Opinion
December 1, 1961 —
December 29, 1961.
APPEAL from a judgment of the circuit court for Milwaukee county: ELMER W. ROLLER, Circuit Judge. Affirmed.
For the appellant there was a brief by Coggs McCormick of Milwaukee, and oral argument by Harvey L. McCormick.
For the respondents there was a brief by John J. Fleming, city attorney of Milwaukee, and George A. Bowman, Jr., assistant city attorney, and oral argument by Mr. Bowman.
Action by plaintiff Johnnie Ruth Carson for damages resulting from his alleged false imprisonment, against defendants Phillip Pape, Donald Brockman, Gordon Woller, Richard Kramer, and Robert Bodish, commenced on November 10, 1958. After trial to a jury a general verdict was submitted. The jury found for defendants. From a judgment dismissing the complaint, plaintiff appeals.
At the time the events which gave rise to this lawsuit occurred all defendants were police officers, employed by the Milwaukee police department. Plaintiff, an industrial worker, resided at 3170 North Seventh Street in the city of Milwaukee, and owned a 1956 green and white Buick, license No. J-56490.
On Monday, May 20, 1957, at 7 a. m., defendants Pape and Brockman, while patrolling in their squad car, received an order from their dispatcher to cruise the vicinity of 3200 North Tenth Street in order to investigate a complaint of a reckless driver in a 1956 green and white Buick. They proceeded to the area, and at 7:10 a.m., a green and white Buick turned north on North Tenth street and came toward the two officers. The Buick passed within three or four feet of the officers, allowing them to observe the driver. They testified that the driver was the plaintiff, Johnnie Ruth Carson.
Pape and Brockman made a U turn, switched on their red light and siren, and pursued the Buick. The Buick sped away, traveling at speeds up to 70 miles per hour and ran through several stop lights and signs. The officers radioed for assistance. They lost the Buick in traffic and stopped at a call box to talk to another officer, Woller. While Pape and Brockman were talking to Woller, the Buick drove past them. Woller testified that plaintiff was driving. Pape and Brockman resumed their chase, but finally lost the Buick in the vicinity of West Locust and West Chambers on North Ninth street. At 7:25 a. m., Pape and Brockman, received a radio call from Woller, who had located the Buick parked between North Ninth and Tenth streets on West Chambers. The motor was hot and the tires were warm. The license, No. J-56490, was found to be registered to plaintiff, at the address 3170 North Seventh Street. When Pape and Brockman got to the Buick they found Patrolmen Woller and Kramer and Sergeant Bodish there.
Woller and Kramer proceeded to plaintiff's apartment which was about three blocks from the parked Buick. Outside they met plaintiff's sister, Geraldine Carson, who lived with plaintiff, and who was arriving home from work. She told the officers where plaintiff lived. Woller and Kramer proceeded to the apartment, gained entry, found plaintiff lying on a bed apparently sleeping, and arrested him without a warrant for reckless driving. Shortly thereafter Patrolmen Pape and Brockman and Sergeant Bodish arrived at plaintiff's apartment. Plaintiff was placed in a patrol wagon and taken to a precinct headquarters and shortly thereafter was transferred to the Safety Building. He arrived at the Safety Building at about 8:50 a.m. A warrant was issued charging him with reckless driving.
About 10 a.m. on the same day, plaintiff appeared with counsel before District Court Judge FRANK GREGORSKI. His case was continued until June 12, 1957, and he was allowed to go without bail. Plaintiff was tried on that day, found guilty, and was sentenced to ninety days in the county jail. He was in jail from June 12 to 15, 1957, when on the latter date his case was reopened and sentence set aside and the case continued until August 15, 1957. He was released without bail. He was tried on August 15, 1957, found guilty and sentenced to thirty days in the house of correction or a fine of $200, but execution of the sentence was stayed for eleven days. Plaintiff was released without bail. His attorney then moved for a new trial and the motion was granted. A trial, with a jury of six, was had on June 10, 1958, and the jury found plaintiff not guilty. Subsequently, plaintiff brought this action for false imprisonment.
Plaintiff claimed that at the time the officers were chasing the Buick car he was home in bed sleeping. Jessie Carson, plaintiff's brother, and Alberta Carson, Jessie's wife, both of whom lived with plaintiff, testified that plaintiff came home at 11:30 p.m. Sunday night, went to bed, and remained in bed until the officers came to arrest him at about 7:30 a.m. Monday morning. Thus, plaintiff could not have been driving his Buick.
Plaintiff alleged that the officers were "vicious" in their manner of placing him under arrest and caused him physical injury and humiliation. Geraldine Carson, plaintiff's sister, testified that Officers Woller and Kramer forced their way into plaintiff's apartment. The officers testified that they waited in the hallway before entering and got permission to enter from plaintiff's wife, Betty Carson, who was lying on the couch in the living room, visible to the officers as the door was opened by Geraldine. The officers testified that Betty Carson told them plaintiff had just gotten home and directed them to the bedroom. Betty denied this. When the officers went into the bedroom plaintiff was lying on the bed, face down with a blanket partially covering him, dressed in shorts and a T-shirt.
