Opinion
No. 3-746 / 02-2097
Filed November 17, 2003
Appeal from the Iowa District Court for Scott County, Mark Smith, Judge.
Duy Quang Vuong appeals his convictions for possession with intent to deliver MDMA (Ecstasy) and failure to affix a drug tax stamp. REVERSED AND REMANDED FOR NEW TRIAL.
Harold Delange, Davenport, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, William Davis, County Attorney, and Robert Weinberg, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Duy Quang Vuong appeals his convictions for possession with intent to deliver MDMA (Ecstasy) and failure to affix a drug tax stamp. We reverse and remand for a new trial.
I. Background Facts and Proceedings. Davenport police received information from a confidential source that an Asian man named Andy would be driving a black Honda in the area of the Hy-Vee parking lot on West Kimberly Road. The source further told police that the Honda would have a dragon on the passenger's side of the vehicle and its occupant would be in possession of a large quantity of Ecstasy. The Davenport police, led by Officer Smull, responded by surveilling the Hy-Vee parking lot where they observed a black Honda matching the description given by the informant. They saw an Asian male exit the car, walk up to the entrance of another business located near Hy-Vee, talk on his cell phone, and get back in the Honda. He then drove out of the Hy-Vee parking lot.
Detective Roth, after being notified by Officer Smull, observed the same vehicle driving on West Kimberly Road and noted the vehicle had no rear license plate light. Roth stopped the vehicle and asked the driver to step out of the car. The driver, later identified as the defendant, Duy Quang Vuong, complied with the request, was patted down, and was placed in the backseat of Roth's squad car. Officer Smull arrived and began questioning Vuong, who seemed very nervous. Smull asked Vuong if he had anything illegal in the car. Vuong said no and offered to let police search the vehicle. They did. In their search, police discovered $4864 in cash in the glove compartment and 173 tablets of Ecstasy in a hidden compartment under the console.
Vuong is also known by the Americanized name of Andy.
Vuong was arrested and charged with possession with intent to deliver MDMA (Ecstasy) and failure to affix a drug tax stamp. At trial, Vuong's defense asserted he had no knowledge of the Ecstasy in his car. He offered evidence tending to prove the money found in the car was proceeds from his nail salon businesses. He further offered evidence that he frequently allowed friends and employees to drive his car and that the Ecstasy must have been left in his car by someone else.
Vuong's trial counsel filed a motion in limine seeking to exclude police testimony referring to the tip from the confidential source. In the written motion and at the hearing, Vuong's counsel argued that the statements by the unnamed source were inadmissible hearsay. After extensive discussion, the district court determined the State could offer testimony about the tip, but limited it to statements that a black Honda would be near the Hy-Vee parking lot and would be engaged in illegal activity. The court reasoned these details were necessary to explain the officers' responsive conduct, were not offered to prove the truth of the matter asserted, and thus were not hearsay. Vuong's attorney again voiced his objection after the court made its ruling.
During the trial, the State offered testimony, without further objection from Vuong's counsel, that a confidential source had told police that a black Honda with a dragon on the passenger side would be near the Hy-Vee parking lot and would be engaged in illegal activity.
Vuong was found guilty of both charges. He appeals, contending the district court erred in admitting the testimony of Officer Smull regarding the confidential tip. He contends the admission of this testimony not only violated the prohibition against hearsay, but it violated his constitutional right to confront witnesses against him.
II. Preservation of Error. The State contends Vuong has failed to preserve error on both claims raised in this appeal. The State points out that Vuong failed to raise the confrontation issue to the district court and failed to renew his hearsay objection during Officer Smull's testimony. While we agree with both these statements, we conclude that only one of Vuong's claims has not been preserved. Because he did not raise the confrontation issue to the district court, we conclude Vuong has failed to preserve error on the issue. State v. Mulrany, 600 N.W.2d 291, 293 (Iowa 1999). We therefore, will not address it.
However, we do not conclude Vuong's failure to renew his hearsay objection to Officer Smull's testimony precludes raising the claim on appeal. Our review of the hearing on Vuong's motion in limine leads us to conclude the district court's ruling was a final ruling, and therefore Vuong had no duty to raise the objection again during the trial. State v. Edgerly, 571 N.W.2d 25, 29 (Iowa Ct.App. 1997).
III. Scope and Standards of Review. Our review of hearsay rulings is for errors at law. State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998). The admission of hearsay evidence is assumed to be prejudicial to the defendant unless the State can prove the challenged evidence did not impact the jury's verdict of guilt. State v. Rice, 543 N.W.2d 884, 887 (Iowa 1996).
IV. Discussion. The State asserts that the testimony of Office Smull regarding the tip from the confidential source was not offered to prove the truth of the matter asserted, but rather to explain the police officers' responsive conduct in stopping Vuong's vehicle and inquiring about illegal activity. See State v. Reynolds, 250 N.W.2d 434, 440 (Iowa 1977), State v. Summage, 532 N.W.2d 485, 488 (Iowa Ct.App. 1995). Vuong contends that the specific details of the tip were not necessary to explain the officers' conduct. Our review of the record indicates that the police had a reason, independent of the confidential tip, to stop Vuong's vehicle-the burned out license plate light. This rationale for stopping Vuong's car and starting the chain of events leading to the discovery of the Ecstasy discredits the State's alleged non-hearsay purpose for offering the testimony. We conclude the only purpose served by the admission of the informant's statements was to prove the truth of the matter asserted. Thus, we conclude the statements constituted hearsay and should have been excluded.
We must determine next whether the admission of the hearsay prejudiced Vuong. The State has the burden of demonstrating the hearsay was not prejudicial. Rice, 543 N.W.2d at 887. Generally, the admission of hearsay is presumed prejudicial unless the contrary is affirmatively established. Summage, 532 N.W.2d at 485. The State contends that because the hearsay statements did not contradict Vuong's defense strategy, the admission of the statements was not prejudicial to him. The State points to the sheer bulk of evidence Vuong produced at trial to support his claim that he did not know the Ecstasy was in his possession and that several other people had the opportunity to hide the Ecstasy in his car without his knowledge. This, however, belies the State's contention that the admission of the hearsay evidence was harmless. It emphasizes the closeness of this case and renders more likely the possibility that the hearsay prejudiced the jury. We conclude the State has not affirmatively shown the hearsay evidence was not prejudicial. Accordingly we reverse and remand for a new trial.