COURT OF APPEALS DECISION DATED AND RELEASED October
4, 1995 |
NOTICE |
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. 95-0052
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
DONALD
E. STOETZEL,
Plaintiff-Appellant,
v.
CITY
OF NEW BERLIN,
MICHAEL
HANRAHAN,
BRIAN
JOHNSON and
KIMBERLY
FRIESE,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Waukesha County: MARK S. GEMPELER, Judge. Affirmed.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
PER
CURIAM. Donald E.
Stoetzel appeals pro se from a judgment following a jury trial dismissing his action
against the City of New Berlin, its police chief Michael Hanrahan, and its
police officers Brian Johnson and Kimberly Friese (collectively, the
City). Stoetzel alleged that he was
physically assaulted by officers Johnson and Friese during a traffic stop on
April 3, 1991. The issues pertain to
alleged trial errors and the use of a thirteen-person jury. We conclude that there was no error and
affirm the judgment.
At
the outset, we find Stoetzel's brief disorganized and incomprehensible. Pro se appellants in a civil action are
bound by the same rules that apply to attorneys on appeal and must satisfy all
procedural requirements. Waushara
County v. Graf, 166 Wis.2d 442, 452, 480 N.W.2d 16, 20, cert. denied,
506 U.S. , 113 S. Ct. 269
(1992). Stoetzel fails to meet the most
basic requirements that his brief state the issues, provide facts necessary to
understand them, and present an argument and reasons for the argument. See id.; Rule 809.19, Stats. Further,
Stoetzel presents no citations to legal authorities for his contentions.
While
some leniency may be allowed, we do not have "a duty to walk pro se
litigants through the procedural requirements or to point them to the proper
substantive law." Graf,
166 Wis.2d at 452, 480 N.W.2d at 20.
Likewise, we are not required to sift through Stoetzel's brief to craft
an argument for him. Rather, we will
ignore much of the discussion of irrelevant facts in Stoetzel's brief and adopt
the issues as framed by the City.
Undoubtedly the City's experience with this litigation has enabled it to
clarify Stoetzel's claims and provide us with an understanding of them.
At
trial, Stoetzel was asked by his attorney how many times he had been convicted
of a crime. Stoetzel answered twice and
no further inquiry was made about prior convictions. Stoetzel argues that he was not allowed to tell the "whole
truth" in answering questions about his prior convictions. Evidence that Stoetzel had been twice
convicted of a crime was properly admitted pursuant to § 906.09, Stats.
The trial court also properly precluded the City from exploring the
nature of those prior convictions and other bad acts.
While
Stoetzel's trial counsel did not elicit testimony from him about the nature of
the prior convictions, Stoetzel cannot complain now. See State v. Ruud, 41 Wis.2d 720, 726, 165
N.W.2d 153, 156 (1969) (a deliberate and knowing election between alternative
courses of action as a matter of strategy does, in effect, estop the litigant
from claiming error). For the same
reasons, we need not consider Stoetzel's claim that the attorney he hired would
not allow him to subpoena any witnesses.
Stoetzel had his choice of counsel and his opportunity to submit
evidence.
Stoetzel
contends that he was not provided adequate time to confer with his counsel
about "very important matters."
However, at the point in the trial to which Stoetzel cites, he and his
attorney were permitted during the jury's lunch time to make a decision about
whether rebuttal testimony would be offered.
Adequate time was provided.
Further, Stoetzel does not indicate what prejudice he might have
suffered as a result of the alleged inadequate time period.
Next,
Stoetzel argues that records of the emergency room physician who attended him
were improperly admitted. The records
were admitted pursuant to § 908.03(6m), Stats.,
along with other certified records from the hospital. The documents do not constitute unsworn testimony. Also, there was no objection to their
admission. No error occurred.
Stoetzel
also contends that § 756.096(3)(b), Stats.,
does not permit the utilization of a thirteen-person jury. Here, there was a stipulation to use a
thirteen-person jury. It is well
established that where a party has induced certain action by the trial court,
he or she cannot later complain on appeal.
Zindell v. Central Mut. Ins. Co., 222 Wis. 575, 582, 269
N.W. 327, 330 (1936). Even if there was
error in using a thirteen-person jury, there was no prejudice. There were no dissenting jurors on the
verdict.
Finally,
Stoetzel's complaints about witnesses lying and the absence of documentary
evidence to corroborate the police officers' testimony are cognizable as a
challenge to the sufficiency of the evidence to support the jury's
verdict. A jury verdict will be
sustained if there is any credible evidence to support it. Radford v. J.J.B. Enters., 163
Wis.2d 534, 543, 472 N.W.2d 790, 794 (Ct. App. 1991). The credibility of the witnesses and the weight afforded their
individual testimony are left to the province of the jury. Fehring v. Republic Ins. Co.,
118 Wis.2d 299, 305, 347 N.W.2d 595, 598 (1984).
The
jury concluded that neither officer used excessive force during Stoetzel's
arrest. It answered the damages
questions with zeros. The jury chose to
believe the police officers' testimony and rejected Stoetzel's version of the
incident. The record here supports the
jury's verdict.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.