State v. Gelinas

• Decision Date: 05 August 1980
• Docket Number: No. 78-240-C,78-240-C
• Citation: 417 A.2d 1381
• Parties: STATE v. Terrence GELINAS. A.
• Court: Rhode Island Supreme Court

Page 1381

417 A.2d 1381

STATE v. Terrence GELINAS.

No. 78-240-C.A.

Supreme Court of Rhode Island.

Aug. 5, 1980.

Dennis J. Roberts, II, Atty. Gen., David A. Cooper, Sp. Asst. Atty. Gen., for plaintiff.

Thomas J. Kane, Woonsocket, for defendant.

OPINION

BEVILACQUA, Chief Justice.

A Superior Court jury convicted the defendant of assault on a uniformed police officer engaged in the performance of his duties, the assault causing bodily injury, a violation of G.L.1956 (1969 Reenactment) § 11-5-5, as amended by P.L.1979, ch. 249, § 1. The jury also found him not guilty on a second count that charged him with assault with a dangerous weapon, ¹ a violation of G.L.1956 (1969 Reenactment) § 11-5-2.

The trial justice sentenced defendant to one year's imprisonment; he ordered defendant to serve the first three months; he suspended the remaining nine months, and he imposed two years' probation to begin upon defendant's release from prison. The defendant appeals his felony conviction, alleging that the trial court erred in failing to give certain instructions to the jury, in admitting certain evidence at trial, and in denying defendant's motion for a new trial.

The record reveals that two Woonsocket police officers in the early evening hours of August 27, 1976, responded to a complaint that a number of juveniles were consuming alcoholic beverages on the corner of Fairmont Street and Third Avenue in that city. The youths scattered when the uniformed policemen arrived, but four of them remained to gather together their liquor. The officers confiscated the liquor and ordered the four youths into the patrol car. The officers informed the youths that, at the police station, authorities from the Juvenile Bureau would speak to them, telephone their parents, and release them to their parents.

One of the four, defendant's younger brother Billy Gelinas, walked away from the group down Third Avenue to join approximately twenty people gathered in the parking lot of the Bourcier Brothers' warehouse. The officers put the other three juveniles into the cruiser and drove to the parking lot intending to apprehend the fourth. Officer Michael F. Magnan approached Billy, and explained to him that he would have to come to the police station. ² Billy refused, and when the officer placed his hand on Billy, he struck the officer. A struggle ensued. Billy testified that Officer Magnan had torn his shirt and had dragged him face down across the parking lot.

As Officer Magnan attempted to subdue Billy, the other officer, Emil LeDuc, drew his nightstick and ran in a semicircle around the combatants to fend off the crowd that had closed in on them. Billy's older brothers, Eddy Gelinas and defendant, Terrence Gelinas, joined the affray. The defendant threatened Officer LeDuc, saying, "Leave my brother alone, LeDuc, or I'm going to get you." He insisted on getting past Officer LeDuc to where Billy and Officer Magnan were struggling. He and Officer LeDuc began shoving each other.

Officer LeDuc testified that the crowd began to press in on him and to kick and shove him. He stated that the crowd then separated somewhat and he was able to run to the cruiser to radio for help.

The defendant followed Officer LeDuc to the patrol car repeatedly insisting that he leave Billy alone. After calling for assistance, Officer LeDuc turned to see his partner struggling on the ground with both Billy and Eddy Gelinas, the latter striking the officer with a piece of tar about the back and head. Officer LeDuc pushed past defendant and ran to aid Officer Magnan.

He testified that he struck Eddy Gelinas with his club ³ and then turned around to defend against an anticipated attack from defendant whom he knew to have followed close behind. Officer LeDuc stated that as he turned, he received a blow to the face and fell to the ground. He claimed that defendant then sat on him and began striking him. The officer testified that he could not get up and that he saw defendant pick up a piece of concrete and strike him in the face with it as he lay on the ground. He said thereafter he could not see.

Several defense witnesses testified that Officer LeDuc and defendant struggled momentarily over control of the nightstick before they both fell to the ground fighting. Three eyewitnesses who testified for the defense, as well as both officers, stated that they saw defendant strike Officer LeDuc.

The injured officer and the physician who treated him testified to the extent of his injuries. The area around his right eye was swollen; he had been unconscious for five to ten minutes after the fight; he exhibited the symptoms of a concussion: dizziness, headaches, and nervousness.

