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COURT OF APPEALS DECISION DATED AND RELEASED May 29, 1996 |
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. 95-1333-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOHNNY BOHANNON,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: ELSA C. LAMELAS and KITTY K. BRENNAN,
Judges. Affirmed.
FINE,
J. Johnny E. Bohannon appeals from a judgment convicting him
of resisting an officer, see § 946.41, Stats.,
and from the trial court's order denying post-conviction relief.
This case has its
origins in a report received by Milwaukee police officers that a man whom they
later identified to be Bohannon had gotten into a dispute with another person,
pulled out a gun, and fired it two times in the air. The officers went to Bohannon's house to investigate. A woman who identified herself as Mrs.
Bohannon answered the door and told the officers that Bohannon was not
home. At that point, one of the
responding officers saw, as found by the trial court, “a man ducking as if
trying to hide or flee.” The officers
entered the house, arrested and handcuffed Bohannon. They did not have a warrant.
No gun was found. Bohannon was
charged with resisting an officer when he kicked one of the officers whom
Bohannon claimed was threatening his wife.
Bohannon raises five
issues on this appeal. First, he
asserts that the trial court erred in not suppressing what he claims to be an
unlawful warrantless arrest. Second, he
argues that the trial court should have instructed the jury on the defense of
provocation. Third, he contends that
the trial court should have instructed the jury on the defense-of-others
privilege. Fourth, he claims that the
trial court misused its discretion in imposing a nine-month stayed sentence of
incarceration and a two-year period of probation, with a sixty-day period of
work-release confinement as a condition of probation. Fifth, he argues that his trial counsel was ineffective. We affirm.
1. Warrantless
Arrest.
The State and Bohannon
agreed that Bohannon's motion to suppress the arrest could be decided by the
trial court based on the police reports, and that live testimony was not
required. Unfortunately, copies of
those police reports are not in the record on appeal. Thus, we are limited to the findings made by the trial court, and
must assume that they are not “clearly erroneous.” See Rule
805.17(2), Stats. (findings by
trial court must be upheld on appeal unless “clearly erroneous”), made applicable
to criminal proceedings by § 972.11(1), Stats.;
Wurtz v. Fleischman, 97 Wis.2d 100, 107 n.3, 293 N.W.2d 155, 159
n.3 (1980) (appellate court may not consider matters not contained in record); Duhame
v. Duhame, 154 Wis.2d 258, 269, 453 N.W.2d 149, 153 (Ct. App. 1989)
(when appellate record is incomplete in connection with issue raised by
appellant, appellate court must assume that missing material supports trial
court's ruling).[1]
Absent exigent
circumstances, the Fourth Amendment prohibits warrantless arrests in the
home. Welsh v. Wisconsin,
466 U.S. 740, 749–750 (1984). Here, as the trial court pointed out in its oral
decision, the officers were justified in going to Bohannon's home to
investigate the report that he had fired a gun in the air:
The
officers in this case were investigating an incident, which while it might be
described as somewhat a routine incident, at the same time it is the kind of
incident that brings with it the potential for danger to citizens and police
officers. The incident was one of shots
fired in the air. At the time that the
police went to the home, I believe they were acting responsibly. They had, however, no probable cause and,
indeed, no basis upon which to obtain a warrant until they were at the door
when the defendant was identified, that is, when the wife denied his
presence. That's when probable cause
arose and also circumstances which revealed risk of officer safety.
Although
our review of the trial court's conclusion that the officers complied with the
Fourth Amendment is de novo, see State v. Angiolo,
186 Wis.2d 488, 494–495, 520 N.W.2d 923, 927 (Ct. App. 1994), we agree. Given Mrs. Bohannon's denial of what they
knew to be true—namely, that there was a man in the house, and that he appeared
to be hiding—the officers reasonably believed that the man presented a danger
that required immediate entry.[2] We affirm the trial court's denial of
Bohannon's motion to suppress his warrantless arrest.[3]
2 & 3. Jury
Instructions.
