State v. Contreras, 266-E

• Decision Date: 14 May 1969
• Docket Number: No. 266-E,266-E
• Citation: 105 R.I. 523,253 A.2d 612
• Parties: STATE v. Louis CONTREAS et al. x.
• Court: Rhode Island Supreme Court

Page 612

253 A.2d 612

105 R.I. 523

STATE v. Louis CONTREAS et al.

No. 266-Ex.

Supreme Court of Rhode Island.

May 14, 1969.

Herbert F. DeSimone, Atty. Gen., Luc R. LaBrosse, Special Asst. Atty. Gen., for plaintiff

Umsted & Going, Joseph B. Going, Newport, for defendants.

OPINION

JOSLIN, Justice.

Louis and John Contreras, brothers, were tried and convicted before a judge and jury in the superior court on a joint indictment charging a violation of G.L. 1956, § 11-5-5, as amended. Specifically, the was that they knowingly and wilfully struck a uniformed member of the Newport police department, causing him bodily injury, and that the officer was then engaged in the performance of his duty. The case is here on the defendants' exceptions to the denials of their motions for directed verdicts and for new trials as well as to various rulings made during the course of the trial.

The essential facts may be briefly stated. At about 1:30 on the morning of August 16, 1966, the two defendants were at or near the corner of Thames and Church Streets in Newport when they were arrested and taken to the police station by officer Burns, a Newport police officer, who was in uniform and on duty. While this much is agreed upon, all other material facts are more or less in dispute. More particularly, there is a dispute as to whether defendant John punched the arresting officer in the chest, whether defendant Louis grabbed him at the shoulder and hit him in the back either with his fists or with a nightstick or with both, and whether the grabbing and those blows or strikings or any of them caused bodily injuries. While each defendant appears to deny striking the officer, they do not seriously question either that the evidence thereon was in substantial conflict or that different minds could naturally and fairly resolve those conflicts differently. For purposes of the directed verdict and the new trial issues, therefore, the alleged strikings may be conceded, and in the light of that concession the nub of the cases is whether or not those strikings caused bodily injuries. Proof thereof was, of course, essential to establishing guilt of the offenses charged, and if defendants are to prevail on either the directed verdict or the new trial issues, it must be because the state did not prove that any bodily injuries were caused by the strikings.

We look, therefore, to the record in order to ascertain what it discloses concerning bodily injuries. What we find is not very revealing, for the evidence on this question is at best sketchy and sparse, and much of what little that can be found is in conflict. The only sources are in the testimony of the arresting officer himself and in that of Dr. Tan, the physician on duty at the Newport hospital, who examined the officer about two hours after defendants were arrested.

Officer Burns testified that he took defendants to the station house following their arrest. On arrival he told Sergeant Hopkins, the officer in charge, what had happened, prepared a written report of the incidents, and booked the defendants. These events did not necessarily take place in sequence and probably each to some extent overlapped the other. In any event, when all were completed officer Burns went to the Newport hospital for a physical examination. What prompted the visit was an aching back. That condition was noted by the officer in his written report and commented upon by him to Sergeant Hopkins. He said nothing, however, either to the sergeant or in his report about any aches or pains in the chest or in the shoulder, and his only oral or written complaint then, or at any other time, was that his back ached. His explanation for not referring to the chest and shoulder injuries in his report or in his conversation with the sergeant was that he was unaware of them until after his arrival at the hospital when he discovered for the first time that he had four bruises or bang marks on his shoulder and some bruises on his chest. Notwithstanding that discovery, he made no complaint to Dr. Tan about aches or pains in or bruises or injuries to his shoulder or chest, nor did he offer any explanation for not doing so.

Doctor Tan's examination of officer Burns took almost one half an hour. While it included the chest as well as the back, he noted no external evidence of any injury and his only significant finding was that officer Burns exhibited a tenderness when his back was pressed near the spleen and left kidney.

The discrepancy between the injuries about which the officer complained and those which the examining physician noted is such, defendants argue, that common experience dictates that the former should have been disregarded as lacking in probative value. If that had been done, the argument continues, proof of an essential element of the offenses charged, viz., bodily injuries,-would have been lacking and not-guilty verdicts should have been directed.

