Frisch v. Clements

Filing 25

DECISION AND ORDER signed by Judge Pamela Pepper on 12/20/2016 DENYING 1 Petition for Writ of Habeas Corpus filed by Daniel W. Frisch. (cc: all counsel; by US Mail to Petitioner)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DANIEL W FRISCH,
Petitioner,
Case No. 13-CV-1443-PP
v.
MARC CLEMENTS,
Respondent.

DECISION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS (DKT NO. 1)

On December 26, 2013, petitioner Daniel Frisch, representing himself,
filed a petition for a writ of habeas corpus under 28 U.S.C. §2254, seeking relief
from the sentence imposed pursuant to his 2010 conviction in Manitowoc
County Circuit Court. Dkt. No. 1. The petitioner challenges his sentence on two
grounds: (1) he argues that the admission of an anonymous witness’
statements through the arresting officer violated the rules of evidence; and (2)
he argues that the admission of the anonymous witness’ statement through
this officer violated his Sixth Amendment right to confrontation. Id. at 3. For
the reasons explained below, the court denies the petition.

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I.

FACTUAL BACKGROUND
A. The Facts At Trial
On December 14, 2010, the Manitowoc County Circuit Court entered a

judgment of conviction against the petitioner for operating a motor vehicle
under the influence with an enhancer (12th offense), pursuant to Wis. Stat.
§§346.63(1)(a) and 346.65(2)(g)2. Dkt. No. 12-1 at 1. The circuit court
sentenced him to seven years of confinement and five years of extended
supervision. Id.
At the trial, despite the petitioner’s motion in limine, the arresting officer
testified about the arrest, including statements made to him by an anonymous
witness. Dkt. No. 12-5 at ¶6; Dkt. No. 13 at 1. The officer testified to the
following facts: in the course of responding to a 911 call about an erratic driver,
the officer was approached by an unidentified man who told the officer that he
had seen a black pickup truck driving on the wrong side of the road, that it
almost hit the gas pumps at a gas station, that he recognized the driver as
“Dan,” and that the driver appeared to be intoxicated when he got out of the
truck. Dkt. No. 12-5 at 2. The man also provided two possible addresses at a
trailer park where he believed the petitioner might live. Id. The officer had
dispatch cross-check the name “Dan” with the addresses the anonymous
witness had provided, and obtained a match. Id. He then went to the trailer
park, where he observed the petitioner standing next to the petitioner’s open
car door. Id. at 2-3. The officer asked the petitioner some questions, to which
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the petitioner responded that he had recently returned from renting an
apartment and he was the only one in the car. Id. Due to the petitioner’s
drunken behavior, the officer transported him to the police department to
perform sobriety tests. Id. at 3. The petitioner had a blood alcohol level of
0.218. Id. At the station, the petitioner commented that he may have been
driving on the wrong side of the road while changing his radio. Id.
B.

The Appeals

On January 25, 2012, the petitioner filed a direct appeal from the
conviction, arguing that the admission of the anonymous witness’ statement
was contrary to the rules of evidence and violated his federal and state
constitutional rights to confrontation. Dkt. No. 1 at 3. Affirming the circuit
court, the state appellate court found that court had admitted the informant’s
statements to show why the officer had gone to the petitioner’s house, and that
the court had instructed the jury regarding the proper use of the statements.
Dkt No. 12-5 at ¶9. The state appellate court also found that even if the
informant’s statements were hearsay, their admission was, at most, harmless
error, because the petitioner had failed the sobriety test and admitted to the
officer that he had been driving on the wrong side of the road. Id. at ¶¶10, 13.
On May 3, 2013, the petitioner sought review from the Wisconsin Supreme
Court on the Confrontation Clause issue. Dkt. No. 1 at 3. The Wisconsin
Supreme Court denied the petition on September 17, 2013. Dkt. No. 12-8 at 1.
The petitioner filed this habeas case on December 26, 2013. Dkt. No. 1.

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C.

The Proceedings in This Court

In his May 5, 2014 screening order, Judge Clevert determined that the
petitioner had exhausted his state remedies, and ordered the respondents to
file an answer. Dkt. No. 8 at 3. The case was reassigned to this court on
December 29, 2014. The petition is fully briefed. Because the state appellate
court’s ruling is not an unreasonable application of federal law, nor an
unreasonable determination of the facts, the court will deny the petition.
II.

ANALYSIS
A.

