State v. Podzimek

#28703-a-DG
2019 S.D. 43

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

GARY J. PODZIMEK, Defendant and Appellant.

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APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
DAY COUNTY, SOUTH DAKOTA

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THE HONORABLE JON S. FLEMMER
Judge

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JASON R. RAVNSBORG
Attorney General

PHILIP D. CARLSON
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

CHRIS A. NIPE of
Larson & Nipe
Mitchell, South Dakota Attorneys for defendant
and appellant.

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CONSIDERED ON BRIEFS
ON MAY 28, 2019
OPINION FILED 07/17/19
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GILBERTSON, Chief Justice

[¶1.] Gary Podzimek appeals his convictions and sentences for grand theft

by deception, attempted grand theft by deception, deceptive act or practice, three

counts of failure to pay sales tax, and four counts of making a false or fraudulent

tax return. The convictions stem from Podzimek’s excessive billing of Don Martin,

now deceased, for mechanic work done to Martin’s pickup. On appeal, Podzimek

contends that the circuit court erred by: (1) admitting certain statements made by

Martin to a state investigator; (2) admitting Podzimek’s bank records; and

(3) denying Podzimek’s post-trial motion to set aside his guilty verdicts.

Facts and Procedural History

[¶2.] Podzimek was an auto mechanic who operated in Bristol, South

Dakota. Martin, a retired farmer, was one of Podzimek’s customers. Martin owned

a 1976 Chevy half-ton, four-wheel-drive pickup, which he occasionally brought to

Podzimek for repairs. Martin first brought his pickup to Podzimek at Horter’s

Repair and Restoration in Bristol. When Podzimek was terminated from Horter’s in

2014, Martin continued to service his pickup at Horter’s.

[¶3.] On April 17, 2015, Martin took his pickup to Horter’s for an oil change

and vehicle inspection. Eric Garrett, a mechanic at Horter’s since 2014, performed

the oil change and inspection. During the inspection, Garrett noticed nothing

wrong with the vehicle. He did not detect any leaks or other mechanical issues and

observed that the pickup was in particularly good condition for its age.

[¶4.] About a week and a half later, Martin drove his pickup to Podzimek’s

new repair shop in Bristol, which Podzimek owned and operated with his wife

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Brenda, to speak with Podzimek. After Martin left Podzimek’s shop, Podzimek

called Martin to report that he noticed Martin’s pickup was making strange noises

and leaking coolant. Podzimek offered to inspect the vehicle. Upon inspection,

Podzimek told Martin that the vehicle needed its engine rebuilt or a new engine

entirely. Martin left his pickup with Podzimek, who began repairs. Podzimek

worked on the vehicle from August of 2015 until April of 2016and claimed to have

fixed a variety of issues. During that period, Martin wrote Podzimek eight different

checks for the repairs, totaling $52,595.85. Martin’s pickup was valued at only

around $6,000.

[¶5.] Martin sought to borrow money from Dacotah Bank in Webster, South

Dakota to cover the last two checks written to Podzimek, totaling $12,795.85. Bank

President Dan Menking testified that he was “bothered” by the fact that Martin

would have to borrow that amount of money considering Martin’s finances. This

lead Menking to review Martin’s bank account. Menking discovered that Martin

had already paid Podzimek $39,800 for repairs. Suspecting that Podzimek’s

charges were fraudulent, Menking met with Martin and the local Sheriff. After the

meeting, Martin stopped payment on the last two checks issued to Podzimek. Later

on, Podzimek called Menking and asked him to lend Martin the money to pay for

the remaining repair charges by using some land owned by Martin as collateral.

[¶6.] Thereafter, Martin filed a complaint against Podzimek with the South

Dakota Attorney General’s Office, Division of Consumer Protection. Ray Klinger,

an investigator and certified law enforcement officer with the Division of Consumer

Protection, was assigned to Martin’s complaint. As part of his investigation,

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Klinger spoke with Martin in person and obtained a statement from Podzimek.

