State v. Thomas

• Decision Date: 18 May 2004
• Docket Number: No. 03-1369-CR.,03-1369-CR.
• Citation: 683 N.W.2d 497,2004 WI App 115,274 Wis.2d 513
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Louis D. THOMAS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

274 Wis.2d 513

2004 WI App 115

683 N.W.2d 497

STATE of Wisconsin, Plaintiff-Respondent, v. Louis D. THOMAS, Defendant-Appellant.¹

No. 03-1369-CR.

Court of Appeals of Wisconsin.

Submitted on briefs March 2, 2004.

Decided May 18, 2004.

On behalf of the defendant-appellant, the cause was submitted on the brief of Joseph L. Sommers, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general and Jeffrey J. Kassel, assistant attorney general.

Before Wedemeyer, P.J., Fine and Schudson, JJ.

WEDEMEYER, P.J.

¶ 1. Louis D. Thomas appeals from a judgment of conviction entered after a jury found him guilty of felon in possession of a gun, but not guilty of carrying a concealed weapon. He claims: (1) article I, section 25 of the Wisconsin Constitution effectively repealed WIS. STAT. § 941.29 (2001-02);² (2) section 941.29 is unconstitutionally vague, overbroad, and violates the equal protection clause of the United States and Wisconsin Constitutions; and (3) he is entitled to a new trial in the interest of justice because the verdicts were inconsistent. Because there was no constitutional infirmity in the presentation of this case and because there is no entitlement to a new trial in the interest of justice, we affirm.

I. BACKGROUND

¶ 2. On November 19, 2001, at approximately 9:25 p.m., Police Officer Ryan Heidemann, while on patrol in an unmarked squad car, received a "shots fired" dispatch to North 8th Street and West Concordia Avenue in Milwaukee, Wisconsin. The dispatcher informed him that a brown four-door vehicle was involved in the reported incident and that its occupants might be armed. While en route to the scene, he observed a brown wood-grained station wagon with two occupants and he began to follow the vehicle. The station wagon pulled over to the curb at approximately 831 West Ring Street. Heidemann stopped his squad car approximately two car lengths behind the station wagon. The station wagon's driver immediately exited the vehicle and walked away. Heidemann turned on his squad car's bright lights and activated the squad's spotlight. He also called for backup.

¶ 3. In short order, the passenger, later identified as Thomas, exited on the passenger side of the station wagon. While still seated in the squad car, Heidemann observed Thomas walk towards the back of the station wagon on the curb side, reach into the front waistband of his pants, and pull out a black handgun. Heidemann exited the squad with his service gun drawn. He observed Thomas throw the handgun under the station wagon. Thomas was arrested and charged with being a felon in possession of a gun and carrying a concealed weapon. Thomas stipulated that he had previously been convicted of fleeing, which is a felony. After a jury trial, Thomas was convicted of the former charge, but acquitted of the latter charge. Before sentencing, Thomas filed a series of motions challenging the constitutionality of WIS. STAT. § 941.29. The trial court denied all of his motions. Thomas now appeals.

II. ANALYSIS

¶ 4. Thomas raises several claims of error: (1) the felon-in-possession statute, WIS. STAT. § 941.29, is unconstitutional under Wisconsin's right-to-bear-arms amendment, WIS. CONST. art. I, § 25; (2) the statute is unconstitutionally vague and overbroad; (3) the statute violates the equal protection clause; and (4) he is entitled to a new trial because the verdicts convicting him of felon-in-possession of a firearm and acquitting him of the carrying a concealed weapon count are inconsistent. For reasons that follow, we reject each of his claims of error.

A. CONSTITUTIONALITY OF THE STATUTE

¶ 5. WISCONSIN STAT. § 941.29(1)(a) and (2) became effective on March 31, 1982.³ In 1998, the Wisconsin Constitution was amended to provide that, "[t]he people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." WIS. CONST. art. I, § 25.

¶ 6. Thomas contends legislative history clearly demonstrates that with the passage of this constitutional amendment, WIS. STAT. § 941.29 has been knowingly and effectively repealed. Legislative history, however, demonstrates his conclusion is fatally flawed.

