State v. Ferguson, No. 2007AP2095-CR.

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: Patience Drake Roggensack
• Citation: 2009 WI 50,767 N.W.2d 187
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Kelly R. FERGUSON, Defendant-Appellant.
• Decision Date: 16 June 2009
• Docket Number: No. 2007AP2095-CR.

767 N.W.2d 187 2009 WI 50 STATE of Wisconsin, Plaintiff-Respondent-Petitioner,
v.
Kelly R. FERGUSON, Defendant-Appellant. No. 2007AP2095-CR. Supreme Court of Wisconsin. Argued December 16, 2008. Decided June 16, 2009.

[767 N.W.2d 189]

For the plaintiff-respondent-petitioner the cause was argued by Maura F.J. Whelan, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-appellant there was a brief by Jefren E. Olsen, assistant state

[767 N.W.2d 190]

public defender, Madison, and oral argument was by Jefren E. Olsen.

¶ 1 PATIENCE DRAKE ROGGENSACK, J.

We review a decision of the court of appeals,¹ which reversed the circuit court's judgment² convicting Kelly R. Ferguson (Ferguson) of misdemeanor obstructing an officer pursuant to Wis. Stat. § 946.41(1) (2005-06).³ The issue presented is whether the facts of this case required the circuit court to instruct the jury that in order for Ferguson to have violated § 946.41(1), the entry of Ferguson's home to arrest her for disorderly conduct was accompanied by exigent circumstances. Ferguson contends that because the police entered her home without a warrant and the jury was not instructed on exigent circumstances, there was no basis for the jury to find that the police acted with "lawful authority," as § 946.41(1) requires. We conclude that, even though a jury instruction on exigent circumstances could have been given under the evidence presented to the jury, because Ferguson struggled with the officers outside of her home when she was in lawful custody of the police, the instruction given accurately set out the law for the officers' actions at that time. Therefore, if omitting an instruction on exigent circumstances was error, it was harmless error. Accordingly, we reverse the decision of the court of appeals and affirm the circuit court's judgment of conviction.

I. BACKGROUND

¶ 2 On December 29, 2005, at around 4:30 in the morning, Wausau police responded to a report of an attempted break-in at a residence. When the police arrived, they spoke with the person who had telephoned, a tenant of the apartment building's lower floor, who complained that the upstairs tenant, Ferguson, had pounded on his door and threatened to evict him. The lower tenant explained that Ferguson was not the landlord and had no authority to evict him.

¶ 3 Following this interaction, the officers proceeded to Ferguson's apartment. They knocked on the door and Ferguson answered. They asked Ferguson if she had been downstairs earlier. The officers testified that she said "no," and then became belligerent, yelling and swearing at the officers. They said that while Ferguson was yelling, her nephew, also a resident of Ferguson's apartment, attempted to grab her arm and calm her down. The officers testified that Ferguson shoved her nephew at this point and that she directed profanities at him and told him to pack up his things and move out. Ferguson disputes this.

¶ 4 Until this time, the officers were outside of Ferguson's apartment, while Ferguson and her nephew were inside of the apartment. However, following Ferguson's agitated conduct toward her nephew, the officers entered the apartment without a warrant and arrested Ferguson for misdemeanor disorderly conduct pursuant to Wis. Stat. § 947.01.⁴ When the officers

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handcuffed Ferguson, she tried to pull her arm away, but was unable to do so. Ferguson was also resistive as the police attempted to get her socks on, and she continued to yell and scream.

¶ 5 The officers then escorted Ferguson out of her apartment. According to trial testimony, she continued to resist:

Q Was she cooperative with you going down the stairs?

A No. She would do shoulder shifts back and forth to try to either break free, then she was what we call dead weight tactics, where an individual goes limp, and then you have to struggle more to hold them up and so forth. This creates a danger for the individual and us, especially when they are going down a flight of stairs.

There was a point halfway through the stairs where she picked her legs up, kind of up in front of her, and started almost a bicycle motion with her feet, flailing her feet around.

Q How were her arms? Were they flailing about also?

A They [were] handcuffed, and we were holding them. I said there wasn't much she could do with her arms. Mostly it was an upper torso shift back and forth.

....

[W]hile she was kicking with her legs, I either got kicked with her foot or knee in the thigh. It was kind of like a charlie horse feeling as we continued down the stairs. Eventually we got her to the bottom of the stairs safely without anyone else getting injured.

