COURT OF APPEALS

DECISION

DATED AND FILED

 

May 17, 2011

 

A. John Voelker

Acting Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

 

 

 

 

Appeal No.�

2010AP1499-CR

Cir. Ct. No.� 2009CM1182

STATE OF WISCONSIN�

IN COURT OF APPEALS

 

DISTRICT III

 

 

 

 

State of Wisconsin,

 

��������� Plaintiff-Respondent,

 

���� v.

 

Jenny L. Nowak,

 

��������� Defendant-Appellant.

 

 

 

����������� APPEAL from a judgment of the circuit court for Marathon County:� GREGORY B. HUBER, Judge.� Affirmed.�

�1������� BRUNNER, J.[1]� Jenny Nowak appeals her convictions for failing to stop and resisting an officer.� Nowak asserts her convictions must be dismissed because the officer unlawfully entered her garage without a warrant; the circuit court erred by rejecting her proposed jury instruction and by failing to instruct the jury on exigent circumstances; the State prevented her from testifying; and she was never identified at trial.

�2������� We conclude the officer lawfully entered Nowak�s garage because he had probable cause to believe Nowak was committing a jailable offense and he was in hot pursuit.� We also determine the circuit court did not err by using the pattern jury instruction, and we decline to exercise our discretionary reversal power for the other, unobjected to, instruction.� Finally, we conclude the State did not preclude Nowak from testifying and Nowak was identified at trial.� We affirm.

BACKGROUND

�3������� On May 27, 2009, officer Nicholas Marcell was running stationary radar in a posted twenty-five miles-per-hour zone.� He noticed a vehicle that appeared to be speeding and locked his radar on the vehicle.� The radar device indicated the vehicle was traveling thirty-five miles per hour and then accelerated to thirty-nine miles per hour.�

�4������� Marcell pulled out behind the vehicle and activated his emergency lights.� The vehicle did not stop.� Marcell then activated his sirens.� The vehicle still did not stop.� Marcell continued following the vehicle.� He testified, �At that point in time, it seemed to me like the vehicle wasn�t going to stop.� It was going to proceed [to] wherever the vehicle was going or [it was] trying to elude my presence.�

�5������� The vehicle turned into a residential driveway and pulled into a garage that was attached to a house.� Marcell pulled into the driveway behind the vehicle.� A woman, later identified as Nowak, immediately exited the vehicle. ��She denied speeding and told Marcell that she did not see his lights or hear his sirens.� Marcell entered her garage, collected her driver�s license, and instructed her to wait in her vehicle.� He returned to his squad car to run her information through dispatch.

�6������� Marcell testified that although he knew resisting by failure to stop was a criminal violation, he originally planned to only issue a citation for speeding.� As Marcell was writing the speeding citation, Nowak exited her vehicle and approached the squad car.� She told Marcell she had given him plenty of time and was going to go inside her house to let her dog out.

�7������� Marcell ordered Nowak back into her vehicle.� Nowak ignored his commands, walked back into the garage past her vehicle, and began to enter her house.� Marcell followed her into the garage and grabbed her.� A struggle ensued, and Marcell subsequently arrested Nowak.�

�8������� The State charged Nowak with resisting a traffic officer by failure to stop when given both visible and audible signals, contrary to Wis. Stat. � 346.04(2t), and resisting an officer, contrary to Wis. Stat. � 946.41(1).[2]� Nowak, pro se, brought a motion to dismiss both charges or, in the alternative, to suppress all evidence because Marcell unlawfully entered her garage without a warrant.� Following an evidentiary hearing, the court denied Nowak�s motion in a written decision, finding that Marcell lawfully entered Nowak�s garage because he was in hot pursuit and he had probable cause to believe she committed a jailable offense.

�9������� Nowak represented herself at trial.� At the close of the State�s evidence, she informed the court she did not want to testify.� The court conducted a colloquy regarding her right to testify.� During the colloquy, the court inquired, �Has anyone made any threats or promises to influence your decision as to whether you will testify?�� Nowak responded, �No.�

�10����� After waiving her right to testify, Nowak moved for a directed verdict.� She argued the State failed to identify her as the person who committed the crimes.� The court denied her request, reasoning that based on �the discussions � [you and the officer] had when you cross[-]examined the officer, � the jury has enough to decide whether or not you, indeed, were the person �.�

�11����� Finally, Nowak objected to the pattern jury instruction�s definition of �resisting.�� Specifically, she proposed the definition of resisting be modified from �To resist an officer means to oppose the officer by force or threat of force� to �To resist an officer means to oppose the officer by active force or threat of force, and does not include passive force or threat of force.� �(Emphasis added.)� The court denied Nowak�s request, reasoning, �By its own definition, force is a positive thing � [and] I�m not sure there is such a thing as a passive force.�� The court opted to use the pattern jury instruction.� Nowak did not object to any other jury instructions.

