State v. Zamzow

Citation874 N.W.2d 328,366 Wis.2d 562
Decision Date02 December 2015
Docket NumberNo. 2014AP2603–CR.,2014AP2603–CR.
Parties STATE of Wisconsin, Plaintiff–Respondent, v. Glenn T. ZAMZOW, Defendant–Appellant.
CourtCourt of Appeals of Wisconsin

On behalf of the defendant-appellant, the cause was submitted on the briefs of William J. Donarski of Law Office of William J. Donarski, Green Bay.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Douglas R. Edelstein, assistant district attorney, Fond du Lac.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Warren D. Weinstein, assistant attorney general, and Brad D. Schimel, attorney general.

Before NEUBAUER, C.J., REILLY, P.J., and GUNDRUM, J.

GUNDRUM, J.

¶ 1 Glenn Zamzow appeals his convictions for operating a motor vehicle while intoxicated and with a prohibited alcohol concentration (OWI/ PAC), third offense. Zamzow asserts that in denying his motion to suppress evidence, the circuit court improperly relied upon a recorded statement of the arresting officer. Zamzow challenges on hearsay, Confrontation Clause, and due process grounds the circuit court's admission of and reliance upon the recorded statement. We conclude the circuit court did not err and affirm.

Background

¶ 2 On March 13, 2011, a Fond du Lac police officer executed a traffic stop of Zamzow that resulted in Zamzow ultimately being charged with OWI/PAC, third offense. Zamzow filed a motion to suppress, arguing that the officer, who was deceased by the time of the hearing on the motion, lacked reasonable suspicion to stop him.

¶ 3 At the hearing, a squad car recording was admitted into evidence. Zamzow objected to admission of the audio portion of the recording on hearsay grounds and on the basis that admission would violate his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. The circuit court overruled his objection, and the video and audio portions were admitted and played for the court, with the court reporter taking down the audio portion. In the recording, the officer approaches Zamzow's vehicle after pulling him over and tells Zamzow "[t]he 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."

¶ 4 The circuit court stated that it observed in the video the officer turning around, speeding up, and eventually getting behind and stopping Zamzow and that it appeared as if Zamzow's tires were "very close to and/or upon the center line." The court stated that it could not discern if the tires had actually crossed the center line, adding, "But that's more the nature of the video, I suppose, than anything else." The court found that Zamzow had crossed the center line twice, stating that it was "relying upon the officer's [statement on the recording] as to the cross of the center line that [the officer] observed more so than the specifics that I observed in the video." The court concluded there was a sufficient basis for the stop and denied Zamzow's motion to suppress.

¶ 5 Zamzow moved for reconsideration, which the circuit court denied following a hearing, and he subsequently was convicted after a jury trial. He filed a postconviction motion, reasserting his hearsay and Confrontation Clause objections and, for the first time, contending the court's reliance on the officer's recorded statement also violated his procedural due process rights under the Fourteenth Amendment to the United States Constitution. The court denied the motion after a hearing, and Zamzow appeals. Additional facts are set forth as necessary.

Discussion

¶ 6 Zamzow contends the circuit court improperly admitted the officer's recorded statement and improperly relied upon it in finding that the officer had a lawful basis to stop Zamzow's vehicle.1 Zamzow asserts the recorded statement was inadmissible hearsay and his rights under the Confrontation and Due Process Clauses were violated by the court's admission of and reliance upon the statement. Whether the admission of and reliance upon certain evidence violates specific statutory or constitutional provisions is a question of law we review de novo. State v. Doss, 2008 WI 93, ¶¶ 19–20, 312 Wis.2d 570, 754 N.W.2d 150. We conclude the circuit court properly admitted and relied upon the officer's statement in the recording that he stopped Zamzow because he twice observed Zamzow's vehicle cross the center line.

¶ 7 Our decision in State v. Frambs, 157 Wis.2d 700, 460 N.W.2d 811 (Ct.App.1990), is on point. In Frambs, a witness provided a police officer with both an exculpatory statement implicating someone other than Frambs in the crime at issue and a subsequent incriminating statement implicating Frambs. Id. at 702, 460 N.W.2d 811. After providing the incriminating statement, the witness told the officer he "signed [his] own death warrant" by giving the statement, adding that Frambs had said "if anybody opens their mouth about [the crime] they will pay for it." Id. The witness indicated he should leave town before Frambs and Frambs' friends got to him. Id. The witness also informed a prosecutor that he was extremely fearful for his own safety and that following the crime, Frambs had threatened to kill him. Id.

¶ 8 The witness could not be located at the time of trial. Id. Frambs sought to have admitted into evidence at trial the witness's exculpatory statement implicating the other person in the crime. Id. at 703, 460 N.W.2d 811. The state objected, and a pretrial hearing was held where the officer and the prosecutor testified regarding the statements the witness had made to them related to his fear of Frambs. Id. The circuit court concluded that Frambs' misconduct had caused the witness's unavailability and therefore Frambs could not introduce into evidence the witness's alleged exculpatory statement. Id. Frambs was subsequently convicted. Id.