Klinger received documents from Podzimek attempting to explain the charges to

Martin, and invoices for parts and labor in connection to the work done on Martin’s

vehicle. Finally, Klinger subpoenaed Podzimek’s bank records from four different

banks pursuant to SDCL 37-24-14. On October 30, 2016, while the investigation of

Podzimek was ongoing, Martin passed away at the age of 83.

[¶7.] As a result of Klinger’s investigation, Podzimek was indicted by a Day

County grand jury on December 9, 2016, for one count each of: grand theft by

deception in violation of SDCL 22-30A-1, SDCL 22-30A-3(1), and SDCL 22-30A-17;

attempted grand theft by deception in violation of SDCL 22-30A-1, SDCL 22-30A-

3(1), SDCL 22-30A-17, and SDCL 22-4-1; and deceptive act or practice in violation

of SDCL 37-24-6(1). Klinger and Special Agent Greg Cleland also reviewed South

Dakota Department of Revenue records regarding Podzimek’s business. As a result

of that review, Podzimek was indicted a second time on September 27, 2017, for:

two counts of failure to pay sales tax in violation of SDCL 10-45-48.1(2); one count

of failure to pay sales tax two or more times in a twelve month period in violation of

SDCL 10-45-48.1(8); and four counts of making a false or fraudulent sales tax

return in violation of SDCL 10-45-48.1(1). Because the charges in both indictments

stemmed from the same events, the two indictments were joined for trial by order of

the circuit court on December 27, 2017.

[¶8.] Prior to Podzimek’s trial, the State filed notice of intent to introduce

evidence of four statements made by Martin to Klinger. Podzimek moved to

suppress evidence of the statements on the basis that the statements constituted

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inadmissible hearsay, and that admission of the statements would violate his rights

under the confrontation clause of the Sixth Amendment. Podzimek also moved to

suppress evidence of his bank statements, claiming the subpoenas used to obtain

the documents were improper. The circuit court denied Podzimek’s motions to

suppress in a memorandum opinion on February 22, 2018.

[¶9.] A jury trial was held on April 23–25, 2018, and Podzimek was

convicted on all ten counts contained in both indictments. On May 2, 2018,

Podzimek filed a motion to set aside his guilty verdicts on the grounds that the

State failed to sufficiently prove Podzimek’s identity at trial. The circuit court

denied Podzimek’s motion. On July 24, 2018, Podzimek was sentenced to ten years

in the state penitentiary for the count of grand theft by deception. The circuit court

suspended seven years of Podzimek’s sentence on certain conditions, including that

Podzimek give up his sales tax license and pay restitution of $39,800 to the Martin

Family Trust. The court gave Podzimek lesser, concurrent sentences for each of the

remaining counts.

[¶10.] Podzimek appeals his conviction and sentence, raising the following

issues for our review:

1. Whether the circuit court erred by admitting the
statements made by Martin to Klinger.

2. Whether the circuit court erred by admitting Podzimek’s
bank records, subpoenaed by the State, into evidence.

3. Whether the circuit court erred by denying Podzimek’s
post-trial motion to set aside his guilty verdicts.

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Analysis & Decision

[¶11.] 1. Whether the circuit court erred by admitting the
statements made by Martin to Klinger.

[¶12.] Prior to Podzimek’s trial, the state offered notice of intent to introduce

several statements that Martin made to Klinger during the course of the

investigation because Martin had died. Specifically, the State sought to introduce

four statements made by Martin regarding: (1) why Martin made his initial

complaint to the Consumer Protection Division; (2) why Martin took his vehicle to

Podzimek’s auto repair business; (3) the amount of money Martin paid Podzimek,

that the payment was made by check, and that the two checks were cancelled by

Martin after consulting with his banker regarding fraud; and (4) Podzimek’s

statement to Martin that a lien had been put on Martin’s vehicle. Podzimek argues

that the admission of these statements violated his rights under the Confrontation

Clause of the Sixth Amendment. He claims that the statements should have been

suppressed because they were testimonial statements made to a law enforcement

officer, and because he did not have the opportunity to confront or cross-examine

Martin about the statements because Martin had died by the time of trial.

