Rich v. Cooper

• Decision Date: 10 April 1963
• Citation: 234 Or. 300,76 Adv.Sh. 515,380 P.2d 613
• Parties: James RICH, Respondent, v. Donald R. COOPER, Appellant.
• Court: Oregon Supreme Court

Page 613

380 P.2d 613

234 Or. 300

James RICH, Respondent, v. Donald R. COOPER, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Feb. 5, 1963.

Decided April 10, 1963.

Charles A. Phipps, The Dalles, argued the cause for appellant. With him on the briefs were Phipps, Phipps & Dunn, The Dalles.

Thomas H. Tongue, Portland, argued the cause for respondent. With him on the brief were William H. Dale, Jr., Charles J. Strader and Hicks, Davis, Tongue & Dale, Portland.

Before McALLISTER, C. J., and PERRY, O'CONNELL, GOODWIN and LUSK, JJ.

O'CONNELL, Justice.

This is an action for assault and battery alleged to have been committed by defendant, a police officer, in arresting plaintiff. The jury returned a verdict for defendant. Judgment was entered on the verdict. Upon plaintiff's motion the trial court granted a new trial on the ground that the court erred in instructing the jury that plaintiff's character, reputation and habit for turbulence and aggressiveness could be considered on the question of whether plaintiff forcibly resisted defendant's efforts to arrest him. Defendant appeals from the order granting a new trial.

The facts are as follows. Defendant, a police officer of the city of Hood River, observed plaintiff run through a stop sign at one of the street intersections in Hood River at about 7:25 p. m. Defendant pursued plaintiff, sounding his siren and flashing his red light. Plaintiff, being near his home at the time, pulled over to the curb in front of his house. Defendant parked the police car behind plaintiff's automobile, got out, and, after conversing with plaintiff for awhile, concluded that plaintiff had been drinking. Defendant testified that he asked plaintiff to walk a line in the sidewalk in front of the steps leading up to plaintiff's house and plaintiff was not able to walk in a straight line. Defendant testified that he informed plaintiff that he was under arrest for driving under the influence of alcohol; that he took plaintiff by the arm and propelled him eastwardly along the sidewalk and across a parking area down to the curb near the rear door of the police car; that he attempted to put plaintiff in the back seat of the police car but plaintiff resisted, whereupon defendant struck plaintiff three times on the head with a 'sap.' Defendant also averred that plaintiff then lunged at him and in the struggle that followed defendant forced plaintiff face down on the pavement of a driveway near the police car. In the course of the struggle plaintiff dropped some light bulbs which he was carrying. One shattered on the driveway. According to defendant's version of the episode he eventually got plaintiff into the police car and drove him to the police station where it was discovered that plaintiff's face was covered with blood. Defendant took plaintiff to the hospital for treatment. Thereafter, they returned to the police station where plaintiff was 'booked' on a charge of driving under the influence of liquor. There was evidence that just prior to the incident plaintiff had drunk several vodka highballs at the Hood River Elks Club. After leaving the Elks Club plaintiff stopped at the liquor store and purchased a fifth of vodka.

Plaintiff denied that he was under the influence of alcohol when he left the Elks Club. One witness supported this assertion and two witnesses were of the opinion that he was not under the influence immediately after the arrest. Plaintiff contends that defendant never told him that he was under arrest; that defendant ordered plaintiff to walk a straight line and that the latter asked why he should have to do so because he was home. Plaintiff testified that when defendant told him to get into the police car plaintiff said, 'Let's talk this over. What is the matter with you?' At this point, defendant allegedly hit him three times on the head with the 'sap' without provocation. That was the last thing that plaintiff remembered until he found himself face downward on the street with his hands over his head as defendant beat him on his head with the 'sap.' Plaintiff testified that he said, 'Jesus Christ, Mister, cut it out,' and that he did not remember anything thereafter until he regained consciousness in the hospital.