Bohannon argues that the
trial court should have instructed the jury on the defense of
provocation—citing here as he did before the trial court the statement in Lane
v. Collins, 29 Wis.2d 66, 72, 138 N.W.2d 264, 267 (1965), that “a
police officer cannot provoke a person into breach of the peace, such as
directing abusive language to the police officer, and then arrest him without a
warrant.” Lane, a civil
case, affirmed awards against a police officer for false imprisonment. In refusing to give Bohannon's requested
instruction, which, unfortunately, is not in the appellate record, the trial
court noted that apparently the instruction was not given in Lane,
and that it had, apparently, never been given in a criminal case.[4]
Although a trial court
has broad discretion in determining what jury instructions need be given, State
v. Herriges, 155 Wis.2d 297, 300, 455 N.W.2d 635, 637 (Ct. App. 1990),
a defendant is entitled to an instruction that bears on his or her theory of
defense, State v. Gaudesi, 112 Wis.2d 213, 223, 332 N.W.2d 302,
306 (1983). Other than citing
generalized principles of law, however, Bohannon does not explain how the
evidence in this case warranted an instruction on provocation. Accordingly, we
do not address this issue. See Barakat
v. DHSS, 191 Wis.2d 769, 786, 530 N.W.2d 392, 398 (Ct. App. 1995)
(appellate court need not consider “amorphous and insufficiently developed”
arguments); Murphy v. Droessler, 188 Wis.2d 420, 432, 525 N.W.2d
117, 122 (Ct. App. 1994) (arguments in appellate briefs must be supported by
authority and references to the record, Rule
809.19(1)(e) & (3)(a), Stats.,
and appellate courts need not consider arguments that do not comply).
Bohannon also requested
that the trial court give to the jury Wis
JI—Criminal 825, which concerns the privilege to act in the defense of
others. Here again, however, Bohannon
has not explained how the evidence in this case warranted the instruction. Accordingly, we do not address his claim of
error. See Barakat,
191 Wis.2d at 786, 530 N.W.2d at 398; Murphy, 188 Wis.2d at 432,
525 N.W.2d at 122.
4. Sentence.
Bohannon claims that the
trial court erroneously exercised its sentencing discretion because it assumed
that Bohannon had, at one point at least, possessed the gun and fired it as
described in the police report, and because it assumed, based on evidence
elicited during the course of a hearing on whether Bohannon was justified in
refusing to have his blood-alcohol content measured, that he had driven while
under the influence of an intoxicant.
Sentencing is within the
trial court's discretion and will only be overturned if there is an abuse of
discretion or if discretion is not exercised.
Ocanas v. State, 70 Wis.2d 179, 183-184, 233 N.W.2d 457,
460 (1975).
The
exercise of discretion contemplates a process or reasoning based on facts that
are of record or that are reasonably derived by inference from the record, and
a conclusion based on a logical rationale founded upon proper legal standards.
Id., 70 Wis.2d
at 185, 233 N.W.2d at 461. Thus, a
court may impose a sentence within the limits set by statute, ibid.,
if it considers appropriate factors.
The
primary factors to be considered in imposing sentence are the gravity of the
offense, the character of the offender, and the need for protection of the
public.
Elias
v. State, 93 Wis.2d 278, 284, 286 N.W.2d 559, 561 (1980). If the trial court exercises its discretion
based on the appropriate factors, a particular sentence will not be reversed
unless it “is so excessive and unusual and so disproportionate to the offense
committed as to shock public sentiment and violate the judgment of reasonable
people concerning what is right and proper under the circumstances.” Ocanas, 70 Wis.2d at 185, 233
N.W.2d at 461. “The weight to be given
each factor is within the discretion of the trial court.” State v. Wickstrom, 118 Wis.2d
339, 355, 348 N.W.2d 183, 192 (Ct. App. 1984).
A sentencing court may appropriately consider uncharged or unproven
offenses, Elias, 93 Wis.2d at 284, 286 N.W.2d at 562, as well as
crimes for which the defendant has been acquitted, Tucker v. State,
56 Wis.2d 728, 740, 202 N.W.2d 897, 902 (1973).
In sentencing Bohannon,
the trial court analyzed the appropriate factors, considered Bohannon's prior
record (a 1989 conviction for criminal damage to property, and a 1991
conviction for disorderly conduct), noted that Bohannon was the type of person
“who is quite willing to take offense when other people do anything,” and
considered the circumstances surrounding the incident that resulted in his
conviction. The trial court's sentence
was well within the ambit of its discretion.[5]
5. Effective
Assistance of Counsel.