[¶13.] The question of whether a defendant’s Sixth Amendment right to

confrontation was violated is a constitutional question which we review de novo.

State v. Spaniol, 2017 S.D. 20, ¶ 23, 895 N.W.2d 329, 338. “The Confrontation

Clause of the Sixth Amendment to the United States Constitution, as applied to

South Dakota through the Fourteenth Amendment, requires that in all criminal

cases, the defendant has the right ‘to be confronted with the witnesses against

him.’” Id. ¶ 24; see also Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,

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158 L. Ed. 2d 177 (2004); State v. Davis, 401 N.W.2d 721, 724 (S.D. 1987). “The

Confrontation Clause applies to witnesses testifying at trial and to the admission of

hearsay.” Spaniol, 2017 S.D. 20, ¶ 24, 895 N.W.2d at 338. “This right is generally

satisfied when the defense is given a full and fair opportunity to probe and expose a

witness’[s] infirmities through cross-examination, thereby calling to the attention of

the factfinder the reasons for giving scant weight to the witness’[s] testimony.” Id.

(quoting State v. Carothers, 2006 S.D. 100, ¶ 16, 724 N.W.2d 610, 617).

[¶14.] This Court has stated, however, that “the Sixth Amendment does not

bar out-of-court statements when the statement is not offered to prove the truth of

the matter asserted; thus, the Sixth Amendment poses no bar to the admission of

non-hearsay statements.” State v. Kihega, 2017 S.D. 58, ¶ 36, 902 N.W.2d 517, 528

(quoting United States v. James, 487 F.3d 518, 525 (7th Cir. 2007)). “We have also

noted that when this kind of out-of-court statement is not offered to prove the truth

of the matter asserted, ‘the Confrontation Clause is satisfied if the defendant had

the opportunity to cross-examine the person repeating the out-of-court statement.’”

Id. (quoting State v. Johnson, 2009 S.D. 67, ¶ 23, 771 N.W.2d 360, 369).

[¶15.] We need not address Podzimek’s assertion that the statements

admitted by the circuit court were testimonial hearsay which violated Podzimek’s

Confrontation Clause rights. This is because, even if admission of the statements

was improper, their admission was harmless error. “[A]n otherwise valid conviction

should not be set aside if the reviewing court may confidently say, on the whole

record, that the constitutional error was harmless beyond a reasonable doubt.”

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Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 1436, 89 L. Ed. 2d 674

(1986).

Whether such an error is harmless in a particular case depends
upon a host of factors, all readily accessible to reviewing courts.
These factors include the importance of the witness’[s] testimony
in the prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted, and, of
course, the overall strength of the prosecution’s case.

Id. at 684, 106 S. Ct. at 1438. In this vein, this Court has specifically held that even

if a circuit court errs in admitting hearsay statements, “the error [is] harmless [if]

the [admitted] evidence was cumulative of other evidence presented independently

at trial.” Kihega, 2017 S.D. 58, ¶ 33, 902 N.W.2d at 527 (quoting State v. Davi,

504 N.W.2d 844, 855 (S.D. 1993)).

[¶16.] Here, a full review of the record reveals a host of factors that show that

any alleged error committed by the circuit court in admitting Martin’s statements

was harmless beyond a reasonable doubt. Each of the statements made by Martin

to Klinger were unimportant to the prosecution’s case, namely because they

contained information that was merely cumulative or corroborative of other

evidence that was independently and properly admitted. Klinger’s testimony as to

Martin’s reason for making his initial complaint to the Consumer Protection

Division (because he felt he had been excessively billed by Podzimek) was brought

out in the testimony of Dacotah Bank President Menking. Menking testified that,

in a meeting with Martin and the County Sheriff, Menking added up the total

amount of the eight checks issued to Podzimek. When Martin saw the total amount

of money that he spent to have the pickup fixed, Menking indicated that Martin

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believed that he had been swindled, or excessively charged. Menking also indicated

that Dacotah Bank handed the issue over to the County Sheriff and the State’s

Attorney’s office because of the excessive charges to Martin.

