State v. Hanson

SHIRLEY S. ABRAHAMSON, C.J.

¶ 54. (dissenting). I dissent because the majority opinion reads the words "willful or wanton" out of Wis. Stat. § 346.04(3). Additionally, the majority presents an imbalanced fact section, relying primarily on the law enforcement officer's version of the events rather than telling the whole story. The majority's statement of the facts seems like a subtle attempt to make the legal reasoning more persuasive. I begin by discussing the statute and then try to present the defendant's version of the events so that the reader gets a more balanced statement of the facts.

I

¶ 55. The defendant was charged with felony fleeing an officer in violation of Wis. Stat. § 346.04(3), which provides as follows:

No operator of a vehicle, after having received a visual or audible signal from a traffic officer, or marked police vehicle, shall knowingly flee or attempt to elude any traffic officer by willful or wanton disregard of such signal so as to interfere with or endanger the operation *270of the police vehicle, or the traffic officer or other vehicles or pedestrians, nor shall the operator increase the speed of the operator's vehicle or extinguish the lights of the vehicle in an attempt to elude or flee. (Emphasis added.)

¶ 56. The statute is difficult to read. The commas almost seem to have been dropped into the text at random, making the last "nor" clause especially hard to understand in relation to the rest of the subsection.1 Moreover, there are two different scienters. The statute uses the word "knowingly" and also uses the phrase "willful or wanton." None of these words is defined in the statute or in the jury instructions.

¶ 57. What is clear in Wis. Stat. § 346.04(3), however, is that the legislature explicitly included the words "willful or wanton" preceding, and thus modifying, the words "disregard of such [visual or audible] signal."2 The words "willful or wanton" cannot be disregarded. Statutes are to be read to give effect to every word; surplusage is to be avoided.3

¶ 58. Furthermore, the phrase takes on special importance in Wis. Stat. § 346.04(3), which sets forth three levels of fleeing offenses. The statute defining felony fleeing, § 346.04(3), uses the phrase "willful or wanton." This phrase is omitted in § 346.04(2t), the statute defining misdemeanor fleeing, and is also omit*271ted in § 346.04(1) and (2), the statutes defining a civil forfeiture.4 The three levels of fleeing offenses in Wis. Stat. § 346.04 reflect the legislature's intent to graduate the penalties based on the gravity of the fleeing offense. The phrase "willful or wanton" cannot be ignored in light of the legislative scheme of graduated penalties.5

¶ 59. A heightened mental state is one factor that clearly separates felony feeing from the misdemeanor and civil offenses in Wis. Stat. § 364.04.6 Yet the jury was not instructed about the meaning of the word "willful." Further, the pattern Jury Instructions for Wis. Stat. § 346.04(3) declare that "wanton" "does not add anything substantial to the offense"7 and simply remove the words "or wanton" entirely from the jury's consideration.8 Putting aside the appropriateness of ordi*272narily removing "or wanton" from the jury instructions entirely, I focus on the meaning of "willful." The jury did not receive any instructions about the meaning of "willful," which is an element of the offense. The parties argue the meaning of the word in the present case as a matter of law.

¶ 60. The State argues that "willful" is synonymous with "knowing." Thus the State views the word as redundant and believes the jury was properly instructed.

¶ 61. The majority opinion, ¶¶ 22 and 27, defines "willful" as requiring "a subjective understanding by the defendant that a person known by the defendant to be a traffic officer has directed the defendant to take a particular action, and with that understanding, the defendant chose to act in contravention of the officer's direction." Without saying so, the majority essentially holds that "willful" is synonymous with the legislature's definition of the word "intentional" in the criminal code.9

*273¶ 62. The majority's approach — equating "willful" with "intentional" — is immediately suspect because had the legislature meant for the scienter requirement to be "intentional," it would have used the word "intentional." The majority's approach of equating "willful" with "intentional" seems particularly flimsy when the word "willful" stands next to the word "wanton" in the statute. The positioning of these two words provides a clue that "willful" might require some sort of heightened mental state beyond merely "intentional."

