State v. Nunes
| Decision Date | 31 January 1977 |
| Docket Number | No. KCD,KCD |
| Citation | 546 S.W.2d 759 |
| Parties | STATE of Missouri, Respondent, v. Thomas Edward NUNES, Appellant. 28340. |
| Court | Missouri Court of Appeals |
William G. Mays, II, Public Defender, Columbia, for appellant.
John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
Before Shangler, P.J., and SWOFFORD and SOMERVILLE, JJ.
The defendant Nunes was found guilty of three counts of striking a police officer engaged in the performance of his duties and was sentenced to serve concurrent sentences of three years on each count. On this appeal he contends the trial court erred in the refusal of his proffered instructions on (1) self-defense and (2) resisting arrest as a lesser included offense.
The evidence favorable to the conviction shows: The offenses for which Nunes was convicted resulted when three members of the Columbia Police Department--Officers Lake, Purdy and Taylor--intervened to quell a brawl between Nunes and Dority, night manager of the IGA store. The incident began on the parking lot of the store where Dority was helping a customer unload groceries into her car when, according to Dority, Nunes approached him with loud obscenities, then shoved him and hit him as Dority fell. (Nunes had been excluded from the IGA store by Dority some months earlier after his female companion had been caught shoplifting.) Dority retaliated by fisticuffs upon Nunes and the fray continued until the police arrived five minutes later. Officer Purdy was the first to come on the scene, then Lake and then Taylor. By the time the police arrived, Dority had gained the advantage over Nunes and had him pinned to the ground. The testimony conflicts as to what happened next, but it is clear that a struggle ensued between Nunes and the police as they tried to reduce him with handcuffs, and subdued him only after Officer Taylor struck Nunes once on the head with his nightstick. When the police arrived, Dority promptly responded to their commands to stop the fight, but Nunes continued to flail wildly, first at Dority and then at the police. The defendant continued his resistance even after he was handcuffed and placed in the police car, and was finally sprayed with mace to make him calm.
The defendant admits that Dority hit him only after he had first struck Dority. He does dispute the evidence of the prosecution as to what happened after the police arrived. The version given by Dority--corroborated by the testimony of Officers Purdy and Lake as well as witnesses Johnson and Heuer--was that he stopped fighting in response to the police direction and as he disengaged, Nunes struck out at one officer, then fought and kicked both Purdy and Lake as they tried to handcuff him. Betty Heuer, the customer Dority attended at the time of the incident, testified that when the police arrived, Dority relented his hold on Nunes, but the defendant was in a frenzy, cursing, hitting and fighting them all. The officers testified that Dority responded to their intervention, but Nunes pulled them to the ground, fought and kicked them, all without physical retaliation from them except to try to pin his arms to handcuff him. In the course of this attempt, Nunes fell against a car antenna, snapped it off, and began to swing it at them.
The defendant disagrees with this account of the incident. His testimony was that immediately upon their arrival the police grabbed him although Dority was still striking him as he got up. He could not see well and did not realize until later that the men were police officers, nor that they were trying to arrest him. Nunes did not remember striking at the officers with the car antenna nor whether his hands came into contact with the officers, but did admit that his feet came in touch with a police officer. It was his contention that he did not intentionally strike or swing at any police officer, and that his purpose in grappling with them was to protect himself from harm from them. He said that the first police officer at the scene grabbed him and continued to beat him even after one handcuff had been placed on him. He concluded that testimony with the statement that he thought the police might inflict serious harm on him. That concern arose from previous encounters with the police, including one incident where an Officer Cunningham had caught his hand in a rat trap which Nunes had placed under the front seat of his car, as a result of which he was threatened by Cunningham. Officers Purdy and Lake both testified that they were aware of that incident and had stopped Nunes previously for traffic violations. The testimony of the defendant himself disclosed a series of convictions for traffic charges and other more serious offenses over the past twenty years. Less than a year before, he was convicted for the assault on a police officer.