Every criminal defendant
has a Sixth Amendment right to the effective assistance of counsel. Strickland v. Washington, 466
U.S. 668, 686 (1984). In order to
establish violation of this fundamental right, a defendant must prove two
things: (1) that his or her lawyer's
performance was deficient, and, if so, (2) that “the deficient performance
prejudiced the defense.” Id.,
466 U.S. at 687. A lawyer's performance
is not deficient unless he or she “made errors so serious that counsel was not
functioning as the `counsel' guaranteed the defendant by the Sixth Amendment.” Ibid. Similarly, a defendant alleging prejudice
must demonstrate that the trial lawyer's errors “were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.” Ibid. As recently restated, the “prejudice”
component of Strickland “focusses on the question whether
counsel's deficient performance renders the result of the trial unreliable or
the proceeding fundamentally unfair.” Lockhart
v. Fretwell, 113 S. Ct. 838, 844, 122 L.Ed.2d 180, 191 (1993).
On appeal, the standard
of review is a question of both fact and law.
Strickland, 466 U.S. at 698. The trial court's findings of fact will not be reversed unless
clearly erroneous. State v.
Pitsch, 124 Wis.2d 628, 634, 369 N.W.2d 711, 714 (1985). However, questions of whether counsel's
actions were deficient, and, if so, whether they prejudiced the defense, are
questions of law to be determined independently by the reviewing court. Id., 124 Wis.2d at 634, 369
N.W.2d at 715. We need not analyze
counsel's performance if it is clear that any alleged deficiencies did not
prejudice the defendant. Strickland,
466 U.S. at 687; State v. Johnson, 153 Wis.2d 121, 128, 449
N.W.2d 845, 848 (1990).
Following the
post-conviction hearing mandated by State v. Machner, 92 Wis.2d
797, 804, 285 N.W.2d 905, 908 (Ct. App. 1979), the trial court concluded that
Bohannon's trial counsel was not ineffective, and that his decision to agree to
the use of the police reports was reasonable trial strategy. In an undeveloped argument, Bohannon
disagrees but does not explain—beyond a conclusory couple of sentences—how the
trial court's decision on his suppression motion was rendered either
“unreliable” or “fundamentally unfair.”
See Lockhart, 113 S. Ct. at 844, 122 L.Ed.2d at 191. As already noted, we will not consider
arguments that are not sufficiently developed.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] It is appellant's burden to insure that the record is sufficient to address the issues raised on appeal. State Bank of Hartland v. Arndt, 129 Wis.2d 411, 423, 385 N.W.2d 219, 225 (Ct. App. 1986); see Rule 809.15(1)(a)(9), Stats. (The record on appeal shall include “[e]xhibits material to the appeal whether or not received in evidence.”); Rule 809.15(2), Stats. (The parties receive ten-day notice of the provisional contents of the record prior to its transmittal to the appellate court.).
[2] One of the arresting
officers testified at the trial that he had the following conversation with
Mrs. Bohannon at the door to the Bohannon house:
A“Is Johnny Bohannon home?” She stated, “No.” I stated, “Well, who is the man in the house with you?” She told
me that there was no man in the house with her, [that] it was her son.
QWhat did you do?
AAgain I asked her who was the
man in the house with her. She again
was telling me there was no man in the house.
I saw the defendant peek his head out from the interior opening to look
out to see what was going on.
....
QAfter you saw Mr. Bohannon inside
the house, what did you do?
AAfter he looked, I believe he
saw me, that I recognized him, and he pulled back into the house.* I
immediately went into the house after him.
* The officer later explained that he “recognized” Bohannon as “being a man, not a boy,” and that he had not seen Bohannon before.
[3] After the jury returned its verdict, Bohannon renewed his motion to suppress the warrantless arrest. No new arguments were presented, however.