COURT OF
APPEALS DECISION DATED AND
RELEASED April
25, 1996 |
NOTICE |
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adverse decision by the Court of Appeals.
See § 808.10 and Rule
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This opinion is subject to further editing. If published, the official version will appear in the bound
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No. 95-1492
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
CITY
OF WATERTOWN,
Plaintiff-Respondent,
v.
JEFFREY
BUSSHARDT,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Jefferson County: ARNOLD SCHUMANN, Judge. Affirmed.
Before
Eich, C.J., Dykman and Vergeront, JJ.
EICH,
C.J. Jeffrey Busshardt appeals from a
judgment imposing a $145 forfeiture for resisting an officer in violation of a
City of Watertown municipal ordinance.
He argues: (1) that the circuit court had no jurisdiction to try his
case because he never had a trial in municipal court; and (2) that the evidence
was insufficient to support the circuit court's finding that he violated the
ordinance. We reject both arguments and
affirm the judgment.
The
basic facts are not in dispute.
Busshardt was arrested after repeatedly refusing to respond to an officer's
request to stop and identify himself after being observed in an alley opposite
the door to a church school late at night.
He was issued two citations: one for obstructing an officer and one for
resisting an officer. The municipal
judge dismissed the obstructing charge, concluding that failure to respond to
an officer's questions does not constitute obstruction as a matter of law. After receiving briefs on the resisting
charge, the municipal judge dismissed that citation as well.
The
City of Watertown appealed the dismissal of the resisting charge to circuit
court where, over Busshardt's objections, he was tried on the charge. He was found to have violated the ordinance
and ordered to pay a $145 forfeiture.
Other facts will be discussed in the body of the opinion.
Busshardt
first challenges the circuit court's authority to try him on the city's appeal
from the dismissal of the resisting charge in municipal court. Section 800.14, Stats., governs appeals from municipal court decisions. Section 800.14(1) provides that
"[a]ppeals from judgments of municipal courts may be taken by either party
to the circuit court ...." Section
800.14(4) states:
Upon the request of either party ... after notice of
appeal under sub. (1), or on its own motion, the circuit court shall order that
a new trial be held in circuit court.
The new trial shall be conducted by the court without a jury unless the
appellant requests a jury trial ....
Section
800.14(5), Stats., provides that
"[i]f there is no request or motion under sub. (4), an appeal shall be
based upon a review of a transcript of the proceedings [in municipal
court]...."
There
is no question that the city appealed the municipal court's dismissal of the
resisting charge and asked for a de novo hearing under § 800.14(4), Stats.
Busshardt argues, however, that because there had been no
"trial" in municipal court--the resisting citation was dismissed as a
matter of law--there can be no "new trial" in circuit court under the
statute. He asks us to either reverse
and dismiss the charge or reverse and direct that the case be remanded to the
municipal court for another trial. In
so arguing, he places principal reliance on Village of Williams Bay v.
Metzl, 124 Wis.2d 356, 369 N.W.2d 186 (Ct. App. 1985), although he does
not explain the application of the case other than to suggest that it stands
for the proposition that in cases such as this the circuit court's review of
the municipal court decision is limited to a review of the record--that
"the circuit court should have been bound by the findings of fact made by
the municipal judge and should have upheld them, unless they constituted an
abuse of discretion and were `clearly erroneous.'" We think the case is inapposite.
The
issue in Williams Bay was the appropriate standard of review to
be applied in appeals taken under § 800.14(5), Stats., and we held that the proper standard "is similar
to that which applies to appellate review of a trial to the court under sec.
805.17(2), Stats." Id.
at 357, 369 N.W.2d at 187. As may be
seen, Williams Bay had nothing to do with the statute under which
the appeal was taken in this case--the "new trial" provisions of §
800.14(4).
Absent
Williams Bay, Busshardt's argument is limited to the proposition
that because § 800.14(4), Stats.,
uses the term "new trial," it cannot apply to a situation, like that
presented here, where the case was determined in municipal court on pretrial
motions and no "trial" was ever held. Even if we were to accept that argument--which we do not--we fail
to see how Busshardt can claim to have been prejudiced by the manner in which
the circuit court proceeded. If, as he
requests, the case were to be sent back to municipal court for trial, and he
were to prevail, the city would again have the right to secure a "new
trial" in circuit court under § 800.14(4). He has already had that trial, and even if we were to accept
Busshardt's position, it would make little sense to open the door to a
second--and possibly a third--trial of these limited factual
issues. It would advance neither
Busshardt's interests nor the public's interest in the efficient administration
of justice for us to pave the way to such a succession of trials.