Exhaustion of State Court Remedies

Initially, the court will address the respondent’s argument that the
petitioner procedurally defaulted his claim that the admission of the
informant’s statement was contrary to the rules of evidence by not presenting
this claim to the Wisconsin Supreme Court. Dkt. No. 15 at 14. In his brief to
the Wisconsin Supreme Court, the petitioner clearly challenges the “law
specific to this method of admitting evidence” (i.e. the hearsay exception under
which the statements were admitted) as contrary to the confrontation clause.
Dkt. No. 12-6 at 8. See Toney v. Franzen, 687 F.2d 1016, 1022 (7th Cir. 1982)
(“It is sufficient that the ‘substantial equivalent’ or ‘substance’ of the federal
habeas corpus claim has been presented.”) Even if he had not made that
challenge in his Supreme Court brief, this court may review state law
evidentiary determinations only to the extent that they affect a federal right.
Ruhl v. Hardy, 743 F.3d 1083, 1098 (7th Cir. 2014). Thus, even if the
petitioner failed to argue to the Supreme Court that the admission of the
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statement violated Wisconsin evidence rules, that failure would not prevent
this court from reviewing the constitutional claim, because the exhaustion rule
is “designed to give the state courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to federal courts . . . .”
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)(emphasis added). The court
finds, therefore, that the petitioner did exhaust his remedies on this claim.1
B.

Standard for Granting a §2254 Petition

To prevail on a petition for writ of habeas corpus, the petitioner must
show that he is in custody in violation of the constitution, laws or treaties of
the United States. 28 U.S.C. §2254(d). If the state appellate court has ruled on
the merits of the claims, then the petitioner must go a step further, and show
that his detention is the result of a state court decision that was (a) “contrary
to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” or (b) “based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” Id.; see Gonzales v. Mize, 565 F.3d 373, 379 (7th
Cir. 2009) (“We review the decision of the last state court that substantively
adjudicated each claim.”). This standard is highly deferential to state courts.
Carter v. Tegels, Case No. 11-cv-00320-wmc, 2013 WL 5570294, *2 (W.D. Wis.
Oct. 9, 2013) (citing Harrington v. Richter, 562 U.S. 86, 101 (2011)). The state
appellate court’s ruling must be “objectively unreasonable, not merely wrong;
even clear error will not suffice.” White v. Woodall, --U.S.--, 134 S. Ct. 1697,
Judge Clevert already had decided as much in his screening order, as the
petitioner points out in his reply brief. Dkt. No. 16 at 2-3.
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1702 (2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)(internal
quotations omitted)). Essentially, the ruling must have been “so lacking in
justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Harrington,
562 U.S. at 103.
A federal habeas court generally does not reexamine state-court
determinations on state law questions. Estelle v. McGuire, 502 U.S. 62, 67-68
(1991); see Ruhl, 743 F.3d at 1098 (citations omitted) (noting that as a general
rule, federal habeas courts cannot overturn evidentiary determinations made
by state courts). “Only in very rare cases where the state court’s resolution of
the evidentiary dispute was clearly unreasonable or otherwise implicates
federal constitutional rights” has the Seventh Circuit “granted habeas relief on
state law evidentiary questions.” Id. Because the evidentiary question in this
case is related to the petitioner’s federal Sixth Amendment to confront the
witnesses against him, the court will review the state court’s determination
that admission of the statement did not violate the petitioner’s Sixth
Amendment right to confrontation.
C.

