The SCOW docket: Abused woman had options other than continuing to drive to escape violent husband, conviction affirmed

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized.

Case: State v. Stetzer

Dallet

Majority: Justice Rebecca Dallet (17 pages), joined by Justices Ann Walsh Bradley, Rebecca Grassl Bradley, Brian Hagedorn, and Janet Protasiewicz

Concurrence: Justice Annette Ziegler (2 pages)

Dissent: Chief Justice Jill Karofsky (15 pages)

​Upshot

When a defendant commits an ongoing, otherwise-criminal act, like operating a motor vehicle with a prohibited alcohol concentration (PAC), the elements of the coercion defense (a complete defense to the charge) must be met for the entire duration of that act. Further, a defendant’s personal history can be relevant to the reasonableness of her belief that committing a crime was the only means of preventing imminent death or great bodily harm. Taking these determinations into account, the imminent danger situation that caused defendant Joan Stetzer to drive with a PAC dissipated, ending the defense and resulting in her conviction.
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Background 

Joan Stetzer was physically, emotionally and sexually abused by her husband, Bill Behlmer, for many years. He admitted that he physically and verbally abused her. To get away from the abuse, Stetzer sometimes went to their lake house, about 15 minutes from their primary home, because it had interior chain locks on the doors that prevented even someone with a key from entering.

During the early hours one morning, after an argument about Behlmer's sexual affairs, Behlmer became violent, screamed at Stetzer, and pushed her down the stairs.

Behlmer threatened to call the police, and taunted Stetzer that the police would arrest her instead of him, which had happened in the past. He accidentally dialed 911 but quickly hung up. Around the same time, Stetzer went outside. When the police called back, Behlmer told them that she was likely driving to the lake house and that she may be intoxicated. When Stetzer reentered the house, he ran at her with a closed fist, telling her to “get the hell out.” Stetzer testified that Behlmer had a look on his face that she had never seen before. He then ran after Stetzer into the garage carrying a large metal pot, “whipped” the pot at her, and continued to chase her outside and around her car. Stetzer managed to get inside her car and lock the doors. Behlmer pounded on the windows of the car and yelled “I’m going to take you out you fucking bitch.” Stetzer testified that she was frightened that he would break the windows of the car.

Despite drinking a number of glasses of wine earlier that evening, Stetzer fled in her car, testifying that she did not believe she had another alternative. At first, Stetzer said she was “just trying to escape,” without a particular destination in mind, but she soon decided to drive to the lake house. About halfway there, Stetzer passed Officer Kimberley Kuehl in a police car pulled over on the side of the road. Officer Kuehl had learned of Behlmer’s report that Stetzer was likely driving to the lake house and that she may be intoxicated, and had positioned herself along Stetzer’s expected route. Stetzer acknowledged at trial that she saw the police car. When asked why she did not stop, Stetzer testified, “I thought about it. I thought should I stop, and I thought no, I’m not going to stop, I have called the police on two other occasions when being physically abused. [Behlmer] lied and I got arrested."

After observing Stetzer weaving and veering in her lane, Kuehl initiated a traffic stop. Stetzer admitted that she had been drinking. She told Officer Kuehl that her husband had thrown her down the stairs and that she was going to the lake house “to get out of there.” Officer Kuehl testified that Stetzer appeared to be afraid of her husband and that she was crying. During the stop, Stetzer exhibited signs of impairment, and a subsequent blood draw showed that her blood alcohol concentration was over the legal limit of 0.08. She was arrested and charged with operating a motor vehicle with a PAC as second offense.

At her bench trial, Stetzer stipulated that her blood alcohol concentration exceeded the legal limit, but she argued that the coercion defense absolved her of the offense. She argued that the defense allowed her to a motor vehicle with a PAC because the physical attack and threats by Behlmer caused her reasonably to believe that driving to the lake house was the only means of preventing imminent death or great bodily harm. 