¶ 9 On appeal, Frambs challenged as unreliable the hearsay statements presented by the officer and prosecutor at the pretrial hearing regarding the witness's fear of Frambs. Id. In affirming the circuit court, we pointed out that WIS. STAT § 901.04(1)2 provides:

Preliminary questions concerning [the qualification of a person to be a witness, the existence of a privilege, or] the admissibility of evidence shall be determined by the judge, subject to sub. (2) and [ WIS. STAT §§ ] 971.31(11) and 972.11(2). In making the determination the judge is bound by the rules of evidence only with respect to privileges.

Frambs, 157 Wis.2d at 703–04, 460 N.W.2d 811 (first emphasis added). We held that courts are not statutorily bound to apply the hearsay rule at a pretrial hearing—in that case a pretrial hearing addressing the admissibility of evidence. Id. at 704, 460 N.W.2d 811 ; see also State v. Jiles, 2003 WI 66, ¶ 48, 262 Wis.2d 457, 663 N.W.2d 798 ("[T]he rules of evidence do not apply at suppression hearings."). Specifically addressing the Confrontation Clause, we pointed out that the United States Supreme Court "has emphasized that the Confrontation Clause reflects a preference for face-to-face confrontation at trial. " Frambs, 157 Wis.2d at 704, 460 N.W.2d 811 (quoting Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ). Not only did we italicize "at trial" in this passage, we added that "[w]e see no evidence that the Supreme Court intended the protection of the confrontation clause to be available to a defendant in those pretrial situations enumerated in [§ ] 901.04(1)." Frambs, 157 Wis.2d at 704, 460 N.W.2d 811 ; see also Jiles, 262 Wis.2d 457, ¶ 31, 663 N.W.2d 798 (citing approvingly this same language from Frambs ). We held that "Frambs had no confrontation clause rights as to hearsay declarants at this motion hearing, and the trial court, at its discretion, could rely on hearsay testimony in making its ruling." Frambs, 157 Wis.2d at 705, 460 N.W.2d 811.

¶ 10 Our holding in Frambs is consistent with Supreme Court precedent. In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Court determined a federal district court erred when it "excluded from evidence at the suppression hearings, as inadmissible hearsay," various out-of-court statements made by a witness to officers. Matlock, 415 U.S. at 172, 94 S.Ct. 988. The Court stated:

[D]istinguish[ing] between the rules applicable to proceedings to determine probable cause for arrest and search and those governing the criminal trial itself—"There is a large difference between the two things to be proved, as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them."

Id. at 173, 94 S.Ct. 988 (quoting Brinegar v. United States, 338 U.S. 160, 173, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) ). The Court further noted that "the same rules of evidence governing criminal jury trials are not generally thought to govern hearings before a judge to determine evidentiary questions...." Id. The Court also referred to McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), in which it affirmed the denial of a suppression motion following a hearing in which officers testified as to statements made by an unidentified informant, which statements provided the officers with probable cause to search the defendant (and find narcotics). The Matlock Court observed:

At the initial suppression hearing [in McCray ], the police proved probable cause for the arrest by testifying to the out-of-court statements of an unidentified informer. The Government would have been obligated to produce the informer and to put him on the stand had it wanted to use his testimony at defendant's trial, but we sustained the use of his out-of-court statements at the suppression hearing, as well as the Government's refusal to identify him. In the course of the [Mc
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6 cases
  • State v. Zamzow
    • United States
    • United States State Supreme Court of Wisconsin
    • 6 Abril 2017
    ...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 app......
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    • Court of Appeals of Wisconsin
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    ...safeguards are for the citizens and are not rights given to make the government’s job easier. As I warned in my dissent in State v. Zamzow , 2016 WI App 7, ¶22, 366 Wis. 2d 562, 874 N.W.2d 328 (Reilly, P.J., dissenting), now "evidentiary hearings are no longer necessary to the determination......
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    • 30 Julio 2021
    ...at the time he performed the stop, a reasonable officer would have reasonably suspected that criminal activity was afoot. See State v. Zamzow, 2016 WI.App. 7, ¶14, 366 Wis.2d 562, 874 N.W.2d 328 (2015); see State v. Lefler, 2013 WI.App. 22, ¶11, 346 Wis.2d 220, 827 N.W.2d 650 ("We decline t......
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    • Court of Appeals of Wisconsin
    • 7 Septiembre 2016
    ...responds to arguments in the State's response brief by attempting to distinguish this case from State v. Zamzow, 2016 WI App 7, ¶¶ 10–11, 366 Wis.2d 562, 570, 874 N.W.2d 328 (2015), in which we stated the Confrontation Clause does not apply to pretrial suppression hearings—like the suppress......
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