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COURT OF APPEALS DECISION DATED AND RELEASED July 27, 1995 |
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.
95-0016-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
BRADLEY BROWNLEE,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Grant County:
GEORGE S. CURRY, Judge. Affirmed.
GARTZKE, P.J. Following a jury trial, Bradley Brownlee
was convicted on two counts of disorderly conduct, § 947.01, Stats., and one count of resisting an
officer, § 946.41(1), Stats. He appeals from an order denying his
postconviction motions for a new trial.
He contends that he was denied effective assistance of counsel and
should, in any event, have a new trial in the interest of justice.[1] This court affirms the order.
Section 947.01, Stats., defines disorderly conduct, a
misdemeanor, as engaging 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. Section 946.41(1), Stats.,
defines resisting an officer as knowingly resisting or obstructing an officer
while such officer is doing any act in an official capacity and with lawful
authority. Such conduct is a
misdemeanor.
The three convictions
relate to three episodes. On September
5, 1993, Brownlee returned to the apartment he and Veronica Wardell
occupied. Shortly after his arrival,
they argued. According to Wardell,
Brownlee pushed her several times, she slapped him, he punched her and she
kicked him. He fell, knocked down a
vase, and threw it at a mirror, shattering the vase and mirror. Wardell told Davina Keller, who arrived at
the apartment shortly after the incident, to call the police, and Brownlee
joined in the request. Keller left the
apartment. This episode resulted in a
disorderly conduct charge.
A while later, Wardell
left the apartment. At the time she
left, Brownlee had been asleep on the couch for at least fifteen minutes. She met police officers at the bottom of the
stairwell leading up to the apartment.
She talked to them at the police station, which was across the street,
and she told them what had happened.
She also told them that Brownlee was "passed out on the
couch." They asked her whether
there were any weapons in the apartment.
She responded that there were knives in the kitchen, and that Brownlee
worked as a meat boner.
After talking to
Wardell, the two officers went back across the street and entered the
apartment.[2] At this point episode two began. Brownlee lay on the couch under a blanket,
and when the officers could not elicit a response from him, they decided to
handcuff him. One officer attempted to
remove the blanket, but Brownlee clutched it and would not let go. The officers pulled him to the floor in
order to handcuff him. Brownlee
struggled with them. One officer
testified that he told Brownlee he was under arrest while Brownlee was on the
floor. The other officer warned
Brownlee that if he stood up, the officer would strike him. Brownlee started to stand up and the officer
struck him with a flashlight. Brownlee
moved away from the officers and toward the apartment's kitchen area. The officer with the flashlight followed
him. According to that officer,
Brownlee made an evasive move which put him close to a kitchen drawer. The officer delivered several blows to him,
one of which resulted in a head wound.
Brownlee again struggled with the officers. With the assistance of people who came up from downstairs, the
officers carried him down the stairs and outside, and handcuffed him face down
on the sidewalk. Brownlee's conduct
during the officers' efforts to make the arrest resulted in the
resisting-an-officer charge.
The third episode began
after Brownlee's arrest and while he was being transported to a hospital. In the ambulance Brownlee threatened to kill
the accompanying police officer and directed obscenities at emergency medical
technicians. At the hospital he
addressed similar language to an officer and an attending doctor. The third episode resulted in the second
disorderly conduct charge.
Appellate counsel moved
the trial court for a new trial on grounds that Brownlee's trial counsel had
been ineffective in that he failed to raise the issues whether the police had
consent to enter the apartment, had probable cause to arrest, and used
excessive force in the arrest; and because he failed to object to a jury
instruction on the resisting-an-officer charge which did not adequately define
"lawful authority." Appellate
counsel argued that because of those failures, Brownlee was precluded from
raising the issue whether the officers' conduct provoked his response, which
therefore precluded him from contending that he could not be found guilty of
disorderly conduct when responding to improper police conduct, and from
properly raising and presenting the affirmative defenses of privilege,
§ 939.45, Stats., and
self-defense, § 939.48, Stats. Finally, appellate counsel urged that the
instructional error precluded the real issue from being tried. The trial court denied Brownlee's
postconviction motions. This appeal
followed.
To prove ineffective
assistance of counsel, a defendant must establish both a deficient performance
and resulting prejudice. Strickland
v. Washington, 466 U.S. 668, 687 (1984). On appeal, ineffective assistance of counsel is a mixed question
of fact and law. State v. Pitsch,
124 Wis.2d 628, 633-34, 369 N.W.2d 711, 714 (1986).
The first disorderly
conduct charge relates to events before the officers arrived. Brownlee's ineffective-assistance claim
cannot possibly relate to that charge.
The second disorderly conduct charge relates to Brownlee's post-arrest
verbal abuse. The
ineffective-assistance claim has no relation to the second disorderly conduct
charge. In short, the alleged
deficiencies in the representation did not prejudice Brownlee with regard to
either disorderly conduct charge. The
trial court properly dismissed Brownlee's motion for a new trial on those
charges.