Turning
to the resisting charge, the Watertown ordinance, tracking § 946.41, Stats., states that no person may
"knowingly resist[] ... an officer while such officer is doing any act in
an official capacity and with lawful authority ...."
There
is no question that an officer may stop and detain an individual for a
reasonable period of time for purposes of investigating possible criminal
behavior under facts and circumstances that would fall short of probable cause
to support an arrest. Terry v.
Ohio, 392 U.S. 1, 21-22 (1968).
Under Terry, such detention is constitutionally
permissible if the officer may be said to have an "articulable suspicion
that the person has committed or is about to commit a crime." State
v. Goyer, 157 Wis.2d 532, 536, 460 N.W.2d 424, 425-26 (Ct. App. 1990).[1] If such a suspicion may be said to exist,
the person may be temporarily stopped and detained to allow the officer to
"investigate the circumstances that provoke suspicion," as long as
"`[t]he stop and inquiry [are] "reasonably related in scope to the
justification for their initiation"'"--which in this case was to
verify or dispel the suspicion that Busshardt's presence in the alley under the
circumstances may have been for a criminal purpose. Berkemer v. McCarty, 468 U.S. 420, 439 (1984)
(citing United States v. Brignoni-Ponce, 422 U.S. 873, 881-82
(1975)) (internal quoted source omitted).
The
focus of a Terry stop is reasonableness.
It is a common sense question, which strikes a balance
between the interests of society in solving crime and the members of that
society to be free from unreasonable intrusions. The essential question is whether the action of the law
enforcement officer was reasonable under all the facts and circumstances
present.[2]
State v. Jackson, 147 Wis.2d 824, 831, 434 N.W.2d 386, 389 (1989)
(citation omitted). The Jackson
court also noted that the same conduct may carry inferences of innocent, as
well as illegal, activity.
Doubtless, many innocent explanations for Jackson's
conduct could be hypothesized, but suspicious activity by its very nature is
ambiguous. Indeed, the principal
function of the investigative stop is to quickly resolve the ambiguity and
establish whether the suspect's activity is legal or illegal. In this regard, LaFave points out that the
suspects in Terry `might have been casing the store for a robbery, or
they might have been window-shopping or impatiently waiting for a friend in the
store.' We conclude that if any
reasonable suspicion of past, present, or future criminal conduct can be drawn
from the circumstances, notwithstanding the existence of other inferences that
can be drawn, officers have the right to temporarily freeze the situation in
order to investigate further.
Id. at 835, 434 N.W.2d at 391 (quoted source omitted).[3]
The
evidence in this case establishes that Officer Ruder, who was aware of a rash
of burglaries in Watertown in recent weeks--including the burglary of a
church--was on patrol at 1:30 a.m. when, driving past an alley, he saw
Busshardt, dressed in dark clothing, standing in a dimly lit area in a church
compound comprised of a church, school and two clerical residences. According to Ruder, Busshardt was facing the
school's rear door. Ruder stopped his
car and approached Busshardt, who had by then moved into a parking lot in the
midst of the church properties. When he
was about seventy-five feet away, Ruder, in a loud voice, identified himself as
a police officer and asked Busshardt to stop.
According to Ruder, Busshardt did not respond, but kept walking away,
"increas[ing] his speed" as he did so.
Ruder
ran up to Busshardt, placed his hand on his shoulder and again identified
himself as an officer and asked him what he was doing in the area. Busshardt said "fuck you" and,
according to Ruder, "jerked away" and continued walking. Ruder caught up to him and when he grabbed
him a second time (and again asked for a response) Busshardt again "jerked
free" of Ruder's grasp and, saying "Fuck you. I don't have to tell you anything,"
continued to walk away. When Ruder
attempted to restrain him a third time he again broke free of his grasp, this
time assuming what Ruder described as a "fighting stance," balanced
on the balls of his feet with his fists clenched in front of him. At this point Ruder noticed a leather knife
sheath on Busshardt's belt and told him he was under arrest.
