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COURT OF APPEALS DECISION DATED AND RELEASED February 18, 1997 |
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. 96-2608-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL CRAWFORD,
Defendant-Appellant.
APPEAL from judgments of
the circuit court for Milwaukee County:
ELSA C. LAMELAS, Judge. Affirmed.
CURLEY, J. Michael
L. Crawford appeals from judgments of conviction for bail jumping and
disorderly conduct. He raises several
issues for review: (1) whether the trial court lacked jurisdiction to try him
because the criminal complaint did not charge him with a known offense; (2)
whether there was sufficient evidence to support his conviction for disorderly
conduct; (3) whether his First Amendment rights were violated by his conviction
for disorderly conduct; and (4) whether the trial court erroneously
exercised its discretion “in sending the case back to the jury after accepting
the verdict.” This court rejects his
arguments and affirms.[1]
I. Background.
The following facts are
undisputed. On the afternoon of October
3, 1995, Crawford was sleeping on the steps of the Catholic Aids Ministry
Office of Saint John the Evangelist Cathedral in downtown Milwaukee. Peter Habetler, the parish administrative
manager, found Crawford on the office steps and asked him to leave, informing
him that he could not sleep there.
Later that afternoon, Habetler found Crawford sleeping on the steps and
again asked him to leave. Habetler
shouted at Crawford to wake him, shook him, and removed the blanket from his
face. Habetler told him that if he was
not gone when Habetler returned, he would call the police. Crawford asked him not to call the police. Habetler left and Crawford fell back
asleep. When Habetler returned and saw
Crawford sleeping, he called the police.
What occurred next is
somewhat disputed. Habetler testified
that when the police arrived and tried to wake Crawford, “he became abusive and
used obscenities.” Habetler testified
that Crawford was “very uncooperative,” and was “yelling, accusing them of
stealing his shoes.” This continued for
ten minutes and, according to Habetler, Crawford continued to use obscenities,
including what Habetler referred to as the “F” word. Habetler later, on cross-examination, acknowledged that Crawford
had stated, among other things, “where is my fucking shoe?”[2]
One of the arresting
police officers testified that when they attempted to wake Crawford, he became
“boisterous and loud,” and said that “he didn't have to leave, that we should
just write him a ticket and be on our way.”
The officer testified that they again told Crawford he could not sleep
on the steps, and Crawford “became more boisterous and loud and started yelling”
at the police. The officer also testified that Crawford was yelling, “Fuck you,
get out of my face,” and “fuck you” all of the time. Finally, the officer testified that a few people in the nearby
park began to look to see what was going on.
Crawford was arrested and charged with disorderly conduct. He was released on bail. Crawford stipulated that, as a condition of
his release on a personal recognizance bond, he was ordered not to have any
contact with Peter Habetler or Saint John the Evangelist Cathedral.
Another officer then
testified that on October 7, 1995, he found Crawford sleeping on the steps of
the cathedral and he was arrested again.
Crawford was charged with bail jumping for violating the condition of
his bond. The cases were consolidated
and Crawford received a jury trial. The
jury convicted him of both charges.
II. Analysis.
Crawford first argues
that the trial court lacked jurisdiction to try him because the criminal
complaint did not charge him with an offense known to law. In essence, he is challenging the sufficiency
of the criminal complaint.
[A] complaint, including documents that
are made a part of it by reference, is a self contained charge, and it alone
may be considered in determining probable cause. Within the four corners of the document must appear facts that
would lead a reasonable [person] to conclude that probably a crime had been
committed and that the defendant named in the complaint was probably the
culpable party.
State
v. Haugen, 52 Wis.2d 791,
793, 191 N.W.2d 12, 13 (1971). The
complaint, therefore, must answer “certain fundamental questions ... “What is
the charge? Who is charged? When and Where is the offense alleged to
have taken place? Why is this
particular person being charged? [and] ¼ ‘Who says so?’”
State v. Elson, 60 Wis.2d 54, 57, 208 N.W.2d 363, 365
(1973) (citations omitted). Further,
“[i]n testing the complaint, both facts and the reasonable inferences arising
from the facts may be looked to.” Id.
at 58, 208 N.W.2d at 366.