¶ 63. The defendant argues that "willful" disregard of an officer's signal requires more than knowledge or intent to act. "Willful," according to the defendant, requires a heightened intent requirement; it requires a purpose to do wrong without just cause or without a justifiable excuse.10 The defendant urges that a person's reason for disregarding the officer's signal makes a difference under the statute and that he had just cause for disregarding the officer's signal. The defendant asserts that his honest concern for his personal safety was just cause or a justifiable excuse, even though the jury determined that his belief in the need for self defense was not objectively reasonable. The defendant testified that Klinkhammer, the law enforcement officer, had already beaten him and he feared that the officer would beat him again or kill him.

*274¶ 64. The word "willful" has given courts difficulty over the years and still causes problems for courts.11 The word is frequently viewed as ambiguous. Indeed, in a 1983 case the court characterized "willful" as "pregnant with ambiguity"12 and as "inherently ambiguous."13 No single definition of "willful" necessarily fits all statutes. When a criminal statute is ambiguous, the rule of lenity tells us to interpret the statute in favor of the criminal defendant. See, e.g., State v. Cole, 2003 WI 59, ¶ 13, 262 Wis. 2d 167, 663 N.W.2d 700. In the present case, the rule of lenity would direct that the word "willful" means a heightened mental state beyond merely intentional disregard of an officer's signal. The majority opinion adopts the opposite approach, selecting an undemanding definition of "willful."

¶ 65. Not only does the majority select a definition of "willful" that is problematic given the plain text, the context, and the rule of lenity, but it also selectively chooses precedent and then misapplies its chosen precedent to suggest that the defendant's preferred definition of "willful" is inappropriate.

¶ 66. The majority correctly states that the word "willful is susceptible of different meanings in different contexts," majority op. ¶ 21 (quoting State v. Cissell, 127 Wis. 2d 205, 210, 378 N.W.2d 691 (1985)). However, the majority opinion appears to determine incorrectly that Cissell's conclusion (i.e., that "willful" can mean "intentional") applies to all statutes and that Cissell's *275analysis of "willful" cannot coexist with State v. Preston, 34 Wis. 675 (1874). See majority op., ¶¶ 22-25, in which the majority treats "precedent since Preston" as rejecting Preston. According to the majority at ¶ 25, the defendant's definition of "willful" does not "comport[] with our interpretations of willful in other contexts since Preston." The majority errs.

¶ 67. The only precedent the majority cites for its position that "willful" is the equivalent of "intentional" is Cissell, and that is slim precedent indeed compared to the multitude of earlier cases defining "willful" differently in various contexts.

¶ 68. The Cissell court carefully defined the issue before it as "whether willful requires proof of a different state of mind than intentional when both terms are used in the two criminal statutes under consideration." Cissell, 127 Wis. 2d at 211. The Cissell court then answered the question with regard to these statutes, stating that although one statute used the word "willfully" and the other "intentionally," the two words in the two statutes (both governing neglecting or failing to support a child) carried the same meaning.

¶ 69. In contrast to Cissell, the statute at issue in the present case does not use both "willful" and "intentional" as the statutes in the Cissell case did. The application of Cissell to the present case is questionable.

¶ 70. Further, it is inexplicable how the majority leaps from Cissell's determination that "willful" can mean "intentional" in one statutory context to a conclusion that the defendant's definition of "willful" is incorrect in the context of Wis. Stat. § 346.04(3).

¶ 71. Cissell is not, as the majority opinion would have you believe, the seminal case on the definition of "willful."

*276¶ 72. Cissell is a sound case. It seems sensible that in certain contexts "willful" means "intentional."14 "Willful" may, however, also mean something other than "intentional," as the Preston court explained long ago. In 1983, the court reaffirmed Preston, declaring that "Preston makes clear that there is no one and certain meaning that can be ascribed to 'wilful' which will in all cases convey its meaning."15

¶ 73. Wisconsin case law demonstrates that the majority opinion, ¶ 25, misstates our precedent when it claims that the defendant's interpretation of willful does not "comport[] with our interpretations of willful in other contexts since Preston."

¶ 74. Diverse authorities support the notion that the word "willful" has different meanings in different contexts, just as the Cissell and Preston courts declared. "Willful" may require an "evil" intent.16 "Willful" may *277mean an intent to do a wrongful act.17 "Willful" may also mean, as the defendant urges, the purpose to do a wrongful act without just cause or without a justifiable excuse.18 I conclude this latter meaning of "willful" is used in Wis. Stat. § 346.04(3).