Making
still another "fuck you" reply, Busshardt "went down to the
ground" when Ruder attempted to handcuff him. According to Ruder, Busshardt was "struggl[ing] quite
aggressively, kicking his legs, swinging his arms [and] attempting to break
free of my grasp ...." Another
officer arrived and assisted Ruder in subduing Busshardt and he was taken to
the Watertown Police Station.
Applying
the cases we have discussed above to these facts, we are satisfied first that
Ruder could have drawn a reasonable suspicion of possible criminal activity
from Busshardt's presence behind the school that morning--a suspicion that
would be sufficient to justify stopping Busshardt to "temporarily freeze
the situation in order to investigate further." Jackson, 147 Wis.2d at 835, 434 N.W.2d at 391.
We
are equally satisfied that, the "stop" being reasonable under the
circumstances, Busshardt's actions in attempting to elude Ruder after Ruder had
identified himself and explained the purpose of the attempted detention gave
Ruder probable cause to arrest him for resisting an officer acting with lawful
authority.
We
considered a similar question in Goyer. In that case police were investigating a one-car collision in
which, according to their information, the defendant had been involved. When the officers located the defendant at
the scene and asked him to identify himself, he became boisterous and
challenged the officer's right to question him. Continuing to direct abusive language at the officers, the
defendant eventually identified himself but refused to answer their questions
and, after several verbal exchanges, told them he was going to get his
attorney, turned away and started for a house across the street. He refused to stop when requested by the
officers and they apprehended him several feet away from the accident, grabbing
his arm and detaining him. We concluded
that the officers had the right to physically restrain the defendant in order
to continue their investigation, noting that "[t]he right to make a Terry
stop would mean little if the officer could not restrain a suspect who attempts
to walk away from the investigation."
Goyer, 157 Wis.2d at 538, 460 N.W.2d at 426. We think the facts of this case lead to a
similar result.[4]
Finally,
we are satisfied that the evidence of Busshardt's actions, which we have
discussed in detail above, is sufficient to support the circuit court's
determination of guilt on the resisting charge.[5] The ordinance Busshardt was found guilty of
violating restates § 946.41(1), Stats.,
which makes it a misdemeanor to "knowingly resist[] ... an officer while
such officer is doing any act in an official capacity and with lawful authority
...." Definitions of the term
"resist" or "resisting" in this usage are scarce in the
legal literature. The pattern jury
instruction, Wis J I—Criminal
1765, states: "To resist, an officer means to oppose the officer by force
or threat of force." The
instruction is intended to express the concept stated in what the Criminal Jury
Instructions Committee states is the only Wisconsin case discussing the term, State
v. Welch, 37 Wis. 196, 201 (1875), where the court said that "[t]o
resist, is to oppose by direct, active and quasi forcible means."[6]
We
think Busshardt's conduct meets that test.
As we have held, under Terry v. Ohio and similar cases
Ruder was lawfully entitled to stop Busshardt for investigatory purposes. He was thus plainly acting under lawful
authority in attempting to do so--attempts which, under the undisputed
evidence, Busshardt repeatedly resisted, not only verbally but physically
breaking free from Ruder's grasp and attempting to leave the scene.
Busshardt
disagrees. He suggests in his reply
brief that Terry and the other "stop" cases are
irrelevant because Ruder did not just stop him for investigative purposes, but
actually took him into custody, handcuffing and arresting him, and he argues
that Ruder lacked legal authority to do so.
He bases the argument on the fact that the municipal court had dismissed
the obstructing charge, ruling that Ruder had no basis to arrest him or take
him into custody for obstructing an officer because, under State v.
Hamilton, 120 Wis.2d 532, 543, 356 N.W.2d 169, 175 (1984), a refusal to
answer an officer's questions--even after a valid Terry stop--is,
by itself, insufficient to support a charge of obstructing an officer. Thus, says Busshardt, Ruder was not acting
with "lawful authority" within the meaning of the ordinance when he
arrested him and he cannot and should not be penalized for resisting an
unlawful arrest.
The
issue is not whether Ruder had grounds to arrest Busshardt for obstruction;
that issue was decided in municipal court and the city never appealed the
decision. The question before us, as framed by Busshardt, is whether, under the
evidence taken in circuit court, Busshardt may be said to have resisted Ruder
in the exercise of his (Ruder's) lawful authority.[7] The facts established at trial were that
Busshardt physically (and repeatedly) thwarted Ruder's lawful attempts to
detain him briefly for questioning; and the trial court could properly
determine on that evidence that the elements of the resisting charge had been
established.
