Self-defense angle does not help driver charged with eluding police

By Joe Forward, Legal Writer, State Bar of Wisconsin

Oct. 11, 2010 – A driver still “knowingly” flees or attempts to elude a traffic officer in violation of Wisconsin law even if police know the driver is en route to the police station, the district II Wisconsin Appeals Court recently held.

In 2007, Kenosha police stopped Daniel Hanson on the interstate for speeding. The state and Hanson disputed the facts of subsequent events.

Hanson said he exited the vehicle with a calm demeanor to show his license, and the officer began screaming at him so he went back inside the car. When he exited the vehicle a second time, Hanson said, the officer drew his baton and hit him in the back of the head.

The officer testified that Hanson twice exited the vehicle and threw a screaming fit, so he drew his baton but never used it to hit Hanson. However, it is undisputed that Hanson fled the scene until police squad cars boxed him in a short time later.

After leaving, Hanson called 911 to report that an officer “’beat [him] in the head’ and to request assistance in locating the nearest police station.” Hanson argued that he fled the scene in self defense, fearing the officer would beat him with the baton.

At trial, a jury found Hanson guilty on one count of eluding an officer under Wis. Stat. section 346.04(3) and two counts of obstructing an officer in violation of section 946.41(1).

Under section 346.04(3), a driver eludes police if he or she “knowingly flee[s] or attempt[s] to elude any traffic officer” after disregarding a visual or audible signal, and thereby endangers the operation of the police vehicle, the traffic officer or other vehicles.

Evidence was sufficient 

Hanson appealed his conviction for eluding an officer, arguing that the state failed to prove he “knowingly fled or attempted to elude” police. That is, Hanson argued that he cannot flee and elude police “if he calls 911 and tells the police where he is going.”

But in State v. Hanson, 2008AP2759-CR (Oct. 6, 2010), the appeals court held that “as long as Hanson, after having received a visual or audible signal from a traffic officer or marked police vehicle, fled or attempted to elude that officer, it makes no difference under section 346.04(3) that he was fleeing to a police station.”

Sufficient evidence supported the jury verdict, the court concluded, because there was ample evidence that Hanson operated the vehicle after receiving visual and audio signals from officers and endangered the operation of other vehicles.

Character evidence of officer inadmissible 

Under Wis. Stat. section 904.04(1), character evidence is inadmissible as irrelevant unless offered by the accused to prove a character trait of a “victim.”

Hanson argued the trial court “erred in excluding character evidence as to [the officer’s] reputation in the community as being ‘confrontational, aggressive and hot tempered’” because the officer was the “victim” of Hanson’s conduct. The real controversy – Hanson’s self-defense claim – was not tried because of the exclusion, Hanson argued.

But the appeals court refused to hold, under State v. Haase, 2006 WI App 86, 293 Wis. 2d 322, 716 N.W.2d 526, that “a police officer is always a victim of an ‘eluding an officer’ offense.”

“That an officer can be a victim of the crime of eluding an officer for purposes of restitution does not mean that an officer is victimized as a result of every such crime,” the court wrote.

The circuit court did not err in concluding that the officer was not a “victim” for purposes of admitting character evidence, the appeals court ruled.

Because the jury heard testimony about events from Hanson’s perspective, the court found the exclusion did not prevent the real controversy from being tried.

Appealing to juror’s emotions

Hanson argued the court should not have allowed the prosecution to address previous instances where police have been injured or killed during a routine traffic stop. Such references “appealed to the emotions of the jurors and prejudiced them against him,” Hanson argued.

But the appeals court disagreed, stating the references “were relevant and provided context for his concern when Hanson exited his vehicle on the interstate and would not cooperate.” 

Redaction of 911 recording  

Under Wis. Stat. section 752.35, discretionary reversal was required because the 911 recording admitted into evidence contained unredacted hearsay statements about his culpability, Hanson argued.

But the jury received a cautionary instruction to decide the case based on the evidence presented and not conclusions offered by the 911 dispatcher, the court explained. In addition, the defense never requested the recording be redacted.

Thus, the court held that discretionary reversal was not warranted.