[¶17.] Klinger’s testimony as to why Martin took his vehicle to be repaired at

Podzimek’s shop was cumulative of statements made by Podzimek himself. In a

letter of correspondence to Klinger, Podzimek explained that Martin brought his

vehicle to Podzimek to fix because Podzimek had previously noticed that the vehicle

was leaking antifreeze and that the engine was making a strange noise. Klinger’s

testimony regarding the amount of money Martin paid Podzimek, that the payment

was made by check, and that the two checks were cancelled was also established by

the testimony of Menking. Finally, Klinger’s testimony that Podzimek had told

Martin that a lien was placed on the vehicle was similar to the testimony of

Martin’s brother Bob Martin. Bob testified that Martin never received his pickup

back from Podzimek before Martin died in October of 2016.

[¶18.] Even if Klinger’s testimony regarding Martin’s statements were

considered testimonial hearsay, the information within those statements was

cumulative or corroborative of other evidence. The State’s overall case against

Podzimek was strong, regardless of the statement’s admission into evidence. The

admission was therefore harmless and did not prejudice Podzimek at trial.

[¶19.] 2. Whether the circuit court erred by admitting Podzimek’s
bank records, subpoenaed by the State, into evidence.

[¶20.] During the course of his investigation, Klinger subpoenaed Podzimek’s

bank account records from four different banks. Those bank records were then

admitted as evidence at Podzimek’s trial. Podzimek argues that records from three

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of those banks were improperly obtained because the subpoenas to obtain the

records were sent to the three banks via certified mail. Podzimek claims this

violated state law. Because the bank records were improperly obtained, Podzimek

claims that they should not have been admitted at trial. He argues that the circuit

court erred in denying his motion to suppress the bank records.

[¶21.] “We review a denial of a motion to suppress de novo.” State v. Jones,

2017 S.D. 59, ¶ 12, 903 N.W.2d 101, 106. A circuit court’s “findings of fact will not

be overturned unless clearly erroneous.” Id. “The application of the law to those

facts, or the ‘court’s legal rationale,’ however, is a question of law reviewed de novo.”

Id. (quoting State v. Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d 373, 377).

[¶22.] SDCL 37-24-16 provides that

Service of any notice, demand, or subpoena under this chapter
shall be personally served within this state, but if such cannot
be obtained, substituted service therefor may be made in the
following manner:
(1) Personal service thereof without the state; or
(2) The mailing thereof by registered or certified mail to
the last known place of business, residence, or abode of
such persons for whom the same is intended; or
(3) As to any person other than a natural person, in the
manner provided in the rules of civil procedure as if a
complaint or other pleading which institutes a civil
proceeding has been filed; or
(4) Such service as the circuit court for Hughes County,
South Dakota, may direct in lieu of personal service
within this state.

[¶23.] Podzimek claims that service of the subpoenas to the three banks in

question by certified mail was improper because Klinger did not first attempt to

serve the subpoenas to the bank by means of personal service. He asserts that

service by certified mail is not an alternative to personal service under SDCL 37-24-
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16, but rather a substitute if personal service is not possible. Podzimek, however,

provides no authority to support this position.

[¶24.] In its memorandum decision regarding the motion to suppress the

bank records, the circuit court determined that it did “not appear that the issuance

of the subpoenas or the basis for the subpoenas to the other three banks were

improper” because:

[n]one of the three banks made any record of an objection to the
manner in which they received the subpoena or attempted to
quash the subpoena they received. They turned over the
information that was requested in each subpoena to Agent
Klinger. Defendant has provided no authority for this [c]ourt to
conclude that an improperly served subpoena constitutes a
warrantless or improper search and seizure. Had any of the
three banks objected to compliance with the subpoena due to the
manner of service, Agent Klinger may have been required to
review SDCL 37-24-16 and proceed in a different manner.
However, based upon the belief that service of the subpoena
could be accomplished by certified mail and compliance with the
subpoena by the banks, Agent Klinger had no reason to question
the manner in which he proceeded.