By
the Court.—Judgment affirmed.
Not
recommended for publication in the official reports.
[1] The Terry rule has been
codified in Wisconsin in § 968.24, Stats.,
which provides:
After having identified himself or herself ... a law
enforcement officer may stop a person in a public place for a reasonable period
of time when the officer reasonably suspects that such person is committing, is
about to commit or has committed a crime, and may demand the name and address
of the person and an explanation of the person's conduct.
We
resort to Terry and the cases following it in interpreting the
scope of § 968.24, Stats. State v. Williamson, 113
Wis.2d 389, 399-400, 335 N.W.2d 814, 819, cert. denied, 464 U.S. 1018
(1983).
[2] The Supreme Court elaborated on the Terry
rationale in Adams v. Williams, 407 U.S. 143, 145-6 (1972),
stating:
The Fourth Amendment does not require a policeman who
lacks the precise level of information necessary for probable cause to arrest
to simply shrug his shoulders and allow a crime to occur or a criminal to
escape. On the contrary, Terry
recognizes that it may be the essence of good police work to adopt an
intermediate response. A brief stop of
a suspicious individual, in order to determine his identity or to maintain the
status quo momentarily while obtaining more information, may be most reasonable
in light of the facts known to the officer at the time.
(Citations omitted.)
[3] In Jackson, the police were
responding to a possible stabbing and when they arrived on the scene, they
observed the defendant fleeing the scene when he saw the police vehicle. He was stopped a short time later and the
supreme court held that "[his] flight upon observing the squad car
afforded [the] officer ... reasonable suspicion justifying the subsequent
stop." State v. Jackson,
147 Wis.2d 824, 834, 434 N.W.2d 386, 390-91 (1989). Holding that "flight from the police can, dependent on the
totality of circumstances present, justify a warrantless investigative
stop," id. at 833, 434 N.W.2d at 390, the supreme court
rejected the defendant's argument that his actions did not necessarily imply
wrongful conduct because "the record allows other equally reasonable
inferences of an innocent nature."
Id. at 835, 434 N.W.2d at 391.
[4] While Busshardt testified at one point that
he was unaware Ruder was a police officer until he had subdued and arrested
him, he does not so argue on this appeal--understandably in light of the fact
that he also testified that he heard Ruder identify himself as a police officer
during their encounter and "assume[d] he was a police officer." According to Busshardt, he refused to comply
with Ruder's requests, broke away from his grasp and heaped obscenities on him
because, in his words: "I didn't want to be hassled by him."
[5] Busshardt, who also testified at the motion
hearing, stated that because of an injury to his leg suffered a few weeks
earlier, he was incapable of running, or even "walk[ing] fast." He also disputed Ruder's account of the
night's events on several other points.
In considering the sufficiency of the evidence to support a trial
court's findings in a case such as this, however, "`we examine the record,
not for facts to support a finding the trial court did not make or could have
made, but for facts to support the finding the trial court did
make.'" Estate of Becker,
76 Wis.2d 336, 347, 251 N.W.2d 431, 435 (1977) (quoted source omitted); see
In re T.R.B., 160 Wis.2d 840, 842, 467 N.W.2d 553, 554 (Ct. App.
1991).
[6] In a much more recent case, State v.
Christopher, 44 Wis.2d 120, 124, 170 N.W.2d 803, 805 (1969), the court
said that § 946.41, Stats.,
"means what it says. It renders
unlawful any knowing resistance ... of a law officer ...."
[7] Busshardt is correct in stating that Ruder
testified that he placed him under arrest for "obstructing." There is no question, however, that
Busshardt was charged with both obstructing and resisting, and that his
circuit court trial was on the resisting charge. Nor is there any question that, on the evidence we have discussed
at some length above, the trial court found him guilty on the resisting charge--that
he not only resisted Ruder in the lawful discharge of his duties in attempting
to effectuate a Terry stop, but also attempted to flee or evade
him. The court's decision is quite
plain in that regard.
In Scott v. United States,
436 U.S. 128 (1978), the Supreme Court said that
the fact that the officer does not have the state of mind
which is hypothecated by the reasons which provide the legal justification for
the officer's action does not invalidate the action taken as long as the
circumstances, viewed objectively, justify that action.
Id. at 138 (quoted in State v. Woods, 117 Wis.2d 701, 712,
345 N.W.2d 457, 463-64 (1984)).