To revert to the actual fight--a third city officer, Taylor, saw Purdy and Lake struggling with defendant, and went to their assistance. When he tried to secure defendant around the neck, Nunes bit his hand and drew blood. Taylor struck Nunes once on the head with his nightstick and the other officers were then finally able to handcuff the defendant. Even then, Nunes kicked Lake in the leg, and the defendant continued to kick, struggle and curse as the officers attempted to place him in the patrol car. When in the car he continued to resist and tried to open the door. It was at that time that Officer Purdy sprayed mace on him and he was made calm. Nunes shouted profanities all the way to the station and after he was placed in a cell he spit upon Purdy. Nunes admitted to that.
At the close of the evidence the court refused the instruction proffered by defendant in the modified form of MAI-Cr 2.40 which directs an acquittal on the theory of lawful self-defense. The trial judge refused the submission on the authority of State v. Briggs, 435 S.W.2d 361 (Mo.1968) which denied the right to resist an arrest even under a law which is later found unconstitutional. The defendant argues here that Briggs does not concern the issue of self-defense but resistance to arrest, and contends that under the evidence his tendered instruction was properly submissible.
It is evident that the trial court confounded two disparate issues--self-defense and resistance to arrest. Briggs merely departs from the common law rule which allows resistance to an unlawful arrest by the use of reasonable force and overcomes the impact of such cases as Kansas City v. Mathis, 409 S.W.2d 280 (Mo.App.1960) and State v. Messley, 366 S.W.2d 390 (Mo.1963) which followed the previous authority. Briggs means (l.c. 365) that a citizen may not use force to resist any arrest, lawful or unlawful, for such self-help tends to intolerable disorder. The right of self-defense expresses a different principle and permits reasonable resistance to excessive force of the officer to protect the bodily integrity of the citizen. In such case, however, (Restatement of Torts, Second, § 65, comment f):
. . . the (citizen) may defend himself by the use of such force, not because its use is necessary to protect him from the unlawful arrest, but because it is the only way in which he can protect himself from death or serious bodily harm.
Therefore, the rationale which denies resistance to unlawful arrest does not determine the right to resist excessive force. 1
The jurisdictions which have abrogated the common law right to resist an unlawful arrest recognize that the right of self-defense against excessive force in the arrest remains unimpaired. State v. Ramsdell, 109 R.I. 320, 285 A.2d 39 (1971); People v. Curtis, 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33 (1969); State v. Mulvihill, 57 N.J. 151, 270 A.2d 277 (1970); Gray v. State, 463 P.2d 897 (Alaska 1970), and generally, 44 A.L.R.3d 1079, 1087, Annotation: Illegal Arrest--Right to Resist. These authorities each hold that although a citizen has no right to resist an arrest, the privilege of self-defense against excessive force in the arrest remains. The pragmatic rationale of this privilege recognizes that although liberty can be restored through legal process, life and limb cannot be repaired in a courtroom. People v. Curtis, supra, 74 Cal.Rptr. l.c. 719, 450 P.2d l.c. 39. The historical rationale for the abrogation of the common law right to resist unlawful arrest is given in City of Columbus v. Fraley, 41 Ohio St.2d 173, 324 N.E.2d 735 l.c. 739 (1975):
Since 1709, when the doctrine was pronounced in The Queen v. Tooley (1709), 2 Ld.Raym. 1296, 92 Eng.Rep. 349, society has changed drastically. Nations once rural and agrarian have become urban and industrialized. Policemen who once employed staves and swords to effect arrests now use guns and sophisticated weapons. The era 'when most arrests were made by private citizens, when bail for felonies was usually unattainable, and when years might pass before the royal judges arrived for a jail delivery,' is past. . . . Modern-day defendants reap the benefits of 'liberal bonding policies, appointed counsel in the case of indigency, and the opportunity to be taken before a magistrate for immediate arraignment and preliminary hearing.'
Considerations of this type have prompted both courts and legislatures to look anew at, and often abandon, the common law rule. . . .
Thus, the contemporary authorities--which Briggs now joins--hold that while a person may not use force to resist an arrest, he may use reasonable force to defend life and limb against excessive force. The reasonableness of the force used and the right of self-defense are in each case for the trier of fact to decide. State v. Ramsdell (R.I.), supra, and People v. Curtis (Cal.) supra. The right of an arrestee to...
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