State v. Fehrman
| Decision Date | 22 October 1986 |
| Citation | 397 N.W.2d 158,134 Wis.2d 455 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. JOANN M. FEHRMAN, Defendant-Appellant. STATE OF WISCONSIN, Plaintiff-Respondent, v. LEROY J. FEHRMAN, Defendant-Appellant. 86-0767-CR, 86-0768-CR. |
| Court | Wisconsin Court of Appeals |
Circuit Court, Waukesha County
Affirmed
Appeal from judgments of the circuit court for Waukesha county: Harry G. Snyder, Judge.
Joann and Leroy Fehrman appeal from judgments finding them both guilty of disorderly conduct in violation of sec. 947.01, Stats., and finding Leroy guilty of resisting an officer in violation of sec. 946.41(1), Stats. 1. The Fehrmans contend that: (1) the trial court lacked jurisdiction over them because of their status as 'sovereigns'; (2) they were denied the right to a fair and impartial jury and denied effective assistance of counsel; (3) their pleas were not properly entered; (4) the complaints under which they were charged were not notarized, and (5) the deputies who arrested them lacked probable cause to initially detain them. We reject their arguments and affirm the judgments of the trial court.
On April 19, 1984, Waukesha county deputy sheriff David J. Carpenter effected the stop of a truck operated by Leroy Fehrman to determine if the vehicle was properly registered. Joann Fehrman was a passenger in that vehicle. As deputy Carpenter approached, the Fehrmans locked the truck doors. Deputy Carpenter asked Leroy for his driver's license and Leroy told the deputy he did not have one. Upon a request that Leroy identify himself, Leroy refused to give his name and became verbally abusive. After a continued use of profanities, Leroy placed the truck in gear and allowed it to roll forward. At that point, the deputy broke the truck window to attempt to obtain identification from the parties and to halt further movement of the vehicle. Leroy was forcibly extracted from the truck. He struggled with deputy Carpenter and another deputy, who wrestled him to the ground and handcuffed him. Leroy continued to use profane language toward the deputies and kicked their squad car during this process. Joann also screamed obscenities at the deputies, making it more difficult to place Leroy under arrest. Therefore, Joann was also placed under arrest. The parties were charged with disorderly conduct, resisting an officer, and criminal damage to property. A jury of twelve found Joann guilty of disorderly conduct and found Leroy guilty of disorderly conduct and resisting an officer but not guilty of criminal damage to property.
The first issue is whether the trial court had jurisdiction. The Fehrmans contend that, as 'sovereigns,' they are not bound by state laws as '14th Amendment persons.' Section 1.01, Stats., states:
The sovereignty and jurisdiction of this State extend to all places within the boundaries declared in Article II of the Constitution, subject only to such rights of jurisdiction as have been or shall be acquired by the United States over any places therein; and the Governor, and all subordinate officers of the State, shall maintain and defend its sovereignty and jurisdiction.
'By definition long antedating the constitution of this state, a crime has been defined as an offense against the sovereign and a criminal action 'one prosecuted by the state against a person charged with a public offense committed in violation of a public law.'' State v. Kramsvogel, 124 Wis.2d 101, 115-16 n.15, 369 N.W.2d 145, 152 (1985) (citations omitted). Article VII, sec. 8 of the Wisconsin Constitution gives the circuit court jurisdiction 'in all matters civil and criminal within this state.'
The City of Waukesha, which was the site of the Fehrmans' arrest, is within the boundaries of the State of Wisconsin. The Fehrmans were on a public roadway at the time they were stopped. They were charged with offenses which violate the laws of the State of Wisconsin. Their claimed status as 'sovereigns' is not controlling, nor does the fourteenth amendment of the United States Constitution apply to state laws which are not in conflict with the privileges and immunities granted to citizens of the United States. The Fehrmans may not selectively avail themselves of the privileges and benefits affirmatively granted by this state without thereby being bound by the laws and regulations the state imposes. We conclude that the Fehrmans are within the jurisdiction of the state and were properly before the trial court.
Next, we address the contention that the Fehrmans were denied a fair and impartial trial. Three sub-issues are raised which we will treat seriatim.
First, a right to a grand jury indictment under the fifth amendment of the United States Constitution is claimed. Indictment by grand jury has not been applied to the states via the due process clause of the fourteenth amendment. Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972). State law provides for the commencement of criminal misdemeanor prosecutions by complaint. Sec. 967.05, Stats. Charges of disorderly conduct and resisting an officer are misdemeanors. Therefore, the Fehrmans were properly charged by complaint.
The Fehrmans also assert that the trial court erred by failing to allow the jury to determine the law as well as the facts of the case. This is erroneous. The proper role of the jury is to determine the facts of a case after being instructed about the applicable legal standards by the judge. United States v. Standard Oil Company, 24 F. Supp. 575, 576 (W.D. Wis. 1938).
The Fehrmans correctly state that they have a right to an impartial jury. Wis. Const. art. I, sec. 7. Their claim that the jury was not impartial because each member of the jury had 'contracts' with the state in the form of driver's licenses, marriage licenses and the like is without merit. The Fehrmans had the opportunity to participate and did, in fact, participate in the voir dire and jury selection process. They made no showing during the trial or on appeal that the jury was not impartial by virtue of possession of valid regulatory licenses.
Also asserted is that the state failed to prove all the elements of the offenses charged. Our standard of review is whether there was sufficient evidence to allow the jury, acting reasonably, to find every essential element of the crimes charged beyond reasonable doubt. See State v. Hamilton, 120 Wis.2d 532, 540-41, 356 N.W.2d 169, 173 (1984). We will examine the charges separately.
The elements of the charge of disorderly conduct are: (1) that a person has engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct, and (2) that this conduct occurred under circumstances tending to cause or provoke a disturbance. Sec. 947.01, Stats. The Fehrmans claim that they were exercising their constitutional right of free speech and therefore should not be held to have violated the disorderly conduct statute.
This court disagrees. The right to engage in free speech activities otherwise protected by the Constitution is not absolute. Conduct cannot be disorderly. State v. Givens, 28 Wis.2d 109, 118-21, 135 N.W.2d 780, 785-87 (1965); see also State v. Becker, 51 Wis.2d 659, 664, 188 N.W.2d 449, 452 (1971). The state introduced uncontradicted evidence that Leroy and Joann used abusive and profane language and acted in a manner which tended to cause or provoke a disturbance. Therefore, the state's burden of proving the elements of disorderly conduct was met.
There are three elements of the offense of resisting an officer: (1) that the person resisted or obstructed an officer; (2) that the officer was performing an act within official capacity and with lawful authority, and (3) that the person knowingly resisted or obstructed the officer. Sec. 946.41(1), Stats. The Fehrmans are correct in asserting that the refusal to identify one's self does not by itself constitute 'obstructing.' State v. Hamilton, 120 Wis.2d at 543, 356 N.W.2d at 175. However, Leroy engaged in other acts in addition to refusing to identify himself. In his own statement of the case, Leroy admits that he locked the doors of his truck and did not cooperate with the...
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