11 COURT: Mr. Correll?

12 MR. CORRELL: Thank you, Your Honor. Call

13 Mr. Berry. Would you go up, and Judge Geer will swear

14 you in.

15 MICHAEL BERRY,

16 called as a witness on behalf of the defendant, being

17 first duly sworn by the court, was examined and testified

18 as follows:

19 COURT: Mr. Correll.

20 DIRECT EXAMINATION

21 BY MR. CORRELL:

22 Q. Will you state your name, please.

23 A. Michael Berry.

24 Q. Will you spell your last name.

25 A. B-E-R-R-Y.

803

1 Q. And by whom are you employed?

2 A. The city of Cedar Falls, Public Safety,

3 Police Division as records unit supervisor and computer

4 system manager.

5 Q. Prior to your present position, have you been

6 employed directly as a Cedar Falls police officer?

7 A. Yes.

8 Q. For how many years?

9 A. Almost 30 years.

10 Q. And for how long have you been in your

11 present position?

12 A. Three and a half years.

13 Q. And what are the -- your job responsibilities

14 in your present position?

15 A. I oversee all computer entries, take care of

16 the computer system, run searches, analyze records,

17 things like that.

18 Q. Were you asked to do any computer research

19 relative to an automobile accident that took place on

20 Highway 58 and Greenhill Road on October 4, 1996?

21 A. I was -- was asked to do a computer search

22 for all -- all accidents that took place at the

23 intersection of Highway 58 and Greenhill Road. That was

24 on the morning of October 8th, 1996.

25 Q. And who were you asked to do that by?

804

1 A. Cedar Falls police chief, Michael Reifsteck.

2 Q. And would you indicate, first of all, how --

3 what -- what were you asked to do in that search?

4 A. To --

5 MR. WADDING: Well, I'm going to object, Your

6 Honor. I don't think it's relevant. I think it's also

7 calling for hearsay as well.

8 COURT: I don't view it as being offered for

9 the truth, it's simply describing what his task was.

10 I'll allow it for that purpose.

11 A. I was asked to do a search for -- a computer

12 search for any accidents that took place at that

13 intersection basically from January 1st, 1994, through

14 the time of -- of the accident on October 4th, 1996.

15 Q. And as part of the Cedar Falls Police

16 Department record keeping process, do you keep records on

17 not just that intersection but other intersections or

18 streets to determine how many vehicular accidents occur

19 at a given place during a certain time period?

20 A. All -- all accident reports or all accidents

21 that a report is made on are entered into the computer

22 system. We can -- we can do a search of any

23 intersection, any hundred block of a particular street or

24 anything like that.

25 Q. So, for instance, if you wanted to find

805

1 the -- if there had been any reported accidents at the

2 intersection of Sunnyside and Round Street, would you

3 base -- how would you go about that?

4 A. Through the search, you put in the

5 intersections you want, date parameters, starting date

6 and finishing date or ending date, and if you want just

7 accidents, then there are -- there are codes in the -- in

8 a code table for each particular type of accident. You

9 put the code table parameters in that you want, and that

10 eliminates any other -- any other calls that there might

11 be such as vandalism, things of that nature at that

12 particular spot -- location.

13 Q. Okay. With regard to this search, what

14 were -- what were the computer programming did you do --

15 to get what kind of information?

16 A. I put in the date parameters, the

17 intersection Highway 58 and Greenhill Road, and from the

18 code tables I put in the codes for -- for any type of

19 accident out there, which starts at zero 5600 and goes

20 through zero 5899, which covers any -- any type of

21 accident, whether it's property damage, personal injury,

22 fatality, whether it's an animal involved.

23 Q. On that is there any -- on that search, is

24 there any limitation as to how much property damage has

25 to be reported before it would have shown up on that

806

1 search that you ran?

2 A. There -- there are reports made on property

3 damage, anything over $500.00, and that would be combined

4 between both vehicles. If both vehicles had $250.00

5 damage to them, then it would be a reportable accident

6 and a report would be made on it. Anything under 500 a

7 report is not required.

8 Q. Okay. So to make sure I understand this, is

9 what you did, a computer record check to determine the

10 accidents that occurred at the intersection of Greenhill

11 Road and South Main between January 1, 1994, and

12 October 4, 1996, that had at least $500.00 in property

13 damage combined?

14 A. Yes. But you stated South Main. It was

15 Greenhill and Highway 58.

16 Q. Thank you. With that correction, do I

17 understand what your investigation was?

18 A. Yes.

19 Q. And that was an investigation that was

20 requested for you to do by the Cedar Falls chief of

21 police, was it not?

22 A. Yes.

23 Q. Were you able to proceed and accomplish that

24 task or responsibility given you to by Mr. Reifsteck?

