State v. Horn, 85-0246-CR
| Decision Date | 01 October 1985 |
| Docket Number | No. 85-0246-CR,85-0246-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Bonnie J. HORN, Defendant-Appellant. STATE of Wisconsin, Plaintiff-Respondent, v. Norman L. STONE, Defendant-Appellant. STATE of Wisconsin, Plaintiff-Respondent, v. Jerry G. HORN, Defendant-Appellant. * |
| Court | Wisconsin Court of Appeals |
Steven F. McDowell, Milwaukee, and Jonathan M. Menn and Menn, Nelson, Sharratt, Teetaert & Beisenstein, Ltd., Appleton, for defendants-appellants.
Bronson C. La Follette, Atty. Gen., and Sally F. Goldfarb, Asst. Atty. Gen., for plaintiff-respondent.
Jeanine S. Larson, Legal Director, and Julian & Olson, S.C., and Jeff Scott Olson, Madison, for amicus curiae of Wisconsin Civil Liberties Union Foundation, Inc.
Before CANE, P.J., and DEAN and LA ROCQUE, JJ.
Norman Stone, Jerry Horn, and Bonnie Horn appeal a judgment convicting them of trespass and an order denying their motion for post-conviction relief. Appellants argue that their constitutional rights to freedom of speech and religion were violated, and that they were privileged to trespass based on the coercion defense. Appellants also argue that the trial court erred in various evidentiary rulings, in instructing the jury, and in considering an improper victim impact report during sentencing. Finally, appellants argue that there is insufficient evidence to support the jury's guilty verdict. We disagree with these arguments and affirm the trial court's judgment and order.
This appeal involves two incidents that occurred at the Fox Valley Reproductive Health Care Center (clinic), which provides abortions and other medical services. On both occasions, appellants entered the clinic
and attempted to communicate with patients of the clinic to encourage them not to have abortions. Although neither incident involved violence, appellants refused to leave and were arrested and removed by police. Each appellant was convicted of criminal trespass and sentenced to thirty days in the county jail, although the sentences were stayed on the condition that each appellant would not violate Wisconsin law for one year. Appellants' motion for acquittal, or in the alternative a new trial, was denied.
Appellants argue that the freedom of speech provision of the Wisconsin Constitution protects them from prosecution for trespass. 1 They claim that they are privileged to exercise this freedom on private property belonging to the clinic. The right to freedom of speech is broad, but it is not absolute. With limited exceptions, the right to free speech under the United States Constitution is only protected from interference by state action. 2 Appellants argue that the Wisconsin Constitution contains no analogous limitation.
The facts of this case do not require us to decide whether the Wisconsin Constitution will ever protect free speech from purely private interference. Although state courts are free to interpret their own constitutions to provide such protection, 3 we decline to extend protection to speech engaged in on property belonging to a small private medical clinic. Accordingly, we hold that appellants had no right under the Wisconsin Constitution to exercise their free speech rights on the clinic's property.
Appellants also argue that their actions were justified because clinic patients have a constitutional right to receive information about abortions in order to make an informed decision. A party may not rest his legal claims or defenses upon the rights of third parties. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 474, 102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982). Parties have standing to raise constitutional issues only when their own personal rights are affected. Id.; Mast v. Olsen, 89 Wis.2d 12, 16, 278 N.W.2d 205, 206 (1979). Appellants have no standing to raise the rights of the clinic's patients in defense of their actions.
Appellants also argue that their actions were protected under the free exercise of religion clause of the United States and the Wisconsin Constitutions. While freedom of religious belief is an absolute right under the first amendment, the freedom to act on the basis of religious beliefs is subject to government regulation. Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). A government regulation fails to satisfy the free exercise clause if it imposes a burden on the free exercise of religion. Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963); Kollasch v. Adamany, 99 Wis.2d 533, 550, 299 N.W.2d 891, 898 (Ct.App.1980). Wisconsin's criminal trespass statute does not impose a burden upon appellants' religious freedom. The trespass statute does not make unlawful any of appellants' religious practices or beliefs nor does it force them to adopt any religious beliefs or conduct that conflict with their own religious tenets. See Braunfeld v. Brown, 366 U.S. 599, 603, 81 S.Ct. 1144, 1145, 6 L.Ed.2d 563 (1961). Appellants are free to object to the clinic's operation on religious or moral grounds, but in doing so they are not privileged to violate the state's criminal trespass statute.
