2017 WI 58
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2701-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Robert Joseph Stietz,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 369 Wis. 2d 222, 880 N.W.2d 182
(2016 – Unpublished)
OPINION FILED: June 13, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 15, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Lafayette
JUDGE: James R. Beer
JUSTICES:
CONCURRED: R.G. BRADLEY, J. concurs, joined by ROGGENSACK,
C.J. (except part II) and KELLY, J.
DISSENTED: ZIEGLER, J. dissents, joined by GABLEMAN, J.
NOT PARTICIPATING: A.W. BRADLEY, J. did not participate.
ATTORNEYS:
For the plaintiff-respondent there was a brief filed by and
an oral argument by Sarah Lynn Shaeffer, assistant attorney
general, with whom on the brief was Brad D. Schimel, attorney
general.
For the defendant-appellant-petitioner, there were briefs
filed by Charles W. Giesen and Jessica J. Giesen and Giesen Law
Offices, S. C., Madison, and oral argument by Charles W. Giesen.
2017 WI 58
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2701-CR
(L.C. No. 2012CF93)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUN 13, 2017
Robert Joseph Stietz,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 SHIRLEY S. ABRAHAMSON, J.1 This is a review of an
unpublished per curiam decision of the court of appeals
1
Four justices——Justice Rebecca Bradley, Chief Justice
Patience D. Roggensack and Justice Daniel Kelly (both of whom
join Justice Rebecca Bradley's concurrence), and I——join this
opinion holding that the decision of the court of appeals is
reversed and that the circuit court erred in failing to instruct
the jury regarding self-defense. Justice Daniel Kelly joins
this opinion to the extent that it is not inconsistent with
Justice Rebecca Bradley's concurrence.
(continued)
No. 2014AP2701-CR
affirming the judgment of conviction by the circuit court for
Lafayette County, James R. Beer, Judge.2 The criminal charges
arose out of a confrontation between the defendant and two
Wisconsin Department of Natural Resources conservation wardens,
Joseph Frost and Nick Webster.
¶2 Following a three-day trial, a jury convicted Robert
Stietz, the defendant, of resisting a law enforcement officer,
With regard to the trespass issue, Justice Rebecca G.
Bradley's concurrence is joined by Chief Justice Patience D.
Roggensack except for Section II and is joined by Justice Daniel
Kelly in full. The concurrence would on remand "require the
circuit court to instruct the jury on trespass" but does "not
decide whether the language in Stietz's proposed trespass
instruction was appropriate." This aspect of Justice Rebecca G.
Bradley's concurrence has not garnered a majority of the
justices participating in the instant case.
Justice Annette K. Ziegler is joined by Justice Michael J.
Gableman in dissent.
Justice Ann Walsh Bradley did not participate.
2
State v. Stietz, No. 2014AP2701-CR, unpublished slip op.
(Wis. Ct. App. Apr. 14, 2016).
2
No. 2014AP2701-CR
Wis. Stat. § 946.41(1) (2013-14),3 and intentionally pointing a
firearm at an officer, § 941.20(1m)(b).4
¶3 On appeal, the court of appeals rejected the
defendant's argument that his constitutional right to present a
defense was denied by the circuit court's refusal to instruct
the jury on self-defense. The court of appeals affirmed the
judgment of conviction.
¶4 The dispositive issue presented is whether the circuit
court erred when it refused to instruct the jury on self-defense
3
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
4
The jury found the defendant guilty of two of the
following six offenses charged: (1) first-degree recklessly
endangering safety (Wis. Stat. § 941.30(1)); (2) resisting or
obstructing an officer (Warden Frost), use of a dangerous weapon
(Wis. Stat. §§ 946.41, 939.63(1)); (3) resisting or obstructing
an officer (Warden Webster), use of a dangerous weapon (Wis.
Stat. §§ 946.41, 939.63(1)); (4) negligent handling of a weapon
(Wis. Stat. § 941.20(1); (5) intentionally pointing a firearm at
a law-enforcement officer (Warden Frost) (Wis. Stat.
§ 941.20(1m)(b); (6) intentionally pointing a firearm at a law-
enforcement officer (Warden Webster) (Wis. Stat.
§ 941.20(1m)(b)).
The defendant filed a postconviction motion that was
denied.
The defendant's sentence included one year of initial
confinement and three years of extended supervision on the
felony and a consecutive two-year probation term on the
misdemeanor. The defendant had served the confinement portion
of his sentence by the time his brief was filed in this court,
but he remained subject to extended supervision, probation, and
loss of civil rights.
3
No. 2014AP2701-CR
as the defendant requested.5 The dispute in the instant case
regarding the self-defense instruction centers on whether the
defense of self-defense is supported by sufficient evidence.
State v. Head, 2002 WI 99, ¶113, 255 Wis. 2d 194, 648
N.W.2d 413.
¶5 On viewing the record in the light most favorable to
the defendant, as we must,6 we conclude, contrary to the State's
position, that there was adequate evidence supporting a self-
defense instruction in the instant case and that the circuit
court erred in refusing the defendant's request for the
instruction.
¶6 The evidence was sufficient in the instant case
because a reasonable fact-finder could have determined that the
defendant reasonably believed that the two men who accosted him
5
We need not and do not address the following issues that
the parties addressed:
Did the law enforcement officers violate the defendant's
Second Amendment rights when they forcibly disarmed the
defendant of his loaded rifle?
Did the defendant have the right to argue and instruct the
jury that the law enforcement officers who encountered the
defendant on his uncle's property were trespassers?
Did the court of appeals contradict State v. Hobson, 218
Wis. 2d 350, 577 N.W.2d 825 (1998), by foreclosing a self-
defense claim against the wardens, whom the defendant did not
know were officers and who were not claiming to arrest the
defendant but were trying to disarm him?
6
State v. Head, 2002 WI 99, ¶¶9, 113, 255 Wis. 2d 194, 648
N.W.2d 413.
4
No. 2014AP2701-CR
with weapons on his land and on land upon which he had an
easement were not wardens with the Wisconsin Department of
Natural Resources; that the defendant reasonably believed that
the two men were trespassers hunting illegally; that because the
two men forcibly wrested his rifle from him and then drew their
handguns on him, the defendant reasonably believed that the two
men were unlawfully interfering with his person; that the two
men pointing handguns at the defendant caused him to fear for
his life; and that the defendant pointed his handgun at the two
men believing he had to defend himself.7 In sum, the jury could
conclude that the defendant threatened to use force as he
reasonably believed necessary to prevent or terminate the
interference with his person.
¶7 Because we conclude that there was sufficient evidence
to support the privilege of self-defense, we conclude that the
circuit court erred in failing to instruct the jury on self-
defense as requested by the defendant. We further conclude that
the circuit court's error affected the defendant's substantial
rights; it was not harmless error.
¶8 Accordingly, we reverse the decision of the court of
appeals and the judgment of conviction. We remand the cause to
the circuit court for a new trial.
7
Intentionally pointing a firearm toward or at another
threatens use of force. State v. Watkins, 2002 WI 101, ¶56, 255
Wis. 2d 265, 647 N.W.2d 244.
5
No. 2014AP2701-CR
¶9 We begin with a discussion of the statutory defense of
self-defense and the standard of review. We then examine the
record. We determine that there was sufficient evidence to
support a jury instruction on self-defense and that the circuit
court erred in refusing to give the instruction. Lastly, we
assess the error and conclude that the circuit court's error in
refusing to instruct the jury on self-defense affected the
defendant's substantial rights.
I
¶10 The defendant raised an affirmative defense of self-
defense. The privilege of self-defense is set forth in Wis.
Stat. § 939.48(1) as follows:
A person is privileged to threaten or intentionally
use force against another for the purpose of
preventing or terminating what the person reasonably
believes to be an unlawful interference with his or
her person by such other person. The actor may
intentionally use only such force or threat thereof as
the actor reasonably believes is necessary to prevent
or terminate the interference. The actor may not
intentionally use force which is intended or likely to
cause death or great bodily harm unless the actor
reasonably believes that such force is necessary to
prevent imminent death or great bodily harm to himself
or herself. (Emphasis added.)
6
No. 2014AP2701-CR
¶11 The pattern jury instruction for self-defense, Wis JI—
—Criminal 800,8 instructs the jury on the elements of self-
defense as follows (footnotes omitted):
Self-Defense
Self-defense is an issue in this case. The law of
self-defense allows the defendant to threaten or
intentionally use force against another only if:
• the defendant believed that there was an actual or
imminent unlawful interference with the defendant's
person; and,
• the defendant believed that the amount of force the
defendant used or threatened to use was necessary to
prevent or terminate the interference; and
• the defendant's beliefs were reasonable.
Determining Whether Beliefs Were Reasonable
A belief may be reasonable even though mistaken.9 In
determining whether the defendant's beliefs were
reasonable, the standard is what a person of ordinary
intelligence and prudence would have believed in the
defendant's position under the circumstances that
existed at the time of the alleged offense. The
reasonableness of the defendant's beliefs must be
determined from the standpoint of the defendant at the
time of the defendant's acts and not from the
viewpoint of the jury now.
8
The defendant also requested Wis JI——Criminal 810,
relating to whether the defendant had to retreat, and also
proposed adaptations of these pattern instructions. We need not
consider those formulations because we conclude that the record
supports the defendant's request for this pattern jury
instruction.
9
See Maichle v. Jonovic, 69 Wis. 2d 622, 628, 230
N.W.2d 789 (1975) ("The reasonableness of the actor's beliefs,
moreover, is not defeated by a subsequent determination that his
beliefs were mistaken.").
7
No. 2014AP2701-CR
¶12 A circuit court has broad discretion in deciding
whether to give a requested jury instruction. State v. Coleman,
206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996).10 The circuit court
must, however, exercise its discretion in order "to fully and
fairly inform the jury of the rules of law applicable to the
case and to assist the jury in making a reasonable analysis of
the evidence." State v. Vick, 104 Wis. 2d 678, 690, 312
N.W.2d 489 (1981) (quoting State v. Dix, 86 Wis. 2d 474, 486,
273 N.W.2d 250 (1979)).
¶13 A court must determine whether a reasonable
construction of the evidence will support the defendant's theory
"viewed in the most favorable light it will 'reasonably admit
from the standpoint of the accused.'" Head, 255 Wis. 2d 194,
¶113 (quoting State v. Mendoza, 80 Wis. 2d 122, 153, 258
N.W.2d 260 (1977) (quoting Ross v. State, 61 Wis. 2d 160, 172,
211 N.W.2d 827 (1973))).
¶14 Whether there are sufficient facts to warrant the
circuit court's instructing the jury on self-defense is a
question of law that this court decides independently of the
circuit court and court of appeals, but benefiting from their
10
"[A] criminal defendant is entitled to a jury instruction
on a theory of defense if: (1) the defense relates to a legal
theory of a defense, as opposed to an interpretation of
evidence; (2) the request is timely made; (3) the defense is not
adequately covered by other instructions; and (4) the defense is
supported by sufficient evidence." State v. Coleman, 206
Wis. 2d 199, 212-13, 556 N.W.2d 701 (1996) (internal citations
omitted); Johnson v. State, 85 Wis. 2d 22, 28-29, 270 N.W.2d 153
(1978).
8
No. 2014AP2701-CR
analyses. Head, 255 Wis. 2d 194, ¶44 (citing State v. Mayhall,
195 Wis. 2d 53, 57, 535 N.W.2d 473 (1995)); State v. Sartin, 200
Wis. 2d 47, 53, 546 N.W.2d 449 (1996); State v. Chew, 2014 WI
App 116, ¶7, 358 Wis. 2d 368, 856 N.W.2d 541.
¶15 A jury must be instructed on self-defense when a
reasonable jury could find that a prudent person in the position
of the defendant under the circumstances existing at the time of
the incident could believe that he was exercising the privilege
of self-defense. A circuit court may deny a requested self-
defense instruction when no reasonable basis exists for the
defendant's belief that another person was unlawfully
interfering with his person and that the defendant used or
threatened the use of such force as he reasonably believed
necessary to prevent or terminate the interference. Head, 255
Wis. 2d 194, ¶¶112-113.
¶16 Wisconsin law establishes a "low bar" that the accused
must surmount to be entitled to a jury instruction on the
privilege of self-defense. State v. Schmidt, 2012 WI App 113,
¶12, 344 Wis. 2d 336, 824 N.W.2d 839. The accused need produce
only "some evidence" in support of the privilege of self-
defense. Head, 255 Wis. 2d 194, ¶112; State v. Peters, 2002 WI
App 243, ¶¶21-23, 27-29, nn.4-5, 258 Wis. 2d 148, 653
N.W.2d 300.11
11
The evidence may be facts presented by the defense or the
State or through cross-examination. Coleman, 206 Wis. 2d at
214.
9
No. 2014AP2701-CR
¶17 Evidence satisfies the "some evidence" quantum of
evidence even if it is "weak, insufficient, inconsistent, or of
doubtful credibility" or "slight."12
¶18 Crucial to applying the "some evidence" standard is
that a court is not to weigh the evidence. State v. Mendoza, 80
Wis. 2d 122, 152, 258 N.W.2d 260 (1977). A court does not "look
to the totality of the evidence," as that "would require the
court to weigh the evidence——accepting one version of facts,
rejecting another——and thus invade the province of the jury."