​Trial evidence included testimony from Stetzer, Behlmer, and an expert on domestic violence, Dr. Darald Hanusa.

Hanusa, a psychotherapist and clinical social worker specializing in domestic violence, testified that on the night in question, Stetzer was presented with a “classic dilemma” for a person experiencing domestic violence: “[d]oes she stay with the possibility of being injured or does she take a risk to drive a car to flee to safety?” Dr. Hanusa also explained that fear is a primary factor in the decisions of domestic violence victims and that victims often do not call the police. He further opined that because Stetzer had an “adverse relationship with the police department,” the police would be “the last people she’s going to call for help.”

The circuit court concluded that the elements of the coercion defense were initially met when Stetzer initially decided to drive away from her home. However, the state proved beyond a reasonable doubt that by the time she was pulled over, Stetzer had other means of safety available, so the elements of the defense no longer existed. The judge pointed out that once Stetzer left the driveway she had more options than driving to the lake house.

The court of appeals affirmed.

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Guts

Stetzer argued that as long as the elements for the coercion defense were met at the beginning of the offense when she began to operate her vehicle, the defense applied.

​We start with the text of . . . the statutes defining the coercion defense. . . . The pertinent statute identifies when an individual’s conduct occurs under circumstances of coercion, providing, in relevant part, that “[a] threat by a person . . . which causes the actor reasonably to believe that his or her act is the only means of preventing imminent death or great bodily harm to the actor . . . and which causes him or her so to act is a defense to a prosecution for any crime based on that act . . . .” The “circumstances of coercion” referenced in the statute are therefore present only when the three elements . . . are met: (1) there is a threat by another person; (2) the threat causes the defendant reasonably to believe that an otherwise-criminal act is the only means of preventing imminent death or great bodily harm; and (3) the threat causes the defendant to engage in the act.

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Requiring the elements of the coercion defense to be met throughout the duration of an ongoing act is consistent with how we have interpreted the closely related defenses of self-defense and defense of others. Like coercion, these other defenses permit an individual to engage in otherwise-criminal conduct (use of force against another) under certain narrow circumstances without facing liability—namely, when the individual reasonably believes that the force is necessary to prevent unlawful interference with the individual’s person or with a third person. Significantly, we have concluded that these related defenses are available only when a defendant or a third person is actually under threat. Even more to the point, we have held that when the otherwise-criminal act is ongoing, like possessing a firearm as a felon or carrying a concealed weapon, a defendant arguing self-defense must not have continued the act any longer than reasonably necessary.

Our interpretation of the coercion defense also finds support in how other jurisdictions have interpreted similar defenses. The Supreme Court of Alaska, for example, held that defendants asserting the necessity defense for continuing offenses, like drunk driving, must show some evidence that they stopped violating the law as soon as the necessity ended. And New Jersey courts have noted that in a drunk-driving prosecution, “the distance a driver traveled might be relevant to the defense of necessity if the driver had escaped the harm and continued to drive.” Other courts have come to the same conclusion outside the specific context of drunk driving. And still others have held that coercion or similar defenses apply only as long as the elements of the defense continue to be met.

Stetzer’s interpretation, by contrast, lacks a meaningful limiting principle and would dramatically expand the scope of the defense. Accepting Stetzer’s argument that the elements of the coercion defense need to be met only at the beginning of an ongoing, otherwise-criminal act would mean that an individual who is coerced in the first instance is free to ignore clearly safe alternatives to continued criminal conduct, or may continue engaging in such conduct even long after the threat has dissipated. In other words, the coercion defense could apply even if the act is no longer “occur[ing] under circumstances of coercion,” as required by the relevant statutes. We decline to adopt this expansive interpretation and therefore hold that the elements of the coercion defense must continuously be met throughout the duration of an ongoing, otherwise-criminal act.

