogers, 780 N.Y.S.2d 393, 397 (App. Div. 2004) (same). But see
Dedman, 102 P.3d at 635–36 (holding lab report nontestimonial); State v.
Cao, 626 S.E.2d 301, 305 (N.C. Ct. App. 2006) (holding lab reports
nontestimonial when based upon mechanical processes); State v. Crager,
879 N.E.2d 745, 753 (Ohio 2007) (same).
Like the cases involving forensic certifications, the challenged
certification in this case did not exist prior to a request made by the
prosecution to obtain Shipley’s driving record abstract. Further, a
reasonable person receiving the request from a public prosecutor would understand that the certification and the underlying record would likely be
offered in a criminal trial.
Nonetheless, we do not think these two factors are dispositive on the
Crawford issue in cases involving certification of the authenticity of driving
records. The purpose of the certification in this case is simply to confirm
that a copy of a record is a true and accurate copy of a document that exists
in a government data bank. The purpose of offering the certification is not
to avoid cross-examination or to advance an inquisition, but only to allow
the admission of an underlying record that was prepared in a 19 nonadversarial setting prior to the institution of the criminal proceeding.
Ellis, 460 F.3d at 927; Card, 927 So. 2d at 203; Jasper, 644 S.E.2d at 410.
Unlike in Caulfield and other “authentication” cases involving forensic
analysis after the commission of the alleged crime, the custodian of records
in this case is certifying the authenticity of a copy of a preexisting
document. In this setting, the custodian of records cannot be said to be an
adverse witness providing testimony against the accused in any meaningful
sense.
Moreover, the custodian of documents certifies driving records not
only to government prosecutors, but to others who request it. The content
of the certification is not in response to structured government
interrogation, but is imposed by law and was available on equal terms to
Shipley. See Iowa Code § 321A.3(1). The admission of certifications of
authenticity under these circumstances does not involve the government’s
use of what one commentator calls a “cloistered inquisitorial method[]” to
gain advantage in a criminal prosecution. Ariana J. Torchin, Note, A
Multidimensional Framework for the Analysis of Testimonial Hearsay under
Crawford v. Washington, 94 Geo. L. J. 581, 604 (2007).
We therefore conclude that a Confrontation Clause violation does not
occur when the prosecution offers an admissible driving record with a
certificate of authenticity made by the custodian of records in the routine
course of business.
V. Conclusion.
We hold that there was no statutory or procedural defect in Shipley’s
conviction in this case. We further hold that admission of the certified copy
of Shipley’s driving abstract did not violate his Sixth Amendment rights 20 under Crawford. As a result, the decision of the court of appeals in this
case is vacated and the judgment of the district court is affirmed.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT AFFIRMED.
All justices concur except Baker, J., who takes no part.