State v. Frear
| Decision Date | 18 March 1997 |
| Docket Number | No. A-96-390,A-96-390 |
| Citation | 561 N.W.2d 591,5 Neb.App. 578 |
| Parties | STATE of Nebraska, Appellee, v. Rodney M. FREAR, Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Right to Counsel: Words and Phrases. "Hybrid representation" includes both a defendant's request to serve as co-counsel and a defendant's request for standby counsel.
2. Right to Counsel. The district court may, in its discretion, allow a defendant to serve as co-counsel but is not required to do so.
3. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.
4. Assault: Police Officers and Sheriffs. A person commits the offense of assault on an officer in the third degree if he or she intentionally, knowingly, or recklessly causes bodily injury to a peace officer or employee of the Department of Correctional Services while such officer or employee is engaged in the performance of his or her official duties.
5. Words and Phrases. "Bodily injury" has been defined as physical pain.
6. Jury Instructions: Evidence. A defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support it.
7. Self-Defense: Proof. For a defendant to successfully claim self-defense, he or she must establish that (1) he or she had a reasonable and good-faith belief that force was necessary, (2) the force was immediately necessary, and (3) the use of force was justified under the circumstances.
8. Jury Instructions: Self-Defense. A self-defense instruction is not appropriate where there is no evidence that a defendant could have believed an assault was imminent and that a use of force was therefore immediately necessary to protect himself or herself.
9. Arrests: Self-Defense. The use of force is not justifiable under Neb.Rev.Stat. § 28-1409 (Reissue 1995) to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful.
Thomas J. Gaul, Deputy Hall County Public Defender, for appellant.
Don Stenberg, Attorney General, and David T. Bydalek, Lincoln, for appellee.
After a jury trial, Rodney M. Frear was found guilty of third degree assault on a police officer, in violation of Neb.Rev.Stat. § 28-931 (Reissue 1995). Frear now appeals to this court, arguing that the district court erred in denying his motion to serve as co-counsel and in denying his proposed jury instructions concerning self-defense and concerning the use of force by a police officer when making an arrest. For the reasons set forth below, we affirm.
This case arises out of a series of events which occurred on June 26, 1995. Two police officers from the Grand Island Police Department The witnesses disagree about what happened after Frear answered the door. Titsworth testified that when Frear came to the door, he asked Frear to turn the music down and that Frear "grinned at me and he said that he could not hear me." Titsworth stated that after he asked two more times for Frear to turn the music down, Frear asked, " 'What's wrong, is it after the music curfew?' " Titsworth then asked Frear to turn the music down so they could talk. Frear, who had been holding the storm door open, subsequently turned, walked away, and released the storm door so he could, presumably, go turn the music down. Titsworth initially testified at trial that as the storm door was closing, he propped the door open with his knee. Titsworth testified that Frear then turned around and told him to get out of his house, to which Titsworth answered that he was not in the house. Titsworth explained that Frear then Titsworth testified that he had marks on both sides of his face from being hit, that he had not touched Frear prior to Frear's hitting him, and that he never entered Frear's house.
Officer Jim Titsworth and Sgt. Danny Dubbs, were called to the 2200 block of North Houston concerning a loud music complaint. Upon arriving, Titsworth and Dubbs determined that the music was coming from Frear's house, and both observed that Frear's front door was open but that the all-glass storm door was closed. Titsworth testified that no one answered the door after he knocked, so he shined his flashlight into the house in an effort to attract someone's attention. At that time, he noticed several beer bottles both on a coffee table and on the floor. An adult male then got up and came to the door.
Titsworth wrote two police reports concerning this incident. Titsworth was questioned concerning one of those reports, in which he indicated, contrary to his earlier testimony at trial, that the "door went closed and I pulled the door open." He explained, "I do not recall whether the door actually went closed and I pulled it shut [sic] or I stopped it with my knee." Regardless, Titsworth was sure that he did not enter the house.