Mendoza, 80 Wis. 2d at 153; Ross v. State, 61 Wis. 2d 160, 172-
73, 211 N.W.2d 827 (1973) ("This test does not call for a
weighing of the evidence by the trial judge.").13 Rather, "the
question of reasonableness of a person's actions and beliefs,
when a claim of self-defense is asserted, is a question
peculiarly within the province of the jury." Maichle v.
12
State v. Schuman, 226 Wis. 2d 398, 404, 595 N.W.2d 86
(Ct. App. 1999) (citing United States v. Sotelo-Murillo, 887
F.2d 176, 178 (9th Cir. 1989); United States v. Kessee, 992 F.2d
1001, 1003 (9th Cir. 1993)).
13
State v. Peters, 2002 WI App 243, ¶27 n.4, 258
Wis. 2d 148, 653 N.W.2d 300 ("The 'some' evidence standard is a
relatively low threshold, in part because of the distinct
functions of judge and jury."); Walter Dickey, David Schultz &
James Fullin, Jr., The Importance of Clarity in the Law of
Homicide: The Wisconsin Revision, 1989 Wis. L. Rev. 1323, 1347
(The "some" evidence standard is a relatively low threshold, in
part, because of the distinct functions of judge and jury——
evaluating the weight and credibility of the evidence is
traditionally a task reserved to the jury.).
10
No. 2014AP2701-CR
Jonovic, 69 Wis. 2d 622, 630, 230 N.W.2d 789 (1975) (citing
Higgins v. Minagham, 76 Wis. 298, 45 N.W. 127 (1890)).14
¶19 In the instant case, if "some evidence" were offered
at trial that the defendant reasonably believed that another
person was unlawfully interfering with his person and that he
used or threatened to use such force as he reasonably believed
necessary to prevent or terminate the interference, "then it is
for the jury, not for the [circuit] court or this court, to
determine whether to believe [the accused's] version of events."
Mendoza, 80 Wis. 2d at 153.
¶20 With the low "some evidence" quantum of evidence
standard in mind, we turn to the record to determine whether
there was sufficient evidence to support an instruction to the
jury on self-defense.
¶21 The State argues that the defendant's testimony was
incredible on its face and that, as a matter of law, the
evidence was insufficient to warrant a self-defense instruction,
and that any claim of self-defense was so discredited that no
reasonable jury would believe the defendant.15
14
See also State v. Jones, 147 Wis. 2d 806, 816, 434
N.W.2d 380 (1989) (citing State v. Mendoza, 80 Wis. 2d 123, 156,
258 N.W.2d 260 (1977)).
15
"If perfect self-defense is placed in issue by the trial
evidence, the state must prove beyond a reasonable doubt that
one of the defendant's beliefs was not reasonable." Head, 255
Wis. 2d 194, ¶70.
11
No. 2014AP2701-CR
¶22 We focus on the encounter from the defendant's
perspective. We view the record favorably to the defendant, as
the case law requires, to assess whether a reasonable jury could
find that a person in the position of the defendant under the
circumstances existing at the time of the incident could
reasonably believe that he was exercising the privilege of self-
defense.
¶23 We do not present the defendant's one-sided picture of
the events as representing the entire story. The defendant's
testimony was not always consistent and it was contradicted. We
conclude, however, that the defendant's version of the events,
sometimes supported on specific points by the two wardens,
provided an adequate factual basis supporting the defendant's
explanation that he was exercising his right to defend himself.
The jury was not obliged to believe the defendant, but they
could have believed him. Following is the evidence from the
defendant's perspective.
II
¶24 The defendant was a 64-year-old farmer at the time of
the incident in question. He owned a parcel of land in
Lafayette County on which he pastured cattle, hunted, and
gathered morel mushrooms. The land consists of grassy, open
areas, including pasture areas; rolling hills; and some wooded
areas.
¶25 The defendant's parcel of land is surrounded by land
owned by the defendant's uncle. The defendant had the benefit
12
No. 2014AP2701-CR
of an easement (right-of-way) for ingress and egress over the
uncle's land to Highway 81.
¶26 A fence separates the defendant's land from his
uncle's land on all sides, interrupted only by a metal, swinging
"cattle gate." The gate marks the point where the easement,
recognizable as a two-track, dirt-road-like path, connects the
defendant's land to Highway 81. The fence keeps trespassers out
and cattle in.
¶27 The uncle testified that he and the defendant
generally stayed off of each other's land. Occasionally, the
defendant and his uncle would enter each other's land to check
the fence line.
¶28 The defendant testified that, over the years, he has
had problems with trespassers. Many would hunt illegally, and
some would vandalize his property. He posted "no trespassing"
signs and asked the Lafayette County Sheriff for help with
trespassers on numerous occasions. During deer season——when he
often had the worst trespassing problems——the defendant would
check his land for trespassers. He would be armed when he went
on the land, because he knew that anyone hunting illegally would
likely be armed.
¶29 On the afternoon in question, Sunday, November 25,
2012, the last day of gun deer season, the defendant patrolled
his property for trespassers and walked his fence line to make
sure that it had no holes. Now that gun deer season was over,
he planned to pasture a longhorn cow. Because the defendant was
not going to hunt and would not have to haul a deer carcass
13
No. 2014AP2701-CR
home, he drove his wife's Chevrolet sedan. He parked the sedan
in a field near the gate to his land.
¶30 The defendant carried his rifle in a safe position16
with the safety on and kept a handgun in his coat pocket as he
always did. Although the handgun held six rounds, he kept only
five rounds in it because the gun did not have a safety; he did
not like to leave a round in the cylinder that could be
accidentally discharged.
¶31 The defendant wore a camouflage coat and hat. He did
not wear any blaze orange (as most hunters would) because he was
not hunting and was on his own private property.17
¶32 Wisconsin Department of Natural Resources (DNR)
Wardens Frost and Webster were out on patrol on the afternoon in
question. They were looking for hunters who were trying to nab
an eleventh-hour deer after the gun deer season ended at 4:45
p.m. (20 minutes after the 4:25 p.m. sunset).
¶33 They drove on the surface roads, using binoculars to
find hunters. They saw no one and heard no signs of hunting.
At around 4:58 p.m., the two wardens noticed a car (the
defendant's wife's Chevrolet sedan) parked in a field along a
16
The defendant described this safe position as holding the
rifle in front of his body, with one hand on the foregrip of the
rifle, and the other somewhere around the stock. Neither of his
hands was on the trigger. The muzzle was pointed up.
17
The defendant did have a blaze orange vest stuffed into a
coat pocket, which, he testified, remained in his pocket from
weeks before. This vest was the "sliver" of blaze orange that
the wardens testified they saw on the defendant.
14
No. 2014AP2701-CR
fence line about a quarter-mile from the highway. The two
wardens drove their DNR pickup truck across the field and up to
the sedan. As one of them peered into the sedan, he observed
what he concluded were signs of hunting: an empty gun case, a
bottle of "Buck Lure" (a scent-killer spray), and a camouflaged
tree seat. The other warden checked the vehicle's registration
and found that the sedan was registered to Robert Stietz, the
defendant, and his wife, Susan Stietz.
¶34 Apparently concluding that whoever owned this sedan
was hunting after the gun deer season ended, the two wardens
decided to look around. Before leaving their DNR pickup truck,
both wardens donned their blaze-orange, department-issued
jackets. Like their uniforms, their blaze-orange jackets bore
DNR insignia. The DNR patch insignia on the shoulder of each
arm of the jacket were not, however, as conspicuous as the DNR
insignia on their uniforms. Each warden also had a DNR badge on
his jacket and a hat bearing a DNR insignia patch. Although
neither warden had a rifle, as most deer hunters do, each
carried a handgun and a long flashlight.
¶35 The two wardens headed north and came upon a partially
open cattle gate. They walked through the open cattle gate,
entered the defendant's fenced-in parcel, and followed a path in
the grass worn down by cattle's hooves.
¶36 The defendant testified that as he was walking on his
uncle's land checking the fence line, he saw blaze orange in the
woods. He headed toward the cattle gate to enter his land and
identify these blaze-orange-clad figures. He testified: "I
15
No. 2014AP2701-CR
encountered two people in orange that was on my
property . . . and I didn't know who they were." He stated: "I
wondered who was trespassing. This is my thought, I was
wondering who was trespassing in my land that I did not know."
¶37 The two wardens testified that they heard the
defendant before they saw him. As they were walking on the
cattle path, they heard a stick snap behind them, turned around,
and saw the defendant walk a few steps, stop and look around,
and then continue walking.
¶38 It was "nearly completely dark," according to Warden
Webster, when the three men crossed paths. As the two wardens
approached the defendant from a distance of about 20 or 30
yards, flashlights were shined at the defendant.
¶39 The defendant explained that he did not see the DNR
insignia or badges on the men's attire as the men approached.
The defendant testified that he did not notice the DNR insignia
on their jacket sleeves because he was "wondering who was
trespassing in [sic] my land" and "trying to study their
face[s]." The blaze-orange jackets signified hunters to the
defendant and the darkness reduced the chance that the defendant
would identify the two men as wardens by their uniforms.
¶40 According to the defendant, neither man clearly
identified himself as a game warden as they approached him,
leading the defendant to suspect that the two were trespassers
hunting illegally on his land. The men did nothing to correct
the defendant's misunderstanding of their identity. Although he
testified that he heard one of the men mumble something about
16
No. 2014AP2701-CR
"warden," and the other mumbled something about "Green County,"
the defendant said he thought the men were asking if he was or
had seen a warden.
¶41 The defendant's belief that the two men were
trespassing hunters was bolstered by the defendant's
interpretation of their words and conduct. The two men inquired
into how many deer the defendant had seen that day and whether
he was hunting. The defendant told the men he had seen seven
doe but that he was not hunting.
¶42 The defendant testified that when he told the two men
that he was looking for trespassers and was not hunting, one of
the men "threw up his arms" and appeared "riled" by this
statement. The defendant testified that this response was
prompted because "I believe they took it for that they was [sic]
trespassing and that will be my feeling."
¶43 The defendant also testified that the two men appeared
to be circling him early on in the encounter as he attempted to
back away from them by ducking back through the gate and heading
towards his car to drive home.
¶44 One of them, Warden Webster, asked the defendant
whether his rifle was loaded. The defendant said yes. The
other man, Warden Frost, twice asked for the rifle. The
defendant said no both times. The two men began to make the
defendant fear for his life. According to the defendant, "That
is when they proceeded——I felt like I was being attacked right
at that time."
17
No. 2014AP2701-CR
¶45 Warden Frost initiated physical contact with the
defendant, grabbing the defendant by the front of his garment
while reaching for the rifle.
¶46 The other man, Warden Webster, entered the fray. The
men grappled over the rifle, pointing the barrel every which
way. The rifle was wrested from the defendant. Warden Frost
ended up on his back on the ground. He held the rifle
momentarily, considering whether to use it. He cast it aside
when he could not figure out how to turn the safety off. This
tussle ended when the defendant no longer had the rifle.
¶47 The defendant then saw Warden Webster fumbling to pull
a handgun from a holster on his hip. At trial, all three men
agreed that Warden Webster was the first to pull his handgun and
that he pointed it at the defendant. Warden Frost then drew his
handgun and pointed it at the defendant. The defendant reached
for his own handgun because, as he testified, he thought "my
God, he's going to shoot." The three men agreed that Warden
Frost and the defendant drew their handguns about
"simultaneously." The defendant stated to the two men that he
had a right to protect himself. There they were, three men with
handguns trained on each other.
¶48 The defendant testified he did not know the two men
were wardens at this point; he just knew he was scared and
feared for his life:
I felt like I was being attacked right at that time.
. . . .
18
No. 2014AP2701-CR
[A]ll of a sudden I seen the pistol coming up. And I
figured, my God, he’s going to shoot.
. . . .
I was scared, darn scared.
. . . .
At that very instant I had the pistol in my right
pocket and I drew my pistol at the very——
simultaneously. I said, I have the right to protect
myself which I am doing at this time.
. . . .
[S]omeone else pulled their pistol out and I was
fearful for my life so I drew mine so I would not get
shot.
¶49 The two wardens and the defendant testified that the
defendant told the men that he was exercising his right to
defend himself: "I have the right to protect myself which I am
doing at this time." And the defendant told the two men,
repeatedly, that he would lower his handgun when they lowered
theirs because one of them, Warden Webster, drew first.
¶50 While pointing his gun at the defendant with one hand,
Warden Webster used his other hand to activate his collar
microphone and call Lafayette County dispatch for assistance.
The defendant testified that even when he heard this call being
made, he still "really didn't know positive for sure [that they
were officers] . . . because I never seen no credentials."
¶51 The defendant testified he was relieved when the call
for help was made. He began to realize, for the first time,
that the two men were wardens and that assistance in the form of
sheriff's deputies would soon arrive. The defendant then backed
19
No. 2014AP2701-CR
a few feet away from the two men, moving nearer to the gate. He
assumed this position and waited for the backup to arrive.