With respect to the second issue before us, Stetzer argues that the circuit court failed to consider her personal history of domestic violence and interactions with the police when determining whether she reasonably believed that operating a motor vehicle with a PAC was the only means of preventing imminent death or great bodily harm. In response, the State asserts that a defendant’s personal history is always irrelevant to what she reasonably believed. We disagree with the State’s categorical claim that personal-history evidence is always irrelevant to the reasonableness of a defendant’s belief. . . .

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Importantly for our purposes, we have repeatedly held that “[t]he personal characteristics and histories of the parties are relevant to” the reasonableness of the defendant’s belief. Regarding self-defense, for example, we held that the defendant’s testimony that he was the victim of an armed robbery at his sister’s residence could support a finding that he reasonably believed he was under an imminent threat when he heard kicking at the door of that same residence. And regarding defense of others, we similarly held that evidence that the defendant knew the victim abused his sister and could be violent could support a finding that the defendant reasonably believed his actions were necessary to protect his sister. 

We conclude that evidence of a defendant’s personal history can be similarly relevant in the context of coercion. Like self-defense and defense of others, the coercion defense focuses on what the defendant “reasonably believes” about both the threat and the act necessary to prevent it. Determining whether the defendant “reasonably . . . believe[d] that . . . her act . . . [wa]s the only means of preventing imminent death or great bodily harm,” therefore, must be determined from the standpoint of the defendant, and the operative question is what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at that time. And if personal history can be relevant to this analysis for self-defense and defense of others, it must similarly be relevant for the defense of coercion.

The State suggests that the personal history of the defendant is irrelevant because considering it would transform “reasonableness” into a subjective standard. We disagree. Whether evidence of a defendant’s personal history is admitted or not, the underlying legal question remains the same: what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at that time. In answering that question, the defendant’s past experiences, like her present ones, may be probative of what a reasonable person in the defendant’s position would have believed under the circumstances. The standard remains objective, however, because a mere subjective belief on the defendant’s part is insufficient to support the coercion defense. The factfinder must still determine if the defendant’s belief was objectively reasonable. Accordingly, we hold that, just as in the contexts of self-defense and defense of others, the defendant’s personal history can be relevant to the reasonableness of her belief that her actions were the only means of preventing imminent death of great bodily harm.

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Here, the circuit court’s conclusion that coercion had been disproven centered on two key factual findings: Stetzer knew she passed a police car and Stetzer was in a city she knows well. Those findings are amply supported by the evidence, and indeed are not disputed. Stetzer herself acknowledged that she saw the police car and that she thought about stopping, testifying that she thought “should I stop, and I thought no, I’m not going to stop, I have called the police on two other occasions when being physically abused. [Behlmer] lied and I got arrested.” On the basis of the findings that Stetzer knew she passed a police car and was in a city she knew, a reasonable factfinder could conclude, as the circuit court did, that beyond a reasonable doubt Stetzer knew there were other means of preventing imminent death or great bodily harm, and that the coercion defense was therefore disproven.

Stetzer nevertheless argues that the circuit court’s verdict is not supported by sufficient evidence because she did not trust the police and feared they would arrest her, and that it was therefore reasonable for her to believe that continuing to drive past the police car was the only means of preventing imminent death or great bodily harm. But a reasonable factfinder could conclude, her distrust of police and fear of arrest notwithstanding, that Stetzer could not reasonably believe that she would still be under a threat of imminent death or great bodily harm by Behlmer while in the police’s presence. Moreover, a reasonable factfinder could have relied, as the circuit court did, on Stetzer’s knowledge of the area. In particular, the record indicates that on the way to the lake house, Stetzer passed a hotel that she knew was open. A reasonable factfinder considering this record could have reached the same conclusion as the circuit court: that the coercion defense had been disproven.