Federal Rulings on the Confrontation Clause and Hearsay

“The Sixth Amendment affords an accused the right ‘to be confronted
with the witnesses against him.’” Luchinski v. Pollard, No. 10-C-980, 2015 WL
5010403, *14 (E.D. Wis. August 20, 2015). This portion of the Sixth
Amendment, referred to as the Confrontation Clause, “guarantees criminal
defendants the benefit of the ‘principal means by which the believability of a
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witness and the truth of his testimony are tested,’… subjecting that testimony
to ‘the crucible of cross-examination.’” Jones v. Basinger, 635 F.3d 1030, 1040
(7th Cir. 2011) (citations omitted). Accordingly, “the Sixth Amendment bars the
admission of ‘testimonial hearsay’ against a criminal defendant unless (1) the
declarant is unavailable at trial; and (2) the defendant had a prior opportunity
to cross-examine that declarant.” Id. at 1041 (citing Crawford v. Washington,
541 U.S. 36, 68 (2004)).
The Supreme Court has held that “[s]tatements taken by police officers in
the court of interrogations are . . . testimonial even by a narrow standard.”
Crawford v. Washington, 541 U.S. at 52. The Court further held that
“[t]estimonial statements of witnesses absent from trial have been admitted
only where the declarant is unavailable, and only where the defendant has had
a prior opportunity to cross-examine.” Id. at 59. In this case, the anonymous
witness made the statement to the police officer and was not present at the
trial, and the petitioner did not have a prior opportunity to cross-examine the
anonymous witness.
The United States Court of Appeals for the Seventh Circuit has
recognized a limited exception to the prohibition against admission of
testimonial hearsay. When the reasons for police actions are relevant, a witness
can testify about what information prompted those actions, including out-ofcourt statements. Carter v. Douma, 796 F.3d 726, 736 (7th Cir. 2015); Carter
v. Tegels, 2013 WL 5570294 at *3 (“An informant’s out-of-court statement to
law enforcement is not hearsay if that statement is offered into evidence as ‘an
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explanation of why the [subsequent] investigation proceeded as it did.’”). “This
approach is consistent with the Confrontation Clause, which ‘does not bar the
use of testimonial statements for purposes other than establishing the truth of
the matter asserted.” Carter v. Douma, 796 F.3d at 736 (citing Crawford, 541
U.S. at 59 n.9). The Seventh Circuit “[has] rejected Sixth Amendment claims
premised on [the course of investigation] on the grounds that non-hearsay use
of such statements does not violate the confrontation clause.” Jones, 635 F.3d
at 1045.
The circuit court has cautioned that “such ‘course of investigation’
evidence usually has little or no probative value, [and] the dangers of prejudice
and abuse posed by the ‘course of investigation’ tactic are significant.” Id. at
1046. Consequently,
[a] legitimate non-hearsay purpose most certainly does
not open the door for law enforcement officers to
“narrate the course of their investigations, and thus
spread before juries damning information that is not
subject to cross-examination.” [United States v.] Silva,
380 F.3d [1018,] at 1020 [(7th Cir. 2004)]. Nor is it
necessary to put before the jury extensive “eyewitness
accounts of bad acts by the defendant that the jury
would not otherwise have heard.” United States v.
Price, 458 F.3d 202, 210 (3d Cir.2006). Unless the
testimony at issue “clarif[ies] noncontroversial matter
without causing unfair prejudice on significant
disputed matters,” [United States v.] Reyes, 18 F.3d
[65,] at 70 [(2d Cir. 1994)], the best course of action is
to exclude the evidence altogether. If some brief item is
truly necessary, the court should redact a lengthy outof-court statement to the extent needed to ensure that
its actual evidentiary function is only the legitimate
one for which it is being admitted. [United States v.]
Price, 458 F.3d [202,] at 210 [(3d Cir. 2006)]; see 2
McCormick on Evidence § 249 (“[A] statement that an
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officer acted ‘upon information received,’ or words to
that effect, should be sufficient.”).
Id., at 1047. Essentially, if the state court appropriately limited the use of the
statement, instructed the jury, and/or pointed to evidence of the petitioner’s
guilt that made the court confident that the verdict was not affected by use of
the hearsay, the state court ruling was not contrary to, or an unreasonable
application of, federal law. See id.; Carter, 796 F.3d at 737.
D.

The Court Agrees with the Court of Appeals’ Ruling.

The Wisconsin Court of Appeals found that the trial court did not admit
the anonymous man’s statements for the truth of the matter asserted (in other
words, the state did not introduce it to prove that the petitioner was the person
who’d been driving erratically). Dkt. No. 12-5 at ¶9. That was an important
finding, because Wisconsin law defines “hearsay” as an out-of-court statement
offered “to prove the truth of the matter asserted.” Id. at ¶8 (citing Wis. Stat.
§§908.01(3) and (4)). Rather, the court found that the prosecution used the
statement to explain why what the officer did what he did after he obtained the
statement. Id. at ¶¶8, 10. If the statements were not admitted for the truth of

