IN THE COURT OF APPEALS OF IOWA
No. 18-1564
Filed October 23, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MICHAEL JAMES SYKES,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Cheryl Traum (motion
in limine) and Christine Dalton (trial), District Associate Judges.
Michael Sykes appeals his conviction of assault causing bodily injury.
AFFIRMED.
John O. Moeller, Davenport, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., and Mullins and May, JJ.
2
MULLINS, Judge.
Michael Sykes was charged by trial information with child endangerment
and domestic abuse assault causing bodily injury. The minutes of evidence and
attachments alleged Sykes assaulted his girlfriend, K.M., in a hotel room while she
was holding the couple’s nine-month-old child. Sykes’s brother discovered K.M.
and called 911. Officer Matthew Stombaugh responded to the scene, and K.M.
made statements to him implicating Sykes, which were apparently captured by
Stombaugh’s squad car recording system. Prior to trial, Sykes filed a motion in
limine requesting that the court prohibit the presentation of evidence concerning
the caller’s statements during the 911 call and K.M.’s statements to Stombaugh;
Sykes argued the presentation of such evidence would violate his Sixth
Amendment right of confrontation.1 At a subsequent hearing, Sykes also noted
there might “also be a hearsay issue” but did not make any specific argument,
instead taking the position that the confrontation argument “resolves the issue
about the 911 tape.” The arguments at the hearing were limited to the 911
recording, as the parties agreed the State would not attempt to admit the recording
from Stombaugh’s squad car at trial. The court ultimately ruled that the statements
made in the 911 audio recording were nontestimonial in nature and were therefore
not barred by the Sixth Amendment.
The matter proceeded to a bench trial. The State called the dispatcher who
received the 911 call as a witness and offered a recording of the call as an exhibit.
Sykes objected on confrontation and hearsay grounds. The State stood by its
1
Neither K.M. nor the caller were to testify at trial.
3
earlier arguments as to confrontation. As to hearsay, the State argued the
evidence fell within several exceptions to the rule against hearsay. The court
conditionally admitted the recording, subject to its subsequent review of its
contents.
The State also called Stombaugh as a witness. He testified that, upon his
arrival at the hotel, he scanned the parking lot for a suspect, then proceeded to the
room in which K.M. was located. When he entered, he could smell blood and
alcohol, and he observed “blood pretty much all over the place in th[e] room”; some
of the blood was fresh and some of it was dried. K.M. was very emotional, and
Stombaugh observed her face to be extremely swollen, she had fresh cuts, and
blood was still dripping from a cut on her forehead. Sykes objected to Stombaugh
testifying as to any statements K.M. made to him on confrontation and hearsay
grounds. As to hearsay, the court ruled K.M.’s statements to Stombaugh
amounted to present-sense impressions and excited utterances and, therefore,
were not prohibited by the rule against hearsay. The court did not rule on the
confrontation objection. Stombaugh then testified K.M. advised him “her boyfriend,
Michael Sykes, beat her up.” On cross-examination, Stombaugh admitted the
purpose of his questioning of K.M. was for “making a report and later prosecution.”
Thereafter, defense counsel renewed his objection to Stombaugh’s testimony on
confrontation grounds. The court overruled the objection, noting the questioning
had several purposes, including “determining safety of other people and himself
and herself.”
Following the presentation of the State’s evidence, Sykes moved for
judgment of acquittal. The court reserved ruling pending its review of the 911 audio
4
recording. In its subsequent written order, the court implicitly ruled the 911 audio
recording was admissible. The court granted Sykes’s motion for judgment of
acquittal as to the child-endangerment charge but found Sykes guilty of the lesser-
included offense of assault causing bodily injury on count two. Following the
imposition of sentence, Sykes appealed.
On appeal, Sykes argues the court erred in its rulings on his confrontation
and hearsay challenges to the admissibility of the audio recording and
Stombaugh’s testimony concerning K.M.’s statements. Sykes also challenges the
sufficiency of the evidence supporting his conviction.
We begin with the argument concerning Sykes’s Sixth Amendment right of
confrontation as to the 911 call. We review claims of a confrontation violation de
novo. State v. Kennedy, 846 N.W.2d 517, 520 (Iowa 2014). “The Sixth
Amendment to the United States Constitution guarantees that, ‘in all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.’” State v. Schaer, 757 N.W.2d 630, 635 (Iowa 2008)
(ellipsis in original) (quoting U.S. Const. amend. IV). “[O]nly ‘testimonial
statements’ of the sort that ‘cause the declarant to be a “witness” within the
meaning of the Confrontation Clause’ are subject to the constraints of the
constitutional provision.” Id. (quoting Davis v. Washington, 547 U.S. 813, 822
(2006)). “If a hearsay statement made by a declarant who does not appear at trial
is testimonial, evidence of that statement is not admissible under the Confrontation
Clause unless the declarant is unavailable to testify at trial and the defendant had
a prior opportunity for cross-examination.” Id.
5
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.
Davis, 547 U.S. at 822.
