City of Seattle v. Arensmeyer, 794--I

• Decision Date: 20 December 1971
• Docket Number: No. 794--I,794--I
• Citation: 491 P.2d 1305,6 Wn.App. 116
• Court: Washington Court of Appeals
• Parties: CITY OF SEATTLE, Respondent, v. William Allen ARENSMEYER, Appellant.

Page 116

6 Wn.App. 116

491 P.2d 1305

CITY OF SEATTLE, Respondent, v. William Allen ARENSMEYER, Appellant.

No. 794--I.

Court of Appeals of Washington, Division 1, Panel One.

Dec. 20, 1971.

Phil Mahoney, Roderick D. Dimoff, Seattle, for appellant.

A. L. Newbould, Corp. Counsel, Myron L. Cornelius, J. Roger Nowell, Asst. Corp. Counsels, Seattle, for respondent.

WILLIAMS, Judge.

The defendant, William Allen Arensmeyer, was charged in the municipal court of Seattle with wilfully opposing, hindering or delaying a member of the police force in the performance of his official duty. After trial and conviction the defendant appealed to the superior court where the case was tried de novo to a jury, again resulting in his conviction. His appeal to this court followed.

The facts essential to an understanding of the issues on appeal are these: February 17, 1970, appellant, who was then working for the city as a surveyor, was traveling in a truck with other members of a city surveying crew. As the truck approached the Federal Courthouse in downtown Seattle, appellant asked to be and was let out. There was a large crowd of people engaged in a demonstration in the vicinity of the courthouse. Appellant became involved with the police who were in attendance--just how is disputed--and was arrested.

For the city, the key witness was a police officer who testified that his squad was ordered to move the demonstrators back. He further testified that while doing so appellant, facing in the direction of the officer, chanted, 'Get the pig, get the pig, get the pig.' The officer went over and stood in front of appellant in a port-arms position and ordered him to move out of the area. Appellant thereupon jumped at the officer, grabbed his baton and swung at his face. Another officer then hit appellant who went to the ground. The fellow officer testified that the officer and appellant were struggling when he first saw them and that he was the one who struck appellant. A police sergeant testified that he saw one of the officers holding his baton at a semi-port position with a man holding on to the central part of it, that the two were struggling when another officer came up from the right rear and struck the man, knocking him down.

On the other hand, appellant testified that when the policemen began to come down the street he turned and started to walk away. He was poked in the back and when he turned around to ask why, he was hit on the head and remembers little from then on. He denied the truth of the officers' testimony. Two defense witnesses who were at the demonstration testified that they saw appellant thrown against a pillar by policemen. Another witness, a medical doctor and professor of medicine at the University of Washington who was serving as a corpsman at the demonstration, testified that he saw appellant grimacing with pain from a broken forearm. In his opinion, the blow causing the break was considerable. Appellant also introduced evidence that he was a pacifist, had a good character, and that he sustained broken ribs, loose teeth, and large bruises from the affair.

The principal question on this appeal, contained in 25 of 31 assignments of error, is whether the trial was fair and impartial in view of the statements of the trial judge. Some statements were made in the presence of the jury and others when the jury was retired.

To place the many comments, admonitions, and statements made by the trial judge during the course of the 3-day trial in their proper context would require republication of a greater part of the statement of facts. It is evident, however, from a reading of the record, particularly those portions which report the proceedings had in the absence of the jury, that the court intended from the outset to limit the trial to the narrow issue of whether or not appellant had hindered a police officer in the course of his duty. It is equally apparent that one of the main lines of appellant's defense was to show that the police hit and beat the demonstrators, including appellant, without provocation. An example of the opposing positions is the following which occurred while the appellant, on direct examination, was first describing the events:

I turned back around and proceeded up back this direction. I thought a couple time about running, because there were people getting beat up on, and there was quite a bit of violence. THE COURT: The jury will strike and disregard that as having nothing to do with this case, nothing at all to do with this case. MR. MAHONEY: I think it goes to show the state of mind. THE COURT: I have told you before we are not trying the Police Department or the Police Review Board. The thing about this case is resisting an order, you understand? Sometimes in the course of denying motions it may seem to you I am commenting on the evidence. I am not commenting to counsel. I am merely explaining what I have stated to counsel many times before.

Following this, the appellant testified to retreating, being poked in the back and then being struck down.

There was a brisk exchange between the court and counsel outside the presence of the jury over a defense offer of proof. The witness was the corpsman who had attended appellant following the incident. It is:

THE COURT: All right. Come on, Doctor, back on the witness stand. All right, ask him the question you want to ask him. Q (By Mr. Mahoney) Doctor, on this particular day in question at this demonstration, do you know of your personal knowledge, know whether or not police officers struck without provocation other persons there at that demonstration? THE COURT: Wait a minute--are you objecting? MR. CORNELIUS: Yes, your Honor. I would object. THE COURT: Sustained. I don't know what that has to do with it, and how can he tell whether there is provocation?

Another significant episode occurred during final argument for the defense. We open the quotation as defense counsel is addressing the jury:

Now, there is another factor which I think we really need to consider, and we consider this in examining the officers' reactions to things. These officers that were down at the Olympic garage weren't even rookie cops. All 20 of them were taken right straight out of the Academy. That was their assignment then. They were training in the Police Academy, and Officer Sorenson was their training officer in the Academy, and the only man with any experience in the crowd of officers that were there.

Now, it is easy to see how you may have a bunch of officers right out of the Academy that may not react the same-- THE COURT: Just a minute--that isn't the testimony. They both testified as to how long they were police officers, and they had actually been in the Academy at this occurrence, but they had been police officers before that. Now, don't give the impression they were just policemen that were put in the Academy. Each of them testified, and the evidence indicates how long they had been police officers.

Proceed.

In studying each of the statements of the court in context, we have remembered that a trial court may not comment upon the evidence, Washington State Constitution article 4, section 16, and that a...