[¶25.] The circuit court also noted that there was “no dispute [between the

parties] that the State could lawfully seek the information that was obtained from

the banks, and that issuance of a subpoena was an appropriate manner in which to

get that information.” Because of this, the court ultimately declined to suppress the

bank records.

[¶26.] The circuit court did not err when it denied Podzimek’s motion to

suppress. Though Klinger may not have complied with SDCL 37-24-16 in serving

the subpoenas to the bank, the bank did not object to the service or to turning over

the requested information. Further, the parties agreed that the State was entitled

to seek the requested information through the use of a subpoena.

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[¶27.] Podzimek next argues that “all of the subpoenas were deficient in their

form and nature” pursuant to SDCL 15-6-45(a). 1 However, as pointed out by the

State, Podzimek failed to raise this issue at trial. “Ordinarily an issue not raised

before the [circuit] court will not be reviewed at the appellate level.” State v.

Fischer, 2016 S.D. 1, ¶ 12, 873 N.W.2d 681, 686-87 (quoting Lindblom v. Sun

Aviation, Inc., 2015 S.D. 20, ¶ 8 n.2, 862 N.W.2d 549, 552 n.2). The issue is

therefore waived and we will not address it.

[¶28.] 3. Whether the circuit court erred by denying Podzimek’s
post-trial motion to set aside his guilty verdicts.

[¶29.] Podzimek argues that the State failed to properly identify him as the

person who committed the alleged offenses during the State’s case-in-chief.

1. SDCL 15-6-45(a) provides that

[c]lerks of courts, judges, magistrates, notaries public, referees,
and any other public officer or agency so empowered by § 1-26-
19.1 or otherwise authorized by law in any matter pending
before them, upon application of any person having a cause or
any matter pending in court or before such agency, officer or
tribunal, may issue a subpoena for a witness or witnesses.
...
A subpoena shall state the name of the court, or tribunal, the
title of the action or proceeding, and shall command each person
to whom it is directed to attend and give testimony at a time and
place therein specified. It shall state the name of the person or
party for whom the testimony of the witness is required. The
seal of the court or officer, or tribunal, shall be affixed to the
original and all copies, if issued by a court or officer having a
seal. If the subpoena is issued by an attorney, it shall be issued
in the name of the presiding officer of the court, or tribunal in
which the matter is pending and shall be attested and signed by
the attorney, designating the party for whom he is attorney of
record.

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Because of this, Podzimek claims that the State failed to meet its burden of proof

and that the guilty verdicts should have been set aside by the circuit court.

[¶30.] “Denial of a motion for acquittal is reviewed de novo.” State v. Stone,

2019 S.D. 18, ¶ 38, 925 N.W.2d 488, 500, reh’g denied (Apr. 16, 2019). “When

conducting our review, we ‘determine whether the evidence was sufficient to sustain

the conviction.’” Id. (quoting State v. Quist, 2018 S.D. 30, ¶ 13, 910 N.W.2d 900,

904). “To do so, we ask whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Id. (quoting Quist, 2018 S.D. 30,

¶ 13, 910 N.W.2d at 904). “If the evidence, including circumstantial evidence and

reasonable inferences drawn therefrom sustains a reasonable theory of guilt, a

guilty verdict will not be set aside.” Id. (quoting State v. Martin, 2017 S.D. 65, ¶ 6,

903 N.W.2d 749, 751).

[¶31.] Podzimek asserts that during the State’s case-in-chief, “there was no

out-of-court identification of the defendant[,] . . . no description of the defendant

testified to at trial[,] . . . no explicit identification of the defendant by any witness[,]

. . . [and] no request by the state to have the record reflect that the defendant had

been identified by a witness.” As such, Podzimek claims that the record in his case

is “devoid of any identification of Podzimek by the state” as the perpetrator of

crimes charged in the indictments.