The State also called Dubbs, who testified that as Frear turned around, presumably to turn the music down, Frear
let go of the storm door and the storm door started to close and Officer Titsworth attempted to keep the door from closing, but it bounced off his knee and closed, so he just reached up and opened the door, and at that point Mr. Frear turned around and shoved him in the face with both hands.
Dubbs also testified that Titsworth never entered the house.
Frear testified at trial that Titsworth did enter the house. Frear testified that he let go of the storm door, shut the inside door, took two steps, heard his brother say something to him, turned around, and realized that Titsworth had put his hand on the doorknob, had a foot in his house, and was coming inside. Frear testified that he told Titsworth, "[H]ey, man, you can't come in here, I told you to stay outside, and I pushed him with one hand out the door." Frear explained that Titsworth's response was to slap Frear's hand away. Frear testified that he stopped pushing Titsworth as soon as Titsworth was outside the door. Frear admitted that he had had a couple of "Jack and Cokes" at a bar earlier that night and then had had a couple of beers at home.
Titsworth stated that after Frear hit him, he grabbed Frear by the neck of the shirt and pulled Frear out of the house, down the front steps, and onto the lawn. Once Frear was on the lawn, Dubbs advised him that he was under arrest for assaulting a police officer, and Titsworth and Dubbs handcuffed Frear. Frear's account of this portion of the events is substantially the same, except Frear testified that neither Titsworth nor Dubbs advised him that he was under arrest until he was being handcuffed, and then they did not tell him why he was under arrest. At trial, a great deal of testimony was elicited describing both the police officers' actions and Frear's actions while they were on the On November 3, 1995, an information was filed in district court charging Frear with disturbing the peace, in violation of Neb.Rev.Stat. § 28-1322 (Reissue 1995), and with third degree assault on a police officer, in violation of § 28-931. At the arraignment, Frear initially wished to proceed without counsel but later changed his mind and requested that counsel be appointed for him, which was done.
front lawn. Both Titsworth and Dubbs described Frear as being resistant and uncooperative and testified that they had to use "knee strikes" and eventually had to "hobble" him in order to restrain and control him so that "no one would be injured."
On January 16, 1996, Frear made a motion requesting that he be recognized as co-counsel. After taking the motion under advisement, the district court denied the request. Once the court overruled Frear's motion that he be allowed to serve as co-counsel, Frear's counsel then requested that Frear be allowed to participate in certain parts of the trial. The district court also overruled that motion.
At the close of the State's evidence, Frear's counsel moved for a directed verdict concerning the disturbing the peace charge, which the district court granted. At the close of Frear's case, Frear's counsel proposed that four jury instructions (one concerning self-defense and three concerning police use of force when making an arrest) be given, which the court denied. Those proposed instructions, along with the court's rationale for denying them, will be detailed later.
The jury found Frear guilty of third degree assault on a police officer. A presentence investigation was completed, and Frear was sentenced to 12 months' probation.
Frear alleges the district court erred in denying his motion to serve as co-counsel and in denying his proposed jury instructions.
Frear's Right to Serve as Co-counsel.
On appeal, Frear argues, "It was error for the trial court to overrule the Defendant's request to act as co-counsel in his trial." Brief for appellant at 6.
In response, the State cites McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), and argues that Frear has no Sixth Amendment right to act as co-counsel and that a trial court is not required to permit " 'hybrid representation.' " Brief for appellee at 3. In McKaskle, the defendant was allowed to proceed pro se with standby counsel, and the U.S. Supreme Court cited Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (), and explained that "Faretta does not require a trial judge to permit '...
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State v. Wilson
...that this type of "hybrid representation" is not a matter of right but is left to the discretion of the trial court. State v. Frear, 5 Neb.App. 578, 561 N.W.2d 591 (1997). See, also, U.S. v. Stevens, 83 F.3d 60 (2d Cir.1996) (holding that trial court did not abuse its discretion in refusing......
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State v. Godfrey
...would be entitled to have the jury instructed on her theory of defense if there is any evidence to support it. See State v. Frear, 5 Neb. App. 578, 561 N.W.2d 591 (1997). To successfully assert the claim of self-defense, a defendant must have a reasonable and good faith belief in the necess......