Crawford was charged
with disorderly conduct. Section
947.01, Stats., provides:
Whoever, in a public or private place,
engages in violent, abusive, indecent, profane, boisterous, unreasonably loud
or otherwise disorderly conduct under circumstances in which the conduct tends
to cause or provoke a disturbance is guilty of a Class B misdemeanor.
The
criminal complaint was sufficient to charge Crawford with disorderly
conduct. The complaint alleged in part
that on October 3, 1995, Crawford was sleeping on cathedral property. The complaining officer averred that
Habetler informed him that he found Crawford sleeping on church property, and
that Habetler told Crawford he had to leave or he would call the police. The complaining officer further averred that
he spoke to Crawford, and that Crawford began arguing with him.
The complaint then
alleged:
[The complaining officer] reports that he
asked the defendant if he knew he was trespassing, at which time the defendant
replied “Just write me a ticket.” [The
complaining officer] reports that he told the defendant to get his belongings
together and leave, however the defendant continued to lay on the ground
refusing his order. [The officer]
reports that he told the defendant he would arrest him if he didn't leave, at
which time the defendant sat up and stated “Where the fuck are my shoes” and
stood up and began to yell at [the officer] stating, “You stole my fucking
shoe” and “I'm not leaving to (sic), you giving me my fucking shoe.” [The officer] reports that the defendant
continued to yell and shout obscenities and because of the defendant's yelling
and his refusal to leave, he was placed under arrest.
Within
the four corners of the criminal complaint were sufficient allegations and
alleged facts to establish probable cause that Crawford committed the offense
of disorderly conduct. It established
that he engaged in, at a minimum, boisterous conduct, which would tend to cause
or provoke a disturbance. Crawford's
alleged continued yelling and shouting of obscenities, and refusal to leave the
cathedral property support a finding of probable cause for disorderly
conduct. He was charged with an offense
known to law.
Crawford next argues
that the evidence was insufficient to support his convictions. He is incorrect.
The standard of review
that this court applies when testing the sufficiency of the evidence is recited
in State v. Poellinger, 153 Wis.2d 493, 451 N.W.2d 752 (1990):
[I]n reviewing the sufficiency of the
evidence to support a conviction, an appellate court may not substitute its
judgment for that of the trier of fact unless the evidence, viewed most
favorably to the state and the conviction, is so lacking in probative value and
force that no trier of fact, acting reasonably, could have found guilt beyond a
reasonable doubt. If any possibility
exists that the trier of fact could have drawn the appropriate inferences from
the evidence adduced at trial to find the requisite guilt, an appellate court
may not overturn a verdict even if it believes that the trier of fact should
not have found guilt based on the evidence before it.
Id. at
507, 451 N.W.2d at 757-758 (citations omitted). Stated another way:
“[t]his court will only substitute its judgment for that of the trier of
fact when the fact finder relied upon evidence that was inherently or patently
incredible—that kind of evidence which conflicts with the law of nature or with
fully-established or conceded facts.” State
v. Tarantino, 157 Wis.2d 199, 218, 458 N.W.2d 582, 590 (Ct. App.
1990). Additionally, the trier of fact
is the sole arbiter of the credibility of witnesses and alone is charged with
the duty of weighing the evidence. See
Poellinger, 153 Wis.2d at 506, 451 N.W.2d at 756.
Crawford argues that his
conduct did not constitute disorderly conduct.
He is wrong. A jury could
clearly convict Crawford of disorderly conduct after reviewing the testimony. Crawford yelled and shouted obscenities both
at the officers and in general. He
would not leave the private property of the cathedral after he was repeatedly
told to do so, and this conduct, which lasted for ten minutes, brought
onlookers to the scene.
Further, the jury could
convict Crawford of bail jumping because the evidence clearly showed that he
violated a condition of his bond by returning to the cathedral property after
he was ordered not to have any contact with the property. See § 946.49, Stats. (defining bail jumping); State
v. Dawson, 195 Wis.2d 161, 165, 536 N.W.2d 119, 120 (Ct. App. 1995)
(stating among other things that to be convicted of bail jumping the State must
show that the defendant intentionally violated a condition of his bond).