¶52 The defendant continued to point his handgun at the
men after they called for backup. He stated he did so only
because the two refused to lower their handguns first.
¶53 The defendant refused to lower his handgun because he
felt unsafe, even after realizing that the two men were wardens.
It was dark out, and the three of them were in an unpopulated
rural area. The two men, who had earlier attacked him without
provocation, held their handguns pointed at the defendant's
face. The defendant, by contrast, held his gun in one hand near
his side and was leaning against a fence post.
¶54 The defendant saw a squad car's emergency lights
flashing. After the first deputy sheriffs arrived, the two
wardens backed away from the defendant with their handguns still
drawn. They retreated to the squad car along with the deputy
sheriff.
¶55 A lengthy standoff ensued. As more deputies arrived,
they spoke to the defendant to persuade him to disarm. The
defendant explained that after the deputies assured him that he
would not be "gang tackled," he lowered his gun to his side,
emptied the cartridges onto the ground, and dropped the gun to
the ground.
¶56 The defendant peaceably surrendered. He walked to the
squad car where he was arrested.
¶57 No one was hurt. No weapons were ever fired by
anyone. All three men acknowledged that the defendant never
20
No. 2014AP2701-CR
threatened to shoot the two men; he never raised his voice
during the encounter; he never used any profanity; he did not
try to prevent the two men from calling for help and backup; and
he did not try to prevent or discourage the retreat of the two
men to the squad car.
¶58 Insofar as the instruction on self-defense hinged on
the defendant's credibility, credibility is a question to be
resolved by the jury, not the circuit court, the court of
appeals, or this court. State v. Coleman, 206 Wis. 2d 198, 213-
14, 556 N.W.2d 701 (1996). A court does not weigh the
testimony. The court focuses, instead, on whether there is
"some evidence" supporting the defendant's self-defense theory.
¶59 The evidence that the defendant was in fear for his
life and believed he was exercising the threat of reasonable
force went beyond the minimal quantum of "some evidence"
necessary to establish the defendant's right to a jury
instruction on self-defense.
¶60 We conclude that an adequate basis exists in the
record to support a self-defense instruction and to allow the
defense of self-defense to be argued to and considered by the
jury. A reasonable jury could find that a person in the
position of the defendant under the circumstances existing at
the time of the incident could reasonably believe that the two
men were unlawfully interfering with his person and that he was
threatening reasonable force in the exercise of his privilege of
self-defense. Therefore, we conclude that the circuit court
erred in refusing to instruct the jury on self-defense.
21
No. 2014AP2701-CR
III
¶61 Because we conclude that the circuit court erroneously
refused to instruct the jury on self-defense, we next consider
whether the error affected the defendant's "substantial
rights."18 Wis. Stat. § 805.18(2).19 This statute codifies
Wisconsin's harmless error rule.20
¶62 The harmless error inquiry raises a question of law
that this court decides. State v. Magett, 2014 WI 67, ¶29, 355
Wis. 2d 617, 850 N.W.2d 42.
¶63 A defendant's substantial rights remain unaffected
(that is, the error is harmless) if it is clear beyond a
reasonable doubt that a rational jury would have come to the
18
Peters, 258 Wis. 2d 148, ¶29.
19
The harmless error rule set forth for civil actions
applies to criminal proceedings via Wis. Stat. § 972.11. State
v. Harvey, 2002 WI 93, ¶39, 254 Wis. 2d 442, 647 N.W.2d 189.
Wisconsin Stat. § 805.18(2) provides:
No judgment shall be reversed or set aside or new
trial granted in any action or proceeding on the
ground of selection or misdirection of the jury, or
the improper admission of evidence, or for error as to
any matter of pleading or procedure, unless in the
opinion of the court to which the application is made,
after an examination of the entire action or
proceeding, it shall appear that the error complained
of has affected the substantial rights of the party
seeking to reverse or set aside the judgment, or to
secure a new trial. (Emphasis added.)
20
State v. Sherman, 2008 WI App 57, ¶8, 310 Wis. 2d 248,
750 N.W.2d 500 (citing Harvey, 254 Wis. 2d 442, ¶39 (footnote
omitted)).
22
No. 2014AP2701-CR
same conclusion absent the error or if it is clear beyond a
reasonable doubt that the error complained of did not contribute
to the verdict obtained.21
¶64 The jury's acquittal of the defendant on four of the
six charges (including the most serious felony count) in part
depended on the defendant's testimony that at times conflicted
with that of the wardens. The acquittals suggest that the jury
believed all or some of the defendant's testimony and, if given
the self-defense instruction, might have acquitted the defendant
on one or both of the two charges upon which they convicted the
defendant.
¶65 We therefore conclude that the circuit court's error
in refusing to give the jury a self-defense instruction was not
harmless error. It is clear beyond a reasonable doubt that a
rational jury would not have come to the same conclusion absent
the error; it is clear beyond a reasonable doubt that the error
complained of contributed to the guilty verdict.
¶66 Because self-defense could have absolved the defendant
of one or both of his convictions, the circuit court's refusal
to give the self-defense instruction affected the defendant's
substantial rights. The error was not harmless.
* * * *
21
State v. Magett, 2014 WI 67, ¶29, 355 Wis. 2d 617, 850
N.W.2d 42; Nader v. United States, 527 U.S. 1, 15, 18 (1999);
Chapman v. California, 386 U.S. 18, 24 (1967); Harvey, 254
Wis. 2d 442, ¶46 (citing Nader, 527 U.S. at 18).
23
No. 2014AP2701-CR
¶67 In sum, after viewing the record in the light most
favorable to the defendant, as we must, we conclude that there
was sufficient evidence supporting a self-defense instruction in
the instant case. Accordingly, we conclude that the circuit
court erred in refusing to instruct the jury on self-defense.
¶68 A reasonable fact-finder could determine that the
defendant reasonably believed that the two men who accosted him
with weapons on his land and on land upon which he had an
easement were not wardens with the Wisconsin Department of
Natural Resources; that the defendant reasonably thought that
the two men were trespassers hunting illegally; that because the
two men forcibly wrested his rifle from him and then drew their
handguns on him, the defendant reasonably believed that the two
men were unlawfully interfering with his person; that the two
men pointing handguns at the defendant caused him to fear for
his life; and that the defendant pointed his handgun at the two
men believing he had to defend himself. In sum, the jury could
conclude that the defendant threatened to used force as he
reasonably believed necessary to prevent or terminate the
interference with his person.
¶69 We further conclude that the circuit court's error
affected the defendant's substantial rights; it was not harmless
error.
¶70 Accordingly, we reverse the decision of the court of
appeals and the judgment of the circuit court. We remand the
cause to the circuit court for a new trial.
24
No. 2014AP2701-CR
By the Court.—The decision of the court of appeals is
reversed and the cause remanded.
¶71 ANN WALSH BRADLEY, J., did not participate.
25
No. 2014AP2701-CR.rgb
¶72 REBECCA GRASSL BRADLEY, J. (concurring). I agree
with the majority opinion's analysis supporting Stietz's
entitlement to the self-defense jury instruction and join the
opinion. I write separately because the circuit court also
erred when it refused to allow Stietz to present a defense based
on evidence that the DNR wardens were trespassers on private
property, and I disagree with the majority's assertion that
"[w]e need not" address this issue. Majority op., ¶4 n.5. I
also write to reaffirm that the Fourth Amendment prohibits the
government from seizing a person on private property——including
open fields——absent consent, a warrant, probable cause and
exigent circumstances, or another lawful basis for interfering
with a person's right to be free from governmental intrusion.
I
¶73 The Sixth Amendment guarantees a criminal defendant
the right to present a defense. See Chambers v. Mississippi,
410 U.S. 284, 302 (1973).1 "[A] fundamental element of due
process of law," the right to present a defense includes "the
right to present the defendant's version of the facts . . . to
the jury so it may decide where the truth lies." Washington v.
Texas, 388 U.S. 14, 19 (1967); see also State v. Dodson, 219
Wis. 2d 65, ¶¶35-36, 580 N.W.2d 181 (1998). "Whether an
evidentiary ruling infringes upon a criminal defendant's right
to present a defense is a question of constitutional fact for
1
There are some limits on the right to present a defense
that are not relevant here. See State v. St. George, 2002 WI
50, ¶15, 252 Wis. 2d 499, 643 N.W.2d 777.
1
No. 2014AP2701-CR.rgb
independent review." State v. Ward, 2011 WI App 151, ¶15, 337
Wis. 2d 655, 807 N.W.2d 23 (quoted source omitted). The
majority opinion sets forth the proper standard of review as to
whether the circuit court erred when it refused to give the
requested jury instructions, and therefore I will not repeat it
here. See majority op., ¶¶12-14 & n.10. Stietz wanted to
testify he thought the DNR wardens were trespassers, and sought
to make that argument to the jury, but the circuit court limited
his testimony on trespassing,2 refused to allow his attorney's
argument, and denied his request for the jury to be instructed
on the law of trespass. The circuit court erred. These errors,
together with the self-defense error, violated Stietz's
constitutional right to present a defense.
¶74 A brief examination of the facts puts the trespass
issue into context. Stietz had problems with trespassers in the
past and lodged numerous trespassing complaints with the local
sheriff's department. One trespasser broke windows on a trailer
Stietz kept on the land. At the time Stietz encountered the
wardens, he was checking for trespassers on his private, fenced
land marked by conspicuous "no trespassing" signs; he was also
inspecting the integrity of his fence because he intended to
2
The State filed a motion in limine asking the circuit
court to prohibit any testimony referring to the wardens as
trespassers. The circuit court ruled: "[Stietz] can say that
he was patrolling for trespassers, but he can't say that the
wardens were trespassing." When Stietz testified "I encountered
two trespassers on my property," the circuit court ordered the
statement "stricken from the record" and instructed the jury to
"dismiss it from your minds entirely and not consider it in your
deliberations at all, as though it was never said."
2
No. 2014AP2701-CR.rgb
pasture a longhorn cow there the following day. The sun had set
and it was fairly dark as 64-year-old Stietz walked his
property——alone. He had not invited anyone onto his private
property and was not expecting any visitors. This property,
located approximately half a mile from the public road, was
surrounded by other private property, part of which belonged to
Stietz's uncle. There was no formal or permanent walkway or
driveway inviting visitors onto the private land.
¶75 DNR Wardens Frost and Weber entered Stietz's private
land shortly after hunting hours ended on November 25, 2012,
while en route to a citizen complaint in another county. While
driving along the public road adjacent to privately-owned
property, the wardens saw a small sedan parked on the grassy
area of private property, about a quarter mile from the road.
The wardens decided to circle the area, which included Stietz's
private property, to check for hunters who might be hunting
after hours. During this trip, the wardens listened for any
audible sound and used binoculars and a scope to scour the land
for hunters. They heard nothing and saw no one. Nevertheless,
the wardens decided to drive onto the private property to
investigate the legally parked car. There was no formal
driveway, but a portion of the grassy field suggested a "field
lane," which they used to reach the car. Warden Webster ran the
registration on the car, which belonged to Robert and Sue
Stietz, the adjacent property owners. Warden Frost got out and
looked into the car's windows. He saw an empty rifle case, some
buck lure, and a tree seat. The wardens decided to proceed
3
No. 2014AP2701-CR.rgb
further onto the private property to look for illegal hunters.
No attempt was made to contact the owners of the private land,
there was no evidence of dead or diseased wild animals on the
land, there was no audible noise suggesting illegal hunting or
suspicious activity, and there was no evidence that a crime had
been or was about to be committed.
¶76 While checking the fence, Stietz saw two strangers
clad in orange about 20 to 30 yards away, walking on his
property. When the two men approached Stietz, they turned a
flashlight toward him and asked him to give them his rifle.
Stietz——an armed services veteran, a citizen with no criminal
record, and a hunter without violations in the past 50 years——
refused to turn his weapon over to two men he did not know who
appeared uninvited on his private land. At that point, Warden
Webster physically grabbed Stietz, and the two wardens forcibly
wrested the shotgun away from him.3 After the seizure, all three
men drew their handguns, resulting in the standoff that formed
the basis for the charges in this case.
¶77 Stietz, who testified on his own behalf, wanted to
tell the jurors that he believed the two men were trespassers,
and the circuit court erred in barring this part of Stietz's
testimony. "All relevant evidence is admissible, except as
otherwise provided by the constitutions of the United States and
3
Stietz says Warden Webster grabbed his shirt before the
wardens grabbed his rifle. Both wardens deny grabbing Stietz.
For the purpose of this court's review, however, we view the
facts in the light most favorable to Stietz. See State v. Head,
2002 WI 99, ¶9, 255 Wis. 2d 194, 648 N.W.2d 413.
4
No. 2014AP2701-CR.rgb
the state of Wisconsin, by statute, by these rules, or by other
rules adopted by the supreme court." Wis. Stat. § 904.02. A
defendant has a fundamental right to testify and give, in his
own words, his version of what happened. See State v. Nelson,
2014 WI 70, ¶19, 355 Wis. 2d 722, 849 N.W.2d 317. Stietz's
testimony giving his version of events was relevant and should
have been admitted. Excluding the trespass testimony prevented
Stietz from fully presenting his defense.
