Heichelbech v. State, 470S74
| Decision Date | 14 April 1972 |
| Docket Number | No. 470S74,470S74 |
| Citation | 258 Ind. 334,281 N.E.2d 102 |
| Parties | Roman HEICHELBECH, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Arthur C. Nordhoff, Jr., Jasper, for appellant.
Theodore L. Sendak, Atty. Gen., Robert A. Zaban, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted in a trial by jury of committing bodily injury upon a police officer while resisting arrest. (Acts of 1929, ch. 101, § 1; 1963, ch. 177, § 1; 1969 Supp. Burns Ind.Stat.Ann. § 10--1005, IC 1971, 35-- 21--4--1). He was sentenced to imprisonment for not less than one nor more than five years.
This appeal is predicated upon three alleged errors:
(1) Refusal to give Defendant's tendered instruction number 2.
(2) Overruling of Defendant's motion to strike entire testimony of the prosecuting witness, who was the assaulted police officer.
(3) Overruling the Defendant's motion for a directed verdict.
The evidence, viewed most favorably to the State, discloses that on the date of the offense, the officer was driving south on routine patrol in or near the city of Jasper. He had received a report from his command post that the defendant was intoxicated and driving a motor vehicle north on the same road. Upon meeting the defendant, the officer turned his vehicle around and followed him. There were two other vehicles between the defendant and the officer and several other persons in the defendant's vehicle, but the officer saw that the defendant was the operator. Defendant turned left into an automobile service station, and the officer followed but was delayed briefly by reason of oncoming traffic. When the officer arrived at the service station and parked his patrol car, the defendant's vehicle was stopped at a fuel pump and the defendant was standing nearby. The officer approached and asked the defendant for his driver's license, which he produced. There was a strong odor of alcohol upon his breath. Defendant then asked his mother, who was a passenger in his automobile, to get out. The officer then had the defendant perform two simple physical feats, being tests to indicate sobriety or intoxication by displaying the degree of coordination possessed by the performer. Defendant made no ojbection to the taking of such tests, but his performance indicated that he was intoxicated; whereupon the officer took out his handcuffs, and told him he was under arrest. Seing the handcuffs, the defendant said 'You're not putting those on me.' At this point, the defendant's mother requested the officer to merely give him a ticket. The officer declined and ordered the defendant to get into the patrol car, which he did, without being handcuffed. As the officer started to drive away, the defendant asked where they were going, and the officer replied that they were going either to the state police post for a breathalizer test or directly to jail. Defendant said that he would not accommodate the officer and that he would have to use force. Defendant then got out of the patrol car and went inside the service station office, and the officer followed. Defendant's mother was in the office, and when the officer attempted to take hold of the defendant, he used his mother as a shield, placing her between himself and the officer and pushing her in whichever direction the officer reached. Ultimately, the officer, with his nightstick in his right hand, got hold of defendant with his left hand, and the defendant grabbed the end of the nightstick. Up to this point, both prior to and during the scuffle, the officer warned the defendant several times of the consequences of his resisting arrest, and the defendant replied each time that if he wanted to arrest him he would have to use force. The officer kicked the defendant in an effort to compel him to let loose of the nightstick; and the defendant grabbed the officer around the legs and shoved him backwards. During the struggle, the plaintiff was struck several severe blows on his head with the nightstick, and the parties fell through a glass door, and the officer was cut. Both received serious injuries. With the defendant only semi-conscious, the officer still was unable to get handcuffs on him because of interference from the defendant's mother. Ultimately he radioed for help and completed the arrest only with the assistance of another officer.
(1) Defendant's tendered instruction number 2 was as follows:
'If you find from the evidence that Joseph Rhoades bore malice toward Roman Heichelbech, at the time of the alleged attempt to arrest, and that said Roman Heichelbech only tried to quiet said Joseph Rhoades, and further that the said Joseph Rhoades became violently angry and kicked defendant and struck defendant in and on defendant's head with a blunt instrument to such an extent as to fall on his face and need hospital or doctor's immediate aid, you may take such act of said Joseph Rhoades into consideration in determining whether said Joseph Rhoades bore malice toward Roman Heichelbech, if you find that said Joseph Rhoades attacked Roman Heichelbech without probable cause and with great violence.'
Being unable to understand this instruction, we assume that the trial judge encountered the same difficulty. The giving of such a garbled and unintelligible instruction could not be of assistance to the jury in its proper deliberation and was very likely to confuse them. A tendered instruction which the court itself cannot understand and properly relate to the law and the evidence of the case ought not to be given.
Additionally, if we were to speculate upon the meaning of the tendered instruction and conclude that it was an attempt to advise the jury that if it found that the officer had malice towards the defendant, it could take that fact into account, we would, nevertheless, hold that it was properly refused. The defendant was entitled to resist the arrest, only if the officer had no right to arrest. Am.Jur.2d, Criminal Law § 94; and recent cases have held that even then he may, nevertheless, not be entitled to use force. State v. Koonce, 89 N.J.Super. 169, 214 A.2d 428. Clearly, if the arrest was lawful, the accused should not have resisted, regardless of his assessment of the arresting officer's personal feelings and motives. Malice might cause one to use more force than was necessary, but that is not the issue here. The tendered instruction, therefore, was not applicable to the law in evidence in the case and would therefore have been properly refused. Finton v. State (1963), 244 Ind. 396, 193 N.E.2d 134; Nix v. State (1960), 240 Ind. 392, 166 N.E.2d 326; Kennedy v. State (1935), 209 Ind. 287, 196 N.E. 316.
(2) At the close of the officer's testimony, the defendant moved to strike his entire testimony by reason of his failure to give a 'Miranda warning' prior to the aforementioned sobriety test. Defendant contends that the arrest was predicated upon self-incriminating evidence thusly illegally obtained and cites Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 and Spitler v. State (1943), 221 Ind. 107, 46 N.E.2d 591. In Spitler (supra) the court found that the appellant had waived any objection to submitting to a drunkometer test and that the results were therefore admissible into evidence. The court did state that Appellant had been told, prior to the test, that he had a constitutional right to refuse. This case, however, does not stand as authority for the proposition that such a warning must be given prior to testing. More recently, in Wells v. State (1959), 239 Ind. 415, 158 N.E.2d 256, we held:
'The law presumes (subject to proof to the contrary) that a consent to a physical examination or to make a confession is 'freely and knowingly' given even though the person giving such consent is intoxicated.'
We acknowledge that Miranda v. Arizona (supra) would override the foregoing statement insofar as confessions are concerned. It specifically precludes the admission into evidence of a...
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