State v. Farr
| Decision Date | 28 January 1999 |
| Docket Number | No. 96-2551-CR,96-2551-CR |
| Citation | 590 N.W.2d 281,224 Wis.2d 641 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Dennis L. FARR, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Dane County: WILLIAM D. JOHNSTON, Judge. Affirmed.
Before Eich, Vergeront and Roggensack, JJ.
Dennis L. Farr appeals from a judgment convicting him of two counts of extortion, using a dangerous weapon, contrary to §§ 943.30(1) and 939.63, STATS. In an opening brief filed by his attorney, Farr argues: (1) that his prosecution was barred by the constitutional prohibition against double jeopardy; (2) that reversal is warranted because of prosecutorial vindictiveness and retaliatory prosecution; (3) that the evidence was insufficient to convict; (4) that his actions leading to the filing of the charges were privileged; and (5) that the trial court erroneously instructed the jury with respect to the weapons enhancer. We reject the arguments. We granted Farr's request to disregard his counsel's reply brief and to permit him to file his own. In that brief, in addition to rearguing several points in his counsel's brief, he attempts to raise several "new" arguments. We reject these arguments as well, and affirm the judgment.
The basic facts are not in dispute. In 1994, two Madison Gas and Electric workers went to Farr's home to disconnect his electrical service for non-payment. When their knock on the door went unanswered, they began work. Farr then came out of the house, carrying a rifle, and said to the workers: "If I were you, I would hook that back up." They did so and left immediately.
Shortly after this incident, an emergency detention petition was filed by Dane County. The matter went to trial and the petition was eventually dismissed after a jury verdict in Farr's favor. This prosecution was then commenced. The case went to trial in early 1995, resulting in a hung-jury mistrial. Farr was retried later that year, resulting in the convictions which he now appeals.
Farr argues first that he has been subjected to double jeopardy because he has been twice prosecuted for the same underlying matter. Specifically, he claims that the favorable verdict in the involuntary commitment proceedings should have precluded further criminal prosecution.
Double jeopardy does not preclude the commencement of both civil and criminal proceedings arising from the same underlying matter. State v. Thierfelder, 174 Wis.2d 213, 220-21, 224, 495 N.W.2d 669, 673 (1993). Mental commitment proceedings are civil, even when raised in the context of associated behavior alleged to be criminal. See State v. Carpenter, 197 Wis.2d 252, 541 N.W.2d 105 (1995) (). We reject Farr's double-jeopardy argument. 1
Farr, pointing to the fact that, in addition to the commitment petition, the State filed, and then withdrew, a misdemeanor disorderly conduct charge prior to charging him with the instant felonies, argues that, when all this is considered along with his re-trial after the first hung jury, it is apparent that he was subjected to "serial prosecutions," which establish motives of retaliation and vindictiveness on the part of the prosecutor.
Defenses and objections based on alleged defects in the institution of criminal proceedings must be raised prior to trial or are deemed waived, Lampkins v. State, 51 Wis.2d 564, 570, 187 N.W.2d 164, 167 (1971); and it has been held that a claim of prosecutorial misconduct alleges such a defect. United States v. Nunez-Rios, 622 F.2d 1093, 1098-99 (2d Cir.1980). Farr has waived the objection. 2
The core of Farr's appeal is that his actions and statements cannot sustain the charges brought. Section 943.30(1), STATS., makes it a felony to "either verbally or by any written or printed communication, maliciously threaten[ ] to threaten[ ] or commit[ ] any injury to [another] person with intent to compel the person to do any act against the person's will." Farr argues that he never "verbally" threatened either of the workers, and thus the evidence was insufficient to convict.
The test for overturning a jury's verdict is well established.
[I]n reviewing the sufficiency of the evidence to support a conviction, an appellate court may not substitute its judgment for that of the [jury] unless the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that no [jury], acting reasonably, could have found guilt beyond a reasonable doubt. If any possibility exists that the [jury] could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the [jury] should not have found guilt based on the evidence before it.