[¶32.] The State first claims that Podzimek has waived the issue of

identification because he did not raise the issue at trial, but only in his post-trial

motion to set aside his guilty verdicts. But regardless of whether or not Podzimek

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has waived the issue, his contention that he was not properly identified still fails.

This Court has held that the question of a defendant’s identity in a criminal case is

a question of fact to be determined by a jury. Carothers, 2006 S.D. 100, ¶ 32,

724 N.W.2d at 621. Further, “[w]e have recognized that a courtroom identification

is not necessary when the evidence is sufficient to establish the inference that the

defendant is the person who committed the crime.” State v. Condon, 2007 S.D. 124,

¶ 20, 742 N.W.2d 861, 867.

[¶33.] The record reveals a wealth of evidence available from which the jury

could have properly identified Podzimek. The best example is Podzimek’s own

written statement that was submitted to Klinger. In the statement, Podzimek

identifies himself as the person who worked on Martin’s vehicle. Both parties

stipulated to the entry of that statement into the record. During his testimony, Bob

Martin also pointed out Podzimek in court as the person who had performed work

on his brother’s pickup. As to the sales tax charges, Podzimek stipulated to the

entry of his own tax returns. The business listed on the tax returns matched the

business listed on invoices billed to Martin for work done on his vehicle. There was

sufficient evidence to establish Podzimek’s identity as the person who committed

the crimes charged in the indictments. The circuit court did not err in denying

Podzimek’s motion to set aside his guilty verdicts.

Conclusion

[¶34.] Even if Klinger’s testimony regarding statements made to Klinger by

Martin constituted inadmissible hearsay, the circuit court’s admission of those

statements was harmless error. Further, the circuit court did not err in admitting

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Podzimek’s bank records into evidence, or in denying Podzimek’s post-trial motion

to set aside his guilty verdicts. We affirm.

[¶35.] KERN, JENSEN and SALTER, Justices, concur.

[¶36.] MEIERHENRY, Retired Justice, concurs in part and concurs in result

in part.

MEIERHENRY, Retired Justice (concurring in part and concurring in result in

part).

[¶37.] Podzimek claims he was denied his constitutional right to confront and

cross-examine an unavailable witness against him. He stated his issue as follows:

“Did the trial court err in admitting into evidence statements made by a decedent

(Martin) to law enforcement officials?” The majority opinion reframes the issue and

avoids answering the key question whether admitting the testimony violated

Podzimek’s Sixth Amendment right to confrontation. In my view, the constitutional

question should be addressed, and this Court should at a minimum give guidance

on whether Martin’s statements to the investigating officer are testimonial hearsay

giving rise to the Sixth Amendment guarantees.

[¶38.] The Sixth Amendment provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him[.]”

U.S. Const. amend. VI. As the United States Supreme Court explained in Crawford

v. Washington:

The text of the Confrontation Clause reflects this focus [on
testimonial hearsay]. It applies to “witnesses” against the
accused—in other words, those who “bear testimony.” 2 N.
Webster, An American Dictionary of the English Language

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(1828). “Testimony,” in turn, is typically “[a] solemn declaration
or affirmation made for the purpose of establishing or proving
some fact.” An accuser who makes a formal statement to
government officers bears testimony in a sense that a person
who makes a casual remark to an acquaintance does not.

541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177 (2004). The Crawford

Court further recognized that statements made to law enforcement are testimonial.

“Whatever else the term [“testimonial”] covers, it applies at a minimum to prior

testimony at a preliminary hearing, before a grand jury, or at a former trial; and to

police interrogations.” Id. at 68, 124 S. Ct. at 1374 (emphasis added). Indeed,

“[t]hese are the modern practices with closest kinship to the abuses at which the

Confrontation Clause was directed.” Id. Notably, however, the word “interrogation”

is used “in its colloquial, rather than any technical legal, sense.” Id. at 53 n.4, 124

S. Ct. at 1365 n.4; accord Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266,

2273, 165 L. Ed. 2d 224 (2006).

