State v. Dundon, 97-1423-CR

• Decision Date: 11 June 1999
• Docket Number: No. 97-1423-CR,97-1423-CR
• Citation: 594 N.W.2d 780,226 Wis.2d 654
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. John V. DUNDON, Jr., Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 780

594 N.W.2d 780

226 Wis.2d 654

STATE of Wisconsin, Plaintiff-Respondent, v. John V. DUNDON, Jr., Defendant-Appellant.

No. 97-1423-CR.

Supreme Court of Wisconsin.

Argued Feb. 9, 1999.

Decided June 11, 1999.

For the defendant-appellant there were briefs and oral argument by William S. Coleman, Jr., assistant state public defender.

For the plaintiff-respondent the cause was argued by Lara M. Herman, assistant attorney general, with whom on the brief was James D. Doyle, attorney general.

¶1 DAVID T. PROSSER, J

The issue presented in this case is whether a person may assert a defense of privilege to the crime of carrying a concealed weapon. The issue arises in John V. Dundon, Jr.'s appeal from his conviction

under Wis. Stat. 941.23 (1995-96) ¹ and from the denial of his post-conviction motion requesting relief.

FACTS

¶2 John Dundon (Dundon) managed a Clark Oil gas station at 60th Street and Fond du Lac Avenue in northwest Milwaukee. By late June 1995, Dundon had been working at the gas station for 14 or 15 months. His duties included collecting and depositing bank receipts.

¶3 The gas station had a safe. On June 21, 1995, the safe was filled to capacity because the station's armored car company (Federal Armored) had not picked up any receipts for four days. The company had failed to come on Saturday the 17th as well as the following Monday and Tuesday. On Wednesday the 21st, Dundon called the company and was told it would send an armored vehicle that day. When the vehicle did not come at the normal pick up time, Dundon called back and the company said it would send a vehicle for an evening pick up. The vehicle never came. Sometime around 10:30 p.m. or 11:00 p.m., an employee called Dundon and advised him that he was unable to drop any more envelopes into the safe.

¶4 Dundon later told a jury he could not call another armored car company, and he could not have someone accompany him to the bank. He said his only alternatives were to take the cash to the bank himself or to hide the money in the back room and risk getting fired because it was against company policy, risk other employees knowing he had put a large amount of money in the back room, and risk someone coming in the back room to rob him.

¶5 On June 22, knowing that he would have to take about $22,000 ($17,000 of which was cash) to the bank himself, Dundon brought a loaded Raven hand gun to the station.

¶6 Dundon kept the gun in his car when he arrived at work. He proceeded to bundle the money, put the bundles into two bags (one made of clear plastic), and wrapped the bags inside a coat. He then drove to Milwaukee Western Bank at 6001 West Capitol Drive, several minutes from the station. Dundon testified that, after arriving at the bank, he got out of his vehicle, then reached back and took the gun off the passenger seat of the vehicle. He placed the gun on his right hip in the waistband of his blue jeans. Dundon claimed the gun was exposed but that the barrel of the gun was tucked in his waistband and covered by his belt. He then picked up the two large bags of money and went into the bank.

¶7 Otis Lee Roberson (Roberson), a security guard at the bank, observed Dundon pull up, get out of his vehicle, reach back into his vehicle and pull a gun out from under the seat. Roberson then observed Dundon tuck the hand gun in his waistband and pull his shirt down. Before Dundon got inside the bank, Roberson told the secretary to call 911 because he saw someone put a gun in his pants. Richard Burdick (Burdick), the bank's vice president, called 911.

¶8 After Dundon entered the bank, Roberson observed Dundon approach the teller. He testified he could not see the weapon because it was covered by Dundon's shirt. No disturbance occurred once Dundon was in the bank; in fact, Dundon spoke pleasantly with the bank teller. Seeing this and realizing that Dundon was a frequent customer, Burdick called 911 again and reported that the situation was not threatening and he would wait for the police. The police arrived within two to three minutes. Burdick approached Dundon while Dundon was speaking with the teller and told Dundon that the Milwaukee police wanted to talk to him. According to Burdick, after the officers asked Dundon ¶9 On June 23, 1995, Dundon was charged with carrying a concealed weapon contrary to Wis. Stat. § 941.23.

some questions, Dundon lifted his shirt to reveal the butt end of the weapon. Roberson testified that a police officer patted Dundon down and took the gun out of his waistband.