¶78 Stietz's attorney also sought to argue the wardens
were in fact trespassers, and requested a trespass jury
instruction, but the circuit court refused both requests. It
concluded the wardens were not trespassing. The law, however,
does not support the circuit court's decisions and instead
confirms Stietz's argument that the wardens were trespassing.
¶79 Wisconsin Stat. § 943.13 prohibits any person from
entering the land of another without express or implied consent
of the owner or occupant. The wardens did not have consent from
Stietz or his uncle. Wisconsin Stat. § 29.924(5) allows DNR
wardens to enter private lands for the purpose of "retriev[ing]
or diagnos[ing] dead or diseased wild animals and tak[ing]
actions reasonably necessary to prevent the spread of contagious
disease in the wild animals," and wardens may enter the property
only "after making reasonable efforts to notify the owner or
occupant." The wardens made no effort at all to notify Stietz
or his uncle before entering the private land, and there were no
dead or diseased wild animals in need of retrieval or diagnosis.
5
No. 2014AP2701-CR.rgb
¶80 Wisconsin Stat. § 23.58(1), which authorizes DNR
wardens to conduct a Terry4 stop, provides that "an enforcing
officer," "having identified himself or herself as an enforcing
officer," "may stop a person in a public place for a reasonable
period of time when the officer reasonably suspects that such
person is committing, is about to commit or has committed a
violation" of any applicable laws or rules. (Emphasis added.)
The wardens here were not in a public place and, even if Terry
permitted investigatory stops on private property, the wardens
did not have reasonable suspicion that Stietz was breaking the
law when they drove onto private property to investigate.
Reasonable suspicion exists when a law enforcement officer
possesses "specific and articulable facts that warrant a
reasonable belief that criminal activity is afoot." State v.
Young, 2006 WI 98, ¶21, 294 Wis. 2d 1, 717 N.W.2d 729. The DNR
equivalent would require a reasonable belief that a hunting
violation is afoot. A car legally parked on private property
does not, alone, create reasonable suspicion of a hunting
violation. A mere "hunch" that the car means someone is hunting
illegally is also insufficient. See id.
¶81 Wisconsin Stat. § 23.59 authorizes a search for
weapons during a § 23.58 Terry stop if there is a reasonable
suspicion of danger to the warden or another person. But, once
again, these statutes apply only to a stop in a public place,
not a stop on private property. Wisconsin's codification of the
4
See Terry v. Ohio, 392 U.S. 1 (1968).
6
No. 2014AP2701-CR.rgb
Terry stop in Wis. Stat. § 968.24 also specifies that a stop
under this statute must occur in a public place. See State v.
Stout, 2002 WI App 41, ¶15, 250 Wis. 2d 768, 641 N.W.2d 474
(holding that police may confront citizens only in public
places; private places require a warrant or "probable cause and
exigent circumstances or consent"). Stietz's 25-acre parcel of
fenced and posted land was not a public place.
¶82 At oral argument in this case, the State could not
identify any law authorizing the wardens to be on Stietz's land.
There is none. The State asserted only that the "open fields"
doctrine justified the wardens' intrusion on private property,
reasoning that the doctrine made Stietz's secluded, remote land
a "public place" on which the wardens were privileged to
traverse. The State is wrong. The open fields doctrine does
not transform private fields into public places that anyone is
free to enter uninvited or without reason. Nor does it convert
the act of trespassing into a lawful intrusion. See Oliver v.
United States, 466 U.S. 170, 183 (1984) ("The law of
trespass . . . forbids intrusions upon land that the Fourth
Amendment would not proscribe.") Rather, the open fields
doctrine only prevents suppression of evidence gathered by law
enforcement officers who enter an open field without a warrant.
The open fields doctrine does not sanction the seizure of a
person, nor does it create the requisite constitutional basis
for seizing a person acting lawfully simply because the person
is standing in an open field. Significantly, the open fields
cases arose after law enforcement officers observed evidence of
7
No. 2014AP2701-CR.rgb
suspected illegal activity conducted upon the land either
directly or indirectly, through an informant or tipster. See
id. at 173-77 (police investigating a tip of marijuana farm saw
illegal plants in field; suppression not required); Hester v.
United States, 265 U.S. 57, 57 (1924) (police investigating a
tip of illegal activity chased suspects who ran when police
arrived; suppression of evidence tossed in open field not
required); State v. Martwick, 2000 WI 5, ¶¶9, 10, 12, 32, 37,
43, 231 Wis. 2d 801, 604 N.W.2d 552 (evidence admissible where
informant reports marijuana plants, police see plants in open
area beyond curtilage that is not fenced in or posted "no
trespassing," police take a leaf to test, and police later
obtain warrant).
¶83 The DNR wardens did not receive a tip or make a direct
observation that Stietz was engaged in illegal activity on his
property. When the wardens observed the property before
entering, they saw no evidence of illegal activity. Warden
Frost testified that they drove completely around the area
surrounding Stietz's private property and used binoculars to
look for hunters, but they "didn't see any evidence that anybody
was out in the field at the time." Importantly, Stietz is not
seeking to suppress evidence taken from his property to be used
against him in a criminal prosecution. The open fields
exception to the Fourth Amendment's warrant requirement was not
intended to eliminate property owners' rights by sanctioning
8
No. 2014AP2701-CR.rgb
entry onto open land at any time for any reason, or no reason at
all.5
¶84 The State's bald assertion in its brief that "wardens
do not need reasonable suspicion to believe that a crime has
been committed before they enter private land" is erroneous.
The State has not cited and I cannot locate any authority
permitting DNR wardens to traverse privately owned lands without
any legal justification. As already noted, the reasonable
suspicion standard applies to public places, not an individual's
remote, secluded, fenced, and posted private land. Even if we
5
Multiple states reject the open fields doctrine with
respect to fenced, posted, or otherwise closed off private
lands, recognizing an expectation of privacy on the part of
landowners, particularly for land with "no trespassing" signs.
See State v. Dixson, 766 P.2d 1015, 1024 (Or. 1988) ("[I]f land
is fenced, posted or otherwise closed off, one does not enter it
without permission or, in the officers' situation, permission or
a warrant."); People v. Scott, 593 N.E.2d 1328, 1335-37 (N.Y.
1992) ("A constitutional rule which permits State agents to
invade private lands for no reason at all——without permission
and in outright disregard of the owner's efforts to maintain
privacy by fencing or posting signs——is one that we cannot
accept as adequately preserving fundamental rights of New York
citizens. . . . [T]he unbridled license given to agents of the
State to roam at will without permission on private property in
search of incriminating evidence is repugnant to the most basic
notions of fairness in our criminal law."); State v. Johnson,
879 P.2d 984, 993 (Wash. Ct. App. 1994) ("[P]olice should not be
empowered to invade land closed to the public . . . .'" (quoted
source omitted)); State v. Bullock, 901 P.2d 61, 75-76 (Mont.
1995) ("[A] person may have an expectation of privacy in an area
of land that is beyond the curtilage . . . , and . . . where
that expectation is evidenced by fencing, 'No Trespassing,' or
similar signs, or 'by some other means [which] indicate[s]
unmistakably that entry is not permitted,'. . . entry by law
enforcement officers requires permission or a warrant."
(citation and quoted source omitted; second and third brackets
in original)).
9
No. 2014AP2701-CR.rgb
applied the reasonable suspicion standard to private land, the
only information the DNR wardens possessed before intruding onto
private property was a legally parked car. This falls far short
of satisfying the reasonable suspicion standard.
¶85 The State also asserts that Stietz lacks standing to
invoke trespass as a defense because the physical confrontation
with the wardens occurred on his easement just outside his
private property. Stietz has not sued the wardens for trespass;
rather, he argues, in defense of his actions, that he did not
know these two men were wardens but believed them to be
trespassers on private property where Stietz was lawfully
present (unlike the wardens). Whether the wardens confronted
and seized Stietz on the easement instead of Stietz's private
property does not change the fact that the wardens seized Stietz
on private property rather than in a public place, absent
consent, a warrant, probable cause, exigent circumstances, or
any other lawful basis to intrude.
¶86 The circuit court's ruling on self-defense and
trespass denied Stietz the right to tell the jury his version of
events and therefore substantially impaired his right to present
a defense. It appears the circuit court's reason for refusing
to instruct the jury on trespass arose from the court's mistaken
belief that the wardens had authority to be on the private land
and therefore could not be trespassers. The circuit court
erred. Based on this record, there was no legal basis for the
wardens to be on Stietz's (or his uncle's) private property. By
entering it merely on a hunch, the wardens exceeded their
10
No. 2014AP2701-CR.rgb
authority under the law and should be treated as trespassers:
"[W]here an authority given by law is exceeded, the officer
loses the benefit of his justification, and the law holds him a
trespasser ab initio although to a certain extent he acted under
the authority given." Wallner v. Fidelity & Deposit Co. of
Maryland, 253 Wis. 66, 70, 33 N.W.2d 215 (1948). Stietz had the
right to present evidence and to argue that these two men——who
exceeded their lawful authority by entering private land
uninvited, demanding he relinquish his rifle, grabbing him, and
forcibly wresting the rifle out of his hands——were trespassers.
¶87 The standard for giving a jury instruction requires
that the circuit court instruct the jury on an issue raised by
the evidence. See State v. Kramar, 149 Wis. 2d 767, 792, 440
N.W.2d 317 (1989). The evidence presented at trial supports the
conclusion that the wardens were trespassers. By prohibiting
Stietz's counsel from arguing trespass and refusing to instruct
the jury on trespass law, the circuit court prevented Stietz
from presenting a full defense to the jury on the two counts of
which the jury convicted Stietz.
¶88 Count 3 required the State to prove that the wardens
were acting with lawful authority. See Wis. Stat. § 946.41(1).
Part of Stietz's defense to Count 3 was that because the wardens
were trespassers, they acted without lawful authority. Count 6
required the State to prove that the wardens were law
enforcement officers acting in an official capacity and whom
Stietz had reason to believe were law enforcement officers. See
Wis. Stat. § 941.20(1m)(b). Setting aside Stietz's claim that
11
No. 2014AP2701-CR.rgb
the legislature did not include "conservation wardens" in those
listed as "law enforcement officers" for the purposes of this
section (which if correct could provide an independent basis for
reversal), part of Stietz's defense to Count 6 was that he
believed the wardens were trespassers, not law enforcement
officers. Whether the wardens were in fact trespassing is
relevant to the reasonableness of Stietz's belief that these two
men were trespassers rather than wardens.
¶89 It is the jury's role to resolve factual disputes and
credibility issues. See State v. Poellinger, 153 Wis. 2d 493,
506-07, 451 N.W.2d 752 (1990). This case was full of factual
disputes, which the jury evidently resolved in Stietz's favor by
acquitting him on four of the six counts. Indeed, the majority
correctly concludes that a reasonable jury could find that "the
defendant reasonably thought that the two men were trespassers
hunting illegally." See majority op. ¶68. The circuit court
should have allowed the jury to consider trespass. The trespass
evidence and argument are also pertinent to the self-defense
theory Stietz attempted to present. By limiting Stietz's
testimony on trespass, precluding Stietz's attorney from arguing
that the wardens were trespassing, and refusing to instruct the
jury on trespass law, the circuit court erroneously prevented
Stietz's attorney from fully presenting his defense.
¶90 The majority opinion properly analyzes the self-
defense error. By not addressing trespass, however, it paves
the way for the circuit court on remand to again violate
Stietz's right to present his defense, which includes both self-
12
No. 2014AP2701-CR.rgb
defense and trespass. I would direct the circuit court to honor
Stietz's fundamental constitutional right by allowing his
testimony and argument that the wardens were trespassers who
therefore acted without lawful authority and requiring the
circuit court to instruct the jury on trespass.6
II
¶91 The Fourth Amendment guarantees "[t]he right of the
people to be secure in their persons, houses, papers and
effects . . . against unreasonable searches and seizures," U.S.
Const. amend. IV.
No right is held more sacred, or is more carefully
guarded, by the common law than the right of every
individual to the possession and control of his own
person, free from all restraint or interference of
others, unless by clear and unquestionable authority
of law.
Terry, 392 U.S. at 9 (quoting Union Pac. R. Co. v. Botsford, 141
U.S. 250, 251 (1891). "[W]henever a police officer accosts an
individual and restrains his freedom to walk away, he has
'seized' that person." Terry, 392 U.S. at 16. There is no
authority under the law permitting DNR wardens to wander private
property in search of unknown violations of the law. Absent
legal authority, a DNR warden may not enter private property to
confront and seize an unsuspecting, law-abiding citizen who has
fenced in his property and posted "no trespassing" signs.
6
I do not decide whether the language in Stietz's proposed
trespass instruction was appropriate; rather, I hold the
evidence supported instructing the jury on trespass.