Crawford next contends
that his conviction for disorderly conduct violated his free speech rights
under the First Amendment to the United States Constitution. He argues that when he was swearing, he was
exercising his right to object to the authority of the police.
Whether a conviction
violates a defendant's right to free speech under the First Amendment is an
issue of constitutional law.
Constitutional questions are reviewed independently of the conclusion of
the lower courts. See State
v. Bangert, 131 Wis.2d 246, 283, 389 N.W.2d 12, 30 (1986) (citation
omitted).
This court's conclusion
is guided by the law set forth in State v. Zwicker, 41 Wis.2d
497, 164 N.W.2d 512 (1969), and State v. Becker, 51 Wis.2d 659,
188 N.W.2d 449 (1971). In Zwicker,
our supreme court explained the existence of limits on the right to free speech
as follows:
Constitutionally protected rights, such
as freedom of speech and peaceable assembly, are not the be all and end
all. They are not an absolute
touchstone.... To recognize the rights
of freedom of speech and peaceable assembly as absolutes would be to recognize
the rule of force; the rights of other
individuals and of the public would vanish.
Certain activities are outside the protection of the first and
fourteenth amendments.
Id. at
509-10, 164 N.W.2d at 518. In Becker,
the supreme court stated that:
Conduct which “involves substantial
disorder or invasion of the rights of others is ... not immunized by the
constitutional guarantee of freedom of speech.” The legislature has the right to reasonably regulate the conduct
of its citizens for the protection of society as a whole, even when that
conduct is intertwined with expression and association.
Id. at
664, 188 N.W.2d at 452 (citations omitted).
Accordingly, the conduct prohibited under the disorderly conduct statute
does not abridge the constitutional liberty of free speech. Zwicker, 41 Wis.2d at 509, 164
N.W.2d at 518.
Here, the conduct for
which Crawford was convicted was not protected under the First Amendment. The testimony presented showed that the
police were called to the cathedral by a private citizen after Crawford refused
to leave the cathedral grounds when told to do so. When the officers attempted to make him leave, he again refused
and repeatedly yelled obscenities at the police officers and in general during
the ten minutes before his arrest. This
commotion caused onlookers to gather in a nearby park. This conduct fell under the proscriptions of
the disorderly conduct statute, and therefore, Crawford's conviction did not
violate the First Amendment.
Finally, Crawford argues
that the trial court erroneously exercised its discretion when it allegedly
sent the case back to the jury after it had accepted the verdict. This court concludes that the trial court properly
exercised its discretion.
During deliberations,
the jury sent the trial court several notes stating that the jurors were “hung”
on the disorderly conduct charge. After
each note, the trial court directed the jury to continue deliberating until they
reached a verdict. Eventually, the
trial court called the jurors into the court, and with the parties present, the
court asked the foreperson if the jury could reach a verdict on the disorderly
conduct charge. After a brief colloquy
between the court and the foreperson of the jury, the court sent the jury back
with the expectation that a written question would be forthcoming. The jury, however, continued to deliberate,
did not forward a question to the court, and shortly thereafter, reached guilty
verdicts on both counts.
Crawford argues that at
the time the jury was called into the courtroom and the trial court and the
parties became aware that the jury was having difficulty arriving at a verdict
on the first count, the trial court had “accepted” the jury verdict. Therefore, the trial court should not have
allowed the jury to go back and deliberate.
“A jury's verdict is not
accepted until it is received in open court, the results announced, the jury
polled, if requested, and the judgment entered.” State v. Reid, 166 Wis.2d 139, 144, 479 N.W.2d 572,
574 (Ct. App. 1991). “Jurors are free
to reconsider a verdict, even though they have reached agreement with regard to
a particular charge ... so long as the verdict has not been accepted by the
court.” State v. Knight,
143 Wis.2d 408, 416, 421 N.W.2d 847, 850 (1988). Contrary to Crawford's contention, the trial court never accepted
the jury verdict. Rather, the trial
court instructed the jury to communicate by way of a written question. Accordingly, the trial court could allow the
jury to go back and deliberate.
In sum, this court
rejects all of Crawford's arguments and the judgments of conviction are
affirmed.
By the Court.—Judgments
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.