FEBRUARY 16, 2000

IOWA SUPREME COURT

State v. Hallum, 606 N.W.2d 351 (Iowa 2000) (2/16/2000) Confrontation -- forfeiture of right where defendant procures declarant’s absence. A defendant forfeits his confrontation rights as well as any hearsay objections by procuring the absence of the witness. The State is required to demonstrate such procurement by a preponderance of the evidence. It is not necessary that defendant’s procurement itself constitutes a crime (i.e. threats); instead, the analysis focuses on whether defendant’s conduct brought about the witness’s absence. (Defendant appealed the admission of a videotaped statement by his accomplice/ half-brother, Medina. Despite being given immunity, Medina refused to testify against defendant. Medina was found in contempt, and spent many months in jail. During this time, the evidence showed that defendant wrote Medina, telling him to "hang in there" and that his videotaped statement would not be admitted at trial so he should "calm down" and not discuss anything of importance over the phones. In addition, Medina wrote a letter to defendant begging him to take the State’s plea offer, reporting that Medina couldn’t handle it any more and implying that he was going to break down and testify. The Supreme Court agreed that the evidence demonstrated defendant’s procurement of Medina’s unavailability by encouraging and influencing him not to testify.)

State v. Lutgen, 606 N.W.2d 312 (Iowa 2000) (2/16/2000).  Sentencing for OWI 3rd – Community Service in Satisfaction of Fine acceptable under section 909.3A. Section 909.3A authorizes the court to sentence a defendant convicted of OWI 3rd to perform community service in satisfaction of the fine, of a value equivalent to the fine. The "community service" provision applicable only to OWI 1st offenses is different enough in wording and application as not to manifest a legislative intent that the more general section (909.3A) not apply to all fines, including those attending OWI 3rds.