Here, the 911 caller immediately reported his location and requested the
assistance of medics and police. The caller was frantic, and he indicated a current
effort to assist an injured individual. When the dispatcher asked what happened,
the caller reported he heard screaming coming from the hotel room and stated his
brother came out of the room, after which he found his brother’s girlfriend beaten
up. The dispatcher requested the location of the suspect, and the caller reported
he was in the parking lot. The dispatcher then requested information about the
suspect and whether he had weapons. The caller identified the suspect as Sykes
and stated he probably had weapons. The dispatcher asked for a physical
description, which the caller provided. The dispatcher directed the caller to lock
the door to the room in case Sykes returned. The dispatcher then transferred the
call to medical personnel, who asked what happened. The caller responded, “Mike
Sykes beat his girlfriend.” The caller passed the phone to another individual, who
reported a nurse was on the scene tending to the victim. The original caller got
back on the line, after which medical personnel requested information concerning
the victim’s injuries and status. Medical personnel then questioned the caller
regarding Sykes’s location for the purpose of ensuring “he is not around and being
violent when our paramedics get there.” Medical personnel then continued
6
questioning the caller regarding the victim’s condition and gave him instructions on
tending to the victim until help arrived.
Generally speaking, 911 calls do not amount to testimonial statements—“a
911 call is ordinarily designed primarily to describe current circumstances requiring
police [or medical] assistance.” Id. at 827. The question of testimoniality “is
whether, in light of all the circumstances, viewed objectively, the ‘primary purpose’
of the conversation was to ‘creat[e] an out-of-court substitute for trial testimony.’”
Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015) (alteration in original) (quoting
Michigan v. Bryant, 562 U.S. 344, 358 (2011)). Upon our de novo review, we
answer that question in the negative. We specifically agree with the district court
in its limine ruling that the conversations were aimed at eliciting “information from
the caller that would assist first responders as they arrived on scene,” “how the
victim sustained her injuries, the nature and extent of the victim’s injuries, the
security of the victim and scene, and the identity, location, and potential
dangerousness of the suspect.” We affirm the court’s conclusion “that the primary
purpose of the interrogation was to enable police and first responders to assist in
an ongoing emergency,” and the statements were therefore not barred by the Sixth
Amendment. See, e.g., State v. Walker, No. 18-0549, 2019 WL 476527, at *2
(Iowa Ct. App. Feb. 6, 2019) (finding no confrontation violation where primary
purpose of call was to seek immediate emergency help); State v. Williams, No. 16-
1815, 2017 WL 6033874, at *2 (Iowa Ct. App. Dec. 6, 2017) (finding no violation
where 911 call’s primary purpose “was to enable the police to meet an ongoing
emergency”); State v. Moore, No. 10-1283, 2012 WL 3194116, at * 2 (Iowa Ct.
App. Aug. 8, 2012) (“We conclude the district court correctly determined the
7
statements in the 911 call and those given to the responding emergency personnel
and police officer are nontestimonial. The statements were in the context of
seeking help for injuries and protection from Moore, not as part of a police
investigation.”).
The admissibility of the statements thus turns on our rules of evidence. See
Clark, 135 S. Ct. at 2180. On appeal, Sykes variously labels the statements made
in the 911 audio recording as inadmissible hearsay. We find his formulation of the
argument insufficient to facilitate our review. In any event, we find no legal error
in the district court’s conclusion that the statements made in the phone call are
excepted from the rule against hearsay as present-sense impressions and excited
utterances under Iowa Rule of Evidence 5.803(1) and (2). See In re Det. of Tripp,
915 N.W.2d 867, 873 (Iowa 2018) (noting appellate review of hearsay rulings is for
legal error). We affirm on that issue without further opinion. See Iowa Ct. R.
21.26(1)(a).
Given our conclusions as to the 911 recording, we find it unnecessary to
address whether the admission of evidence concerning K.M.’s statements to
Stombaugh was improper. The primary substance of both items of evidence—
namely that Sykes was K.M.’s attacker—was identical and cumulative, and we find
beyond a reasonable doubt that any error in admitting the evidence as in violation
of confrontation rights or as hearsay was harmless given the propriety of the court’s
rulings on the admissibility of the 911 recording. See State v. Elliott, 806 N.W.2d
660, 669 (Iowa 2011) (discussing nonconstitutional harmless-error analysis); State
v. Trudo, 253 N.W.2d 101, 107 (Iowa 1977) (discussing constitutional harmless-
error analysis).
8
Finally, Sykes vaguely challenges the sufficiency of the evidence underlying
his conviction. However, his argument is premised on his position that the
complained-of evidence should have been excluded. Having concluded the 911
recording was admissible and viewing the evidence in the light most favorable to
the State, see State v. Ortiz, 905 N.W.2d 174, 180 (Iowa 2017), we conclude the
State provided substantial evidence to support each element of the crime of which
Sykes was convicted. See State v. Wickes, 910 N.W.2d 554, 563 (Iowa 2018).
We affirm Sykes’s conviction.
AFFIRMED.