¶ 7. Thomas asserts that article I, section 25: "establishes a broad and fundamental right to bear arms, including firearms. The lawful purposes expressly delineated in this amendment include security, defense, hunting, recreation and other lawful purposes." He then argues that "[t]here is nothing in the amendment that indicates that any of those enumerated purposes are [sic] reserved for non-felons only ...." He continues, "the constitutional right, as written, is altogether unqualified by any language preserving preexisting legislation." Thus, he concludes, "were Art. I, Sec. 25 ... meant to have preserved preexisting restrictions against possession of a firearm by a felon, the legislature would have so drafted it."⁴ ¶ 8. There are three reasons to reject Thomas's interpretation of article I, section 25. The first is based upon Thomas's inaccurate historical methodology. Thomas bases his unrestricted reading of article I, section 25 on the presumption that the following language appeared in a draft version of the constitutional amendment:

Every individual, except an individual restricted in accordance with state and federal law, has the right to keep and bear arms for any lawful purpose including for security or defense, for hunting for recreation use, except that the manner of bearing arms may be regulated in accordance with state law.

(Underlining in original; emphasis added.) Thomas claims that this was the original text of the Bear Arms Amendment as introduced on September 1, 1995, as Assembly Joint Resolution 53 (AJR 53). Unfortunately for the persuasive weight of Thomas's argument, his source—Christopher R. Mcfadden, The Wisconsin Bear Arms Amendment and the Case Against an Absolute Prohibition on Carrying Concealed Weapons, 19 N. ILL. U. L. REV. 709, 716 (1999)—misquoted AJR 53. The phrase "state law" never appeared in any version of AJR 53. Thus, Thomas's argument that the later deletion of the phrase "state law" demonstrated the legislative intent to repeal state law restrictions is incorrect.

¶ 9. Second, on November 29, 1995, the Assembly Committee on Elections and Constitutional Law amended the proposed constitutional amendment to delete reference to "Federal Law." At that stage in the legislative process the proposed constitutional amendment read, "Every individual has the right to keep and bear arms for any lawful purposes including for security or defense, for hunting and for recreational use." The purpose of deleting the federal exception was to prevent the implied interpretation that "the only valid restrictions on the possession [of] firearms in Wisconsin would be those restrictions imposed by federal law." Amendments to AJR 53. As urged by Representative Scott Jensen, the language should be deleted because "Wisconsin should not surrender its authority to regulate firearms to the federal government." Wisconsin Legislative Council Staff Memorandum, Explanation of 1997 Assembly Joint Resolution 11, Relating to the Right to Keep and Bear Arms (Second Consideration) 3 (Jan. 22, 1997) ("1997 Legislative Council memo"). This deletion and explanation therefore suggest that the legislature did not intend to repeal WIS. STAT. § 941.29 when passing the constitutional amendment.

¶ 10. Third, when AJR 53 was originally introduced, it set forth, "Every individual, except an individual restricted in accordance with federal law, has the right to keep and bear arms ...." A second amendment to the wording of the proposed amendment substituted, "The people" for "Every individual":

... Assembly Substitute Amendment 1 substituted the phrase "The people" for the phrase "Every individual" in order to avoid a possible construction of the constitutional amendment that would preclude the Legislature, in the exercise of its inherent police power to enact laws that limit or infringe upon the right to keep and bear arms, from restricting the possession and use of arms by certain individuals (e.g., convicted felons) in the interest of protecting the health, safety or welfare of the public.

See 1997 Legislative Council memo at 2 (emphasis added). ¶ 11. In addition, the very law review article Thomas cites summarized the position of the amendment's proposers:

Taken as a whole, the statements of [Representative Scott] Jensen, [Senator David] Zien, and others solely assured citizens that the Bear Arms amendment would not affect two types of statewide restrictions: (1) the state's 48-hour waiting period to obtain firearms; and (2) its prohibition against gun ownership and possession by convicted felons.

McFadden, 19 N. ILL. U. L. REV. at 729.

¶ 12. Contrary to Thomas's assertions, the legislative history of the amendment clearly demonstrates that the intent of the sponsors of the amendment was to preserve the legislature's authority to restrict the possession of firearms by felons. Thus, this claim of error fails.⁵

B. UNCONSTITUTIONALLY VAGUE AND OVERBROAD

¶ 13. Second, Thomas contends that the felon-in-possession statute is unconstitutionally vague and overbroad. We shall examine each claim in turn.

1. Vagueness

¶ 14. The underlying basis for a vagueness challenge to a statute is the procedural due process requirement of fair notice. State v. Ehlenfeldt, 94 Wis. 2d 347, 355, 288 N.W.2d 786 (1980). A statute is unconstitutionally vague if it either fails to afford proper notice of the prohibited conduct or fails to provide an objective standard for enforcement. State v. Smith, 215 Wis. 2d 84, 91, 572 N.W.2d 496 (Ct. App. 1997). "In order to give proper notice, a criminal statute must sufficiently warn people who wish to obey the law that their conduct comes near the proscribed area." State v. Hahn, 221 Wis. 2d 670, 677, 586 N.W.2d 5 (Ct....