State v. Zamzow

• Decision Date: 06 April 2017
• Docket Number: Case No.: 2014AP2603-CR
• Citation: 374 Wis.2d 220,892 N.W.2d 637
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Glenn T. ZAMZOW, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

374 Wis.2d 220

892 N.W.2d 637

STATE of Wisconsin, Plaintiff-Respondent,

v.Glenn T. ZAMZOW, Defendant-Appellant-Petitioner.

Case No.: 2014AP2603-CR

Supreme Court of Wisconsin.

Oral Argument: October 13, 2016

Opinion Filed: April 6, 2017

For the defendant-appellant-petitioner, there was a brief and oral argument by Thomas B. Aquino, assistant state public defender.

For the plaintiff-respondent the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.

REBECCA GRASSL BRADLEY, J.

¶1 We review a published opinion of the court of appeals,¹ which determined that use of a deceased police officer's recorded statements at a suppression hearing² did not violate Glenn T. Zamzow's rights under the Confrontation Clause of the Sixth Amendment or the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We hold that the Confrontation Clause protects a defendant's right to confrontation at trial but not at suppression hearings, and admission of the deceased officer's recorded statements during the suppression hearing did not deprive Zamzow of due process. We therefore affirm.

I. BACKGROUND

¶2 Officer Craig Birkholz of the Fond du Lac Police Department stopped Zamzow's car early on a Sunday morning after observing the car cross the center line. During the stop, Zamzow smelled of intoxicants and admitted to drinking alcohol. Officer Curt Beck arrived on the scene with a third officer to assist Birkholz. The officers arrested Zamzow, and the State charged him with operating while intoxicated and operating with a prohibited alcohol concentration, both as third offenses.³ Zamzow filed a motion to suppress all evidence obtained during the stop, claiming Birkholz lacked reasonable suspicion. Before the court could hold a suppression hearing, Birkholz died.

¶3 With Birkholz unavailable to testify at the suppression hearing, the State instead relied on a recording of the stop, as well as testimony by Beck and a computer forensic specialist from the police department, to establish reasonable suspicion. The computer forensic specialist first testified about recordings from cameras mounted on the two squad cars involved in the stop. He testified that he prepared a DVD containing the dashboard camera video from each car. Next, Beck explained his role in assisting with the stop. He acknowledged watching the DVD with the dashboard camera videos, and he confirmed that the recording produced by his own car's camera fairly and accurately depicted the stop as he remembered it. Additionally, he confirmed that the dashboard camera video from Birkholz's car fairly and accurately depicted the events Beck personally observed, and verified that the video consisted of a continuous and uninterrupted segment.

¶4 Based on the two officers' testimony—and over defense counsel's objection to the impossibility of cross-examining Birkholz about his reasons for initiating the stop—the circuit court allowed the State to introduce the video from Birkholz's car, which the court viewed. After hearing arguments from Zamzow's counsel and from the State, the court took the suppression motion under advisement in order to further review the video. While watching the video again in chambers, the circuit court discovered that the recording included audio, which had not accompanied the video at the suppression hearing. The court ordered a second suppression hearing so the audio accompanying the video could be played on the court record.

¶5 At the second suppression hearing, the court heard the initial statement Birkholz made to Zamzow after initiating the stop: "Officer Birkholz, city police. The reason I stopped you is you were crossing the center line there coming at me and then again when I turned around and got behind you." The court also heard audio in which Birkholz explained his basis for the stop to the arriving officers.⁴ Zamzow's counsel objected to admission of both audio statements, arguing that the inability to cross-examine Birkholz denied Zamzow his right to confront a witness against him.

¶6 The circuit court denied Zamzow's suppression motion and made the following findings of fact:

[O]n Sunday night, March 13th, at 3:04 a.m. or thereabouts, the officer in this case, deceased Officer Birkholz, did make an observation that the defendant had crossed the center line on Johnson Street as he was approaching the Johnson street bridge from the east traveling west. The officer turned around, stopped the vehicle, and has testified that the vehicle crossed the center line again as it was going over the Johnson Street bridge.

From the video, the court could not "discern in any fashion ... whether a cross of the center line occurred prior to the two vehicles crossing paths," and the court added that it was "difficult from the video to discern whether the defendant's vehicle actually crossed the center line as it was going over the bridge." Focusing instead on the statement Birkholz made to Zamzow, the court concluded, "[T]he ... testimony that the vehicle did, in fact, cross the center line twice in that short amount of time" provided a "sufficient basis for the officer to have made a stop for further inquiry."