[¶39.] In two later cases decided together, Davis and Hammon v. Indiana, the

United States Supreme Court recognized that not all police interrogations result in

testimonial hearsay and devised the “primary purpose test” to identify testimonial

versus nontestimonial statements. 547 U.S. at 822, 126 S. Ct. at 2273-74. In Davis,

the Court determined that statements made to a 911 operator were nontestimonial

because the primary purpose of the interrogation was “to enable police assistance to

meet an ongoing emergency.” Id. at 822, 126 S. Ct. at 2273. In contrast, the Court

in Hammon, concluded that the victim’s statements made to a police officer who had

responded to a domestic disturbance call were testimonial because “there was no

emergency in progress” and “the interrogation was to investigate a possible crime.”

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Id. at 829-30, 126 S. Ct. at 2278. In differentiating the testimonial from

nontestimonial, the Court explained that “[s]tatements are nontestimonial when

made in the course of police interrogation under circumstances objectively

indicating that the primary purpose of the interrogation is to enable police

assistance to meet an ongoing emergency.” Id. at 822, 126 S. Ct. at 2273. However,

statements “are testimonial when the circumstances objectively indicate that there

is no such ongoing emergency, and that the primary purpose of the interrogation is

to establish or prove past events potentially relevant to later criminal prosecution.” 2

Id. at 822, 126 S. Ct. at 2274.

[¶40.] Here, during the jury trial, Martin’s statements to law enforcement

were introduced through Ray Klinger, the State’s investigator from the Attorney

General’s Office, Consumer Protection Division. Agent Klinger was investigating

Martin’s formal complaint against Podzimek. On direct examination, Agent Klinger

testified to Martin’s statements as follows:

State: Did you speak with Mr. Martin?
Agent Klinger: Yes, I did.

2. Since Crawford and Davis, the United States Supreme Court continues to
employ the primary purpose test. See, e.g., Michigan v. Bryant, 562 U.S. 344,
131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011); accord Ohio v. Clark, ___U.S. ___,
135 S. Ct. 2173, 2180, 192 L. Ed. 2d 306 (2015). In Bryant, police officers
discovered the victim mortally wounded, and the victim made statements to
the officers. The Supreme Court concluded that the “circumstances of the
interaction between” the victim and “the police objectively indicate that the
‘primary purpose of the interrogation’ was to ‘enable police assistance to meet
an ongoing emergency.’” 562 U.S. at 349, 131 S. Ct. at 1150. The Court,
therefore, held that the statements were not testimonial. In Clark, the
statements were not made to law enforcement; they were made by a three
year old to preschool teachers. Nevertheless, the Supreme Court applied the
primary purpose test and concluded that the statements were not
testimonial. ___ U.S. at ___, 135 S. Ct. at 2180.

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State: Okay. Was Mr. Martin cooperative with the
investigation?
Agent Klinger: Yes, he was.
State: What reason did Mr. Martin give for making the
complaint?
Agent Klinger: He felt that the charges that he was being
billed for on the vehicle were excessive and that he had not had
his vehicle for over a year and he wanted to get his vehicle back.
State: Did you speak with Mr. Martin about why he took his
vehicle to the Defendant?
Agent Klinger: Yes, I did.
State: What did he say?
Agent Klinger: He said that he had stopped there to visit with
Mr. Podzimek. After he had left he stated that he received a
phone call from Mr. Podzimek saying that he thought that his
vehicle had a coolant leak or a fluid leak, I should say, and that
he should possibly bring it back to have it looked at.
State: Okay. How much was Mr. Martin charged for the
repairs done to the vehicle?
Agent Klinger: Just over $52,000.
State: Did Mr. Martin tell you how he paid the Defendant?
Agent Klinger: With personal check.
State: Did Mr. Martin tell you how much he had actually given
to the Defendant?
Agent Klinger: Well, he had written multiple checks that
totaled, I believe, 39,800, approximately. And that he’d also
written two other checks that he had stopped payment on that
were right at $13,000.
State: And did Mr. Martin ever mention that a lien had been
placed on his vehicle by the Defendant?
Agent Klinger: He stated that Mr. Podzimek stated that he
was going to place lien on it or that he had placed a lien on it
due to the canceled checks.
...
State: And you indicated earlier you spoke with Mr. Martin
before his death about this [the invoices]?
Agent Klinger: That’s correct.

