Opinion
No. 2-811 / 01-1938
Filed November 15, 2002
Appeal from the Iowa District Court for Sioux County, JOHN D. ACKERMAN, Judge.
Appeal from conviction of operating a motor vehicle while intoxicated, third offense. AFFIRMED.
Jack Faith, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, and Mark J. Schouten, County Attorney, for appellee.
Considered by HABHAB, HARRIS, and SNELL, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
Defendant Gregory Noteboom assigns six errors in this appeal from his conviction, following a bench trial, of third offense operating a motor vehicle while under the influence. We affirm.
I. Noteboom was charged with two offenses. The first, which is not involved in the appeal, was for eluding a law enforcement vehicle in violation of Iowa Code section 321J.2 (1999). Overwhelming evidence supports this charge; it took officers driving three vehicles and an extensive foot chase to apprehend Noteboom. At that point, Noteboom was told he was under arrest for eluding; there was no mention then of the OWI charge. Results of a blood test, later administered, were admitted at trial. In his first assignment, Noteboom argues the results lacked a critical foundation requirement. He contends the State did not demonstrate compliance with the procedural requirements of Iowa Code section 321J.6 (implied consent law).
Section 321J.6(1) is the first and most common avenue for undertaking the test and rendering the results admissible. It requires the officer to place the person under lawful arrest for OWI, and it is important because an arrest for some other violation will not suffice. State v. Krebs, 562 N.W.2d 423, 426 (Iowa 1997). The trial court rejected Noteboom's challenge and admitted the test results, determining that he had been arrested on the OWI charge by the time the implied consent law was invoked.
We think the holding was correct. Noteboom was arrested for eluding at 2:20 a.m. When the officer filled out the implied consent form at 2:45, he asked Noteboom to submit to a breath test. The officer considered him to be under arrest for OWI at this time. Noteboom did too. A videotape shows Noteboom then inquired concerning the time of his arrest for purposes of the two-hour period within which an OWI chemical test must be offered. The officer responded he was writing 2:45 on the form. Noteboom understood he was in custody for OWI when the procedure was invoked. Substantial compliance with 321J.6 is sufficient if the underlying purposes of fairness are satisfied. State v. McCoy, 603 N.W.2d 629, 630 (Iowa 1999). There was substantial compliance here.
The holding is bolstered by the general rule that allows wider discretion in admitting evidence in a bench trial, rather than a jury trial. McCormick on Evidence § 60 (E. Cleary 3d ed 1984) (judge is expected to more readily set aside evidence that should not be considered). This rule is especially applicable here because Noteboom was charged with being under the influence, not the alternative of having a concentration of .10 or more which would directly implicate the breath test.
II. Noteboom's second challenge is to expert testimony admitted over his objection. This testimony extrapolated his alcoholic content back from the time the test was administered to the time he had been driving. This assignment could also implicate the rule allowing wider discretion in admitting questionable evidence in a bench trial. The rule need not be applied here, however, because this evidence was clearly admissible. We are committed to a liberal view in admitting expert testimony, and accord considerable deference to the trial court's discretion in the matter. State v. Atwood, 602 N.W.2d 775, 783 (Iowa 1999). More than two hours elapsed between the time Noteboom was operating the vehicle and the time of the test. The State's witness, an expert in forensic toxicology, was well qualified to render his opinion on Noteboom's alcoholic condition when he was driving. The testimony qualifies as admissible expert testimony under Iowa Rule of Evidence 5.402(2).
III. We have taken a long look at the third assignment in which Noteboom asserts he was denied his constitutional right to assistance of counsel. He says the trial court's comment had a chilling effect and discouraged counsel to the point of preventing a closing argument. Few things are more apt to draw appellate attention than a showing that a lawyer was prevented from fully presenting the contentions of a client. See United States v. King, 650 F.2d 534, 537 (4th Cir. 1981) (denial of Sixth Amendment right to counsel where judge announces that final argument would not affect ruling).
We reject the assignment because the trial court in this case cannot be said to have prevented Noteboom's counsel from making a final argument. At close of evidence the court announced:
I'm ready to rule if — unless you want to make some arguments.
THE PROSECUTOR: No. Not here, your honor.
DEFENSE COUNSEL: If it isn't going to change much, I would say no.
The court then announced its verdict of guilty on both counts.
The remark falls far short of a refusal to entertain closing arguments. A cynic might contend it comes to much the same thing, that the judge betrayed an expectation or preference that arguments would be waived. In view of the power a judge holds in determining the suit's outcome, a lawyer, it is suggested, would feel powerless to insist on proceeding with an unwelcome summation. To be sure, judges, even when frantically engaged with crushing caseloads, must be alert to the signals they send by casual comments. But we find nothing here to suggest counsel should have felt intimidated. At worst the comment betrayed an understanding or expectation the case would be submitted without arguments. But this is not controlling. Most competent judges with experience will recall being swayed by arguments they were not anxious to hear.
This record falls far short of suggesting Noteboom's counsel was prevented from arguing. The court did not even hint that arguments would be futile. There was no error.
IV. The record likewise fails to show a factual basis for the fourth assignment, an Article A charge the court based its verdict in part on evidence in another case. It is elementary that the court should not base a decision on matters not in the record in the case under submission. State v. Blanford, 306 N.W.2d 93, 98 (Iowa 1981). But here the court merely indicated it was familiar with an issue (alcoholic content and retrograde extrapolation) because the court had presided in a recent jury case in which the issue had been litigated. We take the comment to mean only that the court was familiar with the legal issue. It in no way indicated it would consider evidence offered in the prior case.
There was no error.
V. The fifth assignment challenges a discretionary ruling on other expert testimony. The assignment is rejected for the reasons we explained in division II. The sixth assignment challenges the overruling of a motion for a new trial. We have studied the assignment and find it without merit.