13
No. 2014AP2701-CR.rgb
¶92 The open fields doctrine "affords no protection to
evidence either on or in the ground" outside of houses and
curtilage. Conrad v. State, 63 Wis. 2d 616, 624-25, 218 N.W.2d
252 (1974) (emphasis added). Even though "the government's
intrusion upon the open fields is not one of those 'unreasonable
searches' proscribed by the text of the Fourth Amendment," see
Oliver, 466 U.S. at 177 (emphasis added), the Fourth Amendment
certainly protects a person from unreasonable seizures on an
open field. The open fields exception to Fourth Amendment
protection has never been applied solely to a seizure of a
person lawfully present on private property, without contraband.
To the contrary, "[w]here a person is, there also is the
protection of the Fourth Amendment." Conrad, 63 Wis. 2d at 628.
"[T]he Fourth Amendment protects people, not places." United
States v. Jones, 565 U.S. 400, 406 (2012) (quoting Katz v.
United States, 389 U.S. 347, 351 (1967)). Fifty years ago, the
Supreme Court recognized that "[w]herever a man may be, he is
entitled to know that he will remain free from unreasonable
searches and seizures," Katz, 389 U.S. at 359, acknowledging
that Fourth Amendment protections extend beyond property to
"safeguard the privacy and security of individuals against
arbitrary invasions by governmental officials," Berger v. New
York, 388 U.S. 41, 53 (1967) (quoting Camara v. Mun. Ct., 387
U.S. 523, 528 (1967)).
¶93 "The touchstone of the Fourth Amendment is
reasonableness." Florida v. Jimeno, 500 U.S. 248, 250 (1991)
(citation omitted). "To determine the constitutionality of a
14
No. 2014AP2701-CR.rgb
seizure '[w]e must balance the nature and quality of the
intrusion on the individual's Fourth Amendment interests against
the importance of the governmental interests alleged to justify
the intrusion.'" Tennessee v. Garner, 471 U.S. 1, 8 (1985)
(quoting United States v. Place, 462 U.S. 696, 703 (1983)
(brackets in original)). The wardens in this case overlooked
Stietz's right to be secure in his person under the Fourth
Amendment by forcefully disarming him and seizing him and his
lawfully possessed rifle with no lawful basis for doing so. The
governmental interest in policing hunting violations cannot
justify such an intrusion against an individual. These actions,
which led to the standoff and the charges against Stietz, are
swept under the rug and forgotten. But, had the wardens not
trespassed and had they not forcibly wrested away Stietz's
rifle, the standoff——leading to six charges——would not have
occurred at all.
¶94 The people of Wisconsin entrust DNR wardens to protect
the state's many natural resources, including public forests and
land. In order to enable wardens to fulfill their duties, the
people of Wisconsin confer powers on them. These powers are not
boundless; they are circumscribed both constitutionally and
statutorily and do not include free reign to trespass on private
lands at will. The wardens in this case unlawfully entered
private land, demanded a legally possessed rifle without
explanation, and seized Stietz and his rifle when he did not
comply. Whether in an open field or on a public street, the
people retain their Fourth Amendment right to be free from
15
No. 2014AP2701-CR.rgb
"arbitrary and oppressive interference by enforcement officials
with [their] privacy and personal security." United States v.
Martinez-Fuerte, 428 U.S. 543, 554 (1976).
III
¶95 Stietz has a fundamental constitutional right to
present a defense grounded in the law governing self-defense and
trespass. The circuit court erroneously prevented Stietz from
presenting his full defense to the jury, and he is entitled to a
new trial. The actions precipitating the standoff in this case
implicate the right of the people to be free——particularly on
their own private property——of unreasonable searches and
seizures under the Fourth Amendment. The Constitution prevents
DNR wardens from entering fenced and posted private property,
and from seizing law-abiding people, unless there is a legal
basis for doing so. Here, there was none, which makes the
circuit court's decisions on self-defense and trespass
erroneous.
¶96 For these reasons, I respectfully concur.
¶97 I am authorized to state that Justice DANIEL KELLY
joins this concurrence, and that Chief Justice PATIENCE DRAKE
ROGGENSACK joins this concurrence, except as to Part II.
16
No. 2014AP2701-CR.akz
¶98 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). "It's
amazing in the circumstances we aren't sitting here over an
inquest rather [than] these charges, because in most
jurisdictions that I know of with Mr. Stietz pulling a gun on
[an] officer, he would have been shot. He is very, very
fortunate that [the officer] didn't shoot him." So remarked the
circuit court below, in a case that arose after the defendant,
Robert Joseph Stietz ("Stietz"): (1) refused to surrender his
rifle to two Department of Natural Resources ("DNR") wardens
lawfully investigating potential hunting violations; (2) drew a
handgun on the wardens after being disarmed of the rifle against
his will; and (3) failed to surrender the handgun for over half
an hour despite repeated requests for compliance.
¶99 Arguments have been made that Stietz is not to blame
for the escalation of his interaction with the wardens into an
armed standoff. But a jury considered those arguments, and
rendered a thoughtful verdict: it concluded that Stietz should
not be convicted for offenses pertaining to the initial struggle
over the rifle, but that Stietz's subsequent decision to hold
two wardens at gunpoint——despite Stietz's own admission that he
knew the wardens were law enforcement officers by that time——was
a bridge too far. With regard to Stietz's actions toward one of
the two wardens, the jury found Stietz guilty of resisting an
officer, use of a dangerous weapon, in violation of Wis. Stat.
§ 946.41(1), with the penalty enhanced by Wis. Stat.
§ 939.63(1)(a), and guilty of intentionally pointing a firearm
at a law enforcement officer, in violation of Wis. Stat.
1
No. 2014AP2701-CR.akz
§ 941.20(1m)(b). With regard to Stietz's actions toward the
other warden, the jury found Stietz not guilty of resisting an
officer, use of a dangerous weapon, and not guilty of
intentionally pointing a firearm at a law enforcement officer.
The jury also found Stietz not guilty of first degree recklessly
endangering safety, in violation of Wis. Stat. § 941.30(1), and
not guilty of negligent handling of a weapon, in violation of
§ 941.20(1)(a).
¶100 What is the likely reason for the jury to conclude
that Stietz was guilty of some offenses and not guilty of the
others? The jury, considering all of the factors that this
court relies upon, concluded that Stietz was not endowed with
the authority to continue to point a firearm at law enforcement
under these circumstances. This conclusion is not only
supportable, it is wise. Imagine the unfortunate consequences
that might ensue if anytime someone does not believe that law
enforcement has the authority to be somewhere or the authority
to act, citizens could take the law into their own hands and
escalate a situation by pointing a firearm at the officers.
Right or wrong in belief, it is not difficult to understand the
unfortunate outcomes that would take place.
¶101 Stietz now appeals, arguing principally that the
circuit court erred in declining to instruct the jury that
Stietz might have been acting in self-defense and that the
2
No. 2014AP2701-CR.akz
wardens might have been trespassing.1 This is not a self-defense
case. The circuit court was not incorrect. Moreover, the
jury's verdict demonstrates that it found his reaction to law
enforcement somewhat excusable with respect to the initial
contact. The jury, however, found that the continued exhibition
of force was not. In other words, the crimes for which he was
convicted do not support a self-defense instruction.
¶102 I dissent because I conclude that the circuit court
did not err in declining to instruct the jury on the issues of
self-defense and trespass. First, Stietz's claim that he was
acting in self-defense was "so thoroughly discredited" by the
close of evidence "that no reasonable jury could conclude that
the state had not disproved it," State v. Head, 2002 WI 99,
¶115, 255 Wis. 2d 194, 648 N.W.2d 413; consequently, he was not
entitled to the corresponding instruction and the circuit court
properly exercised its discretion in declining to so instruct
the jury.
¶103 Second, even if the circuit court had erred in
neglecting to instruct the jury on self-defense, that error was
harmless. As will be explained in detail below, in order to
1
Stietz contends that the circuit court additionally erred
in barring him from arguing that the wardens were trespassers.
The reasoning set forth in my discussion of the circuit court's
decision on the trespass jury instruction disposes of this
issue, so I will not otherwise address it. Further, given my
analysis, I need not address the State's argument that because
some of the property at issue in this case was owned by Stietz's
neighbor, Stietz lacks standing to assert that the wardens were
trespassing. For purposes of this writing, I will refer to
property at issue as Stietz's property.
3
No. 2014AP2701-CR.akz
have convicted Stietz of resisting an officer, use of a
dangerous weapon, and intentionally pointing a firearm at a law
enforcement officer, the jury had to have found as elements of
those crimes that Stietz knew or had reason to know that Warden
Webster was a law enforcement officer. In other words, the jury
plainly would have rejected Stietz's claims that he had no idea
the wardens were law enforcement officers and was acting in
self-defense.
¶104 Third, Stietz had no independent legal right to
forcibly resist the wardens simply because he thought the
wardens lacked legal authority to seize or disarm him. Stietz
is badly mistaken in suggesting that the law authorizes citizens
to attack law enforcement officers whenever those officers may
have made a mistake of fact or law. Law enforcement officers
have entered houses, much less open fields, by accident; that
does not authorize lethal resistance. If Stietz thought that
law enforcement was in error, his recourse was the judicial
system, not physical assault. To hold otherwise is not only
incorrect as a legal matter; it would also disincentivize law
enforcement officers from doing their job. Most relevant to
this case, for example, the work of DNR wardens is critical to
ensuring the protection of Wisconsin wildlife and the safety of
Wisconsin hunters.2
¶105 Finally, with respect to trespass, the wardens
possessed both statutory authority to enter Stietz's property
2
Stietz also briefly makes a Second Amendment claim. As I
will discuss, I would reject that claim as undeveloped.
4
No. 2014AP2701-CR.akz
and reasonable suspicion that hunting violations were in
progress. The circuit court did not err in declining to
instruct the jury regarding the law of trespass.
¶106 This case is not about property rights, the right to
keep and bear arms, or the right to hunt. In no way should this
dissent be read to diminish those very important rights. These
rights are cherished by the citizens of Wisconsin in a special
way, see, e.g., Wis. Const. art. I, § 26 ("The people have the
right to fish, hunt, trap, and take game subject only to
reasonable restrictions as prescribed by law."), and this court
is of course bound to uphold and protect them. Instead, this
case is about an individual, Stietz, who put his own life and
the life of two DNR wardens at risk rather than peacefully
submit to a lawful request for his weapon.
¶107 This case was fully litigated below, and——not
surprisingly given the evidence——the jury found Stietz guilty of
resisting an officer, use of a dangerous weapon, and
intentionally pointing a firearm at a law enforcement officer.
I do not quarrel with the jury's determination to find Stietz
not guilty of one of the counts of resisting an officer, use of
a dangerous weapon, one of the counts of intentionally pointing
a firearm at a law enforcement officer, first degree recklessly
endangering safety, and negligent handling of a weapon.
However, when this case goes back for another trial, the entire
case will not be retried, rather only the crimes for which
Stietz was found guilty. The jury already placed its
determination on the entire nucleus of fact and concluded that
5
No. 2014AP2701-CR.akz
he was not guilty of resisting an officer, use of a dangerous
weapon, with regard to one of the wardens, not guilty of
intentionally pointing a firearm at a law enforcement officer
with regard to the same warden, not guilty of first degree
recklessly endangering safety, and not guilty of the negligent
handling of a weapon.
¶108 At the same time, the jury concluded that Stietz was
guilty of resisting an officer, use of a dangerous weapon, and
intentionally pointing a firearm at a law enforcement officer
with regard to the second warden. Regrettably, while this court
is required to give deference to the jury determination, it
instead upsets that jury determination even though the jury's
conclusions are supported by sufficient evidence in the record.
See, e.g., State v. Poellinger, 153 Wis. 2d 493, 507, 451
N.W.2d 752 (1990) ("[I]n reviewing the sufficiency of the
evidence to support a conviction, an appellate court may not
substitute its judgment for that of the trier of fact unless the
evidence, viewed most favorably to the state and the conviction,
is so lacking in probative value and force that no trier of
fact, acting reasonably, could have found guilt beyond a
reasonable doubt."). Because I would affirm the court of
appeals (the trial court and the sound conclusions reached by
the jury upon the facts and the law), I respectfully dissent.
I
¶109 I begin by setting forth the facts of this case as
established by the testimony of Warden Frost, Warden Webster,
6
No. 2014AP2701-CR.akz
and Stietz at Stietz's jury trial. As will be shown, this case
hinges in large part on the testimony presented to the jury.3
¶110 Warden Joseph Frost ("Warden Frost") testified that on
November 25, 2012, at about 4:30 p.m., he and Warden Nicholas
Webster ("Warden Webster") were on duty in a patrol truck on a
highway near Lamont, Wisconsin. Warden Frost "observed a
vehicle north of the highway parked along the fence line"; in
his view it was "not typical for vehicles to be parked in the
field," though "typically during deer season that's where people
would park if they're out hunting." Warden Frost consequently
thought the vehicle might belong to someone hunting deer,
whereas Warden Webster thought the vehicle might have been
abandoned. It was the last day of deer season, and hunting
hours ended at 4:45 p.m. The wardens "decided [they would] just
check around that section of land by driving the roads to see if
[they] could see anybody out hunting." The wardens did not see
anything of note, however, and eventually made their way to the
vehicle they had spotted.
