Summary
affirming the defendant's conviction of making a false report for making telephone calls warning a foundry of an alleged bomb on the premises
Summary of this case from State v. AbbottOpinion
No. 5-957 / 05-0280
Filed March 1, 2006
Appeal from the Iowa District Court for Davis County, E. Richard Meadows Jr., Judge.
A defendant appeals from his convictions on two counts of making a false report. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Greta A. Truman, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, and Rick Lynch, County Attorney.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Aaron Colwell appeals from his convictions on two counts of making a false report, a class D felony in violation of Iowa Code section 712.7 (2003). We affirm.
I. Background Facts and Proceedings.
On March 11, 2004, the Bloomfield Foundry received two telephone calls warning foundry management of an alleged bomb on the premises. The employees were evacuated and authorities conducted a search of the foundry, which confirmed that the calls were false. Telephone records secured by the police showed that two calls originating from the same phone number were made to the foundry at the time of the bomb-threat calls. During the investigation, it was determined that the originating number was the home number of a foundry employee, Aaron Colwell. Colwell consistently denied making the calls, claiming that he was at a gas station about ten miles from his home around the time the calls were made. Colwell was charged with two counts of making a false report and found guilty following a jury trial in December 2004. He now appeals his convictions alleging ineffective assistance of counsel.
II. Issues on Appeal.
Colwell argues that he received ineffective assistance from his trial counsel for failing to object to testimony on and admission of exhibits concerning tracing records from the telephone companies as well as attendance records from his employer. We review ineffective-assistance-of-counsel claims de novo. State v. Straw, ___ N.W.2d ___ (Iowa 2006). To establish his claim of ineffective assistance of counsel, Colwell must demonstrate (1) his trial counsel failed to perform an essential duty, and (2) this failure resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, 693 (1984); State v. Dalton, 674 N.W.2d 111, 119 (Iowa 2004). Failure to demonstrate either element is fatal to a claim of ineffective assistance. State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003). Trial counsel has no duty to raise an issue that has no merit. State v. Rice, 543 N.W.2d 884, 888 (1999).
A. Telephone and Personnel Records.
The State sought to introduce two telephone records documenting calls between Colwell's residence and the foundry: State's Exhibit 1 from Citizen's Mutual Telephone Cooperative and State's Exhibit 2 from Iowa Telecom. Colwell first asserts that the telephone records were improperly-admitted hearsay under Iowa Rules of Evidence 5.801 and 5.802. Alternatively, Colwell argues the State did not lay adequate foundation to admit the evidence under the business records exception of Iowa Rule of Evidence 5.803(6).
Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Iowa R. Evid. 5.801( c). A "declarant" is defined as "a person who makes a statement." Iowa R. Evid. 5.801( b) (emphasis added). The evidence at trial shows that the computers which generated Exhibits 1 and 2 are programmed to automatically log and compile a record of calls made to or from a certain number. Jim Miller, general manager of Citizens' Mutual Telephone Cooperative, testified as to how the records were secured. The State does not dispute that it offered the telephone records to prove the truth of the matter asserted in them — that calls to the foundry at the time the bomb threats were made originated from Colwell's home phone. However, the State urges us to conclude the records are not hearsay because they were produced by a computer that automatically records the trace between numbers when calls are placed.
Because such records are not the counterpart of a statement by a human declarant, which should ideally be tested by cross-examination of that declarant, they should not be treated as hearsay, but rather their admissibility should be determined on the basis of the reliability and accuracy of the process involved.
2 John W. Strong et al, McCormick on Evidence § 294 (5th ed. 1999 Supp. 2003). We conclude that the computer-generated records tracing calls between certain phone numbers in this case are not hearsay, as they lack a human declarant required by our rules of evidence. Although Colwell does not challenge the reliability or accuracy of the records, we believe Miller's testimony at trial demonstrates both. Therefore, counsel had no duty to object to the admission of these exhibits.
See also People v. Holowko, 486 N.E.2d 877, 878-79 (Ill. 1985) (holding computer printouts of telephone trace reports is merely the tangible result of the computer's internal operations and not hearsay evidence); State v. Armstead, 432 So.2d 837, 839-840 (La. 1983) (holding computer generated telephone trace records are not hearsay as they are generated solely by the electrical and mechanical operations of the computer and telephone equipment and not simply computer-stored human statements or assertions); State v. Carter, 762 So.2d 662, 678-81 (La.Ct.App. 2000) (same); State v. Dunn, 7 S.W.3d 427, 430-32 (Mo.Ct.App. 1999) (citing McCormick and holding that computer generated records of telephone call trace reports are uniquely reliable and not hearsay); State v. Meeks, 867 S.W.2d 361, 374-76 (Tenn. 1993) (stating a printout of a telephone trace does not represent evidence of computer-stored human declarations other than the fact that a number exists).