We turn next to the
resisting-an-officer count. The record
shows that the trial court instructed the jury that before it could find
Brownlee guilty of the resisting-an-officer offense, it must find that he
resisted an officer, the officer was doing an act in an official capacity and
with lawful authority, and the defendant knew that the officer was acting in an
official capacity and with lawful authority and knew that his conduct would
resist the officer.
The court further
instructed the jury:
Police officers act in an official
capacity if they perform duties that they are employed to perform. A police officer who performs acts for
personal reasons that are not within the responsibilities of a police officer
does not act in an official capacity.
The responsibilities of a police officer include investigating domestic
disputes.
...Police officers act with lawful authority if
their acts are conducted in accordance with the law. In this case it is alleged that the officer was investigating a
domestic dispute.
Neither
the prosecutor nor Brownlee's trial counsel objected to the instructions. For that reason, the court of appeals lacks
the power to review unobjected-to error in the instructions, except (as
material here) with regard to ineffective assistance of counsel and when
deciding whether to reverse under § 752.35, Stats. State v.
Schumacher, 144 Wis.2d 388, 408 n.14, 409, 424 N.W.2d 672, 680 (1988).
Following the
postconviction motions hearing, the court held that although "lawful
authority" was not specifically defined in the instructions, that did not
mislead the jury, since the evidence showed that the acts of resisting which
the jury needed to consider were Brownlee's acts before the officers used force
on him. The court held that the need to
be more specific was not raised by the evidence, and the lack of specificity
did not prejudice Brownlee.
Moreover, following a Machner
hearing at which defense trial counsel testified, the court said that trial
counsel's strategy was to show that the officers did not come into the
apartment with "lawful authority," and he waited until the trial to
confront the police, as a trial tactic.
The tactic failed because the jury believed the testimony of the police
to the effect that they had permission to enter the apartment. Consequently, failing to define the term
"lawful authority" did not prejudice Brownlee.
The court ruled that
trial counsel's performance was not deficient because he made a calculated
decision that further definition of the term "lawful authority" was
unnecessary, and because the time relevant to the issue of resistance was when
Brownlee tried to "escape," not a later point when the officer hit
him, and the amount of force used after his attempt to "escape" is
not relevant to the resisting charge.
"Lawful
authority" is an element of the resisting-an-officer charge. Further definition of "lawful
authority" depends upon the officers' acts, if an issue was raised in that
regard. See Wis JI Crim—1765 cmt. 8.
If Wardell did not
consent and the entry was not lawful for another reason, then the officers had
no right to enter the apartment without a warrant and arrest Brownlee. Because the State does not contend that
exigent or other circumstances justified their warrantless entry, whether the
entry was consensual was critical.
Whether Wardell consented to entry is a disputed issue of fact. The jury should have received instruction on
the issue of consent to enter the apartment.
Probable cause is the sine
qua non of a lawful warrantless arrest.
State v. Drogsvold, 104 Wis.2d 247, 254, 311 N.W.2d 243,
246 (Ct. App. 1981). Probable cause was
not an issue. Because Wardell had told
the officers at the police station what had happened, they had probable cause
to arrest Brownlee even before they entered the apartment. An instruction on probable cause was
unnecessary.
Excessive force when
effecting an arrest deprives the arrest of lawful authority. See State v. Mendoza,
80 Wis.2d 122, 154, 258 N.W.2d 260, 274 (1977) (officer may be guilty of
assault and battery if unnecessary and excessive force is used in effecting
arrest). One officer testified that
they decided to handcuff Brownlee while he lay on the couch. When they pulled him off the couch and onto
the floor he was kicking and they could not get his hands behind his back to
handcuff him. The same officer
testified that he told Brownlee he was under arrest while Brownlee was on the
floor and before he stood up. The
arrest was effected at that point. No
basis exists for the contention that excessive force occurred before that
point. Excessive force arguably
occurred after Brownlee was arrested, but that circumstance could not effect
the lawfulness of the arrest.
We return to the absence
of an instruction on consent to enter.
The defendant who claims ineffective assistance of counsel must show
both a deficient performance and prejudice resulting from that performance. Strickland v. Washington, 466
U.S. 668, 687 (1984). Whether or not
Brownlee's trial counsel provided a deficient performance by failing to request
an instruction on consensual entry, the issue was present during the trial,
evidence was received on the issue and both sides argued the issue to the
jury. At the Machner
hearing trial counsel testified that the prosecution argued that the officers
entered with consent and he "certainly" argued to the contrary. The trial court found that the jury believed
the testimony of the police officer that he and his partner had
permission. The unobjected-to error did
not prejudice Brownlee.
Finally, we decline to
exercise our discretionary power of reversal under § 752.35, Stats., because it does not appear from
the record that the real controversy has not been tried, or that a second trial
will probably produce a different result.
Vollmer v. Luety, 156 Wis.2d 1, 19, 456 N.W.2d 797, 805
(1990).
By the Court.--Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] At the trial, one officer testified that while at the police station he asked Wardell for her consent to enter the apartment and she gave it. The other officer testified that he was unsure whether Wardell was asked if she consented, although he believed she was. He also testified that he did not ask her for consent. Wardell testified that the officers "didn't directly ask me the question if they could go in [the apartment]."