State v. Castle
| Decision Date | 02 September 1980 |
| Docket Number | No. CRIM,CRIM |
| Parties | STATE of Oregon, Respondent, v. David John CASTLE, Appellant. 79-717 to CRIM 79-719; CA 17360. |
| Court | Oregon Court of Appeals |
Robert S. Gardner, Corvallis, argued the cause for appellant. On the brief were Ringo, Walton, Eves & Gardner, and J. Britton Conroy, Corvallis.
Duane W. Halbleib, Deputy Dist. Atty., Dallas, argued the cause for respondent. With him on the brief was John L. Snyder, Dist. Atty., Dallas.
Before SCHWAB, C. J., and THORNTON and BUTTLER, JJ.
Defendant appeals from his conviction by a jury on charges of resisting arrest, criminal mischief in the second degree, and assault in the fourth degree against a police officer. The trial court found the criminal mischief and assault charges merged into the resisting arrest charge for sentencing purposes and sentenced defendant to ten days in jail, two years' probation and restitution of $109.20 for damage defendant caused to the police car.
Defendant raises four assignments of error:
1) The trial court erred in permitting the state to cross-examine defendant on a prior conviction for failure to perform the duties of a person involved in an accident, a traffic infraction.
2) The trial court called attention to defendant's alleged drunkenness by instructing the jury on the charge of driving under the influence of intoxicants when that charge against defendant had been dismissed.
3) The trial court failed to instruct the jury on defendant's theory of self-defense.
4) The court erred in instructing the jury on the crime of criminal mischief in the third degree (a class C misdemeanor), when defendant was charged with, convicted of and a verdict received on the charge of criminal mischief in the second degree (a class A misdemeanor).
The essential facts are as follows:
Defendant was flagged down for speeding. He was near home by the time the officer signaled defendant to stop. Instead of stopping, defendant pulled into his driveway, and, according to the arresting officer's testimony, defendant traded places in the auto with his wife. Defendant and his wife testified that she was driving. A dispute over this fact arose and defendant became belligerent. According to the officer, defendant threatened him when the officer told defendant he was under arrest. Defendant apparently acquiesced and allowed himself to be handcuffed with his hands behind his back. Defendant asked that the cuffs be loosened and the officer told him he would do so once defendant was in the patrol car. At this point, the evidence diverges drastically. Defendant and his parents, who witnessed the events, testified that the officer struck defendant first on the head with his nightstick. Thereafter, defendant stated he remembered very little, but his parents testified that the officer delivered repeated blows to defendant's head, shoulders and legs, eventually causing him to fall to the ground in convulsions. Defendant's wife testified that defendant kicked the officer first, but the balance of her story, insofar as she remembers, comports with those of defendant and his parents. The officer testified that defendant kicked him several times in the groin and legs before he struck defendant with his flashlight. Defendant continued to struggle and the officer managed to bring defendant down by means of a blow to the lower legs with his nightstick.
A second officer arrived at this point and helped place defendant in the rear of a patrol car. En route to the jail, the officers stopped to subdue defendant, who damaged the rear door of the vehicle by kicking it. At that time defendant was observed bleeding about the head. He was then taken to the hospital and then released to jail. There was no medical evidence submitted by either side.
Turning first to defendant's third assignment-failure to give the self-defense instruction 1- we conclude that refusing to instruct the jury as to defendant's right to use force to defend himself against alleged unlawful force used by the officer in making the arrest was reversible error. The trial court instructed the jury on the elements of the crimes of resisting arrest and assault in the fourth degree. ORS 162.315, 163.160. He further instructed, with respect to resisting arrest, that a person may not use force against an arresting officer whether or not the officer has lawful authority to make the arrest (ORS 161.260) and that, in effectuating an arrest, an officer may lawfully use reasonable physical force. (ORS 161.235(1).) No further instructions were given.
In most cases a person is not entitled to resist arrest by a police officer, although the person knows himself to be innocent of all charges. If a person physically resists, the arresting officer is authorized to use reasonable force necessary to overcome the resistance. Where, however, the officer uses unreasonable force to arrest a person who is offering no resistance, that person is entitled to defend himself. State v. Crane, 46 Or.App. 547, 552-53, 612 P.2d 735 (1980). 2
A party is entitled to have the jury instructed on the law which supports his theory of the case where there is evidence to support that theory and the party submits an instruction that correctly states the law. State v. McBride, 287 Or. 315, 319, 599 P.2d 449 (1980). The requested instruction in this case is based directly upon ORS 161.209 which authorizes the use of force in self-defense. There was evidence here from which the jury might have concluded that the officer used excessive force in getting the defendant into the patrol car against which defendant was entitled to defend himself. 3 From the instructions given, the jury could have concluded that defendant was resisting arrest even though they found that the officer was the aggressor and used unreasonable or unnecessary force. The defense of self-defense, if established, would have vitiated the resisting arrest charge and would have provided a defense to the assault charge. It follows that failure to give the requested instruction was prejudicial error.
Turning to defendant's remaining assignments of error, we conclude that it was error to permit the state to cross-examine defendant on his conviction for failure to perform the duties of a driver involved in an accident which results only in property damage, a traffic infraction. ORS 484.365(3)(b). On cross-examination, defendant was asked if he had ever been convicted of a crime. He mentioned a juvenile conviction for burglary and a reckless driving conviction. (Reckless driving is a class B misdemeanor-ORS 487.550(2).) Defendant stated that he could not remember the date of this latter conviction, and the district attorney-ostensibly to refresh defendant's memory-asked him, "How about a hit and run and failure to perform the duties of a driver on November 13, 1978?"
ORS 484.400 prohibits impeachment of a defendant's character by reference to a traffic infraction. 4 The state contends that the evidence was nevertheless proper on two grounds: 1) that defendant, by testifying that original charges of DUII made in this proceeding had been dismissed, opened the door to cross-examination on his driving record, and 2) that the question was necessary to correct the jury's impression that defendant had been convicted of the crime of reckless driving.
As to the first point, we fail to see any relevance the prior infraction would have to dismissal of the DUII charge in this case (see ORS 136.643), 5 or to the remaining charges. The evidence goes simply to impeach defendant's character, and the question was therefore improper. Secondly, it appears to us that, rather than tending to correct a misimpression on the jury's part, the question left the jury with the impression that defendant was convicted of the crime of hit and run. It was never made clear that the hit and run here was an infraction, not a crime. Moreover, the distinction might well have been lost on the jury. Defendant obviously could not be prevented from inadvertently impeaching himself, but the state, however benevolent its intentions, may not resort to improper means to correct the error.
Defendant next contends that the court erred in giving an instruction 6 to the effect that it is not a ...
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