the matter asserted, then they were not hearsay, and their admission did not
violate the Wisconsin rules of evidence.
After concluding that the statements did not constitute hearsay (because
they were not offered for the truth of the matter asserted), the court of appeals
noted that the circuit court had instructed the jury that it should not consider
the statements for the truth of the matter asserted, but only “as an explanation
as to why the officer did what he did next.” Id. at ¶9. It disagreed with the
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petitioner that the jury must have used the statements for an improper
purpose, stating that “jurors can be presumed to have followed the circuit
court’s instructions.” Id. at ¶10.
The appellate court next concluded that the anonymous man’s
statements were relevant to explain why the officer went to the trailer park. Id.
at ¶10. The petitioner responded to that conclusion by arguing that the
probative value of the statements was “substantially outweighed by the danger
of unfair prejudice because the anonymous informant was the only one who
identified [the petitioner] as driving the pickup truck.” Id. at ¶12. The appellate
court rejected this argument, pointing out that the defendant himself had told
the officer that he had been driving the pickup, and that he’d been driving it on
the wrong side of the road. Id. at ¶13. The officer also had found the petitioner
standing outside of the truck with the door open, giving rise to an inference
that he’d been driving immediately before the officer approached him. Id. For
this reason, the court concluded that even if the anonymous man’s statements
had constituted hearsay, the admission of the statements was harmless error.
Id.
Even if the standard for this court’s review of a state court’s evidentiary
ruling were not so deferential, this court would agree with the Wisconsin Court
of Appeals’ conclusions. The court agrees that the anonymous man’s
statements were not hearsay because they were not admitted for the truth of
the matter asserted; they were admitted to show why the police officer went to
the trailer park to speak to the petitioner. The court also agrees that there is no
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reason to believe that the jury did not follow the trial judge’s instructions to
that effect. The court further agrees that even if the statements had been
hearsay, their admission would have constituted harmless error, because the
jury also heard that the petitioner himself admitted to driving the truck and
driving it on the wrong side of the road. The state appellate court’s findings are
consistent with federal law on testimonial hearsay and the Confrontation
Clause, and were not clearly unreasonable or violative of federal constitutional
rights.
In his reply brief, the petitioner argued that the court of appeals’ decision
was based on an unreasonable determination of facts, because there was no
factual connection between the statement of the first witness in the case and
the statement of the anonymous witness. Dkt. No. 16 at 5. The appellate
court’s decision recounts how the case against the petitioner began:
Shortly after ten o’clock p.m. on the night in question,
Keith Christenson contacted police to report having seen an
older model, full-sized dark pickup truck weave a bit, and then
cross the median and drive on the wrong side of the road before
turning into a Dairy Queen parking lot. Christenson did not see
the driver and could not give a more detailed description of the
pickup.
Dkt. No. 12-5 at ¶2. After an officer had responded, while he was driving
around the Dairy Queen, the anonymous man approached him, and told him
that “an older model black pickup truck had been driving on the wrong side of
the road just before it turned into the Dairy Queen parking lot . . . .” Id. at ¶3.
The petitioner emphasizes that these two witnesses were totally
separate—they did not know each other, and they provided information at
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different times. Dkt. No. 16 at 4. He insists that the two accounts were not tied
together “in a factual way.” Id. He argues that the court of appeals should have
made a finding that the two witnesses were separate people who gave separate
statements; he seems to conclude from the fact that the court did not make
that specific finding that the court of appeals must have assumed that the two
witnesses were the same person. He appears to urge the court to conclude that the
court of appeals’ conclusion that there was only one witness was an unreasonable
determination of the facts which requires the court to grant his petition.
The appeals court clearly realized that there were two witnesses, and that they
were not the same person. The court referred to the first witness by his name (Mr.
Christenson), and to the second witness as “an anonymous man.” Even if somehow
the appeals court had been confused on this point, it would not have changed the
Confrontation Clause analysis. The statements made by Christenson and the
anonymous man were not what proved that the petitioner was operating under the
influence. The defendant’s own statements, and his blood alcohol level, proved that
fact. The appellate court’s conclusion that there were two witnesses was not an
unreasonable determination of the facts.
Because the Wisconsin Court of Appeals’ decision was not contrary to, and

did not involve an unreasonable application of, clearly established Federal law,
and because it was not based on an unreasonable determination of the facts,
the court will deny the petition.
III.

CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the

court must consider whether to issue a certificate of appealability. A court may
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issue a certificate of appealability only if the applicant makes a substantial
showing of the denial of a constitutional right. See 28 U.S.C. §2253(c)(2). The
standard for making a “substantial showing” is whether “reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.
473, 484, 120 S. Ct. 1595, 1603-04 (2000) (internal quotation marks omitted).
The court concludes that its decision to deny the writ is neither incorrect
nor debatable among jurists of reason. The state appellate court made a
reasonable determination of the facts and the legal conclusions in the decision
are consistent with federal law.
IV.

CONCLUSION
For the reasons explained above, the court DENIES the petitioner’s

§2254 petition, Dkt. No. 1, and DECLINES to issue a certificate of
appealability.
Dated in Milwaukee, Wisconsin this 20th day of December, 2016.

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