¶7 On Zamzow's motion for reconsideration, the circuit court clarified its decision. Relying on State v. Frambs , 157 Wis.2d 700, 460 N.W.2d 811 (Ct. App. 1990), the court concluded that the Confrontation Clause does not apply at a suppression hearing. The court added that, even if the Confrontation Clause does apply at suppression hearings, Birkholz's statement to Zamzow was nontestimonial and therefore admissible.

¶8 Zamzow proceeded to trial, and a jury convicted him on both counts. At trial, the jury did not hear the audio recording of Birkholz's statement. After the circuit court denied Zamzow's motion for postconviction relief, he appealed and the court of appeals affirmed. State v. Zamzow , 2016 WI App 7, ¶1, 366 Wis.2d 562, 874 N.W.2d 328. The court of appeals agreed with the circuit court that "the Confrontation Clause simply does not apply to pretrial hearings such as the suppression hearing at issue in this case." Id. ¶11. Emphasizing United States Supreme Court precedent suggesting the right to confrontation is a trial right, the court rejected Zamzow's contention that Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), undermined Frambs and extended the confrontation right to pretrial proceedings. Id. ¶¶10-11. Additionally, the court of appeals rejected Zamzow's claim, first raised in his postconviction motion, that admitting the audio statements denied him due process of law. Id. ¶16. In particular, the court of appeals relied on United States v. Matlock , 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), and United States v. Raddatz , 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980), to conclude that "the Supreme Court has, at a minimum, intimated that admission at a pretrial suppression hearing of hearsay statements where the declarant cannot be cross-examined does not present a due process problem." Zamzow , 366 Wis.2d 562, ¶13, 874 N.W.2d 328.

¶9 Zamzow filed a petition for review, which we granted.

II. STANDARD OF REVIEW

¶10 Ordinarily, the decision whether to admit evidence is within the circuit court's discretion. State v. Griep , 2015 WI 40, ¶17, 361 Wis.2d 657, 863 N.W.2d 567 (citing State v. Deadwiller , 2013 WI 75, ¶17, 350 Wis.2d 138, 834 N.W.2d 362 ). Whether the admission of evidence violates a defendant's rights under the Confrontation Clause of the Sixth Amendment presents a question of law, which this court reviews de novo. Id. (citing Deadwiller , 350 Wis.2d 138, ¶17, 834 N.W.2d 362 ). "Whether a defendant's right to due process was violated also presents a question of law that we review de novo." State v. McGuire , 2010 WI 91, ¶26, 328 Wis.2d 289, 786 N.W.2d 227.

III. ANALYSIS

A. The Confrontation Right

¶11 The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." In Pointer v. Texas , 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), the Supreme Court held that the Sixth Amendment's Confrontation Clause applies to the states through the Due Process Clause of the Fourteenth Amendment. Id. at 403, 405, 85 S.Ct. 1065.⁵

¶12 Zamzow contends the Sixth Amendment right to confrontation "[i]n all criminal prosecutions" guarantees a right to confront the witnesses against him at suppression hearings. Although he acknowledges the Supreme Court has never directly addressed the question, he argues the Court assumed the Confrontation Clause applies at a suppression hearing in McCray v. Illinois , 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).⁶ He also draws analogies to the Court's decisions regarding other Sixth Amendment rights, noting the Public Trial Clause applies at suppression hearings, Waller v. Georgia , 467 U.S. 39, 46-47, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), and the Counsel Clause applies at preliminary hearings, Coleman v. Alabama , 399 U.S. 1, 9-10, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). Emphasizing the Court's relatively recent overhaul of its Confrontation Clause jurisprudence in Crawford , Zamzow asserts that evidence presented at suppression hearings should also be subject to the Confrontation Clause's guaranteed procedural mechanism for scrutinizing witness testimony.

¶13 In recent years, Crawford and its progeny initiated a reassessment of the nature of the Confrontation Clause's protections. See Crawford , 541 U.S. at 61, 124 S.Ct. 1354 ("To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee."). By contrast, Zamzow presents a different question here, asking not what the Confrontation Clause protects but when its protections apply. To answer Zamzow's question, we begin with the text of the Sixth...