25 A. Yes, I was.

807

1 Q. With regard to that, did you -- were you able

2 to determine from the period of time, January 1, 1994,

3 until October 4, 1996, how many vehicular accidents were

4 there at the Greenhill and Highway 58 intersection?

5 A. Reportable accidents at that --

6 MR. WADDING: I'm going to object, Your

7 Honor. I believe that that does call for a yes or no

8 response. Anticipating that Mr. Berry is going to

9 provide some kind of number, I believe that it's

10 irrelevant, first of all, and it calls for hearsay.

11 COURT: Were you able to do that?

12 WITNESS: Yes, sir.

13 COURT: Mr. Correll?

14 Q. And was this a computer search as opposed to

15 a manual search?

16 A. This was a computer search.

17 Q. Where you punch in certain codes, and it

18 prints out then the numbers and the dates and the type of

19 case; is that correct?

20 A. Basically, yes.

21 Q. Okay. And what was that number during that

22 time frame, sir?

23 MR. WADDING: I'm going to object, Your

24 Honor.

25 COURT: Go ahead, Mr. Wadding.

808

1 MR. WADDING: Thank you. I'm going to

2 object. It's irrelevant. It calls for hearsay, and it's

3 immaterial to the issues in this case.

4 COURT: Well, I consider it marginally

5 relevant at this point, but I'll allow it. You may

6 answer.

7 A. My computer search that I conducted came up

8 with 21 accidents at that particular location.

9 Q. Okay. And all 21 of those would have $500.00

10 or more, correct?

11 A. Yes, sir.

12 Q. And if there was no -- there was less than

13 500 or no report, obviously those wouldn't make it into

14 your computer?

15 A. That's correct.

16 Q. Obviously the computer wouldn't have any way

17 to pull out misses, near misses, that such of thing?

18 A. No.

19 Q. With regard to those 21, how many of those 21

20 is there an indication of -- that alcohol was involved in

21 any of those 21?

22 MR. WADDING: Again, Your Honor, I'm going to

23 object. It calls for hearsay. It's irrelevant,

24 immaterial.

25 COURT: I'm unsure as to how reliable that

809

1 information would be. Perhaps, Mr. Correll, if you could

2 lay some more foundation concerning what -- what goes

3 into the computer records and how that would be

4 determined on how that's reported.

5 MR. CORRELL: Sure. Thank you, Your Honor.

6 Q. With regard to the -- after you ran the

7 computer, does that give you a reference to actually a

8 specific case report?

9 A. Yes, it does.

10 Q. And so from that are you then able to pull

11 the Iowa Department of Transportation investigating

12 officer's report of motor vehicle accidents?

13 A. Yes.

14 Q. And did you do that in relationship to the 21

15 incidents that you found in your computer?

16 A. Yes, sir, I did.

17 Q. And out of the 21 incidents that you found in

18 your computer, did you, in fact, then go review those,

19 each one of those individual documents?

20 A. Yes.

21 Q. And did you then break down into categories

22 of those 21 as to how many of those would have been --

23 have violations where there was a violation attributed to

24 the accident?

25 A. What Chief Reifsteck wanted was how many

810

1 accidents were there and the contributing cause of the

2 accident.

3 Q. Okay. And when you ran this check, were you

4 able then to confirm that by actually looking at the

5 document that was utilized to plug into the computer to

6 start with?

7 A. Yes, I was.

8 Q. And based on that research, how many of those

9 21 accidents does -- is there an indication that alcohol

10 was involved?

11 MR. WADDING: I'm going to object, Your

12 Honor, as to hearsay, relevance, and it's immaterial to

13 the issues in this case.

14 COURT: I'm assuming that you are offering

15 that for the truth, Mr. Correll?

16 MR. CORRELL: For the truth of the record,

17 yes.

18 COURT: And which exception do you maintain

19 you fall under for that?

20 MR. CORRELL: I believe that this is the

21 equivalent of a business record that is kept on a

22 computer by the Cedar Falls Police Department. It goes

23 to the weight of the testimony of -- if at all that is

24 maintained by this man. He's the custodian of the

25 records, and as part of the investigation initiated by

811

1 the police department, it is a business record.

2 MR. WADDING: May I respond, Your Honor?

3 COURT: Go ahead.

4 MR. WADDING: I believe that my response to

5 that is that this is not a business record, Your Honor,

6 that it is more in the form of a public record as the

7 Cedar Falls Police Department is a public entity and

8 falls under the Rule 803(8) in that the reports that this

9 witness is making reference to are investigative reports

10 and therefor do not qualify under that exception. And

11 the state does not -- would assert that there is no

12 exception that applies to this witness' testimony with

13 regard to those records.