¶ 75. This meaning comports with the statutory history and statutory purpose of Wis. Stat. § 346.04 as a whole. The majority opinion zeroes in on protecting the public from unsafe driving and fostering cooperation with law enforcement and argues that its reading *278of "willful" will further these goals. But by solely emphasizing this purpose to define "willful," the majority ignores the text and context of the statute and the legislature's creation of a three-tiered structure of fleeing offenses.

¶ 76. The statutory history supports my interpretation of the word "willful." Wisconsin § 346.04(1), enacted in 1957 Laws of Wisconsin ch. 260, § 1, set forth a non-criminal forfeiture for the failure to obey "any lawful order, signal or direction from a traffic officer."

¶ 77. Section 346.04(3), a misdemeanor statute, was first enacted in 1965. See 1965 Laws of Wisconsin ch. 187, §§ 2, 3. This law provided as follows:

346.04(3) No operator of a vehicle, after having received a visual or audible signal from a traffic officer, or marked police vehicle, shall knowingly flee or attempt to elude any traffic officer by wilful or wanton disregard of such signal so as to interfere with or endanger the operation of the police vehicle, or the traffic officer or other vehicles or pedestrians, nor shall he increase the speed of his vehicle or extinguish the lights of his vehicle in an attempt to elude or flee.

¶ 78. In 1994, the Legislature increased the penalty for a violation of Wis. Stat. § 346.04(3) from a misdemeanor to a felony. 1993 Laws of Wisconsin, ch. 189, § 1. This change in penalty was explained by the Wisconsin Criminal Penalties Study Committee Final Report, Part II.D.4.d., at 57 (Aug. 31, 1999), as follows:

Until 1994 an act of fleeing that did not result in injury or property damage was a misdemeanor offense. In that year the misdemeanor was elevated to a 2-year felony. Doubtless this occurred because some fleeing episodes, though not resulting in injury or property damage, nonetheless pose great threats to the safety of officers and others and thus deserve felony treatment.

*279¶ 79. Changing Wis. Stat. § 346.04(3) to a felony-left a gap between the civil forfeiture and the felony. The Criminal Penalties Study Committee recommended the gap be filled, observing that "[s]ome episodes are short, don't involve high speed, do not seriously compromise public safety." The Criminal Studies Committee concluded that "a misdemeanor fleeing offense should be incorporated into the fleeing statute for use in those cases when the defendant's behavior is appropriately addressed with a conviction other than at the felony level."19

¶ 80. The misdemeanor statute, § 346.04(2t), was created in 2001 Wis. Act 109, §§ 443, 445, to read as follows:

346.04(2t) No operator of a vehicle, after having received a visible or audible signal to stop his or her vehicle from a traffic officer or marked police vehicle, shall knowingly resist the traffic officer by failing to stop his or her vehicle as promptly as safety reasonably permits.

¶ 81. This three-tiered penalty structure — civil forfeiture, misdemeanor, and felony — shows that the legislature's purpose was not only to protect the public and foster cooperation with law enforcement, but also to achieve those goals while carefully distinguishing between varying degrees of culpability among offenders. The legislature intended to reserve felony charges for the most culpable offenders, that is, for those who flee by willful or wanton disregard of a signal from an officer, and reading "willful" to require more than intentionality serves the purpose of graduated penalty for increasingly serious offenses. My interpretation of *280"willful" supports the importance of protecting the public and fostering cooperation with law enforcement without ignoring the statutory history and the legislature's creation of a three tiered structure of fleeing offenses.

¶ 82. The defendant did not have the opportunity to convince the jury that he subjectively, honestly believed that he had just cause to disregard the officer's signal, even though the just cause was not objectively reasonable to support a finding of self-defense. The majority thinks that all that the statute required was that the defendant had the opportunity to convince the jury that self-defense was objectively reasonable. I disagree.

¶ 83. The majority opinion fails to comprehend the difference between self-defense which has both a subjective and an objective component20 and the element of "willful" in the statute that has only a subjective component. See majority op. ¶ 29, n.7.