�The jury found her guilty of both counts.�

 

 

 

DISCUSSION

�12����� Nowak raises four arguments on appeal.[3]� First, she asserts Marcell unlawfully entered her garage without a warrant and, consequently, both convictions must be dismissed.� Second, Nowak argues the circuit court erred by rejecting her proposed jury instruction and by failing to instruct the jury on exigent circumstances.� Third, Nowak asserts the State precluded her from testifying in her defense.� Fourth, she contends she was never identified at trial.

I.� Warrantless Entry

�13����� Nowak first asserts her resisting by failure to stop conviction must be dismissed because Marcell unlawfully entered her garage.[4]�� Nowak offers no legal authority as to why her conviction for conduct that occurred prior to Marcell�s alleged unlawful entry must be dismissed.� See State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992) (We decline to address issues that are inadequately briefed.).� Moreover, assuming the warrantless entry was unlawful, �[a]n illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction.�� State v. Ferguson, 2009 WI 50, �22, 317 Wis. 2d 586, 767 N.W.2d 187 (citations omitted).� We affirm Nowak�s resisting by failure to stop conviction.

�14����� Next, Nowak contends her resisting conviction should be dismissed because the conduct that formed the basis for the conviction occurred after Marcell�s unlawful entry.� She also argues the court should have granted her suppression motion.� A warrantless entry is presumptively unlawful under the Fourth Amendment.� Id., �18.� However, a warrantless entry is lawful if the State can prove the entry was justified by �exigent circumstances.�� Id., ��19-20.� �Exigent circumstances exist when �it would be unreasonable and contrary to public policy to bar law enforcement officers at the door.��� Id., �19 (quoting State v. Richter, 2000 WI 58, �28, 235 Wis. 2d 524, 612 N.W.2d 29).� There are four well-recognized categories of exigent circumstances:  �1) hot pursuit of a suspect, 2) a threat to the safety of a suspect or others, 3) a risk that evidence will be destroyed, and 4) a likelihood that the suspect will flee.�� Id., �20 (citation omitted).� �[I]n evaluating whether a warrantless entry is justified by exigent circumstances, [courts] should consider whether the underlying offense is a jailable or nonjailable offense �.�� Id., �29.

�15����� Marcell unequivocally testified that Nowak failed to stop her vehicle after he activated his emergency lights and sirens.� When Nowak did not stop, he continued to pursue her to the attached garage at her residence, and ultimately entered her garage to effectuate the stop.� When Marcell entered Nowak�s garage, he had probable cause to believe Nowak committed a jailable offense�specifically, resisting by failure to stop�and he was in hot pursuit.� See Wis. Stat. � 346.17(2t) (�Any person violating s. 346.04(2t) [resisting by failure to stop] may be fined not more than $10,000 or imprisoned for not more than 9 months or both.�); see also Richter, 235 Wis. 2d 524, �32 (�Hot pursuit� is established �where there is an immediate or continuous pursuit of [a suspect] from the scene of a crime.� Citation omitted).� We conclude Marcell lawfully entered Nowak�s garage on both occasions without a warrant because he was in �hot pursuit�; therefore, the circuit court properly denied Nowak�s suppression motion.

II.� Jury Instructions

�16����� Nowak next argues the court erred when instructing the jury on the definitions of �resisting� and �lawful authority.�� �A [circuit] court has broad discretion in deciding whether to give a particular jury instruction �.�� State v. Draughon, 2005 WI App 162, �9, 285 Wis. 2d 633, 702 N.W.2d 412.� However, the court must exercise its discretion to �fully and fairly inform the jury of the rules of law applicable to the case and to assist the jury in making a reasonable analysis of the evidence.�� Id. (citation omitted).� We independently review whether a particular jury instruction is appropriate under the facts of a given case.� Id. �

�17����� Nowak first asserts the circuit court erred by failing to instruct the jury: ��To resist an officer means to oppose the officer by active force or threat of force, and does not include passive force or threat of force.�� (Emphasis added.) �Nowak argues the court�s failure to distinguish between active force and passive force was improper because �[t]he testimony at trial indicated that Nowak never did anything to threaten the officer and she never touched the officer.�

