State v. Amado
| Citation | 280 A.2d 324,109 R.I. 53 |
| Decision Date | 04 August 1971 |
| Docket Number | No. 759-E,759-E |
| Court | Rhode Island Supreme Court |
| Parties | STATE v. Gertrude M. AMADO. x. &c. |
Patrolman Austin J. Westerberg has been a member of the Providence Police Department for over 20 years. At about 3 p.m. on the afternoon of Saturday, July 22, 1967, he was on duty near the City Hall when he observed the defendant's son driving an automobile the wrong way on a one-way street. The defendant was a front-seat passenger in her son's automobile. Officer Westerberg stopped the vehicle and asked the driver to produce his driver's license. The son informed the officer that he had left his license at home. The patrolman then asked the son to accompany him to a call box where the officer could contact the Registry of Motor Vehicles and determine whether the motorist had a valid operator's license. The call box is at the corner of Washington and Union Streets. The defendant expressed a wish to accompany her son but the officer told her to remain with the automobile.
As the patrolman was making his call, defendant left the car and joined her son. The Registry notified the officer that defendant's son was not a licensed driver. The defendant was asked to return to her son's automobile. She refused and became boisterous and attempted to pull her son away from the officer. Confronted with this development, the officer called police headquarters and asked for assistance.
Help came within a matter of minutes. A police sergeant arrived in a cruiser. Another officer arrived on motorcycle. A crowd began to gather and traffic began to congest. It was decided to put the son in a police van that had also responded to Westerberg's summons. As the officers attempted to place the son in the van, defendant began to shout and curse. At this point, the police changed their plan. The sergeant directed that the mother, rather than the son, be transported in the van to headquarters. As the officers attempted to carry out the sergeant's order, defendant began to flail away at them with her feet. During this episode, she kicked the motorcycle patrolman in the groin thereby knocking him to the ground. It is conceded that this officer received medical treatment and he was unable to perform his usual duties for a period of a 'few weeks.'
The defendant was tried before a Superior Court jury on an indictment which charged her with violating the provisions of G.L.1956, § 11-5-5. This statute makes it a felony for a person to knowingly and willfully strike and thereby injure a uniformed member of a police department while he is engaged in the performance of his duties. The jury returned a verdict of guilty. The trial justice denied defendant's motion for a new trial. This appeal followed.
Before us, defendant presses several exceptions. Two concern the denials of her motions for a directed verdict and a new trial. The remaining exceptions are to various rulings made by the trial justice during the course of the trial.
The defendant concedes that she kicked the officer as she was being carried into the police van but she describes her kick as merely an instinctive or reflex action generated either by the excitement of the occasion or by the pain she received when the van door shut on her legs. There was testimony, however, that when defendant kicked the motorcycle officer, she was looking directly at him.
On the state of the record, there is absolutely no need to go to any great length in discussing defendant's exceptions relating to the denial of a motion for a direction and the denial of her motion for a new trial. When considering the motion for a directed verdict, the trial justice was bound to review the evidence and the reasonable inferences flowing therefrom in the light most favorable to the state, taking care not to weigh the evidence or pass on the credibility of the witnesses. State v. Murphy, R.I., 271 A.2d 310; State v. Contreras, 105 R.I. 523, 253 A.2d 612. Here, there was evidence showing the deliberate aim of defendant's foot. The denial of her motion for a directed verdict was correct.
In considering the motion for a new trial, the trial justice was confronted with a conflicting version of what actually occurred. He believed the police. The defendant has failed to convince us that the trial justice overlooked or misconceived material evidence or that he was clearly wrong. State v. Correia, R.I., 262 A.2d 619. The defendant asserts that once she was secured in the van, she was mistreated by the police. She sought to introduce a photograph of her back and a report of her physician. They purported to show that defendant had received contusions of the head, shoulder and lower back. The purpose of this attempt was to show that the harsh treatment accorded defendant by the police caused the reflex 'kick' received by the injured officer. The trial justice refused to allow the introduction...
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