Thweatt v. Ontko

• Citation: 814 F.2d 1466
• Decision Date: 25 March 1987
• Docket Number: No. 85-1357,85-1357
• Parties: 22 Fed. R. Evid. Serv. 1319 The Reverend Richmond F. THWEATT, III, Father and Next Friend of Richmond F. Thweatt, IV, a Minor Child, Plaintiff-Appellant, v. Dr. Joseph A. ONTKO, an Individual, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1466

814 F.2d 1466

22 Fed. R. Evid. Serv. 1319

The Reverend Richmond F. THWEATT, III, Father and Next

Friend of Richmond F. Thweatt, IV, a Minor Child, Plaintiff-Appellant, v. Dr. Joseph A. ONTKO, an Individual, Defendant-Appellee.

No. 85-1357.

United States Court of Appeals, Tenth Circuit.

March 25, 1987.

Charles J. Watts of Looney, Nichols, Johnson & Hayes, Oklahoma City, Okl., and J.W. Coyle, III, of Hughes & Nelson, Oklahoma City, Okl., on the briefs, for plaintiff-appellant.

A.T. Elder, Jr., of Stewart & Elder, Oklahoma City, Okl., on the brief, for defendant-appellee.

Before McKAY, SEYMOUR and TACHA, Circuit Judges.

McKAY, Circuit Judge.

This appeal comes from a jury verdict for defendant Dr. Joseph A. Ontko and against plaintiff Rev. Richmond F. Thweatt, III. Rev. Thweatt brought this negligence action to recover for shooting injuries suffered by his 13-year-old son, Richmond, when Richmond, with his uncle and cousin, engaged in a "night patrol" on and around Dr. Ontko's property. Rev. Thweatt now appeals, submitting four trial court actions for review.

I.

Rev. Thweatt claims that the district court erred when it refused his motion for a directed verdict. Essentially, Rev. Thweatt argues that Dr. Ontko's violation of Oklahoma City, Okla. Code Sec. 21-48 ¹ is negligence per se, and, therefore, the trial court should have granted Rev. Thweatt's motion for a directed verdict. Dr. Ontko admits that he fired his shotgun while standing next to his own residence and within 600 feet of his neighbor's house, but alleges that he should not be liable for any resulting injuries because he acted in self-defense and defense of others.

As a municipality, Oklahoma City has legitimate authority to pass ordinances promoting the public health, safety, or general welfare of that community. Spartan's Indus., Inc. v. Oklahoma City, 498 P.2d 399, 401 (Okla.1972); King v. City of Tulsa, 415 P.2d 606, 611 (Okla.Crim.App.1966). Under certain conditions, violation of those ordinances may be considered negligence per se. Boyles v. Oklahoma Natural Gas Co., 619 P.2d 613, 618 (Okla.1980). However, under Oklahoma law, violation of a statute or ordinance does not create automatic liability. Pepsi-Cola Bottling Co. v. Von Brady, 386 P.2d 993, 997 (Okla.1963); Elam v. Loyd, 201 Okla. 222, 223, 204 P.2d 280, 282 (1949). Furthermore,

"[u]nder our national and state organizations a municipal city government is only possible as an administrative agency of the state having that measure of local self-government granted by the supreme sovereign power, and all local laws of such municipality must be consistent with our fundamental principle of government, and always subject to the control of the state."

City of Tulsa v. Taylor, 555 P.2d 885, 888 (Okla.Ct.App.1976) (quoting City of Sapulpa v. Land, 101 Okla. 22, 28, 223 P. 640, 645 (1924)). Benefits granted by state statutes are statewide in their effect and cannot be taken away by the actions of a municipality. Id.

Under Okla.Stat. tit. 76 Sec. 9 (1976), ² a party may use necessary force to protect himself, any relative or guest. Furthermore, a party found to be using necessary force will not be liable for the resulting injuries. Foster v. Emery, 495 P.2d 390, 391 (Okla.1972) (defendant not liable for night shooting death of a 15-year-old male trespasser in a residential area of Oklahoma City). Therefore, while neither party disputes that Dr. Ontko violated the Oklahoma City ordinance when he fired his shotgun, Dr. Ontko has a valid right to claim self-defense and defense of others. Specifically, Dr. Ontko claims that he fired in warning, after several male voices were heard, yelling and taunting in a threatening manner, from the densely wooded darkness surrounding his home. Richmond sustained injuries, the most significant of which were a single pellet shot lodged in his neck and another pellet shot lodged in his hand. Record, vol. 5, at 100, 134. While many matters surrounding the incident are disputed, "resolution of ... conflicts, and the question of the credibility of witnesses, are of course matters peculiarly for jury determination." Foster, 495 P.2d at 391. Thus, Dr. Ontko was entitled to have the jury determine whether his claimed acts of self-defense and defense of others were necessary despite the violation of the Oklahoma City ordinance, and a directed verdict was properly refused.