¶111 At about 4:58 p.m., Warden Webster ran the
registration of the vehicle while Warden Frost "checked to see
if there was any evidence of hunting in the vehicle and
to . . . see if it was an abandoned vehicle or not." Warden
Frost saw an empty gun case on the front seat, scent killer
spray, and a camouflaged seat that could be used on a tree
3
Proof that the court is stretching to reach an outcome is
the court's incomplete and misleading presentation of the facts.
7
No. 2014AP2701-CR.akz
stand. Warden Webster learned that the vehicle was registered
to Robert and Susan Stietz.
¶112 The wardens "decided that [they] would go in and see
if [they] could locate the hunter." The wardens were wearing
"blaze orange" jackets and hats. The jackets had identification
badges or patches on them, as did the hats. Further, the
wardens did not carry long guns; Warden Frost testified that
that is "usually a give away as to us not being hunters." The
wardens followed the fence line until they came to an open gate
and then headed through the gate. Eventually they saw a "box
blind up on an elevated box stand" and began heading toward it.
Shortly thereafter the wardens came upon Stietz, who was dressed
in full camouflage and carrying a "long gun." Stietz "would
take a few steps and stop, look around, take a few steps, stop
and look around." It was dark and Stietz "didn't seem to
acknowledge [the wardens] were there." Warden Frost "turned on
[his] flashlight and shined it at [Stietz] and announced,
'conservation warden.'" Warden Webster made the same
announcement. The parties continued approaching each other and
Warden Frost saw what looked like a handgun in Stietz's pocket.
Warden Frost told Warden Webster about the handgun. Warden
Webster testified that "red flags were starting to go off,
starting to not seem right," because Stietz had "in his face a
kind of agitation, aggression" and because Stietz "went from
holding his gun off to the side and then turned his gun facing
straight on as [Warden Webster] was approaching him."
8
No. 2014AP2701-CR.akz
¶113 Warden Webster was the first to make contact, and
asked Stietz if he had seen any deer. Stietz responded that he
had "seen seven doe." According to Warden Frost, Warden Webster
then asked Stietz "if the rifle he was carrying was loaded," and
Stietz affirmed that it was. Warden Frost "asked [Stietz] if
[Warden Frost] could see the firearm," and Stietz refused.4
¶114 Warden Frost "changed the topic" and asked if Stietz
had any blaze orange with him. Stietz "indicated towards" his
pocket, and Warden Frost "could see just a sliver of a piece of
orange clothing in there." Warden Frost testified that "[t]he
fact that [Stietz was] carrying orange in his pocket, based on
my training and experience, would lead me to believe he was
actually out hunting." At some point during the parties'
interaction, Stietz explained that he had not been hunting, but
was instead looking for trespassers. Warden Frost again asked
Stietz if he "could see the firearm." Warden Frost testified
that there were two reasons he asked to see the weapon:
One, [Stietz] is dressed in camouflage, it's after
hours, he said his firearm is loaded, which I guess
gave me reason to believe he was potentially hunting
after hours, hunting without blaze orange. And then
when he responded he wouldn't allow us to see the
firearm. I guess, at that point there is a concern
for, I guess, our safety that I guess something could
happen if he continues to have the firearm.
Warden Webster additionally explained that "[w]hen [the wardens]
are working and enforcing hunting laws, depending on what's
4
Warden Webster's testimony differs to some extent
regarding the order of the questions asked and the identity of
the questioner. These variations will not be discussed.
9
No. 2014AP2701-CR.akz
being hunted, ammunition type, firearms type, amount of
ammunition, are also parts that are regulated in hunting."
¶115 When he made his second request to obtain Stietz's
weapon, Warden Frost simultaneously "stepped forward and reached
[his] hand towards the firearm." Stietz hit Warden Frost in the
stomach with the butt of the rifle. Warden Frost then grabbed
the rifle and "drove [his] body forward towards [Stietz]."
While Stietz and Warden Frost grappled for control of the
weapon, Warden Webster "yelled out that . . . the barrel was
pointed at him." Warden Webster grabbed the muzzle of the gun
and "pulled it as hard as [he] could in the direction that
[Warden] Frost was pulling it," yelling "drop the gun." Warden
Frost ultimately "ended up with the firearm in [his] hands,
laying on [his] back."
¶116 Disarmed of the rifle, Stietz began drawing his
handgun. As he was doing so, Warden Webster yelled "don't do
it." Warden Webster drew his handgun on Stietz before Stietz
had fully drawn his handgun. Warden Frost also drew his
handgun, having thrown the rifle "to the side." Stietz "swung
[his handgun] by Warden Frost's direction," but then pointed it
towards Warden Webster. "[T]he hammer was cocked with his right
thumb by the hammer, his trigger finger would have been inside
the trigger guard basically on the trigger." The wardens
ordered Stietz to lower his weapon, but Stietz refused. Warden
Webster "radioed to the Sheriff's Department" at 5:07 p.m. The
wardens repeatedly attempted to get Stietz to drop his weapon,
but he would not do so. At various times during the standoff
10
No. 2014AP2701-CR.akz
Stietz commented, among other things, that he knew his rights,
that he was defending himself and his property, and that he
would lower his weapon if the wardens lowered their weapons. At
other times Stietz would not respond to the wardens at all.
¶117 At 5:17 p.m., Deputy Brett Broge ("Deputy Broge")
arrived in his "squad." The wardens retreated to the squad car.
At that time Stietz had his handgun pointed "towards the squad."
Warden Frost left the parties, returned to Warden Webster's
squad, turned on its emergency lights, removed his blaze orange,
and obtained a rifle and shotgun from the vehicle. By the time
Warden Frost made contact with the parties again, Stietz had
lowered his handgun but would not put it down. Other members of
law enforcement arrived but Stietz "still basically wouldn't
comply." Finally, about "40 to 50 minutes" "from the
time . . . [the wardens] were initially there until it was all
over," Stietz put his weapon down and was placed in handcuffs.5
¶118 Stietz testified that on the date in question he had
not been hunting but was instead "checking for trespassers," a
recurring issue for Stietz.6 That evening Stietz "encountered
two people in orange" on his property and he "didn't know who
they were." While Stietz saw the individuals' "faces and their
orange clothing," he denied seeing their patches or badges.
5
Deputy Broge testified that Stietz lowered his weapon at
about 5:20 p.m. and that Stietz put his weapon on the ground at
about 6:00 p.m.
6
According to Stietz, the orange vest in his pocket had
been placed there days before.
11
No. 2014AP2701-CR.akz
According to Stietz, one of the individuals asked, "are you Bob
Stietz?" Stietz replied "yes, I am. The question is, who are
you?" Stietz heard a response that was "kind of mumbled, but
sounded like one was saying Green, I didn't know if it was
County. And the other one said——looked at him and said a
Warden, but it was kind of mumbled, not real loud." Next,
Stietz was asked if he was hunting and was told that he had to
be in orange if he was hunting deer. Stietz informed the
wardens that he was not hunting deer but was instead "checking
for trespassers." When asked if he had seen any deer, Stietz
replied that he had seen seven of them.
¶119 According to Stietz, when Stietz said he was checking
for trespassers one of the wardens "got——kind of a little bit
riled." Additionally, one of the wardens "threw up his arms
like this. You've got to be in orange." According to Stietz,
the wardens "c[a]me around [Stietz] in like a circle." At that
point Stietz "was wanting to go to [his] car and . . . would
have been heading home." "The Wardens proceeded around
[Stietz] . . . asking [him] questions." One of the wardens said
"give me your gun." Stietz said no and took a step back. At
that point he "felt like [he] was being attacked" because one of
the wardens grabbed his shirt and told the other warden to "grab
the gun." Stietz denied swinging the butt of the rifle into
Warden Frost's stomach. The three struggled for Stietz's rifle.
Stietz "lost [his] grip" and "all of a sudden [Stietz] [saw] the
rifle go, and . . . heard it hit the fence." The two wardens
"kind of lost their footing." Stietz saw Warden Webster
12
No. 2014AP2701-CR.akz
"reaching for his pistol" and "all of a sudden . . . [saw] the
pistol coming up." Stietz thought Warden Webster was going to
shoot and drew his pistol at the same time. Stietz said, "I
have the right to protect myself which I am doing at this time."
¶120 At this point in time all three individuals had their
handguns drawn. Stietz was asked to put his weapon down several
times but refused, repeatedly stating that he would put his
handgun down if the wardens put their handguns down. Eventually
one of the wardens called for backup. At trial Stietz was
asked, "[W]hen did you know for the first time that these were
wardens?" Stietz responded, "I really didn't know positive for
sure, because it was kind of dark out and when we——when
actually, I really don't know because I never seen no
credentials or when he called for backup, that's when I knew
really." (Emphasis added.) Stietz testified that he was
"scared, darn scared." Backup arrived. The following exchange
occurred at trial:
Q: You said that you were relieved when the
Sheriffs showed up; is that right?
A: That is correct. Relieved.
Q: But you weren't relieved enough to put your
gun down at that point, were you?
A: As I stated in my testimony, when the wardens
put their guns down, because they draw on me first, I
would put mine down.
. . . .
Q: Why didn't you put it down right away once
Deputy Broge was on site?
13
No. 2014AP2701-CR.akz
A: As I stated before, the Wardens would not put
theirs down, and I wouldn't put mine down until they
put theirs down, because they drew on me first.
Stietz eventually lowered his weapon because "when the Sheriffs
got there, that's when I felt halfway there'd be witnesses if
anything bad happened, there would be witnesses."
¶121 Relevant to Stietz's testimony, Warden Webster and
Warden Frost denied mentioning Green County in their initial
interaction with Stietz. Warden Webster denied grabbing
Stietz's shirt. Warden Frost stated that he did not see Warden
Webster grab Stietz by the shirt and that Warden Webster had not
yelled at him to grab Stietz's rifle. Warden Webster and Warden
Frost denied getting "riled" when Stietz told them that he was
checking for trespassers, and Warden Frost denied throwing his
arms up in the air.
II
¶122 On November 28, 2012, a criminal complaint was filed
against Stietz in Lafayette County circuit court. On
December 11, 2012, an amended complaint was filed charging
Stietz with one count of first degree recklessly endangering
safety, in violation of Wis. Stat. § 941.30(1), two counts of
resisting an officer, use of a dangerous weapon, in violation of
Wis. Stat. § 946.41(1), and with the penalty enhanced by Wis.
Stat. § 939.63(1)(a), one count of negligent handling of a
dangerous weapon, in violation of Wis. Stat. § 941.20(1)(a), and
two counts of intentionally pointing a firearm at a law
enforcement officer, in violation of § 941.20(1m)(b). On
December 18, 2012, an information was filed.
14
No. 2014AP2701-CR.akz
¶123 On January 22, 2014, Stietz filed requested jury
instructions in anticipation of trial. Stietz requested, among
other things, that the jury be instructed regarding: (1)
Stietz's putative Second Amendment right to refuse to surrender
his rifle to the wardens; (2) the possibility that the wardens
were trespassing on Stietz's land; and (3) the possibility that
Stietz was acting in self-defense.
¶124 On February 20, 2014, the State filed a motion in
limine requesting an order
prohibiting the defendant from arguing any of the
following at trial: that the DNR Wardens were armed
trespassers; that the DNR Wardens were not authorized
to enter his property; that the defendant had a Second
Amendment right to resist the Wardens; any arguments
by the defendant of self-defense of either person or
property.
After a hearing on February 26, 2014, the court entered the
following order with respect to the State's motion:
1. The Court will allow evidence (a) that Mr.
Stietz was looking for trespassers, (b) that the
wardens were armed, (c) of where the wardens walked
and what they said and did, and (d) of where and how
all relevant events occurred. In short, the facts of
what happened are admissible;
2. However, counsel for Mr. Stietz may not
characterize the wardens' conduct as trespassing, at
least absent a further ruling by the Court; and
3. Further, counsel for Mr. Stietz may not argue
that the Second Amendment permitted Mr. Stietz's
conduct, or affords a legal defense here.
¶125 From March 11, 2014, to March 14, 2014, Stietz was
tried before a jury. On March 14, 2014, at the jury instruction
conference, it was determined (based in part on prior rulings)
15
No. 2014AP2701-CR.akz
that the jury would not receive Stietz's requested instructions
regarding the Second Amendment, trespass, and self-defense.
¶126 While the charges filed against Stietz and considered
by the jury included one count of first degree recklessly
endangering safety and one count of negligent handling of a
dangerous weapon, Stietz was also charged with one count of
resisting an officer, use of a dangerous weapon, with respect to
Warden Frost, one count of resisting an officer, use of a
dangerous weapon, with respect to Warden Webster, one count of
intentionally pointing a firearm at a law enforcement officer
with respect to Warden Frost, and one count of intentionally
pointing a firearm at a law enforcement officer with respect to
Warden Webster.