�18����� We conclude the circuit court did not erroneously exercise its discretion when it opted to use the pattern instruction.[5]� Moreover, even if the circuit court had used Nowak�s proposed instruction, the evidence shows Nowak �actively resisted� Marcell.� When describing her resistive conduct, Marcell testified, �I placed her in � an escort hold, � [and] she started resisting from me.� She started pulling her arm away and trying to evade my escort hold.�� He continued:� �

I put � a compliance hold on her wrist � [and] she kept trying to shrug away from me and pull away from me .�

  �.

[S]he then actually slipped back into the car while I still had her arm in an escort hold and her wrist in a compliance hold.

Once she got into the car, she was holding onto the steering wheel and would not let go, and at that point I couldn�t pull her out.

We conclude the circuit court properly instructed the jury on the definition of �resisting.�

�19����� Nowak also argues the trial court erred when it instructed the jury on lawful authority.� Specifically, she contends that the court�s definition of lawful authority should have included an explanation of exigent circumstances.� At trial, Nowak never objected to this instruction or proposed an alternative instruction.�

�20����� Nowak has not properly preserved this objection for appeal, and our review of a waived objection to a jury instruction is limited.� See Wis. Stat. � 805.13(3); Steinberg v. Jensen, 204 Wis. 2d 115, 121, 553 N.W.2d 820 (Ct. App. 1996).� We will only reverse if it appears the real controversy has not been tried.� See Wis. Stat. � 752.35.� We exercise our discretionary reversal power sparingly.� Vollmer v. Luety, 156 Wis. 2d 1, 11, 456 N.W.2d 797 (1990).� Nowak has not persuaded us that the court�s allegedly deficient jury instruction prevented the real controversy from being tried.� Therefore, we decline to exercise our discretionary reversal power.

 

III.� Nowak�s Right to Testify

�21����� Nowak contends the State made a comment six months prior to trial that caused Nowak not to testify.� Specifically, at an earlier hearing, the State informed the court that Nowak had used quotations in her signed pretrial motion and �if she were to testify differently [at trial], my intentions would be to use that to impeach her as a prior inconsistent statement.�

� �22��� Nowak argues this comment �caused Nowak not to testify for fear that assertions that she may have made in argument during her briefing � would be held against her as inconsistent statements, if they differed from her in-court testimony.� �We reject Nowak�s argument. �First, the statement by the assistant district attorney was nothing more than the law�she can be impeached by a prior inconsistent statement.� See Wis. Stat. �� 906.13, 908.01.� Second, at trial, the court engaged Nowak in a colloquy regarding her right to testify.� The court specifically asked, �Has anyone made any threats or promises to influence your decision as to whether you will testify?�� Nowak replied, �No.�� Nowak cannot take one position at trial and a contrary one on appeal.� See State v. Gove, 148 Wis. 2d 936, 944, 437 N.W.2d 218 (1989) (�It is contrary to fundamental principles of justice and orderly procedure to permit a party to assume a certain position in the course of litigation � and then after the court maintains that position, argue on appeal that the action was error.�).

IV.� Identification

�23����� Finally, Nowak asserts she was not identified at trial.� We disagree. First, the jury viewed the video of Nowak�s interaction with Marcell and could identify Nowak from the video.� Second, during Nowak�s cross-examination of Marcell, he referred to Nowak in the second-person.� Specifically, Marcell�s responses to Nowak�s questions included, �I was informed by dispatch that the defendant, yourself, did not have any warrants� and �So I guess I was not going to allow you to enter into that house and get that dog, � no matter what you said.�� (Emphasis added.)� We determine Nowak was identified at trial.

����������� By the Court.�Judgment affirmed.

����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.

 


[1]  This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2).� All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.

[2]  Nowak also received a speeding citation.� At a separate trial, a jury found her guilty of speeding, and we affirmed her conviction.� See Village of Marathon City v. Nowak, No. 2010AP462, unpublished slip op. �1 (WI App Sept. 30, 2010).

[3]  Nowak is represented by counsel on appeal.

[4]  Neither party asserts the attached garage is not subject to the warrant requirement.� We accept the parties� characterization.

[5]  The court instructed the jury, �To resist an officer means to oppose by force or threat of force.�� See Wis JI�Criminal 1765.