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State: When you first spoke with Mr. Martin, did he have any of
these invoices?
...
Agent Klinger: No, he did not.

[¶41.] Podzimek argues that Martin’s statements to Agent Klinger were

testimonial and should have been excluded. Without question, Martin’s statements

were made in response to a law enforcement interrogation. Agent Klinger was a

certified law enforcement officer hired by the Consumer Protection Division to

investigate complaints and had been directed to investigate Martin’s complaint. As

part of his investigation, he questioned Martin.

[¶42.] An objective examination of Agent Klinger’s questions and Martin’s

answers confirm that the primary purpose of the interview was “to investigate a

possible crime” and to “establish or prove past events potentially relevant” to

criminal charges against Podzimek. See Davis, 547 U.S. at 822, 126 S. Ct. at 2273.

In fact, Agent Klinger testified to no other purpose. Clearly, there was no ongoing

emergency or other reason for the interrogation. Therefore, applying well-settled

precedent, I would conclude that Martin’s statements were testimonial. Because

Martin’s out-of-court statements to Agent Klinger were testimonial and Podzimek

did not have an opportunity to cross-examine Martin, I would hold that the circuit

court erred in admitting the statements.

[¶43.] Also noteworthy is the circuit court’s erroneous reasoning as to

admissibility. The circuit court determined that Martin’s statements were

admissible “so long as the individuals to whom Mr. Martin made these statements

testify at trial and are available for cross-examination[.]” This reasoning is

misguided. Podzimek’s opportunity to cross-examine the law enforcement officer
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concerning the out-of-court statements of the unavailable witness does not cure a

violation of the Confrontation Clause. To be sure, the United States Supreme Court

has made clear that the Sixth Amendment mandates that a defendant have the

opportunity to cross-examine the unavailable witness to satisfy the guarantee of

confrontation. “Where testimonial statements are at issue, the only indicium of

reliability sufficient to satisfy constitutional demands is the one the Constitution

actually prescribes: confrontation.” Crawford, 541 U.S. at 68-69, 124 S. Ct. at 1374

(emphasis added).

[¶44.] Nevertheless, and although the circuit court erred, I agree with the

majority opinion that a violation of the Confrontation Clause is subject to the

harmless error review. On this point, the United States Supreme Court has set

forth that the proper harmless error inquiry:

is whether, assuming that the damaging potential of the cross-
examination were fully realized, a reviewing court might
nonetheless say that the error was harmless beyond a
reasonable doubt. Whether such an error is harmless in a
particular case depends upon a host of factors, all readily
accessible to reviewing courts. These factors include the
importance of the witness’ testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or absence
of evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the
prosecution’s case.

Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674

(1986) (emphasis added).

[¶45.] Here, the majority opinion concludes that the circuit court’s error in

admitting the statements was harmless beyond a reasonable doubt. While certain

statements made by Martin could be regarded as cumulative to other evidence,

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other factors also enter into the analysis. Martin’s inadmissible hearsay statements

established facts relevant to the charged crimes, but most of the evidence against

Podzimek came from other witnesses. Even Podzimek’s own testimony provided

corroborating evidence on many of the material statements made by Martin.

Additionally, Podzimek in his cross-examination of Agent Klinger presented several

more of Martin’s statements that were favorable to the defense. Finally, the overall

strength of the State’s case is compelling. Therefore, I agree that the State proved

beyond a reasonable doubt that the error was harmless. I also agree with the

majority opinion on the remaining issues.

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