CiCITY OF CEDAR FALLS
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.
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?
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
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
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.
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
25 COURT: Go ahead, Mr. Wadding.
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
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,
25 COURT: I'm unsure as to how reliable that
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
1 accidents were there and the contributing cause of the
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,
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
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
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?
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
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
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?
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
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
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.
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,
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?
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
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
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
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.)
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
6 COURT: That's the compilation of the
7 accident reports. That's how it's been described to me
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?
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
25 A. Yes.
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.