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Idaho Supreme Court: Telephonic Testimony Violated Defendant’s Sixth Amendment Right to Confrontation

by David M. Reutter

The Supreme Court of Idaho held that an expert’s telephonic testimony violated a defendant’s Sixth Amendment right to confrontation. The Court found the error was not harmless and remanded for further proceedings.

Tyler Clapp was stopped on July 6, 2018, after being observed “spinning cookies” in a parking lot in Boise. After the officers smelled alcohol and Clapp admitted to drinking, he refused a field sobriety test. He was then arrested. A warrant to draw Clapp’s blood for alcohol content was obtained. Nathan Wallin, a phlebotomist, drew Clapp’s blood and handed it over to the arresting officer, who packaged it for testing. The test revealed Clapp had a blood alcohol content of .152.

The State filed a two-count indictment charging Clapp with driving under the influence, alleging both an impairment and per se theory, and possessing an open container of beer while operating a motor vehicle.

Clapp filed a motion to suppress the blood test results, asserting his blood had been drawn in violation of Idaho Code § 18-8003(1) because the arresting officer, who was not a phlebotomist or otherwise qualified under the statute, was seen on body-camera video mixing the blood sample by turning the test tube upside down.

Under § 18-8003(1), “[O]nly a licensed physician, qualified medical technologist, registered nurse, phlebotomist trained in a licensed hospital or educational institution to withdraw blood can, at the order or request of a peace officer, withdraw blood for the purpose of determining the content of alcohol, drugs, or other intoxicating substances therein.”

The district court denied the motion to suppress as untimely and upon the merits. On November 9, 2018, the State amended the information to allege Clapp had been convicted of three prior felonies, which would subject him to a persistent violator sentencing enhancement if proven. A jury trial took place in June 2019.

When the State sought to introduce the blood-test results through John Garner, a forensic scientist employed by the Idaho State Police Forensic Services, Clapp objected, arguing that the blood-test results lacked a proper foundation. Wallin was out-of-state at the time of trial, so his boss was called to establish that Wallin was qualified under § 18-8003(1) to draw Clapp’s blood.

After the trial court stated it was unsatisfied that Wallin was “trained in a licensed hospital or educational institution to withdraw blood” as required by the statute, Wallin was contacted via telephone and allowed, over Clapp’s objection, to testify telephonically, which laid the foundation for the introduction of the blood-test results.

The jury found Clapp guilty of DUI. The State dismissed the open container charge when it rested its case. As the jury found Clapp was previously convicted of two DUI charges, he was subjected to enhanced punishment. The trial court sentenced Clapp to a “unified sentence of 15 years, with five years determinate.” Clapp appealed.

On appeal, Clapp argued that the decision to allow Wallin to testify telephonically violated his Sixth Amendment right to confront witnesses against him because Wallin was not “physically present” or “observable by the trier of fact.”

The Iowa Supreme Court noted that the confrontation Clause “[m]ust be interpreted in the context of the trial and the adversary process.” Maryland v. Craig, 497 U.S. 836, 850 (1990). While “face-to-face confrontation is not an absolute requirement, it may be abridged only where it’s “necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. Both of the requirements must be satisfied. Id.

The Court ruled that Clapp’s Sixth Amendment right to confront witnesses against him was violated by Wallin’s telephonic testimony. It stated that neither the trial court nor the State pointed to any important public policy consideration that necessitated the introduction of Wallin’s testimony via telephone. Consequently, its introduction failed to satisfy Craig’s requirement that the right to face-to-face confrontation may be “abridged only where there is a case-specific finding of necessity.” Craig.

Similarly, the State failed to satisfy the second Craig requirement, according to the Court. Unlike in Craig where the child witness was permitted to testify via two-way video, the judge, attorneys, and Clapp were all unable to view and assess Wallin’s demeanor while testifying by telephone. Thus, the Court determined that they were unable to satisfactorily assess the reliability of Wallin’s testimony.

The Court rejected the State’s argument that because Wallin’s testimony was about his own credentials rather than direct evidence of Clapp’s guilt or innocence his telephonic testimony was sufficiently reliable for Confrontation Clause purposes. The Court cited approvingly to a recent Montana Supreme Court case, State v. Mercier, 479 P.3d 967 (Mont. 2021), in which that court observed that “nowhere in the text of the Confrontation Clause is there language limiting the type of testimonial evidence to which the right to physical confrontation applies.”

Thus, the Court ruled that Clapp’s Sixth Amendment right to confrontation was violated by Wallin’s telephonic testimony.

The Court then turned its attention to whether Wallin’s telephonic testimony was harmless error. It determined that that the blood-test results were at issue, not just the foundation for their introduction into evidence. The State didn’t challenge Clapp’s assertion that the blood-test results were necessary for his conviction because the evidence supporting the “impairment theory” was likely insufficient to do so. Further, the State didn’t argue that it could still have proven the “per se theory” beyond a reasonable doubt without the blood-test results, the Court stated. The State has the burden of proving harmless error, but it has failed to show that Wallin’s testimony was not required to secure Clapp’s conviction. Thus, the Court ruled that the State failed to carry its burden that Wallin’s telephonic testimony was harmless error.

Accordingly, the Court vacated Clapp’s conviction and remanded the case for further proceedings consistent with its opinion. See: State v. Clapp, 2022 Ida. LEXIS 59 (Idaho 2022). 

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