Plaintiff moved for a new trial, assigning five separate grounds in support of the motion. The first of these grounds is that the court erred in giving the following instruction:

'There has been testimony in this case pertaining to the character, reputation, and habit of plaintiff for turbulence and aggressiveness where alleged intoxication is concerned. If you find from a preponderance of the evidence that plaintiff had such character, reputation, and habit under those circumstances, it is immaterial whether the defendant knew about it at the time of the arrest. That type of evidence may be considered by you in determining whether or not plaintiff forcibly resisted defendant's efforts to arrest him as claimed by defendant.'

Defendant contends that the instruction correctly stated the applicable law.

Generally, evidence of a person's character is not admissible to prove that he engaged in certain conduct on a particular occasion. ¹ To this general rule there are certain exceptions, one of which allows such evidence to be introduced in an action for assault and battery where self-defense is pleaded by the defendant. When defendant has laid a foundation for his claim of self-defense, he may introduce evidence of the plaintiff's reputation for turbulence and violence for the purpose of showing that the plaintiff was the first aggressor. ²

Under the foregoing circumstances the evidence of the plaintiff's reputation is admissible even though the defendant had no knowledge of it at the time of the assault. Defendant contends that a police officer who injures a person resisting arrest occupies the same position as a defendant who claims self-defense. It is argued that the privilege of a private citizen to use force to protect oneself when assaulted is not essentially different from the duty of a police officer to use force necessary to effect an arrest and that the plaintiff's reputation for turbulence and violence is equally relevant in both situations.

The requirement of relevancy is satisfied, but relevancy is not the only factor determining the admissibility of evidence of reputation. Under the general rule such evidence is excluded because its relevancy is outweighed by the harm which is likely to result from its use. As Wigmore puts it, 'a doctrine of Auxiliary Policy * * * operates to exclude what is relevant,--the policy of avoiding the uncontrollable and undue prejudice, and possible unjust condemnation, which such evidence might induce.' ³ I Wigmore, Evidence § 56, p. 454 (3d ed. 1940). However, the evidence is admissible as an exception to the general rule if the danger of the prejudicial use of the evidence is outweighed by other considerations. For example, an exception exists where the defendant is charged with murder and alleges that he was forced to kill in self-defense. Evidence that the deceased was a person of violent disposition would be relevant to show that he was the first aggressor. It is felt that defendant should be permitted to show that he acted to protect himself from a person who had habits of violence where his life or liberty is at stake. The exception was extended to civil cases of assault, although the reason for permitting defendant to explain his conduct in such cases is less compelling. The reason for extending the exception to civil actions for assault and battery is not adequately explained. McCormick, Evidence § 159 p. 339 (1954) states that 'probably there is in these cases a special need even beyond that in most cases of charges of crime in civil actions, for knowing the dispositions of the parties.' Perhaps the exception was extended to civil cases of assault and battery not so much as a matter of need but rather as a way of giving recognition to the strong tradition that a man has a right to use force before he retreats from an aggressor. If we are to extend the exception further to embrace cases such as we have before us, we must find some equivalent consideration of policy warranting the use of reputation evidence.

The evidence of plaintiff's reputation is not sought to be used to show that he was the first aggressor and that defendant was forced to act in the face of danger. Defendant wishes to use the evidence to support an inference that a man is more likely to resist arrest when he has a violent disposition. In both cases, the defendant seeks to use the evidence to justify his conduct in injuring the plaintiff; in one case to show that he was justified in using force to defend himself, and in the other case to show that he was justified in overcoming resistance to arrest. The exception in self-defense cases might be rested upon the ground suggested above, as we have suggested. However, the question here is not whether the self-defense exception is sound but whether we should add another exception to the exclusionary rule in cases involving resistance to arrest. We see no reason for doing so. It would be helpful to police officers, in defending charges of injury incident to an arrest, if they were permitted to use reputation evidence to support the contention that the arrest was resisted. And it may be said that a police officer should not be inhibited in carrying out his duty by the prospect of obstacles of proof. But we see no special need for the exception in spite of this policy consideration. As we shall point out below, a police officer who makes an arrest has the benefit of a presumption that he acted in good faith in determining the amount of force necessary to make the arrest. This evidentiary aid is sufficient to serve the policy noted.

We hold that evidence of reputation was not admissible in the present case and that the court correctly granted the motion for...