State v. Wixom

599 N.W.2d 481, 1999 Iowa App. LEXIS 20, 1999 WL 595462
Court of Appeals of Iowa·Decided April 30, 1999·No. 97-2042·Published·Cited by 15 cases

Opinions

STREIT, J.

Michael Wixom appeals his convictions and sentences, following a jury trial, for three drug-related offenses. Because the State impermissibly impeached one of its own witnesses in order to offer otherwise inadmissible hearsay into evidence, we reverse.

I. Background Facts & Proceedings.

On October 8, 1996, Wixom’s residence was searched pursuant to a warrant. The police found drugs and drug paraphernalia. Wixom was charged with possession with intent to deliver cocaine, possession with intent to deliver marijuana, and possession with intent to deliver or manufacture amphetamine.

At trial, Wixom’s girlfriend, Gloria Genck, was called as a witness for the State. Genck was at Wixom’s home during the search and was later interviewed at the county jail, although the interview was not reported or taped. During her trial testimony, Genck denied making any statements incriminating Wixom. Genck had made similar denials at an earlier motion to suppress. The State attempted to impeach Genck by questioning officers about the subject matter of their discussions with her.1 According to the officers, Genck made statements implicating Wixom in the manufacture and sale of illegal drugs. Wixom objected, arguing the State’s true purpose in calling the officers was to offer inadmissible hearsay into evidence. The trial court overruled Wixom’s objection. The jury returned guilty verdicts on all counts. Wixom appeals.

II. Hearsay Violation.

Wixom contends the trial court erred by admitting inadmissible hearsay testimony under the guise of impeachment in violation of State v. Turecek, 456 N.W.2d 219 (Iowa 1990).2

[484] A. Standard of Review. We review hearsay rulings for errors at law. See State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998) (“In the case of hearsay rulings, our review is for correction of errors at law because admission of hearsay evidence is prejudicial to the non-offering party unless the contrary is shown.”); see also State v. Hallum, 585 N.W.2d 249, 254 (Iowa 1998). Although our supreme court used an abuse of discretion standard in State v. Rojas, 524 N.W.2d 659 (Iowa 1994), to review a potential Turecek violation, the court’s subsequent decision in Ross made clear all hearsay violations should be reviewed for errors at law. For this reason, we conclude all Turecek hearsay violations are reviewed for errors at law, and do so here.

B. Harmless Error. The question remains whether a harmless error analysis is available when reviewing a Turecek violation. We find automatic reversal for a Turecek violation would be imprudent as the degree of potential prejudice can vary greatly from case to case. Rather, we find a harmless error analysis appropriate review for Turecek violations. See State v. Sowder, 394 N.W.2d 368, 372-73 (Iowa 1986) (conducting a harmless error analysis before concluding that there had been reversible error for a hearsay violation).

In conducting a harmless error analysis, we first assess whether the error was of constitutional dimension. If it was, the State must show beyond a reasonable doubt the error did not result in prejudice. State v. Traywick, 468 N.W.2d 452, 455 (Iowa 1991); see also State v. Damme, 522 N.W.2d 321, 326 (Iowa App.1994) (“[wjhere there has been a violation of defendant’s fundamental rights under the United States Constitution, we can hold error harmless only when we can declare a belief it was harmless beyond a reasonable doubt.”).

If the error is not of constitutional dimension, affecting a fundamental right, we review the inadmissible statements weighed against the other evidence properly admitted to determine if admission of the statements impacted the jury’s verdict. See Rice, 543 N.W.2d at 887 (“Admission of hearsay alone is not a valid ground for reversal in cases where the State upholds its burden of proving the challenged evidence did not impact upon the jury’s verdict of guilty.”); see also State v. Barrett, 445 N.W.2d 749, 754 (Iowa 1989); State v. Nims, 357 N.W.2d 608, 609 (Iowa 1984). The test for harmless error in this circumstance is “whether it sufficiently appears that the rights of the complaining party have been injuriously affected or that the party has suffered a miscarriage of justice.” State v. Williams, 574 N.W.2d 293, 298 (Iowa 1998). To warrant reversal, an error must have prejudiced the defendant. Id. When evidence is merely cumulative, it cannot be said to injuriously affect the complaining party’s rights. Id.

Even when the error is not of constitutional magnitude, however, we must be mindful of the defendant’s right to a fair trial and just application of our rules.

C. Harmless Error Analysis of Turecek Violation in This Case. During the course of the trial, the court allowed officers to characterize Genck’s hearsay statements.3 The State called a police officer who testified Ms. Genck, another trial [485] witness, previously told him things that “implicated” the defendant in “criminal activity.” The officer was also allowed to characterize the subject matter of his discussions with Genck as being about “a methamphetamine recipe,” “the sales of drugs,” “the substances starter fluid and water,” and “a recipe for the cooking of amphetamine or methamphetamine.” Although counsel did not object to this as a violation of the bad-man rule,4 the testimony was clearly offered to prove the defendant’s guilt. The testimony was not impeachment, but plainly hearsay. It was error for the trial court to allow the State to impeach its own witness when it knew, prior to calling Genck, she was denying she made previous statements. See Turecek, 456 N.W.2d at 225.

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State v. Wixom, 599 N.W.2d 481, 1999 Iowa App. LEXIS 20, 1999 WL 595462 (iowactapp 1999).

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State v. Wixom
599 N.W.2d 481 (Court of Appeals of Iowa, 1999)