¶ 84. The error here is that the jury was not given an opportunity to consider the evidence using the proper legal standards. In this context, the error prevented the real controversy from being fully tried. I would therefore reverse the conviction and order a new trial.

II

¶ 85. The majority omits almost entirely the defendant's version of the events in an effort to portray the defendant as bizarre, frightening, and irrational, and the law enforcement officer as cool-headed. I set forth details, including those from the defendant's side *281of the story, in order to provide a more complete narrative of what the jury heard.21 Additionally, I highlight a few differences in the testimony of key witnesses, which undermine to some extent the majority's claim that the testimony of the State's key witnesses, Deputy Sheriff Eric Klinkhammer and Randi Derby, "largely corresponds." See majority op., ¶ 3 n.4.

¶ 86. There were three witnesses to begin with— the defendant, Deputy Eric Klinkhammer, a law enforcement officer, and Randi Derby, an intern ride-along. As the majority notes, Klinkhammer did not initiate the traffic stop by activating his lights. Rather, he pulled next to the defendant's vehicle and motioned with his hand for the defendant to pull over. The defendant testified that Klinkhammer drove beside him for about three minutes before "forcefully" gesturing for him to pull over, which he did immediately. Klinkhammer testified that he activated his lights as he pulled behind the defendant and the defendant began to pull over. The defendant, however, testified that he was stopped only by the deputy's hand motion.

¶ 87. After both vehicles came to a complete stop, the defendant exited his vehicle with his driver's license in hand. Klinkhammer indicated that he used a PA microphone to tell the defendant three times to get back in his car, to no avail. Derby's initial statement did not refer to use of a PA system. At trial, however, she testified that Klinkhammer used the PA and that perhaps the defendant did not hear the PA because of the traffic. The defendant testified that Klinkhammer did not use a PA system.

*282¶ 88. All agreed that Klinkhammer then exited the squad car and approached the defendant, telling him to get back into his car. The defendant testified that it was Klinkhammer who was immediately "screaming at the top of his lungs. . . . 'Get back in the car,' really loudly and very frighteningly." The defendant said he was just trying to give Klinkhammer his license and the deputy started "screaming bloody murder." Klinkhammer extended his baton. The defendant said that the situation was disorienting and confusing. He thought it was unusual that he was stopped with a hand motion and not lights.

¶ 89. Derby testified that although she could not hear anything, Klinkhammer was gesturing "get back in your car" and the defendant appeared angry and seemed to be saying "just take [my] driver's license." She did not describe the defendant as acting bizarrely.

¶ 90. The defendant stated that he did not believe he looked like a threat. He had his driver's license in his hand, both hands in plain view and was dressed professionally. The defendant testified that he could not remember how many times he was told to get into his vehicle but that as soon as he realized that the deputy would not take his license and was angry, he got back in his car.

¶ 91. Derby testified that while Klinkhammer was walking back to the squad car with the license, the defendant exited his vehicle a second time. Klinkhammer originally testified to these same facts. Later, however, he admitted that it was not until he had entered his squad car and had begun writing the ticket that the defendant exited his vehicle the second time.

¶ 92. The defendant testified that while he wished he had not, he did exit a second time to ask why he was pulled over and other basic questions. The deputy then *283immediately started screaming again at the top of his lungs, "Get back in the car." The defendant said they did have a brief conversation in which Klinkhammer claimed the defendant had been speeding, although the defendant believed he had been driving only a little over 65 and slower than several cars that had passed him. Klinkhammer again displayed the baton and the defendant started back to his car. The defendant testified that Klinkhammer did not at that point tell him he was under arrest.

¶ 93. All agreed that as the defendant approached his car, Klinkhammer pursued him and grabbed the defendant's shoulder. The defendant's shirt was ripped as he attempted to get in his car and Klinkhammer grabbed him.

¶ 94. The defendant further testified that as he was following the deputy's direction to return to his car, Klinkhammer grabbed him and struck him in the back of the head with the baton.

