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COURT OF APPEALS DECISION DATED AND RELEASED October 16, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1351-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES ZAMITALO,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Waukesha County:
JOSEPH E. WIMMER, Judge. Affirmed.
SNYDER, J. James
Zamitalo was charged with operating a motor vehicle with a prohibited blood
alcohol concentration, contrary to § 346.63(1)(b), Stats.[1] Zamitalo first brought a motion to suppress
the Intoxilyzer result, claiming that his request for an alternative test was
denied. After his motion to suppress
was denied, Zamitalo pled guilty. He
now renews his suppression argument, claiming that: (1) the trial court erred when it ruled that he had the burden of
going forward with evidence to establish his defense; and (2) the error was not
harmless. Because we conclude that the
trial court did not find that Zamitalo had the burden of proof, we affirm.
Zamitalo was arrested by
Officer Robert J. Kuspa for operating a motor vehicle while under the influence
of intoxicants and taken to the City of Muskego Police Department. Zamitalo was asked to submit to an
Intoxilyzer test. He asked to speak to
his attorney before deciding whether he would agree to the test, and
subsequently called Attorney John Carroll.
After that conversation, Zamitalo agreed to take the test. Carroll testified that he told Zamitalo
during this telephone call to take the test.
Approximately ten
minutes later, Carroll received a second telephone call from Zamitalo. While Carroll could not specifically recall
what was discussed, he stated that he advised Zamitalo that he had the right to
take a blood test. Carroll also
testified that he told a police officer, who came on the line, that he had
advised Zamitalo to take another test.
Zamitalo testified that
he requested a blood test or a urine test.
He directed this request to the officer who had administered the
Intoxilyzer test but stated that the officer did not respond to him in any way. Zamitalo admitted on cross-examination that
the officer never denied his request for an alternative test, but “I know he
heard me.” Zamitalo explained that he
never renewed his request for another test because “at that point I guess I was
just kind of like fed up with the whole situation that happened there and I
just kind of blew it off.”
Zamitalo brought a
motion to suppress based on his claim that he had requested an alternative test
from the officers, and their denial of that request “failed to fully comply
with the Implied Consent Law ... [therefore] ‘statutory consent’ does not exist
and the remedy is suppression.”[2] He now appeals from the trial court's denial
of the suppression motion and argues that “the trial court erred in ruling that
[he] had the burden of going forward.”
Zamitalo states that the trial court “indicat[ed] that it was the
court's belief that Zamitalo had the burden of going forward with evidence and
that he also had the burden of persuasion on the motion.” Zamitalo fails to cite to that part of the
record which contains the “court's belief.”
Based upon our review of the record, the following exchange among
Jeffrey Jensen (defense counsel),[3]
Ted Szczupakiewicz (assistant district attorney) and the court is the only
discussion relating to a burden of proof:
JENSEN:
I believe the State has the burden of establishing the circumstances of
the arrest, whether the implied consent law was followed.
THE COURT: Are you contesting the arrest here?
JENSEN:
Basis of the motions is that Mr. Zamitalo was under arrest. He submitted to a breath test and requested
that an additional test be done, was denied the opportunity. I believe in a criminal case the State has had
[sic] burden of negativing every defense that the defendant may raise, so they
have the burden of proceeding on this motion.
SZCZUPAKIEWICZ: I don't agree with that at all.
I think a motion of this nature the defendant has some burden showing
some prima facie basis for his motion here. ...
JENSEN:
Well, Judge, it's a criminal case, the burden never shifts to the
defendant in a criminal case, even on affirmative defense. If the court rules I do have a burden then I
object on that. I am prepared to proceed. I believe the burden rests with the State at
all times in a criminal case.
THE COURT: This is your motion to suppress a breath test based on the fact
that you believe that the defendant was not given the opportunity to have an
alternate test taken, is that correct?
JENSEN:
Yes.
THE
COURT: I will let you proceed.
Zamitalo
then called two witnesses (himself and Carroll), and the State presented the
testimony of the two officers.
In its decision, the
court noted that “the defendant's testimony was confusing ... [and] even Mr.
Carroll's testimony was unclear at times.”
In addition to noting several other inconsistencies in Zamitalo's
testimony, the trial court stated that both officers indicated very positively
that Zamitalo never asked for an alternative test. The trial court then denied the motion to suppress. In its ruling, the trial court never
referred to a burden of proof.[4]
Based upon our review of
the record, there is no evidence that the trial court ever found that Zamitalo
had the burden on this issue. While the
court did require Zamitalo to present some evidence that he had requested an
alternative test, it is not a violation of due process to assign a burden of
production in this way. State v.
Pettit, 171 Wis.2d 627, 640, 492 N.W.2d 633, 639 (Ct. App. 1992). A judge controls the mode and order of the
presentation of evidence. Section
906.11(1), Stats.
In addition, Zamitalo's
argument fails to advise us in what respect he claims the trial court's
findings support his conclusion that the burden was incorrectly placed. As a reviewing court, we need not sift the
record for facts which will support Zamitalo's contention. See Keplin v. Hardware Mut.
Casualty Co., 24 Wis.2d 319, 324, 129 N.W.2d 321, 323 (1964).
As to his second issue,
Zamitalo argues that the claimed error of incorrectly assigning the burden of
proof to him is not harmless “because it is not possible for the Court of
Appeals to review the cold record and to determine that ... the evidence was sufficient.” Based on our determination that Zamitalo has
not presented any evidence in support of his claim that the trial court found
that he had the burden of proof, a subsequent argument based on the disallowed
claim is also unsupported. As there is
no legal basis for it on this record, we decline to address it. See Racine v. J-T Enters. of
Am., 64 Wis.2d 691, 700, 221 N.W.2d 869, 874 (1974) (court will not
decide abstract legal principles).
We conclude that the
record of the suppression hearing provides no factual predicate for Zamitalo's
claim that the trial court incorrectly assigned the burden of proof. Having held that there is no support for the
claim of error, Zamitalo's argument that the error is not harmless must also
fail.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] The companion charge of operating a motor vehicle while under the influence of intoxicants was dismissed.
[2] Zamitalo's argument for suppression is based on State v. McCrossen, 129 Wis.2d 277, 385 N.W.2d 161, cert. denied, 479 U.S. 841 (1986). In McCrossen, there was no dispute as to the defendant's request for an alternative test and the officer's failure to provide it. In the instant case, the issue is whether Zamitalo was denied an opportunity to have an alternative test performed. Thus, McCrossen is not controlling.