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Obstructing, § 946.41(1) – Sufficiency of Evidence; Effective Assistance – Prosecutor’s Closing Argument

State v. Keith A. Stich, 2010AP2849-CR, District 2, 6/22/11

court of appeals decision (1-judge, not for publication); for Stich: Andrew Joseph Burgoyne; case activity

Stich’s failure to heed an officer’s instruction to stop – instead, Stich walked away and into his house and encouraged his companion Lidbloom to do likewise – established the crime of obstructing. The police were investigating an earlier incident, and “Stich’s actions, which delayed the deputies’ ability to question Lidbloom, were enough for a jury to find that Stich made the officers’ duties more difficult,” ¶9. Moreover, Stich’s “erratic” behavior caused the officer to draw his gun, and keep it out, “and thus made the deputy’s duties more difficult,” ¶10.

Elements of offense recited, ¶6, one of which of course is that the officer acted with “lawful authority.” Apparently, the officers clearly had reasonable suspicion to order Stich (or Lidbloom) to stop. In any event, Stich doesn’t argue they didn’t. CompareState v. Charles E. Young, 2006 WI 98, ¶¶73-74 (“We acknowledge that people may have the right to disregard the police and walk away without giving rise to reasonable suspicion. … Plainly, however, a person who disregards a police officer’s order assumes the risk that the officer cannot establish that he had reasonable suspicion for an investigatory stop. The person who believes he is exercising his Fourth Amendment rights by disregarding the officer may be subjecting himself to criminal prosecution if the officer has reasonable suspicion to make a stop.”) with id., ¶76 (Young guilty of obstructing precisely officer had reasonable suspicion to order him to return to squad car).

Viewed in context, prosecutor’s closing that officers testified “truthfully and honestly” was based on the evidence presented, not a personal opinion as to their credibility. Therefore, the argument wasn’t improper, and counsel didn’t perform deficiently in failing to object, ¶13. Separately: although the prosecutor’s argument that Stich’s command to his dog to attack the officers showed a willingness to “go all the way” may have been a bit hyperbolic, it wasn’t improper, ¶¶14-15.

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