Appellants next argue that the trial court erred by finding as a matter of law that the defense of coercion 4 was not available in this case. The defenses of coercion and necessity 5 reflect the social policy that one is justified in violating the letter of the law in order to avoid death or great bodily harm. State v. Brown, 107 Wis.2d 44, 54-55, 318 N.W.2d 370, 376 (1982). Section 939.46, Stats., specifically requires that the actor hold a reasonable belief that his act is the only means of preventing imminent death or great bodily harm. Our supreme court has held that the reasonableness of the actor's belief must be judged objectively. State v. Amundson, 69 Wis.2d 554, 568, 230 N.W.2d 775, 783 (1975). Appellants believe that abortion is murder, and they claim a reasonable belief that the only way to prevent this activity is to enter clinic property and attempt to dissuade women from having abortions.
The United States Supreme Court has held that a woman's right to choose abortion is constitutionally protected. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). 6 Consequently, the abortion services provided by the clinic are legal. In light of Roe, it is not appropriate for this court to determine the legal status of abortion. We therefore hold that it is unreasonable to believe that one must commit an act of criminal trespass in order to prevent an activity that is legal and constitutionally protected. If appellants wish to attempt to change the legal status of abortion, they must do so within channels provided by our democratic form of government. A contrary holding would allow an individual to violate the law without sanction whenever he felt the government had not made the proper choice between conflicting values. See State v. Olsen, 99 Wis.2d 572, 577, 299 N.W.2d 632, 635 (Ct.App.1980).
Appellants argue that the trial court erred by quashing the subpoena of the clinic's appointment records and by limiting the cross-examination of a witness concerning the subpoena. It is within the discretion of the trial court to quash a subpoena and to limit the cross-examination of witnesses. Rogers v. State, 93 Wis.2d 682, 689, 287 N.W.2d 774, 777 (1980); Nashban Barrel and Container Co. v. Parsons Trucking Co., 49 Wis.2d 591, 611, 182 N.W.2d 448, 459 (1971). A subpoena may be quashed if compliance would be oppressive or unreasonable. Section 805.07(3), Stats. The trial court found that the clinic did not keep records in the form requested by the subpoena, and quashed the subpoena because compiling the records in the form requested would be unduly burdensome. Because the trial court exercised its discretion on the basis of facts found in the record and appropriate legal standards, 7 we find no abuse of Appellants also argue that the trial court erred by excluding various evidence generally related to appellants' feelings and beliefs about abortion. 9 While appellants argue that the trial court failed to properly balance the probative value and the prejudicial effect of the evidence pursuant to sec. 904.03, Stats., it is clear from the record that the trial court viewed the evidence as irrelevant under sec. 904.01, Stats. Under sec. 904.01, relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evidence that is not relevant to any issue in a case is not admissible. Section 904.02, Stats. It is within the trial court's discretion to decide whether evidence is relevant to any issue in the case. Chart v. General Motors, 80 Wis.2d 91, 102, 258 N.W.2d 680, 684 (1977).
discretion. 8 After the trial court quashed the subpoena, issues concerning the service and scope of the subpoena became irrelevant. The trial court therefore did not abuse its discretion by refusing to allow cross-examination of a witness on these matters. Desjarlail v. State, 73 Wis.2d 480, 502, 243 N.W.2d 453, 464 (1976); State v. Becker, 51 Wis.2d 659, 667, 188 N.W.2d 449, 453 (1971)
Our standard of review is not whether this court agrees with the trial court's ruling, but whether the trial court's discretion was in fact exercised. State v. Wollman, 86 Wis.2d 459, 464, 273 N.W.2d 225, 228 (1979). The trial court looked to the elements of trespass as defined by sec. 943.13, Stats., and heard the arguments of counsel regarding relevance. The trial court then decided that evidence relating to appellants' feelings and beliefs about abortion was not relevant to any issue in a trespass case. We...
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