¶127 Later that day, the jury returned its verdict. The
jury found Stietz not guilty of first degree recklessly
endangering safety; not guilty of resisting an officer, use of a
dangerous weapon with respect to Warden Frost; guilty of
resisting an officer, use of a dangerous weapon with respect to
Warden Webster; not guilty of negligent handling of a weapon;
not guilty of intentionally pointing a firearm at a law
enforcement officer with respect to Warden Frost; and guilty of
intentionally pointing a firearm at a law enforcement officer
with respect to Warden Webster.
¶128 On March 24, 2014, Stietz filed a motion for acquittal
or a new trial. On May 21, 2014, the court denied the motion.
On May 28, 2014, the circuit court sentenced Stietz to one year
of initial confinement and three years of extended supervision
16
No. 2014AP2701-CR.akz
on the charge of intentionally pointing a firearm at a law
enforcement officer. The court withheld sentence on the
resisting an officer, use of a dangerous weapon charge, placing
Stietz on probation for two years consecutive to the sentence on
the other count. A judgment of conviction was entered, and
Stietz filed a notice of intent to pursue postconviction relief
the same day.
¶129 On April 14, 2016, the court of appeals affirmed
Stietz's judgment of conviction. State v. Stietz, No.
2014AP2701-CR, unpublished slip op. (Wis. Ct. App. Apr. 14,
2016) (per curiam). On May 16, 2016, Stietz filed a petition
for review in this court. On October 11, 2016, this court
granted the petition.
III
¶130 The issues raised on appeal pertain largely to whether
the circuit court erred in not providing certain jury
instructions requested by Stietz.
A circuit court has broad discretion in deciding
whether to give a requested jury instruction.
However, a circuit court must exercise its discretion
in order "to fully and fairly inform the jury of the
rules of law applicable to the case and to assist the
jury in making a reasonable analysis of the evidence."
State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996)
(citation omitted) (quoting State v. Vick, 104 Wis. 2d 678, 690,
312 N.W.2d 489 (1981)). Even if the circuit court errs, "an
'erroneous jury instruction warrants reversal and a new trial
only if the error was prejudicial.'" Kochanski v. Speedway
SuperAmerica, LLC, 2014 WI 72, ¶11, 356 Wis. 2d 1, 850
17
No. 2014AP2701-CR.akz
N.W.2d 160 (quoting Fischer v. Ganju, 168 Wis. 2d 834, 849, 485
N.W.2d 10 (1992)). Importantly, "an error relating to the
giving or refusing to give an instruction is not prejudicial if
it appears that the result would not be different had the error
not occurred." Id. (quoting Lutz v. Shelby Mut. Ins. Co., 70
Wis. 2d 743, 751, 235 N.W.2d 426 (1975)).
¶131 I first address the circuit court's decision not to
instruct the jury on self-defense. I then address the circuit
court's decision not to instruct the jury on trespass.
IV
¶132 Stietz argues that the circuit court should have
instructed the jury that he was privileged to defend himself
against the wardens under certain circumstances.
¶133 The pattern jury instruction on self-defense entitled
"Privilege: Self-Defense: Force Less Than That Likely to Cause
Death or Great Bodily Harm——[Wis. Stat.] § 939.48" reads in part
as follows:
Self-defense is an issue in this case. The law of
self-defense allows the defendant to threaten or
intentionally use force against another only if:
the defendant believed that there was an actual
or imminent unlawful interference with the
defendant's person; and,
the defendant believed that the amount of force
the defendant used or threatened to use was
necessary to prevent or terminate the
interference; and
the defendant's beliefs were reasonable.
Determining Whether Beliefs Were Reasonable
18
No. 2014AP2701-CR.akz
A belief may be reasonable even though mistaken. In
determining whether the defendant's beliefs were
reasonable, the standard is what a person of ordinary
intelligence and prudence would have believed in the
defendant's position under the circumstances that
existed at the time of the alleged offense. The
reasonableness of the defendant's beliefs must be
determined from the standpoint of the defendant at the
time of the defendant's acts and not from the
viewpoint of the jury now.
Wis JI——Criminal 800 (footnotes omitted). Wisconsin Stat.
§ 939.48(1) (the statute referenced by the instruction) itself
states:
A person is privileged to threaten or intentionally
use force against another for the purpose of
preventing or terminating what the person reasonably
believes to be an unlawful interference with his or
her person by such other person. The actor may
intentionally use only such force or threat thereof as
the actor reasonably believes is necessary to prevent
or terminate the interference. The actor may not
intentionally use force which is intended or likely to
cause death or great bodily harm unless the actor
reasonably believes that such force is necessary to
prevent imminent death or great bodily harm to himself
or herself.
§ 939.48(1).7
¶134 As an initial matter, it was Stietz's burden to place
self-defense in issue. See Head, 255 Wis. 2d 194, ¶111. "[I]f,
before trial, the defendant proffers 'some' evidence to support
her defense theory and if that evidence, viewed most favorably
to her, would allow a jury to conclude that her theory was not
disproved beyond a reasonable doubt, the factual basis for her
7
Stietz requested Wis JI-Criminal 800 as well as
"alternative self-defense formulations." Stietz does not
develop arguments suggesting that any differences between these
formulations are material for purposes of this appeal.
19
No. 2014AP2701-CR.akz
defense theory has been satisfied." Id., ¶115 (emphasis added).
On the other hand:
[T]he standard for giving a jury instruction on self-
defense may, in some circumstances, be higher than the
standard for admitting self-defense evidence at trial,
because a defendant's claim of self-defense may be so
thoroughly discredited by the end of the trial that no
reasonable jury could conclude that the state had not
disproved it.
Id. (first emphasis added).
¶135 Stietz argues that he is entitled to a self-defense
instruction because the evidence viewed in the light most
favorable to him showed that he had been having problems with
trespassers; that on November 25, 2012, Stietz had been looking
for trespassers; and that Stietz in fact encountered two
"strangers dressed in blaze orange trespassing on his land" who
"demanded his rifle." Stietz claims that at the time the
wardens ordered him to disarm "it was reasonable for him to
infer" based on the available information that the wardens were
"illegally trespassing hunters." Stietz adds that the strangers
forcibly obtained his weapon and that one of the strangers
pointed a handgun at him. Under the circumstances, Stietz
contends, self-defense was warranted.
¶136 Stietz's argument fails. Stietz's assertion of self-
defense was "so thoroughly discredited" by the close of
evidence "that no reasonable jury could conclude that the state
had not disproved it." Id. As the State explains in its brief:
It is undisputed that both wardens were wearing their
issued uniforms: a "blaze orange" jacket; a DNR patch
on the shoulder of each arm of the jacket; a DNR badge
along either the middle zipper of the jacket or the
left chest; and a "blaze orange" hat with a DNR patch.
20
No. 2014AP2701-CR.akz
The wardens did not carry long guns, which Warden Frost
testified is "usually a give away as to us not being hunters."
Further, Stietz's own testimony confirms that he heard one of
the wardens say to him, "a Warden"; testimony self-evidently not
negated by Stietz's contention that the statement was "kind of
mumbled, not real loud." The circuit court correctly stated at
the jury instruction conference that "[u]nder the circumstances,
if [Stietz] didn't know [that Warden Frost and Warden Webster]
were wardens, he should have, and he didn't have a right to
self-defense against a police officer." See Wis JI——Criminal
800 ("In determining whether the defendant's beliefs were
reasonable, the standard is what a person of ordinary
intelligence and prudence would have believed in the defendant's
position under the circumstances that existed at the time of the
alleged offense.").
¶137 Nor does rejecting Stietz's claim of self-defense
require this court or the circuit court to improperly weigh the
evidence, as Stietz argues. As our case law makes clear,
viewing evidence in the light most favorable to the defendant
does not mean suspending one's disbelief to the point of
absurdity. Cf. State v. Mendoza, 80 Wis. 2d 122, 153, 258
N.W.2d 260 (1977) ("Thus the question before
us . . . is . . . whether a reasonable construction of the
evidence will support the defendant's theory 'viewed in the most
favorable light it will "reasonably admit of from the standpoint
of the accused."'" (emphasis added) (quoting Ross v. State, 61
Wis. 2d 160, 172, 211 N.W.2d 827 (1973))). If "no reasonable
21
No. 2014AP2701-CR.akz
jury could conclude" on the evidence presented that the State
had failed to disprove a claim of self-defense, a jury
instruction is not warranted. Head, 255 Wis. 2d 194, ¶115; cf.
Mendoza, 80 Wis. 2d at 152-53. To take one hypothetical raised
by the circuit court below that is not at all far off from the
facts of this case, if a defendant is pulled over by a uniformed
police officer at night and resists the officer, he cannot
simply invoke the magic words of "self-defense" to obtain the
corresponding jury instruction. Here, the circuit court
properly exercised its discretion in refusing to instruct the
jury that Stietz might have been acting in self-defense, in
light of the fact that Stietz's claim had been sufficiently
"discredited." Head, 255 Wis. 2d 194, ¶115. If anything, the
wardens seem to have been defending themselves.
¶138 Regardless, even assuming that the circuit court
should have instructed Stietz's jury on self-defense, such error
was patently harmless; there is no doubt that even absent the
error the result would have been the same. See Kochanski, 356
Wis. 2d 1, ¶11. This becomes evident when one reviews the
crimes of which Stietz was acquitted and the crimes of which
Stietz was convicted, in light of the facts of the case.
¶139 The interaction between the three parties is divisible
into two parts: (1) the initial struggle between Stietz and the
two wardens over Stietz's rifle; and (2) the prolonged standoff
between the three during which the wardens pointed firearms at
Stietz and Stietz pointed his firearm at Warden Webster.
22
No. 2014AP2701-CR.akz
¶140 Stietz was acquitted of resisting Warden Frost and of
pointing a weapon at Warden Frost but convicted of resisting
Warden Webster and of pointing a weapon at Warden Webster. In
other words, this means that the jury was unwilling to assign
guilt to Stietz regarding the initial struggle over Stietz's
rifle, but concluded that Stietz was guilty with regard to the
prolonged standoff. This is hardly shocking, given that during
this second period: (1) Stietz continued to point his handgun at
Warden Webster even after, by his own admission, he knew that
the two officers were wardens; and (2) Stietz refused to
surrender his firearm for over half an hour, despite being in
the presence of multiple additional clearly-identified law
enforcement officers cajoling him to submit peacefully.
¶141 Critically, in order to have convicted Stietz of
resisting Warden Webster, use of a dangerous weapon, in
violation of Wis. Stat. § 946.41(1), and intentionally pointing
a firearm at Warden Webster, in violation of Wis. Stat.
§ 941.20(1m)(b), the jury had to have found, as elements of the
crimes, that Stietz knew or had reason to know that Warden
Webster was a law enforcement officer. More specifically, the
elements of the crime of resisting an officer are:
1. The defendant resisted an officer. . . .
2. The officer was doing an act in an official
capacity. . . .
3. The officer was acting with lawful
authority. . . .
4. The defendant knew that (officer) was an
officer acting in an official capacity and with lawful
23
No. 2014AP2701-CR.akz
authority and that the defendant knew (his) (her)
conduct would resist the officer.
Wis JI——Criminal 1765 (emphasis added).
¶142 The elements of the crime of intentionally pointing a
firearm at a law enforcement officer are:
1. The defendant pointed a firearm at or toward
(name of victim). . . .
2. The defendant pointed the firearm at or
toward (name of victim) intentionally. . . .
3. (Name of victim) was a law enforcement
officer.
4. (Name of victim) was acting in an official
capacity.
5. The defendant knew or had reason to know that
(name of victim) was a law enforcement officer.
Wis JI——Criminal 1322A (emphasis added).
¶143 Consequently, even if the jury had been instructed
regarding self-defense, it would not have made a difference. On
the evidence presented, the jury rejected Stietz's claim that he
did not know that Warden Webster was a warden and that Stietz's
ignorance was justifiable. The jury's verdict makes clear that
it carefully considered the evidence before it. Even assuming
that omission of a self-defense jury instruction was error, this
court should not upset that verdict for the purpose of providing
an instruction that would not have had any effect.
¶144 Finally, Stietz could be read to argue that, aside
from the discussion above, he had a right to defend himself
against the wardens because they had no legal right to seize or
disarm him. That is not the law. In Hobson, for example, this
court abrogated the common law privilege "to forcibly resist an
24
No. 2014AP2701-CR.akz
unlawful arrest in the absence of unreasonable force." State v.
Hobson, 218 Wis. 2d 350, 353, 577 N.W.2d 825 (1998). We
"adopt[ed] the conclusion" of another state supreme court that
had reasoned in part:
[T]he legality of a peaceful arrest should be
determined by courts of law and not through a trial by
battle in the streets. It is not too much to ask that
one believing himself unlawfully arrested should
submit to the office[r] and thereafter seek his legal
remedies in court. Such a rule helps to relieve the
threat of physical harm to officers who in good faith
but mistakenly perform an arrest, as well as to
minimize harm to innocent bystanders.