Ziegler

Concurrence

I cannot, however, join part of the majority opinion, . . . because the majority unnecessarily reaches out to address whether personal history may be relevant to determining the reasonableness of a defendant’s belief that her act was the only means of preventing imminent death or great bodily harm. The court does not need to address this issue to resolve this case. As the majority opinion itself concludes, there is sufficient evidence to support the circuit court’s guilty verdict even if Stetzer’s personal history is considered. Said otherwise, whether or not Stetzer’s personal history is considered has no bearing on the outcome of this case. “‘Issues that are not dispositive need not be addressed.’”

Further, the majority’s analysis regarding the relevance of a defendant’s personal history appears to suggest that the psychological effects prior acts of abuse may have on a defendant may be relevant personal history. We have not received meaningful briefing or argument on that issue from the parties, and courts are divided on whether such evidence is relevant to determining the objective component of the coercion defense. Accordingly, we should not opine, explicitly or implicitly, on that issue in this case.

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Karofsky

Dissent

​“I’m going to take you out, you fucking bitch!” Threats, violence, abuse, manipulation, and coercion were all tactics Bill Behlmer employed to exert power and control over his wife, Dr. Joan Stetzer. In the early hours of May 24, 2017, Behlmer yelled the above threat as Stetzer cowered in her truck, wearing only pajamas. She was trying to escape Behlmer’s rage after he engaged in several acts of domestic abuse, including throwing Stetzer down a flight of stairs. Behlmer also threatened Stetzer by calling 911 and promising, “They [the police] [a]re going to get you just like the last time.”

At 2:00 a.m., Stetzer fled in her vehicle without her phone, a change of clothes, a wallet, shoes, or even a plan. Just as Behlmer predicted, she was pulled over by the police a few miles from her house. Stetzer, not Behlmer, was arrested. She was later charged with disorderly conduct as an act of domestic violence; operating a motor vehicle with a prohibited alcohol content; and operating a motor vehicle while intoxicated.

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To secure a conviction, the State had to prove beyond a reasonable doubt that Stetzer did not reasonably believe that continuing to drive was her only means of protection from the threat of imminent death or great bodily harm. When assessing both reasonableness and imminence, the circuit court applied the wrong legal standard and ​consequently erred in concluding that the State met its burden. The majority’s insistence that the circuit court correctly applied the pertinent statute does not square with a proper interpretation of the statute and a thorough review of the evidence introduced at trial.

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The police stopped Stetzer and she tried multiple times to explain to them how Behlmer had attacked her. The officers disregarded her report. Stetzer described her perspective: “I felt like I was a victim . . . of domestic abuse and violence that night, and I felt like I was being treated as a criminal. I was dismissed. [The officers] didn’t even want to hear about what happened.” One officer insisted “you’re lying about the whole thing, you’re just a liar.” The same officer called her “narcissistic,” and another officer “didn’t seem to care.” In the course of being questioned, Stetzer penned a one-page account of what had transpired. In her words, “I was trying to explain that, [number one], this had happened tonight and, [number two], he had gotten away with it before.”

The police ignored Stetzer’s account of Behlmer’s violence and abuse. They conducted only the most perfunctory of investigations into Behlmer’s actions. Behlmer even hired an attorney, in anticipation of legal consequences, and was surprised that the police never questioned him again. Instead the police arrested Stetzer for operating a motor vehicle while intoxicated. She was later charged with disorderly conduct as an act of domestic violence, . . . operating a motor vehicle with a prohibited alcohol content, as a second offense, . . . and operating a motor vehicle while intoxicated, also as a second offense . . . .

Karofsky says reasonableness and imminence are central to the case and must be assessed within the context of domestic abuse.

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Personal history is particularly salient when assessing the behavior of domestic abuse victims. Hanusa framed it this way: “The question for victims of domestic violence isn’t how a reasonable person reacts in this situation. The question is given trauma that the victim of domestic violence has received, how would a reasonable domestic violence survivor respond. That’s the important question.” The violence can have widespread effects. “As with victims of terrorism or those held hostage, a battered woman’s perception of her situation and reality in general is changed and substantially altered. When this occurs, her capacity to evaluate options is diminished substantially.” For a reasonable victim of domestic violence, “[i]n situations of stress and trauma, there tends to be a narrowing or focusing on parts of the experience that the brain is appraising as really essential to survival and coping.” A domestic violence victim in survival mode will experience an “ignoring or non-processing of peripheral details.”