Q During the taking her down the stairs, how would you characterize the defendant's demeanor, again using the one to ten level of volume?

A It was the same, ten.

Q Upon getting her to the bottom of the stairs, what then did you do?

A We escorted her to the car. The stairs are at the back of the residence. We picked the closest car, which happened to be in front by her driveway as we were parked across the street. We escorted her on the pavement along the driveway, and at the front of the house where the sidewalk and boulevard is, that's where [the] squad was parked, and we got her to the squad there.

....

Q When you were taking her to that squad, what was the state of her pants?

A Well, we were kind of rushing her to the car because she was yelling and so forth. Her pants began to fall down, I suspect because of all the kicking she was doing. As we got to the rear of the squad, I still had her, ahold of her with one arm and began to try to pull up her trousers with my left hand, and she counteracted my efforts by kicking more to actually kick the pants off.

Ferguson was charged with disorderly conduct, obstructing an officer and two counts of battery by a prisoner.⁵

¶ 6 At trial, Ferguson requested that the circuit court use the following jury instruction for the "lawful authority" element of the obstruction charge:

Police officers act with lawful authority if their acts are conducted in accordance with the law. In this case, it is alleged that while the police were investigating a complaint made against the defendant Kelly Ferguson by her downstairs

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neighbors and she got so loud and abusive toward the officers that they found it necessary to arrest her at her home.

The police lack authority to make an arrest of a person in the person's home without a warrant unless exigent circumstances exist that require the arrest to take place immediately.

In this case, the police did not have an arrest warrant.

Exigent circumstances which justify a warrantless arrest inside the person's home, fall into four categories:

A. The police were in hot pursuit of the defendant at the time of her arrest inside her home.

B. The police had reason to believe evidence would be destroyed unless they made an arrest immediately[.]

C. The defendant was likely to flee.

D. The defendant was an immediate threat to the safety of others.

If none of these circumstances [existed], the arrest was made without lawful authority[.]

The circuit court rejected Ferguson's proposed jury instruction, and instead instructed the jury as follows:

Police officers act with lawful authority if their acts are conducted in accordance with the law. In this case, it is alleged that the officers were responding to and investigating a citizen complaint. During the course of doing so, the officers arrested the defendant.

An arrest is lawful when the officer has reasonable grounds to believe that the person is committing, has committed, or is about to commit a crime. An officer making an arrest may only use the amount of force reasonably necessary to take the person into custody.

Having been read these instructions, the jury convicted Ferguson of disorderly conduct and obstruction.

¶ 7 The court of appeals reversed Ferguson's conviction for obstruction. State v. Ferguson, No. 2007AP2095-CR, 2008 WL 222411 unpublished slip op., ¶ 11 (Wis. Ct.App. Jan. 29, 2008). It held that the jury instruction given by the circuit court for the lawful authority element of obstruction was an incorrect statement of the law. Id. Because Ferguson was arrested inside of her home without a warrant, the court of appeals focused only on Ferguson's conduct within her home and held that the police could be acting with lawful authority only if Ferguson's arrest was accompanied by "exigent circumstances." Id. Because the jury was not instructed on exigent circumstances, the court of appeals concluded that "it is not possible in this case to say that Ferguson was obstructing the officers while they acted with lawful authority." Id. (emphasis in original). The court of appeals reversed Ferguson's conviction and remanded the case for a new trial. Id.

¶ 8 We granted review and now reverse the court of appeals.

II. DISCUSSION

A. Standard of Review

¶ 9 "[A] circuit court has broad discretion in deciding whether to give a particular jury instruction." State v. Fonte, 2005 WI 77, ¶ 9, 281 Wis.2d 654, 698 N.W.2d 594. A circuit court properly exercises its discretion when it fully and fairly informs the jury of the law that applies to the charges for which a defendant is tried. Id. Whether a jury instruction fully and fairly informs the jury of the law applicable to the charges being tried is a question of law that we review independently. Id. (citing State v. Groth, 2002 WI

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App 299, ¶ 8, 258 Wis.2d 889, 655 N.W.2d 163). If the jury instruction given was not an accurate statement of the applicable law, then the circuit court has erroneously exercised its discretion. Peplinski v. Fobe's Roofing, Inc., 193 Wis.2d 6, 23-24, 531 N.W.2d 597 (1995). We review whether it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the [instructional] error" as a question of...