Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Frank L. Racek, Judge.
Cherie L. Clark (argued) and Reid A. Brady (appeared), Fargo, N.D., for plaintiff and appellee.
Richard E. Edinger, Fargo, N.D., for defendant and appellant.
Dale V. Sandstrom, Lisa Fair McEvers, Daniel J. Crothers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by Sandstrom, Justice. VandeWalle, Chief Justice, concurring specially. McEvers, Justice, concurring specially.
Dale V. Sandstrom, Justice.
[¶1] Chad Guttormson appeals a district court judgment after a jury found him guilty of refusal to submit to an onsite screening test.() He argues his Sixth Amendment right of confrontation was violated because the arresting officer did not testify at trial and was not subject to cross-examination, and another officer was allowed to testify regarding the arresting officer's actions. Additionally, Guttormson argues there was insufficient evidence from which the jury could infer the arresting officer formed an opinion that Guttormson had committed a traffic violation or that his body contained alcohol. We affirm the judgment of the district court, concluding Guttormson's Sixth Amendment right of confrontation was not violated and sufficient evidence exists to support his conviction, but remand for the district court to correct the clerical error in the judgment.
[¶2] In July 2014, Guttormson was stopped by West Fargo Police Officer Jorge Gonzalez for an alleged traffic violation and was subsequently arrested and charged with driving under the influence and refusal to submit to an onsite screening test. Another West Fargo police officer, Ryan Birney, was sent to assist with the stop. At trial, Officer Gonzalez was not called to testify, but Officer Birney did testify as to what he personally saw and heard. Officer Birney testified he observed Guttormson displaying poor balance, swaying, having difficulty standing without support, and appearing intoxicated from alcohol. He testified he saw Officer Gonzalez retrieve his implied consent advisory form, recite the advisory, and request
an onsite screening test. Birney testified Guttormson refused to take the test, and Officer Gonzalez then placed him under arrest for DUI and refusal to submit to an onsite screening test. In addition to Officer Birney's testimony of his observations regarding the incident, the silent video from Officer Gonzalez's squad car was admitted into evidence. On the State's motion, the district court dismissed the DUI charge. The jury found Guttormson guilty of refusal to submit to an onsite screening test.
[¶3] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, § § 2 and 6, and N.D.C.C. § 29-28-06.
[¶4] Guttormson argues his Sixth Amendment right of confrontation was violated in two different ways, because the arresting officer, Officer Gonzalez, did not testify at trial. First, Guttormson argues the crime of refusal to submit to an onsite screening test requires the arresting officer to testify he formed an opinion that the defendant's body contained alcohol. He claims that failure to have the arresting officer do so, and to instead allow the jury to infer the officer's state of mind through circumstantial evidence, violates his Sixth Amendment right to confrontation. Second, Guttormson argues his right to confront his accuser was violated by the admission of the arresting officer's squad car video and a backup officer's testimony that he heard the arresting officer recite the implied consent advisory and ask Guttormson to take an onsite screening test.
[¶5] We apply a de novo standard in reviewing an alleged violation of a constitutional right. State v. Blue,2006 ND 134, ¶ 6, 717 N.W.2d 558. The Confrontation Clause of the Sixth Amendment to the United States Constitution states, " In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." In Crawford v. Washington, the United States Supreme Court held the Sixth Amendment prohibits the admission of testimonial hearsay against the accused unless the witness is unavailable to testify and the accused had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). To be " testimonial" the statement must fit into one of the core classes that the Court has defined as such. Id. at 51-52. To be " hearsay" the ...