Geraldine testified that Woller and Kramer went right over to plaintiff and, without looking at his face, hit plaintiff across the back with a stick. She testified that one of the officers sat on plaintiff, put a knee in his back, pulled his hands behind his back, and applied a come-along chain to both of his wrists. Plaintiff testified that the officers twisted the chain, cutting the skin on his wrists to the bone.
The officers testified that as they entered the bedroom plaintiff came off the bed fighting and cursing and trying to knee and bite the officers. They were forced to subdue him and place handcuffs on his wrists. Woller recognized plaintiff as the person he saw driving the Buick a few minutes earlier.
Plaintiff testified that the defendants forced him to go to the police station dressed only in a T-shirt, pants with a zipper open, and without shoes. The officers testified that plaintiff refused to dress, and that they had to force his pants on him. They took a pair of shoes along for plaintiff.
On May 20, 1957, shortly after his release that morning, plaintiff went to Dr. Brillman for treatment of his wrists. The doctor testified that he had examined plaintiff on that date and found he was suffering from trauma of both lower arms. There was breaking of the skin around his wrists. Plaintiff contended that these injuries were caused by the officers twisting the chain they had around his wrists.
The officers testified that they put handcuffs on plaintiff and that they did not use a come-along chain, though the latter device was regulation equipment at that time. Inspector Dahl testified, and demonstrated, that the come-along chain, which was 11 inches long, could not possibly be placed around the two wrists of a person and be used effectively.
The trial court instructed the jury that:
"If you find that the arrest of the plaintiff by these defendants was not a false arrest, then that will end your consideration of the case and you will return a verdict of no cause of action in favor of the defendants."
Appellant contends that this instruction was erroneous because a jury issue with respect to excessive force in making the arrest was presented by the pleadings and testimony. Thus, even though the officers were privileged to arrest he would be entitled to damages. Respondents argue that the evidence was insufficient to send the issue to the jury. In its memorandum decision the trial court stated that there was no evidence of excessive force, noting Inspector Dahl's testimony and demonstration that it would be impossible to attach a come-along chain around two wrists of a person.
The use of a come-along chain by the officers was only one element of the use of excessive force testified to by appellant and his witnesses. The evidence did present an issue with respect to excessive force and it should ordinarily have been resolved by the jury. However, the appellant waived any right to a jury determination of this issue. Appellant's trial counsel agreed to the form of the general verdict which was submitted to the jury, and, although he requested instructions on the issue of false imprisonment and damages recoverable therefor, he failed to request any instruction on the issue of excessive force in making an arrest or recoverable damages related to that issue. Where instructions are incomplete and do not cover a point that ought to be covered, this court will not reverse unless timely request for appropriate instructions has been made to the trial court. Grinley v. Eau Galle (1956), 274 Wis. 177, 79 N.W.2d 797.
During its instructions to the jury the trial court stated:
"On the part of the defendants there was testimony that on the early morning of May 20, 1957, the plaintiff was driving his automobile in a reckless manner and at a high speed within an area of the city of Milwaukee, within the presence, observation, and view of the defendants . . ."
Only three of the five police officers testified that they saw appellant driving the Buick in a reckless manner. Appellant contends that this misstatement of a material fact by the trial court entitles him to a new trial. In order for an error of the trial court to be prejudicial and require a new trial, this court must find that but for the error there probably would have been a different result. Shields v. State (1925), 187 Wis. 448, 204 N.W. 486. The testimony was clear that only three of the officers saw appellant driving the Buick. The trial court also instructed the jury:
"It is your duty to be guided solely by the evidence received on this trial and influenced by no other consideration."
The jury could not have been misled by the trial court's statement and no other verdict would have been arrived at even if the erroneous statement had not been made.
In its instructions on the right of a police officer to arrest without a warrant for a misdemeanor, the trial court stated:
"An officer can arrest, pursuant to these laws if he has reasonable grounds to believe that the person is committing or has committed a misdemeanor in his presence and will escape . . ."
Appellant argues that the use of the word "escape" was improper and reversible error. He contends that the word "escape" has a definite legal meaning, that is, it refers to the act of a person getting away who is already under arrest or in custody. The disputed instruction was partly based on sec. 954.03 (1), Stats. This statute uses the words "will not be apprehended." The trial court read this statute to the jury and then added the disputed sentence by way of explanation. The word "escape" refers to the act of a person trying to avoid capture. The instruction was not erroneous.