14 COURT: I'm going to reserve ruling on it.

15 I'll allow you to lay any foundation you want to lay in

16 this regard, Mr. Correll. I'm going to allow the

17 testimony, and when we take a break at noon, I'll have a

18 chance to review it thoroughly and make a ruling after

19 that.

20 MR. CORRELL: Okay.

21 COURT: You may answer the question.

22 MR. CORRELL: Thank you.

23 A. Just the one accident indicated any --

24 indicated that an OWI test was asked for.

25 Q. Okay. And is that one out of 21?

812

1 A. Yes, sir.

2 Q. And by making reference to the memorandum, is

3 your memorandum that you prepared for the police chief,

4 is that available to you at this time?

5 A. Yes.

6 Q. And do you have, in fact, have it in front of

7 you?

8 A. Yes.

9 Q. And for the year 1996, from January 1, 1996,

10 through October 4, would you count how many and tell this

11 court how many motor vehicle accidents were -- took place

12 that had over $500.00 of property damage at Highway 58

13 and Greenhill Road?

14 A. Eleven accidents.

15 Q. Eleven accidents in slightly more than nine

16 months?

17 A. Yes.

18 Q. And was there, in fact, an accident the day

19 before as reflected in those records?

20 A. Yes.

21 Q. Thank you.

22 MR. CORRELL: That's all I have, Your Honor.

23 COURT: Mr. Wadding?

24

25

813

1 CROSS-EXAMINATION

2 BY MR. WADDING:

3 Q. Mr. Berry, do you have --

4 MR. WADDING: May I approach, Your Honor?

5 COURT: You may.

6 Q. Do you have the compiled works that you've

7 been testifying to with you?

8 A. Uh-huh.

9 Q. Okay. And this --

10 MR. WADDING: I'll mark that as State's

11 Exhibit "R", marked for identification. (Complied.)

12 Q. And is that what you brought today in

13 preparation for your testimony?

14 A. Yes, sir.

15 Q. Is that a compilation of the accident reports

16 that you were called upon to compile at that intersection

17 of Highway 58 and Greenhill Road for the periods of time

18 as you described?

19 A. Yes, sir.

20 Q. And does that include also the summary as

21 you've described to Mr. Correll of those accidents

22 occurring at that intersection?

23 A. Yes.

24 MR. WADDING: At this time, Your Honor, I

25 would ask that State's Exhibit "R" be entered into

814

1 evidence.

2 MR. CORRELL: We'd have no objection.

3 MR. WADDING: Subject obviously --

4 COURT: Do you waive your -- the objection

5 that you just raised then concerning this --

6 MR. WADDING: Your Honor, I have not waived

7 that objection. I'm simply -- if the court is going to

8 rule against the state, I'm simply going to make sure

9 that the court is aware of all that -- all the records on

10 it.

11 COURT: Do you want to wait until you get my

12 ruling before you offer it? If I accept it now, it's in.

13 MR. WADDING: Then I will wait before I offer

14 it. I don't know if the court's going to require me to

15 bring Mr. Berry back or not, but it doesn't sound like

16 Mr. Correll is going to object, but it's my -- I think if

17 the court's going to reserve ruling on it with reference

18 to my objection on the hearsay, then I think that I'm

19 going to want to combat -- I think I'm going to want to

20 make sure that my points are made with reference to these

21 records as well.

22 COURT: Do you want to offer it at this time

23 or not?

24 MR. WADDING: I will reserve offering it

25 until the ruling is made, Your Honor.

815

1 COURT: All right.

2 MR. WADDING: May I approach, Your Honor?

3 COURT: You may.

4 CONTINUED CROSS-EXAMINATION

5 BY MR. WADDING:

6 Q. I'm going to show you what's been marked as

7 State's Exhibit "S", marked for identification. I'm

8 going to ask if you recognize that?

9 A. Yes.

10 Q. What do you recognize that as?

11 A. That's part of an accident report sheet that

12 have different codes on it -- that the accident reports

13 are marked with.

14 Q. Now, the accident reports on them have these

15 little code sections that you put in numbers on

16 describing like the road conditions and things like that,

17 right?

18 A. Yes.

19 Q. And use this State's Exhibit "X", marked --

20 "S", marked for identification, as the key; is that fair

21 to say?

22 A. Correct.

23 Q. Okay. And now, when Mr. Correll speaks of

24 the accident as described as alcohol being involved in,

25 that's this accident; is that correct?

816

1 A. Yes.

2 Q. That was where an OWI test was requested, and

3 you read that in the narrative?

4 A. Yes, that's correct.

5 Q. And there was also a code section in that as

6 well, right, when it talks about circumstances, on the

7 accident report itself?

