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Clearly erroneous standard of review applies

Hon. Daniel Anderson

Hon. Daniel Anderson

Although nearly all traffic stops are videotaped, no published court opinion has dictated what standard of review appellate courts should apply when it is claimed the videotape conflicts with testimony.

On May 11, the Wisconsin Court of Appeals held that the trial court’s ruling must be affirmed unless it is clearly erroneous.

In 2009, Jeffrey D. Walli was stopped by a City of Sheboygan police officer, and ultimately charged with operating a motor vehicle while intoxicated.

Walli moved to suppress the evidence against him, contending that the officer lacked reasonable suspicion to stop him.

The officer testified that as he was traveling westbound, Walli’s vehicle, traveling eastbound, crossed the center line and nearly sideswiped his squad car.

The video recording from the squad car’s camera was played for the court.

During arguments, the prosecutor and defense counsel disputed whether the recording in fact showed that Walli crossed the center line. The circuit court found that the officer did see the vehicle cross the centerline, and denied the suppression motion.

After losing at trial, Walli appealed. The Court of Appeals converted the case to a three-judge panel and ordered supplemental briefing on the appropriate standard of review to apply.

In an opinion by Judge Daniel Anderson, the court adopted the clearly erroneous standard, and af-firmed.

First, the court noted that in Phelps v. Physicians Ins. Co. of Wis., Inc., 2009 WI 74, 319 Wis.2d 1, 768 N.W.2d 615, the Supreme Court held that the Court of Appeals has no constitutional authority to make factual determinations, when the evidence is in dispute.

Second, sec. 805.17(2) provides that in cases tried to a court, “Findings of fact shall not be set aside unless clearly erroneous …”

Third, the court found persuasive precedents from Wyoming and Georgia applying the clearly erroneous standard, rather than de novo review, in similar cases.

Accordingly, the court viewed the video recording and concluded that the trial court’s finding — that Walli did cross the center line — was not clearly erroneous, and affirmed.

In a footnote, the court left open the possibility of applying de novo review, if the video recording is the only evidence in the record.

David Ziemer can be reached at david.ziemer@wislawjournal.com.

What the court held

Case: State v. Walli, Nos. 2010AP1256-CR & 2010AP1257

Issues: What standard of review should the Court of Appeals apply when the record consists of disputed testimony and a video recording?

Holdings: The clearly erroneous standard is required by precedent and statute.

Attorneys: For Plaintiffs: Warren D. Weinstein, Madison; Christopher W. Stock, Charles A. Adams, Sheboygan; For Defendant: Chad A. Lanning, West Bend

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