¶ 95. Once in his car, the defendant testified that he was really frightened and immediately called 911. He testified that he carefully drove away and began asking the 911 operator for directions to the nearest police station because he wanted to turn himself in to someone other than Klinkhammer, whom the defendant believed was a threat to his physical safety. The 911 operator urged the defendant to pull over and told him that he was creating a dangerous situation. Eventually the 911 operator started directing the defendant to a police station.

¶ 96. There are conflicting statements regarding the defendant's driving after exiting 1-94. Klinkhammer testified for the first time on redirect that the defendant endangered a vehicle as he exited the interstate at Highway 50. Derby testified that the defendant "drove *284his vehicle between two vehicles trying to maneuver through traffic" at the end of the off ramp. In contrast, Klinkhammer observed no such maneuvers at the end of the ramp.

¶ 97. Derby testified that the defendant would have struck a second squad car parked at the bottom of the off ramp if the defendant had not stopped, but he did and then went around it. On cross-examination, Derby admitted that her initial written statement noted that the defendant stopped at the bottom of the off ramp for 'a minute, then drove around the squad car.' Both Klinkhammer and the defendant also testified that the defendant stopped at the bottom of the ramp.

¶ 98. Deputy Sturino, who drove a second squad car, then testified that the next intersection was so clogged with traffic that the defendant had to stop. However, he also claimed that he stopped the defendant short of the intersection by pulling his squad in front of the defendant's vehicle. Conversely, Klinkhammer and the defendant testified that the defendant was the first person in line at the next stoplight.

¶ 99. As the defendant was stopped at the second red light, the law enforcement officers surrounded his vehicle and exited their squad cars with guns drawn. The defendant was still on the phone with 911 at the time. Although the officers claimed that they ordered the defendant out of his car several times and warned him that they would break his window if he did not comply, the 911 tape does not pick up any commands from the officers prior to Klinkhammer breaking the defendant's car window with his baton and pulling him from the vehicle.

*285¶ 100. As I noted at the outset, the majority-presents a skewed version of the facts in what seems like a subtle attempt to make its legal reasoning more persuasive. I try to present the defendant's side of the story so readers are aware of what the jury actually heard. Although the jury was not persuaded by the defendant's claim of self-defense, his version of the facts could support his claim that he had an honest, subjective belief that concern for his personal safety was just cause for his flight to the police station, and that his conduct was not "willful" disregard of the officer's signal. The jury might believe the defendant or might conclude the defendant was hoping to game the system. Had the jury been properly instructed, it could have made this decision.

¶ 101. Because the jury was not given an opportunity to decide the appropriate legal issues in the present case, I dissent.

For a published decision of the court of appeals involving interpretation of Wis. Stat. § 346.04(3), the proper instructions, and the sufficiency of evidence, see State v. Beamon, 2011 WI App 131, 336 Wis. 2d 438, 804 N.W.2d 706 (pet. for review filed).

The word "knowingly" precedes and thus modifies the words "flee or attempt to elude."

Robin K. v. Lamanda M., 2006 WI 68, ¶ 16, 291 Wis. 2d 333, 718 N.W.2d 38.

The penalties are set forth in Wis. Stat. § 346.17.

For further discussion of the statutory history of the graduated penalties, see ¶¶ 76-80, infra.

There are other differences as well. The misdemeanor is defined as follows: "No operator of a vehicle, after having received a visible or audible signal to stop his or her vehicle from a traffic officer or marked police vehicle, shall knowingly resist the traffic officer by failing to stop his or her vehicle as promptly as safety reasonably permits." Wis. Stat. § 346.04(2t). The felony statute requires fleeing or attempting to elude, as opposed to "resisting." The felony statute also requires some sort of aggravated physical circumstances that are absent from the misdemeanor statute, that is, endangerment or interference with other vehicles, increasing speed, or extinguishing lights. Thus, a heightened mental state is not the only factor that distinguishes misdemeanor from felony fleeing, but it should not be ignored.

Wis JI — Criminal 2630, note 3.

Jury instructions often include factual alternatives parenthetically, giving circuit courts the option to remove those that are irrelevant, but here "or wanton" was deleted entirely. A *272footnote suggests that circuit courts can insert it when necessary, but the assumption is that "or wanton" has little or no meaning and will rarely, if ever, he included. This treatment of "wanton" is problematic because it ignores the plain language of the statute. It is also problematic because "or wanton" helps give meaning to "willful." Why should the Jury Instructions Committee assume that one of the potential required mental states is irrelevant? A jury should know that the statute requires "willful or wanton" conduct and should be instructed on the meaning of those words. The jury should then decide whether a defendant's conduct satisfies either.