I

The defendant first urges us to find error in the trial justice's charge to the jury on the theory that he was privileged to protect his brother, Edward, against the officer's allegedly unlawful force. The Attorney General, in response, asserts that the trial justice clearly and adequately charged the jury on the law governing this theory of defense. ⁴

We recognize that the trial justice must maintain the defendant's right to request jury instructions on the law applicable to issues of fact which the evidence, however tenuous or incredible, has raised. State v. Arpin, R.I., 410 A.2d 1340, 1352 (1980); State v. Butler, 107 R.I. 489, 490-91, 268 A.2d 433, 434 (1970).

Cognizant of his responsibility, the trial justice enumerated the four elements of the crime charged in count I: one, that defendant knowingly and wilfully struck the officer; two, that the officer was uniformed; three, that the officer sustained bodily injury; four, that the officer was then engaged in the performance of his duties. He instructed the members of the jury that the state had the burden of convincing them beyond a reasonable doubt of the existence of every element before they could render a guilty verdict. He focused the jury's attention on the fourth element, calling it the primary question in the case. In order to resolve that question, the trial justice stated, the jury must decide whether the injured officer had employed excessive force in arresting Edward Gelinas for interfering in Officer Magnan's struggle with William Gelinas. If the jury found that Officer LeDuc had exerted excessive force, thus forfeiting his privilege to use force in performing his duties, then they could find that defendant justifiably countered that force with protective force and, therefore, was not guilty under count I.

The trial justice in his instructions stated,

"The law is this: a third person does not have a right to interfere and assist the person being arrested, and the person doing the arresting is clearly not using unnecessary force, no intervention is permissible under the law even though the arrest is illegal.

" * * *

"If you find that LeDuc was not using excessive force and was in the performance of his duty in attempting to arrest Edward for interfering with Magnan, and this defendant on that occasion then struck Officer LeDuc, LeDuc being engaged in the performance of his duty; and LeDuc was injured as a result, then he is guilty as charged by the State. If LeDuc used excessive force in the attempt to remove Edward Gelinas from Officer Magnan, LeDuc was not in the performance of his duty, and the defendant is not guilty."

General Laws 1956 (1969 Reenactment) § 12-7-10 requires an arrestee to submit peacefully and, if he has been unlawfully arrested, to pursue his remedy in the courts. Viewed in the light of § 12-7-10, we believe it is clear that the police-assault statute, § 11-5-5, does not, however, abrogate the defendant's right to defend himself when excessive force is used against him. State v. Ramsdell, 109 R.I. 320, 327, 285 A.2d 399, 404 (1971). If it develops that the arresting officer used reasonable force, the principle of self-defense is inapplicable. Id. at 327, 285 A.2d at 404.

The issue before us, however, is whether the trial justice properly instructed the jury on the right of an individual to come to the aid of another whom uniformed police officers are arresting through the alleged use of excessive force. The defendant contends that the trial justice gave inadequate instructions on the use of force in protection of another. The trial justice in effect instructed the jury that they must decide that the officer in fact used excessive force against defendant's brothers at the time defendant attacked the officer before they could find that defendant committed a justifiable act. If the jury believed that excessive force was not actually used, they had to reject defendant's alleged defense and, on satisfaction of the other elements, return a guilty verdict.

It is a well-accepted principle that in effecting an arrest an officer has the right to use such force as he may reasonably believe necessary in order to discharge properly his duty. General Laws 1956 (1969 Reenactment) § 12-7-8; see State v. Ramsdell, 109 R.I. at 326, 285 A.2d at 404; Tessier v. LeNois, 97 R.I. 414, 417, 198 A.2d 142, 143 (1964). When there is evidence tending to show the law-enforcement officer's use of excessive force, the trial justice must instruct the jury that the force used against the law-enforcement officer was justified provided the defendant limited his assault to the use of reasonable force in defending himself from excessive force. State v. Ramsdell, 109 R.I. at 327, 285 A.2d at 404.

There are two contrasting principles that control the defense of another as it exists in other jurisdictions. ⁵ One rule adopted by a number of states takes the position that a third-party intervenor stands in the shoes of a person whom he is aiding. Under this view it is immaterial whether the intervenor defendant acted as a reasonable person would have; the right attaches to the defendant only when the person being defended would have had the right of self-defense. See, e. g., People v. Booher, 18 Cal.App.3d 331, 95 Cal.Rptr. 857 (1971); ...