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Obstructing, § 946.41 – “Incomplete” Instruction, “Lawful Authority” – Harmless Error

State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion
For Ferguson: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Where it was clear not only that Ferguson obstructed the police outsideher apartment but also that the jury so found, arguable omission of a “complete” instruction on whether the police acted with lawful authority in entering her apartment was harmless:

¶43      The jury instruction here was a correct statement of the law for police actions outside of Ferguson’s home. Therefore, although one may argue that the jury instruction was incomplete because it did not instruct on exigent circumstances, it did instruct relative to the actions of the police in arresting Ferguson once they were outside of her home where she continued her resistive course of conduct.¶44      It is true that a jury instruction that is incomplete, but is in all other respects a correct statement of the law, may be erroneous. See State v. Perkins, 2001 WI 46, ¶43, 243 Wis. 2d 141, 626 N.W.2d 762 (concluding that the jury instruction was erroneous because it failed to adequately define the element of “threat” for the offense of intentional threat to a judge); see also Rose v. Clark, 478 U.S. 570, 579-80 (1986) (explaining that a jury instruction was erroneous because, while it did instruct the jury on the “malice” element of the charged offense, it erroneously shifted the burden of proof). However, here any incompleteness in the instruction did not fail to define lawful authority.

¶45      Based on the test set forth in Harvey, we conclude that if the failure to instruct the jury on exigent circumstances was error, it was harmless. UnderHarris, the police were acting with lawful authority in continuing their arrest of Ferguson as they escorted her down the apartment building stairway and placed her in the squad car. Ferguson did not discontinue her resistive conduct when police removed her from her home. As a result, we can conclude that if the jury had been instructed on exigent circumstances as well as the instruction given, it is clear beyond a reasonable doubt that the jury would have convicted Ferguson of obstruction. Harvey, 254 Wis.  2d 442, ¶48.

The underlying rationale is spelled out a bit more clearly by the 3-Justice concurrence:

¶63      I conclude, however, that even if the entry and arrest for disorderly conduct were unlawful, the obstructing was sufficiently separate in time and location from any potentially unlawful conduct by the police. See State v. Annina, 2006 WI App 202, ¶11, 296 Wis. 2d 599, 723 N.W.2d 708 (citing with approval United States v. Bailey, 691 F.2d 1009, 1017-18 (11th Cir. 1982)) (“[T]he police may legally arrest a defendant for a new, distinct crime, even if the new crime is in response to police misconduct and causally connected thereto.”).

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