PROCEDURAL HISTORY

¶10 A jury heard the case on March 28, 1996, before Circuit Judge Robert J. Miech. At trial, Judge Miech excluded evidence about the defendant's concern of being a crime target while transporting the funds to the bank. He excluded all proffered evidence of the prevalence of crime in the area, including a recent robbery at the bank, and excluded proffered evidence of Dundon's previous experience as a victim of robberies and robbery attempts, including a claim that he had once been set up and shot at by a gunman. Additionally, Judge Miech denied Dundon's theory of defense instruction on the privilege of necessity.

¶11 The next day, the jury returned a verdict of guilty. On April 18, 1996, Judge Miech sentenced Dundon to 45 days in the Milwaukee County House of Correction with Huber privileges.

¶12 On April 22, 1996, Dundon filed a Notice of Intent to Pursue Post-conviction Relief. The court stayed his sentence pending post-conviction relief.

¶13 On March 10, 1997, Dundon filed a post-conviction motion for a new trial or sentence modification, requesting an evidentiary hearing to support his motion. On April 14, 1997, Circuit Judge Bonnie L. Gordon entered an order denying the post-conviction motion without the requested hearing. Judge Gordon stated that "this Court finds nothing in the record to indicate there has been any abuse of discretion on the part of the sentencing court or any other reason to modify the sentence imposed. The Court finds that the sentence is not unduly harsh under the particular circumstances in this case." Judge Gordon distinguished Dundon's case from State v. Coleman, 206 Wis.2d 199, 556 N.W.2d 701 (1996), where this court found a narrow defense of privilege to the charge of felon in possession of a firearm. Judge Gordon stated: "Under the five-step analysis set forth in Coleman, the defendant fails to satisfy the first test because no reasonable jury could conclude that Dundon was 'under an unlawful, present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury, or the defendant reasonably believes he or she is under such a threat.' "

¶14 On May 5, 1997, Dundon filed a timely notice of appeal of both his judgment of conviction and sentence and the order denying his post-conviction motion. On December 23, 1997, the court of appeals certified the appeal to this court under Wis. Stat. (Rule) § 809.61, to decide whether the law of privilege may be asserted as a defense to the crime of carrying a concealed weapon in violation of § 941.23. We accepted the certification "for consideration of all issues raised before the court of appeals."

ANALYSIS

I.

¶15 To convict a person of carrying a concealed weapon in violation of § 941.23, ² the State must establish three elements beyond a reasonable doubt. ³ First, the State must show that a person ¶16 What remains is the pivotal issue whether Dundon had a privilege to carry and conceal a loaded hand gun under these circumstances, or, more generically, whether, and to what extent, the defense of privilege is available to a person charged with the crime of carrying a concealed weapon. Whether a crime is subject to a privilege defense and the scope of such a defense if it exists, present questions of law. We review questions of law de novo. Kara B. v. Dane County, 205 Wis.2d 140, 145-46, 555 N.W.2d 630 (1996).

                who is not a peace officer went armed with a dangerous weapon. 4  Second, the State must show that the person was aware of the presence of the weapon. 5  Third, the State must show that the weapon was concealed. 6  When Dundon testified that he removed a hand gun from a locked cabinet in his bedroom and carried it loaded either on or under the passenger seat of his vehicle--first to the gas station, then to the bank--and then carried the hand gun into the bank, he admitted all three elements of the offense. 7  The testimony of Roberson and Burdick clearly buttressed the third element of concealment, for the word "concealed" means hidden from ordinary observation;  and the weapon does not have to be completely hidden
                

A.

¶17 The first issue is whether the defense of privilege applies to the crime of carrying a concealed weapon. The preamble clause of the privilege statute, § 939.45, reads, in part, as follows:

Privilege. The fact that the actor's conduct is privileged, although otherwise criminal, is a defense to prosecution for any crime based on that conduct.... (Emphasis supplied)

¶18 Use of the phrase "any crime" implies a legislative intent to permit the defense of privilege for "any crime." Yet common sense suggests that the defense of privilege does not fit easily with certain crimes. Recognition of the privilege for some crimes would undermine the objective in criminalizing conduct. In other instances, the limitations of a privilege may be incompatible with the elements of a crime. In still other situations, the nature of the crime is such that the defense of privilege cannot reasonably apply.

¶19 In short, the defense of privilege applies by statute to "any crime" but the defense may be limited for some crimes to extraordinary facts.

¶20 The second sentence in the preamble clause of the privilege statute provides that "The defense of privilege can be ¶21 In Coleman, this court recognized a very narrow defense of privilege under § 939.45(6) to the crime of felon in possession...