The trial court also instructed the jury:
". . . an arrest for a misdemeanor in the officer's presence must be made promptly. It must be made either at the time of the offense or as soon as the circumstances permit. The officer must at once set about the arrest and follow up the effort until the arrest is effected. A reasonable delay to procure help does not interrupt the pursuit. A fresh pursuit means pursuit of a fleeing person sought to be arrested who is endeavoring to avoid immediate capture and involves pursuit without unreasonable delay."
Appellant contends that the trial court erred by instructing the jury that a police officer could arrest without a warrant for a misdemeanor under the doctrine of fresh pursuit. The term "fresh pursuit" refers to the common-law right of a police officer to cross jurisdictional lines in order to arrest a felon. 4 Am. Jur., Arrest, p. 35, sec. 51. See also sec. 964.30, Stats. An arrest without a warrant for a misdemeanor must be made promptly, either at the time of the offense, or as soon as the circumstances reasonably permit. 4 Am. Jur., Arrest, p. 46, sec. 67; Dahl and Boyle, Arrest, Search and Seizure, pp. 33, 34. Officers Pape and Brockman first saw the recklessly driven Buick at 7:10 a.m. They immediately pursued the car and radioed for assistance. The arrest was made by Officers Woller and Kramer at about 7:30 a.m. The underlying question is whether the officers should have first obtained an arrest warrant. Although the trial court's use of the term "fresh pursuit" was technically incorrect, the instruction taken as a whole correctly related the circumstances under which an officer may arrest without a warrant for a misdemeanor. See Thompson v. Eau Claire (1955), 269 Wis. 76, 83, 69 N.W.2d 239.
Appellant contends that the judgment of acquittal on the reckless-driving charge was res judicata in this false-imprisonment action with respect to the validity of the arrest. The contention is untenable. Such a rule would unduly hamper the execution of the criminal law. The judgment of acquittal was not res judicata on the issue of the validity of the arrest in the present action. See Bursack v. Davis (1929), 199 Wis. 115, 225 N.W. 738; 30A Am. Jur., Judgments, p. 513, sec. 474.
Appellant alleges several prejudicial errors by the trial court in admitting testimony over the objection of appellant, specifically that appellant had been drinking at another person's home the night before his arrest; that appellant threatened his wife that same night; and that Milwaukee police officers receive training instructions on how to treat colored persons. It is urged that this testimony was immaterial and irrelevant and thus inadmissible.
Thelma Hawthorne, Betty Carson's sister, lived in the upstairs of a flat at 3223 North Tenth Street. Appellant and his wife Betty went to visit Thelma the afternoon of the day before his arrest. In testifying to events which occurred at the Hawthorne flat during his visit, appellant denied that he had anything to drink while there or that he had fought with his wife. He testified that he peaceably left the Hawthorne flat alone at 10:30 p.m. that night, drove to a tavern, parked his car, had a few drinks, then walked home, went to bed at 11:30 p.m., and stayed in bed until the officers came to arrest him at about 7:30 the next morning. His wife spent the night with her sister and went home at about 6:30 the next morning.
Other witnesses testified that while appellant was at the Hawthorne flat he was drinking and arguing with his wife; that he was asked to leave because he was creating a disturbance; that his wife stayed overnight with the Hawthornes because she was afraid of him. There was testimony that appellant called his wife at the Hawthorne flat at about 6 a.m. the day of his arrest. There was no phone in appellant's apartment.
The testimony with respect to appellant's drinking and threats to his wife was material and relevant because it gave a possible basis for his alleged erratic driving early the next morning. Also, since appellant denied that these events occurred, the testimony bore on his general credibility as a witness. See 3 Wigmore, Evidence (3d ed.), pp. 657-670, secs. 1003-1005.
Appellant testified that one of the arresting officers made statements to him reflecting race prejudice. When appellant's counsel pursued this matter further on his cross-examination of the officer, he denied making such statements, and on redirect examination the officer was allowed to testify that during his police training he was instructed to treat all persons alike regardless of race or color. The training received by Milwaukee police officers on race relations would have no bearing on whether the alleged statements were actually made, but the error was not prejudicial.
There is no merit in appellant's complaint about the juror's comment during the course of the trial. The juror merely made a suggestion on how to demonstrate the location of furniture in appellant's living room; he did not state any facts. The court admonished the juror to let the attorneys handle the problem.
It cannot go without mention that appellant has submitted a brief and appendix which fail to comply with the rules of this court in many important respects: In the brief there is no statement of the nature of the case, the issues are stated in the wrong form, and no appendix page references are supplied in the statement of facts. The appendix does not include the memorandum decision, the pleadings, the verdict, the judgment, material parts of the record, or an index of exhibits. Over 600 pages of testimony are condensed into four. This flagrant disregard of the rules placed an undue burden on the respondents and the court in resolving the issues of the case.
By the Court. — Judgment affirmed. Respondents may tax double costs against appellant for his violation of Supreme Court Rule 6 (2), (3), and (5) (a) to (d), sec. 251.26, Stats.