Moreover, the business records exception allows the admission of records kept in the course of a regularly conducted business activity unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. Iowa R. Evid. 803(6). In order to be admissible under the exception, the records must be (1) made at or near the time of the act, (2) made by, or from information transmitted by, a person with knowledge, (3) kept in the course of regularly conducted business activity, and (4) the regular practice of that business activity was to make a record. Id. These requirements must be shown by "the testimony of the custodian or other qualified witness." Id. This exception should be construed liberally to allow introduction of such records. Graen's Mens Wear, Inc. v. Stille-Pierce Agency, 329 N.W.2d 295, 298 (Iowa 1983). Again, Colwell does not challenge the trustworthiness of these records but claims the records lack proper foundation.
The sponsoring witness for the telephone records, Jim Miller, who is general manager of Citizen's Mutual, laid the foundation for these records to qualify under the business records exception. He explained the identification numbering system used by the company to record the origin and destination of telephone calls and how the local company contracts with a business in Des Moines that does all of its recording. Miller also testified that calls are identified by a "carrier code" indicating which company, such as ATT, MCI, and Qwest, carried the call. With Colwell's number, Iowa Telecom contracts with Qwest to terminate their calls which necessitated gathering records from Iowa Telecom in this case. Miller stated that the process and form of the recorded calls is used for billing purposes for the benefit of the particular carrier, not the end user/customer. The records show two successive calls lasting about six seconds each placed from Colwell's home number to the foundry at 1:03 and 1:09 pm. We conclude the records were admissible under the business records exception to the hearsay rule, proper foundation was laid for the admission of these records and hence trial counsel did not have a duty to make a meritless objection.
Colwell also asserts his trial counsel should have objected to State's Exhibit 3, a personnel document from the foundry containing his phone number. The foundry's office manager, Virginia Wuthrich, testified that the document was produced from the company's computer system, which included Colwell's name, address, telephone number, social security number, birth date, hire date, and termination date. She testified that the personal information was provided by Colwell himself. We conclude that trial counsel had no duty to object to State's Exhibit 3 as it was a report kept in the regular course of business, admissible under Rule 5.803(6). B. Statements to Investigating Officer.
We conclude counsel was not required by the Confrontation Clause to object to the business records pursuant to Crawford v. Washington, 541 U.S. 36, 56, 124 S.Ct. 1354, 1367, 158 L.Ed.2d 177 (2004), as such evidence is non-testimonial and sponsoring witnesses were available for cross-examination.
Colwell next contends his trial counsel should have objected to statements by a foundry employee made to Bloomfield Police Chief Edward Anderson. During Anderson's testimony, he stated that once he obtained the names associated with incoming calls to the foundry during the relevant time, he asked Leroy Arndt, the plant manager at the foundry, whether any of the names looked familiar as employees. Anderson stated that Arndt indicated Colwell was employed by the foundry, leading him to approach and interview Colwell as a suspect. Colwell fails to demonstrate how the statements by Arndt prejudiced him, as he did not contest the fact that he worked for the foundry or the accuracy of his home phone number. Furthermore the evidence was not prejudicial as it was cumulative of other evidence, and Colwell does not challenge the other instances of this information in the trial record. State v. McKettrick, 480 N.W.2d 52, 60 (Iowa 1992). We conclude he has failed to demonstrate ineffective assistance and affirm on this issue.
C. Improper Character Evidence under Rule 5.404( b ).
Colwell lastly contends that evidence of his work habits and many absences was improper character evidence under Iowa Rule 5.404( b). Rule 5.404( b) seeks to exclude evidence that serves no purpose except to show the defendant is a bad person, from which the jury is likely to infer he or she committed the crime in question. State v. Castaneda, 621 N.W.2d 435, 439-40 (Iowa 2001). Accordingly, to be admissible, evidence must be "relevant to prove some fact or element in issue other than the defendant's [bad character]." Id. at 440 (quoting State v. Cott, 283 N.W.2d 324, 326 (Iowa 1979)). The State urges and we agree the evidence of Colwell's work attendance is directly relevant to his possible job dissatisfaction and motive to make the bomb-threat calls. Colwell had a spotty attendance record in his two weeks of employment before the calls, missing over fourteen hours of work. Although McNeeny testified Colwell was "discharged for excessive absenteeism — probation — during probation absenteeism," this and other similar testimony simply related his attendance record in the short period of time Colwell worked for the foundry. Any possible prejudice that the jury convicted Colwell on his work habits rather than evidence he committed the crimes was slight, when compared to the probative value regarding his possible motive. Compare State v. Shortridge, 589 N.W.2d 76, 83 (Iowa 1998) (holding evidence the defendant was a pimp and kept his prostitutes' fees was admissible to show motive and not unduly prejudicial). Trial counsel likewise had no duty to object to this evidence.
We conclude Colwell was not denied effective assistance of counsel and therefore affirm his convictions.