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Understanding the distinction between imminent and immediate is especially important when assessing the culpability of a domestic violence victim who engages in unlawful conduct to protect herself from the threat of imminent death or great bodily harm. “Imminent” does not mean that the threat or harm is occurring this moment. Rather, “imminent” means that the threat or harm is impending. “[T]he use of the word ‘immediate’ . . . obliterates the nature of the buildup of terror and fear which had been systematically created over a long period of time. ‘Imminent’ describes the situation more accurately.” Conflating the two standards leads courts to improperly blame domestic violence victims for failing to exercise proper judgment. Said differently, “the relevant question . . . concerns the relationship as a whole,” not just the most recent incident of abuse.

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The police were hardly a means of safety for a reasonable person in Stetzer’s position. Behlmer himself admitted that he had manipulated the police against Stetzer in the past. And that very night he taunted her with the threat that the police would come and “get you just like last time.” Stetzer testified that if she contacted the police, they might return her to Behlmer. Stetzer learned from past experiences that the police do not believe her reports of domestic abuse. Why would the police believe her now? Why would the police keep her safe this time? The circuit court failed to consider whether a reasonable person with Stetzer’s past experiences would believe that contacting the police would have interrupted the imminent threat. Had it done so, it would have identified reasonable doubt.

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Mystifyingly, the circuit court made no mention of the years-long history of abuse that informed Stetzer’s decision-making that night. Nor did it account for Hanusa’s testimony that a domestic violence victim, having endured years of abuse, might behave in a state of fight-or-flight, which readily explains why Stetzer would flee. Stetzer had been a victim of Behlmer’s physical abuse for years, and Behlmer’s abuse that night had ricocheted between verbal (calling her names and threatening her), to psychological (calling 911 to get her arrested), to physical (throwing her down stairs, throwing a heavy pot at her, and pounding on the truck windows). Given the history of abuse and the events that preceded her driving, Stetzer was understandably still terrified of Behlmer once she started driving. And her fear did not diminish upon pulling out of the driveway. She thought the headlights behind her were Behlmer chasing her down as he had done in the past. Stetzer had no reason to believe Behlmer was no longer a threat to her. Stetzer, and any reasonable person in her circumstances, would believe that fleeing from Behlmer was her only means of safety. The presence of a police car did not alleviate the threat Behlmer posed—his aggression continued to be dangerously impending. In other words, a reasonable doubt remained as to whether the State proved that the threat was no longer imminent.

To summarize, the majority misses the mark by adopting the circuit court’s incorrect conclusion that the State met its burden. The State’s entire case, and the circuit court’s conclusion, depended on two facts: the presence of an officer and Stetzer’s familiarity with the area. Yet a diligent examination of the record—including those two facts—reveals that the State failed to disprove Stetzer’s coercion defense. The circuit court did not apply the correct legal principles in evaluating the State’s case. Undoubtedly, Behlmer’s history of abuse, and his manipulation of law enforcement, coupled with his threat to use the police to “get” Stetzer, would cause a reasonable person in Stetzer’s circumstances to believe that seeking help from the police could catapult Stetzer back to Behlmer’s violence and abuse. And being in a familiar place would be cold comfort to anyone in Stetzer’s circumstances, given that the place was just as familiar to Behlmer, and he had followed her in the past. It was reasonable for Stetzer to believe that Behlmer’s escalating physical abuse remained dangerously impending. At minimum, a reasonable doubt remained as to whether the State showed that Behlmer was no longer coercing Stetzer. The majority adopts the circuit court’s legal error, effectively eliminating the coercion defense for a victim it was written to protect.

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