State v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990).
Farr begins his argument by pointing to language in State v. Dauer, 174 Wis.2d 418, 431, 497 N.W.2d 766, 771 (Ct.App.1993), where, in concluding that extortion was not a lesser-included offense of robbery, we made the following comment: "[W]e cannot agree that extortion includes nonverbal threats." And he says that because the actual words he spoke to the MG & E workers--"If I were you, I would hook that back up"--were not themselves threatening, his conviction cannot stand.
We disagree. We think our statement in Dauer must necessarily be confined to the facts of that case, and the context in which it was made. Dauer was convicted of armed robbery and extortion arising out of the same facts: after accusing the victim of taking cocaine from him a few days earlier without paying for it, Dauer told the victim that the man who supposedly supplied the drug to Dauer wanted his money, and if the victim did not come up with it, the supplier, who Dauer said was waiting in a car outside the house, would "shoot his ass." Id. at 424, 497 N.W.2d at 768. Dauer argued on appeal that the convictions were multiplicitous and thus violated the double-jeopardy clause of the constitution. Considering the "elements-only" portion of the two-part double-jeopardy test, we concluded that, because extortion requires proof of a fact robbery does not--a verbal, written or printed threat--the former was not a lesser-included offense of the latter. In so holding, we made the statement upon which Farr relies in this case.
We disagree that Dauer compels reversal of Farr's conviction. We are not here, as we were in Dauer, undertaking a pure statutory comparison, based solely on the wording of the laws under consideration. The "elements-only" analysis we were undertaking in that case operates in a factual vacuum. All we do is parse the language of the statutes; "the facts of a given defendant's crime are irrelevant." Id. at 428, 497 N.W.2d at 769. In this case, we are doing just the opposite: we are considering all of the relevant facts surrounding the particular incident, as proved at trial, to determine whether they are sufficient to support the jury's verdict that Farr "verbally threaten[ed] injury" to the MG & E workers. And we think that, to consider that question solely on the basis of Farr's words, sealed off from the context in which they were spoken, and interpreted in artificial isolation, would do violence to the law.
In State v. Murphy, 545 N.W.2d 909 (Minn.1996), the Minnesota Supreme Court rejected an argument that a statute penalizing one who "threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another" applied only to verbal threats, and not to his acts, which included slashing automobile tires, breaking windows, cutting telephone wires, and placing dead animals, animal parts and blood at his victims' houses.
Many physical acts considered in context communicate a terroristic threat. We may find our examples in the movies, such as boiling a rabbit on the stove in the tranquil setting of [a] former paramour's new family home, or placing a severed horse's head in a bed. Life is replete with such examples, and whatever the source, the principle is the same: physical acts communicate a threat that its originator will act according to its tenor.
[L]imiting the reach of the statute to oral or written threats would lead to an absurd result. It would allow one to terrorize another if the terrorist were clever enough to make threats without recourse to the spoken or written word. It is well settled that courts may presume that the legislature does not intend an absurd result.
We agree with the State that there is nothing in the language of § 943.30(1), STATS., suggesting that the required verbal representation or statement must be considered in total isolation from the facts and circumstances under which it was made. And we note that, in other states, and in other contexts, whether a "threat" has been made is not only dependent upon "the entire factual context" of the case--"including the surrounding events and [the] reaction of the listeners"--but is tested by an objective standard: whether a reasonable person would foresee that the statement would be interpreted by the person or persons to whom made as a "serious expression of an intent to harm or assault." See United States v. Orozco-Santillan, 903 F.2d 1262, 1265-66 (9 th Cir.1990), and cases therein discussed.
In this case, Farr, holding a rifle, confronted two utility workers, who had just carried out their assigned task of disconnecting his electric service, stating to them: "If I were you, I'd hook that back up." In those circumstances, w...
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