II.

Rev. Thweatt claims that, even if Dr. Ontko may raise the issue of self-defense, the trial court's instructions on that matter were erroneous. When instructing on self-defense, the trial court took language directly from Okla.Stat. tit. 21, Sec. 643 (1983), and stated:

[I]t is not unlawful to use force against another in self-defense or in defense of property:

When committed either by the party about to be injured, or by any other person in his aid or defense, in preventing or attempting to prevent an offense against his person, or any trespass or other unlawful interference with real or personal property in his lawful possession; provided the force or violence used is not more than sufficient to prevent such offense.

Record, vol. 1, at 74 (emphasis added). The court also told the jury: "[Y]ou are instructed that failure to perform one's duty to exercise ordinary care means failure to exercise that degree of care and caution that a reasonably prudent person would exercise under all the circumstances." Id.

Rev. Thweatt objected to the jury instructions, claiming that they should have gone further. Specifically, Rev. Thweatt contends that the jury should have been instructed that, before a defendant can resort to deadly force, he or she must be confronted with such force. Rev. Thweatt suggests that failure to provide this instruction deprives him of an opportunity to present a decisive issue framed by the pleadings and the evidence.

Oklahoma courts have held that jury instructions are not objectionable if, when considered as a whole, they adequately state the law. Greenland v. Gilliam, 206 Okla. 85, 88, 241 P.2d 384, 388 (1952). Furthermore, even though each party is entitled to his theory of the case, neither is necessarily entitled to jury instructions which create a special emphasis upon an aspect of the evidence already encompassed by existing instructions. Dippel v. Hargrave, 206 Okla. 26, 27, 240 P.2d 1070, 1072 (Okla.1952). The issue in this case is whether the instructions given by the court adequately state the law of Oklahoma on the use of a firearm in defense of self, property or others.

Admittedly, use of a firearm is not justified by a mere technical trespass upon the property of another. See Powell v. State, 53 Okla.Crim. 366, 12 P.2d 247 (1932) (two boys shot after leaving defendant's farm gate open); Annotation, Civil Liability for Use of Firearm in Defense of Habitation or Property, 100 A.L.R.2d 1021, 1025 (1965); cf. Townley v. State, 355 P.2d 420 (Okla.Crim.App.1960) (victim shot while allegedly attempting to pull defendant from his car). However, "a property owner may shoot with impunity where the incursion upon his property is also attended by a threat of personal harm to himself, his family, or others he is entitled to defend." Annotation, 100 A.L.R.2d at 1024 (footnote omitted); see also Okla.Stat. tit. 76, Sec. 9 (1976). Furthermore, Oklahoma law uses a standard based not upon whether a party was confronted with force, but upon whether the force was "more than sufficient to prevent" an offense. Okla.Stat. tit. 21, Sec. 643(3). This standard is considerably lower than that proposed by Rev. Thweatt.

In deciding whether the use of force is appropriate, " 'the precise interest invaded by the intruder and defended with the firearm' " has significant importance. Foster, 495 P.2d at 394 (quoting Annotation, 100 A.L.R.2d at 1025). The Foster court found that "the evidence justifies a jury conclusion that the defendant ... reasonably fear[ed] more than a 'simple trespass on land.' " 495 P.2d at 394. Similarly, the jury here received evidence to show that Dr. Ontko believed the threat consisted of more than a trespass to property and that he fired his shots in warning in self-defense and in defense of others. Okla.Stat. tit. 21, Sec. 643, is applicable to all degrees of such force. The instructions given directed the attention of the jury to a determination of whether Dr. Ontko used only force sufficient to prevent an offense against him or his guests. Additional instructions on deadly force are not mandated, and their omission does not constitute deprivation of the right to present a decisive issue in the case.

III.

Rev. Thweatt also challenges the court's decision to exclude testimony of four rebuttal witnesses. After a misunderstanding occurred over the court's time schedule, Rev. Thweatt made a timely offer of proof showing the proffered testimony of the witnesses. The first witness Rev. Thweatt wanted to call was an expert in firearms who would have testified that, given the shot pattern, Dr. Ontko could not have fired into the air. Additionally, Rev. Thweatt wanted to call a party guest who would testify that he was not in fear of his own life and who would describe what he observed among the other guests. Finally, Rev. Thweatt wished to call two police officers who would have denied that they asked whether "it could have been the Edwards and the Vietnamese" after arriving at the Ontko's house the night of this incident. Record, vol. 6, at 157. The police officers' testimony would have been offered to challenge the veracity of Mrs. Ontko and to indicate that the Ontkos knew or had reason to believe it was their neighbors out in the woods.

This evidence was clearly rebuttal evidence, but the trial court excluded the testimony upon other grounds; that is, the witnesses were not available in time to permit the case to go forward according to the preset court schedule. On the first day of trial, the court made an announcement regarding the next day's...