Wisconsin Stat. § 939.23(3) defines the word "intentional" as used in chapters 939 to 951 (the criminal code) to mean that the "actor either has a purpose to do the thing... or is aware that his or her conduct is practically certain to cause that result." The crime at issue is not part of chapters 939 to 951.

Brief and Appendix of Defendant-Appellant-Petitioner at 14. The defendant's brief at 15-16 argues: "Willful or wanton disregard, as used in § 346.04(3), unambiguously encompasses not merely the knowing failure to comply with an officer's signal to stop, but a knowing scorn or flouting of the officer's signal with indifference to the results or some type of evil intent beyond the mere failure to comply. In other words, in this Court's language in Preston, [] 'evil intent without justifiable excuse.'"

See generally Rachael Simonoff, Ratzlafv. United States: The Meaning of "Willful" and the Demands of Due Process, 28 Colum. J.L. & Soc. Probs. 397, 407-09 (1995).

DOT v. Transp. Comm'n, 111 Wis. 2d 80, 88-89, 330 N.W.2d 159 (1983).

DOT 111 Wis. 2d at 90.

The legislature has shown, however, that it knows the difference between "willful" and "intentional." See Legislative Council Note to § 11, ch. 257, Laws of 1979 (stating that the revision of the contempt of court statute removed the words " 'wilful and intentional' in the definition [of contempt and substituted] . . . the word 'intentional'.. . because the council believe[d] that although conduct must be intentional to constitute contempt, the higher standard of 'wilful' is inappropriate" (emphasis added)).

DOT, 111 Wis. 2d at 87.

See, e.g., Bicknese v. Sutula, 2003 WI 31, ¶ 19, 260 Wis. 2d 713, 660 N.W.2d 289 (holding that an exception to sovereign immunity that refers to "malicious and willful conduct . . . should only apply to ill-intentioned acts, as opposed to all 'intentional' actions"); Brown v. State, 137 Wis. 543, 549, 119 N.W. 338, 340 (1909) (holding that "willfully," "when used to describe acts which shall be punished criminally ... includes, in addition to mere purpose to do the act, a purpose to do wrong. . . involving] evil intent or legal malice, according to *277the great weight of authority"); see also 15 Wis. Op. Att'y Gen. 239 (1926) (" Wilful' includes, in addition to mere purpose to do [the] act, purpose to do wrong, and involves evil intent or legal malice.").

See, e.g., Century Shopping Ctr. Fund I v. Crivello, 156 Wis. 2d 227, 238, 456 N.W.2d 858 (Ct. App. 1990) (holding that one who acts willfully "acts volitionally and with intent to accomplish the unlawful result").

The United States Supreme Court has adopted a similar definition of "willful" on at least one occasion. See Ratzlaf v. United States, 510 U.S. 135, 137 (1994) ("To establish that a defendant "willfully violated]" [a] law, the Government must prove that the defendant acted with knowledge that his conduct was unlawful." (emphasis added)). A later statutory revision eliminated the requirement of willful violation. See United States v. Zehrbach, 47 F.3d 1252, 1261 (3d Cir. 1995).

See also Black's Law Dictionary 1737 (9th ed. 2009) (noting that it has been said repeatedly that willful means only intentionally or purposely, but that "it has been stated with equal repetition and insistence that the requirement added by such a word is not satisfied unless there is a bad purpose or evil intent").

See First Bank Se., N.A. v. Bentkowski, 138 Wis. 2d 283, 290 & n.2, 405 N.W.2d 764 (1987) (recognizing that "[a]n intentional act is not necessarily a wilful one" and that courts have held that willful "connotes the intentional doing of a harmful or unreasonable act without just cause or excuse").

See State of Wisconsin Criminal Penalties Study Committee Final Report at 57 (Aug. 31, 1999).

See Wis JI — Criminal 800 (2001).

Some of the narrative is taken verbatim from the defendant's opening brief to this court.