8 A. Uh-huh.

9 Q. Is that correct?

10 A. Yes.

11 Q. And it describes vehicle one and vehicle two,

12 and who would vehicle one be?

13 A. Vehicle one would be Rokes, and vehicle two

14 would be Farrell.

15 Q. Juli Farrell, right? And it says under

16 circumstances, it says, "Contributing --" excuse me. It

17 says, "Driver's condition;" is that correct?

18 A. Uh-huh.

19 Q. And it has coded in under vehicle one, which

20 would be the Rokes vehicle, as zero-nine; is that

21 correct?

22 A. That's correct.

23 Q. And on the code -- let's see now, on this

24 State's Exhibit --

25 MR. CORRELL: Excuse me, Your Honor. If he's

817

1 going to refer to the exhibit any further other than

2 identification, he should offer the exhibit.

3 COURT: Sustained.

4 Q. Let me ask -- do you know what zero-nine

5 means?

6 MR. CORRELL: Well, excuse me --

7 COURT: Sustained.

8 MR. WADDING: I'll offer the exhibit, Your

9 Honor, offer "R" and "S".

10 COURT: Any objection, Mr. Correll?

11 MR. CORRELL: Let me see "R" and "S".

12 MR. WADDING: You have "R".

13 MR. CORRELL: Well -- I don't have "S".

14 (At which time Mr. Correll was handed the

15 exhibit by Mr. Wadding.)

16 MR. CORRELL: Your Honor, we would object to

17 "S" for the purposes, there is an effort to -- unless he

18 acknowledges that there is no effort that he's offering

19 them for the proof -- or the truth of the content, the

20 substantive contents, and there -- that would obviously

21 contain hearsay.

22 COURT: What is "S"?

23 MR. CORRELL: Excuse me.

24 (At which time Mr. Correll handed the exhibit

25 to the court.)

818

1 MR. CORRELL: We would further object on the

2 ground of relevancy for Exhibit "S".

3 COURT: Do you have any objection to "R"?

4 MR. CORRELL: "R" is the totality of the

5 reports?

6 COURT: That's the compilation of the

7 accident reports. That's how it's been described to me

8 anyway.

9 MR. CORRELL: We have no objection to "R".

10 COURT: Okay. "R" is admitted, and if I may

11 ask the witness a question regarding "S"?

12 MR. WADDING: Sure.

13 COURT: Mr. Correll? Does "S" explain the

14 abbreviations that are referred to in the reports

15 contained in "R"?

16 WITNESS: This is the key for filling in

17 this -- the smaller blanks down here.

18 COURT: And "S" is admitted.

19 MR. WADDING: May I approach, Your Honor?

20 COURT: You may.

21 CONTINUED CROSS-EXAMINATION

22 BY MR. WADDING:

23 Q. Now, with reference to the driver condition

24 area that I was questioning you before, what does State's

25 Exhibit "S" indicate would be the driver's condition?

819

1 MR. CORRELL: Excuse me, Your Honor. I'm

2 going to object to that if it is being offered for the

3 truth of the allegation because it contains hearsay.

4 MR. WADDING: Just interpreting the report,

5 Your Honor.

6 COURT: You're asking what the report says?

7 MR. WADDING: Just what the -- what the

8 abbreviations in the report would indicate.

9 COURT: You can describe what the report

10 says. Go ahead. You may answer.

11 A. Under driver condition zero-nine, which is

12 marked on the accident report, indicates from the key

13 drinking or basically ability impaired.

14 Q. Okay. Says, "drinking, impaired," right?

15 A. Yes.

16 Q. And that report was completed by Officer

17 Venenga (phonetic); is that correct?

18 A. Venenga, yes.

19 Q. Venenga, excuse me, and reviewed by Captain

20 Lashbrook; is that correct?

21 A. Yes, sir.

22 Q. And the report -- the completion of the

23 report indicates on October -- October 4th, 1996; is that

24 correct?

25 A. Yes.

820

1 Q. And the review indicates October 8th, 1996;

2 is that correct?

3 A. That's correct.

4 Q. In the summary that you have indicated that

5 you compiled with reference to this request, you have a

6 short explanation for the reason that the accident

7 happened on each one; is that correct?

8 A. Yes.

9 Q. And the -- to get a further description of

10 the accident itself, you would have to visit the accident

11 report narrative; is that correct?

12 A. Yes, sir.

13 Q. And those are contained in there as well?

14 A. Yes.

15 Q. And the --

16 MR. WADDING: Well, that's all the questions

17 I have. Thanks.

18 COURT: Mr. Correll?

19 MR. CORRELL: I have nothing further.

20 COURT: Thank you.

21 MR. CORRELL: You're excused. Thank you.

updated 08/07/10