In a different context defendants' argument might be persuasive because there are cases where the testimony of a lay person must yield to that of the expert. One example is Union Smelting and Refining Works v. Calhoun, 101 R.I. 655, 226 A.2d 498, a workmen's compensation case, where an employee felt able to return to his regular work but his physician advised against it. Given that unusual and unlikely evidentiary conflict, we unhesitatingly rejected the worker's testimony as incompetent and lacking in probative force, and we said:

'A convalescent may have a general sense of well-being and feel that he has fully recovered from his illness or injury, but he can only surmise or guess at his ability to return to any type of work. It is for the expertise of medical science to evaluate his readiness to resume work and it would be foolhardy for anyone recovering from an impairment of health to wager his guess against the opinions of doctors who had examined him. Thus we think that the respondent's testimony as to how he felt lacked competency on the issue of his ability to return to his work.' Id. at 658, 226 A.2d at 500.

The distinction between that case and this is patent. In Calhoun a proper resolution of the issue in doubt called for the exercise of expertise and the issue was therefore better resolved by an expert than by a lay person. Here, ignoring for the moment the back injury as to the existence of which there is no head-on testimonial dispute, the issue was whether the officer's chest and shoulder were bruised. Such bruises, if observable at all, could be observed as well by a lay person as by a trained clinician, and officer Burns was just as qualified as was Dr. Tan to see whether or not his chest was bruised and his shoulder banged. He said that they were and that he saw the bang marks and the bruises when he was at the hospital. Doctor Tan, on the other hand, did not see any external evidence of an injury. Such a direct conflict on an essential issue was not open for resolution on the motions for directed verdicts because on those motions neither the credibility of witnesses nor the weight of their testimony was before the trial justice. State v. Cohen, 93 R.I. 215, 172 A.2d 737, 173 A.2d 925; State v. St. Angelo, 72 R.I. 412, 52 A.2d 513. Instead, his function was limited to resolving all conflicts in the evidence and to viewing most favorably to the state the evidence and inferences reasonably deducible therefrom. State v. Mantia, 101 R.I. 367, 223 A.2d 843; State v. Reardon, 101 R.I. 18, 219 A.2d 767; State v. Poole, 97 R.I. 215, 197 A.2d 163. It was, therefore, not error to deny the motions for directed verdicts.

When we consider the denials of the motions for new trials, once again the pivotal question is whether there were any 'bodily injuries.' Here we look initially to the trial justice's decision in order to ascertain whether in the exercise of his independent judgment he considered the material evidence on that question, and whether he passed on its weight and the credibility of the witnesses who testified thereon. His comments are brief. In substance he said only that the jury could have returned guilty verdicts even though there was no 'external evidence of injury.' ¹ Obviously that language refers to the back injury inflicted by Louis, for its sole symptom was a pain rather than a bruise, whereas the shoulder and chest injuries were manifested by bruises and bang marks rather than by aches and pains.

Louis, while he is agreeable to the idea that the trial justice must have been referring to the back injury when he spoke of there being no need for actual evidence of injury, argues nonetheless that the trial justice failed to take into consideration that blows in the back by a nightstick or a fist sufficient to cause pain more than two hours later would also be expected to produce some perceptible symptom or mark. The difficulty with that argument is that it ignores Dr. Tan's testimony that the officer could have sustained the back injury he complained of even though there were no external marks on his body and that whether or not there would be any bruises would depend 'upon the strength and also the reaction of the body.' The jury obviously accepted Dr. Tan's testimony; and the trial justice approved. That approval will not be disturbed by us unless it is shown either that it is clearly wrong or that the trial justice in reviewing the evidence overlooked or misconceived some which was relevant or material on a controlling issue. State v. Shilo, 101 R.I. 533, 225 A.2d 524; State v. Frazier, 101 R.I. 156, 221 A.2d 468; State v. Ephraim, 80 R.I. 321, 96 A.2d 641. Louis failed to show either and it was not error to deny his motion for a new trial.

John's claim that he should have been granted a new trial stands on a different footing. The trial justice, as we have already observed, confined his comments on bodily injuries to the back injury inflicted by Louis. He said nothing at all, however, about the officer's complaint that his...