Id. at 379-80 (quoting Miller v. State, 462 P.2d 421, 427
(1969)). We also quoted Judge Learned Hand, who eloquently
noted that "[t]he idea that you may resist peaceful
arrest . . . because you are in debate about whether it is
lawful or not, instead of going to the authorities which can
determine [lawfulness], . . . [is] not a blow for liberty but,
on the contrary, a blow for attempted anarchy." Id. at 373
(alterations in original) (quoting Discussion of Model Penal
Code (Tentative Draft No. 8), 35 A.L.I. Proc. 222, 254 (1958)).
And, finally, we analogized to the Supreme Court's discussion in
Walker v. City of Birmingham, where the Court referenced a "rule
of law . . . reflect[ing] a belief that in the fair
administration of justice no man can be judge in his own case,
however exalted his station, however righteous his motives, and
irrespective of his race, color, politics, or religion." Id. at
378 (quoting Walker v. City of Birmingham, 388 U.S. 307, 320-21
(1967)).
25
No. 2014AP2701-CR.akz
¶145 Here, Warden Frost and Warden Webster were not even
arresting Stietz. As will be discussed in greater detail below,
they were lawfully investigating potential hunting violations.
For their own safety and for the purpose of ensuring compliance
with applicable laws, the wardens peaceably asked or ordered
Stietz to disarm. Stietz should have surrendered his firearm
rather than resist this demand, lawful or not. When he failed
to respond to the verbal instruction, unjustifiably intensifying
the pressures of the situation and the wardens' concerns for
safety, the wardens reasonably attempted to obtain the weapon
against Stietz's will. Once again, Stietz had no right to
forcibly resist the actions of the wardens.
¶146 Much as some might wish it to be so, we are no longer
living in the Wild West. Disputes between law enforcement
officers and the citizens they serve are resolved in court. No
matter how in the right they may be, members of the general
public have no authority to take matters into their own hands.
Law enforcement officers make mistakes of law or fact every day.
There are judicial remedies for such errors, such as suppression
or even an independent lawsuit. Stietz could have availed
himself of such remedies rather than risking his own life and
26
No. 2014AP2701-CR.akz
the lives of Warden Frost and Warden Webster. His argument that
he was entitled to forcibly resist must be rejected.8
V
¶147 Stietz next argues that the circuit court erred in
declining to instruct the jury regarding the issue of whether
the wardens might have been trespassing on Stietz's property.
According to Stietz, the issue is relevant because if the
wardens were trespassing, he argues, they were not acting "in an
official capacity" and "with lawful authority," one or both of
which are elements of the crimes of which Stietz was convicted.
See Wis. Stat. § 946.41(1) ("Except as provided in subs. (2m)
and (2r), whoever knowingly resists or obstructs an officer
while such officer is doing any act in an official capacity and
with lawful authority is guilty of a Class A misdemeanor."
(emphasis added)); Wis. Stat. § 941.20(1m)(b) ("Whoever
intentionally points a firearm at or towards a law enforcement
officer, a fire fighter, an emergency medical technician, a
first responder, an ambulance driver, or a commission warden who
8
Stietz also asserts that the wardens' actions "violated
Stietz' Second Amendment rights and precludes his prosecution."
But Stietz does little more than cite the Second Amendment and
its counterpart in the Wisconsin Constitution. I agree with the
State that Stietz's argument is undeveloped. Stietz undeniably
possesses important constitutional rights to keep and bear arms.
But "[l]ike most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through the 19th-
century cases, commentators and courts routinely explained that
the right was not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose."
District of Columbia v. Heller, 554 U.S. 570, 626 (2008).
Stietz must do more than simply cite a constitutional provision
and wait for the court to formulate arguments on his behalf.
27
No. 2014AP2701-CR.akz
is acting in an official capacity and who the person knows or
has reason to know is a law enforcement officer, a fire fighter,
an emergency medical technician, a first responder, an ambulance
driver, or a commission warden is guilty of a Class H felony."
(emphasis added)).
¶148 Stietz's argument is meritless. It should be noted at
the outset that the court of appeals below concluded that the
entry was constitutional under the open fields doctrine.
Stietz, unpublished slip op., ¶¶15-18; see also, e.g., Florida
v. Jardines, 569 U.S. ___, 133 S. Ct. 1409, 1414 (2013) ("The
Fourth Amendment does not, therefore, prevent all investigations
conducted on private property; for example, an officer may
(subject to [Katz v. United States, 389 U.S. 347 (1967)]) gather
information in what we have called 'open fields'——even if those
fields are privately owned——because such fields are not
enumerated in the Amendment's text."). Stietz does not appear
to contest this conclusion (though he does argue that the
wardens lacked reasonable suspicion to enter the property, a
matter discussed below).
¶149 Further, a number of statutes establish that the
wardens possessed statutory authority to enter Stietz's
property. For instance, Wis. Stat. § 23.10(1) provides in part:
The department of natural resources shall secure the
enforcement of all laws which it is required to
administer . . . . The persons appointed by said
department to exercise and perform the powers and
duties heretofore conferred and imposed upon deputy
fish and game wardens, shall be known as conservation
wardens.
§ 23.10(1) (emphasis added).
28
No. 2014AP2701-CR.akz
¶150 Next, Wis. Stat. § 29.921, entitled "Warrants;
arrests; police powers," provides in part:
The department and its wardens[9] . . . may arrest,
with or without a warrant, any person detected in the
actual violation, or whom the officer has probable
cause to believe is guilty of a violation of any of
the laws cited in this subsection,[10] whether the
violation is punishable by criminal penalties or by
forfeiture, and may take the person before any court
in the county where the offense was committed and make
a proper complaint. For the purpose of enforcing any
of the laws cited in this subsection, any officer may
stop and board any boat and stop any vehicle, if the
officer reasonably suspects there is a violation of
those sections.
§ 29.921(1).
¶151 Wisconsin Stat. § 29.924, entitled "Investigations;
searches," provides in part that "[t]he department and its
wardens shall, upon receiving notice or information of the
violation of any laws cited in s. 29.921(1), as soon as possible
make a thorough investigation and institute proceedings if the
evidence warrants it." § 29.924(1). And Wis. Stat. § 29.931
orders "[t]he department and its wardens" to "seize and
confiscate any wild animal, carcass or plant caught, killed,
9
See Wis. Stat. § 24.01 ("In chs. 23 to 29, unless the
context requires otherwise or unless otherwise
defined: . . . (3) 'Department' means department of natural
resources. . . . (11) 'Warden' means conservation warden, and
includes county, special and deputy conservation wardens.").
10
The subsection references "any law enumerated in ss.
23.50(1), 167.31, 346.19, 940.24, 941.20, 948.60, 948.605 and
948.61." Wis. Stat. § 29.921(1). Wisconsin Stat. § 23.50(1) in
turn references, among other things, "violations of . . . this
chapter, and chs. 26 to 31." This would include Wis. Stat. ch.
23 ("Conservation") and Wis. Stat. ch. 29 ("Wild animals and
plants").
29
No. 2014AP2701-CR.akz
taken, had in possession or under control, sold or transported
in violation of any of the laws for which the department and its
wardens have enforcement authority under s. 29.921."
§ 29.931(1).
¶152 This court has already recognized that "[t]he State
Conservation Commission and its deputies are given rather broad
police powers in the enforcement of the fish and game laws of
this state." State v. Leadbetter, 210 Wis. 327, 330, 246 N.W.
443 (1933).11 There is much to commend the legislature's
approach in this regard. The DNR is tasked with enforcing a
targeted set of laws, the violation of which will often occur on
private land. While wardens must of course act within
constitutional constraints, the statutory limitations on their
actions are relatively permissive and enable the DNR to
11
The conservation commission preceded the Department of
Natural Resources. See, e.g., Prefatory Note, 1997 Wis. Act
248.
30
No. 2014AP2701-CR.akz
effectively address violations of hunting and fishing laws,
among others.12
¶153 In this case, the wardens possessed reasonable
suspicion that hunting violations were occurring. On the last
day of deer hunting season near the end of hunting hours, the
wardens spotted a vehicle parked out in a field. Warden Webster
thought the vehicle might be abandoned, whereas Warden Frost
12
Stietz points to Wis. Stat. § 23.58(1), a provision in
that chapter of the Wisconsin Statutes entitled "Conservation,"
which states in part that "an enforcing officer may stop a
person in a public place for a reasonable period of time when
the officer reasonably suspects that such person is committing,
is about to commit or has committed a violation of" certain
enumerated statutes. § 23.58(1) (emphasis added). Stietz
argues that the wardens were not in a "public place." But the
putative inapplicability of § 23.58(1) proves little. That
subsection applies broadly to "enforcing officer[s]." Id.
Unlike the statutes cited that apply specifically to "the
department and its wardens," § 23.58(1) applies to, among
others, "a person who has authority to act pursuant to a
specific statute." See, e.g., State v. Iverson, 2015 WI 101,
¶41, 365 Wis. 2d 302, 871 N.W.2d 661 (state troopers). Thus,
given that many different types of law enforcement officers fall
within the terms § 23.58(1), the legislature may sensibly have
wished to circumscribe the scope of the authority the subsection
provides.
Stietz also suggests that Wis. Stat. § 29.924(5) supports
his argument. That subsection reads as follows: "Access to
Private Land. The department may, after making reasonable
efforts to notify the owner or occupant, enter private lands to
retrieve or diagnose dead or diseased wild animals and take
actions reasonably necessary to prevent the spread of contagious
disease in the wild animals." § 29.924(5). Those circumstances
were not present here. But section 29.924(5) does not
unambiguously purport to provide the only circumstances under
which wardens may enter private land. Section 29.924(5) would
appear to be required as an independent source of authority
because the spread of contagion will not necessarily be tied to
any legal violation on the part of a landowner.
31
No. 2014AP2701-CR.akz
thought the vehicle might have belonged to a hunter. Warden
Frost's suspicions were confirmed when hunting-related items
were spotted in the vehicle: an empty gun case, a camouflaged
seat, and scent killer spray. By that time hunting hours were
over. The wardens were entitled to investigate whether the
individual to whom the car belonged was indeed engaged in
illegal hunting.13 As the jury's verdict suggests, the wardens
were indeed acting in an official capacity and with lawful
authority. The circuit court did not err in declining to
instruct the jury regarding the law of trespass.14
¶154 In sum, Stietz's arguments on appeal should be
rejected.15
VI
¶155 DNR wardens are tasked with the protection of the
natural resources of this state and the enforcement of a special
subset of our laws. See, e.g., Wis. Citizens Concerned for
Cranes & Doves v. DNR, 2004 WI 40, ¶23, 270 Wis. 2d 318, 677
13
The wardens were probably correct in thinking that
illegal hunting was taking place. Stietz was found in "full
camouflage" with blaze orange in his pocket and carrying two
weapons. Numerous hunting-related items were found in his
vehicle.
14
As explained, the circuit court also barred Stietz from
arguing that the wardens were trespassing, and Stietz objects to
that ruling. For the reasons already stated, the circuit
court's decision was not in error.
15
Stietz characterizes many of the errors that occurred
below as violating his constitutional right to present a
defense. Assuming Stietz has correctly invoked the right, that
invocation fails because Stietz's individual arguments, as
shown, fail.
32
No. 2014AP2701-CR.akz
N.W.2d 612 ("This court has previously recognized that the DNR
has broad authority as custodian of Wisconsin's wildlife to
enact regulations that maintain a balance between conserving and
exploiting the state's wildlife."). In order to catch
offenders, DNR wardens must sometimes enter private lands; the
element of surprise is critical to their unique law enforcement
mission.
¶156 In this case, Warden Frost and Warden Webster entered
Stietz's land and questioned Stietz to verify whether illegal
hunting was taking place. Landowners and hunters alike depend
on DNR wardens to engage in this type of activity. Many
landowners do not have the resources to police their own land
for illegal hunters. Nor would this be a desirable approach: if
landowners policed their own land looking for trespassers (as
Stietz was allegedly doing in this case), the result would be a
chaotic free-for-all. The work of DNR wardens thus keeps both
hunters and landowners safe. Unfortunately, the court hinders
the ability of DNR wardens to act in the way they have
traditionally been required to act.
¶157 As the circuit court noted, Stietz is fortunate that
he was not shot when he drew his handgun on Warden Frost and
Warden Webster. He is fortunate the wardens showed such
incredible restraint. But a jury concluded on the evidence that
Stietz was not blameless——that he should not have resisted
Warden Webster and pointed a firearm at him. There is nothing
unjust about the proceedings that occurred below; the circuit
court was within its discretion in declining to instruct the
33
No. 2014AP2701-CR.akz
jury on self-defense and trespass. Accordingly, I would reject
Stietz's claims and affirm the decision of the court of appeals.
¶158 For the foregoing reasons, I respectfully dissent.
¶159 I am authorized to state that Justice MICHAEL J.
GABLEMAN joins this opinion.
34
No. 2014AP2701-CR.akz
1
State v. Robert Joseph Stietz
Court: Wisconsin Supreme Court
Date filed: 2017-06-13
Citations: 375 Wis. 2d 572, 2017 WI 58
Copy CitationsCombined Opinion