court of appeals decision; for Haywood: Robert E. Haney
Battery to Peace Officer, § 940.20(2), Elements
It is no defense to battery-to-officer that the officer refused to leave the premises when the resident withdrew consent to enter, because acting “lawfully” is not an element of the offense: “a law-enforcement officer need not be acting ‘lawfully’ for what he or she does to be done in the officer’s ‘official capacity.’ Rather, the officer need only be acting within his or her jurisdiction as an officer, State v. Barrett, 96 Wis. 2d 174, 180, 291 N.W.2d 498, 500–501 (1980), and not on some ‘personal frolic’ unrelated to the officer’s law-enforcement responsibilities, State v. Schmit, 115 Wis. 2d 657, 665, 340 N.W.2d 752, 756 (Ct. App. 1983) (inner quotation marks and quoted source omitted),” ¶11.
¶14 Here, in contrast to both Barrett and Schmit, Officer Post was not on a “personal frolic” when Haywood hit him, but rather, was doing something “within the scope of what [Post] is employed to do.” Accordingly, Haywood’s contention that the lawfulness of Post’s presence in the house where Haywood hit him was material to his violation of Wis. Stat. § 940.20(2) is without merit. Therefore, he is not entitled to discretionary reversal under Wis. Stat. § 752.35.
Sentencing, Inaccurate Information and Prosecutorial Allocution
Asserted prosecutorial misconduct, in the form of misleading statements during allocution, is tested under State v. Wolff, 171 Wis. 2d 161, 167, 491 N.W.2d 498, 501 (Ct. App. 1992) (whether “what the prosecutor does has ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process’”), ¶15. On the merits, the prosecutor merely alluded to what the uncontradicted evidence at trial proved, hence “was wholly fair comment,” ¶17.
Analysis:Does it make sense to import into the law of sentencing the test for mistrial occasioned by improper closing argument? Are these events sufficiently comparable? Not self-evidently so. If the court wants to go down that road, then why isn’t the test derived from Napue v. Illinois, 360 U.S. 264, 269-272 (1959) (defendant denied due process when prosecutor obtains conviction with aid of evidence prosecutor knew or should have known to be false and new trial required when there is a reasonable likelihood that false testimony affected verdict)? Worse, if the challenged argument “was wholly fair,” then why is the court fashioning a novel test? No error occurred anyway, there’s nothing to challenge, and the court’s exercise is entirely unnecessary. And worse still, the issue isn’t even ripe for review under this test (“Further, Haywood did not object to what the prosecutor did, and this forfeits his right to have review other than in an ineffective-assistance-of-counsel context,” ¶15.) So, the court has confected a novel test to deal with an issue that it says was really a mine-run no-harm no-foul ineffective assistance claim. Judicial activism, in a word. Maybe next time the court can wait till it has a record that actually supports grappling with the right test.
Notice of Appeal Contents and Inconsequential Error
¶1 n. 1:
Haywood’s notice of appeal mistakenly asserts that he also appeals “from … the postconviction motion dated December 2, 2008.” First, Haywood’s appeal is from the circuit court’s order denying his motion, not from the motion. Second, the circuit court’s order is dated December 1, 2008, although it was filed on December 2. We, obviously, ignore these silly errors, see Wis. Stat. Rule 805.18(1) (“The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.”) (made applicable to appellate procedures by Wis. Stat. Rule 809.84), but caution counsel to be more careful in the future.
Compare, State v. Patrick Jackson, 2007 WI App 145 (defect in NOA referring to order denying postconviction motion but not to judgment of conviction “is not fatal to our review of Jackson’s contention that the judgment was improperly entered against him”—non-fatal nor, for that matter, termed “silly” error; authored, incidentally, by same judge; take note that, perhaps, court’s patience for sloppy wording in NOA wearing thin).
