State v. Westlund, s. 1145-II

• Decision Date: 09 May 1975
• Docket Number: Nos. 1145-II,s. 1145-II
• Citation: 77 A.L.R.3d 270,13 Wn.App. 460,536 P.2d 20
• Parties: , 77 A.L.R.3d 270 The STATE of Washington, Respondent, v. Michael WESTLUND et al., Appellants. 1147-II, 1148-II.
• Court: Washington Court of Appeals

Page 460

13 Wn.App. 460

536 P.2d 20, 77 A.L.R.3d 270

The STATE of Washington, Respondent, v. Michael WESTLUND et al., Appellants.

Nos. 1145-II 1147-II, 1148-II.

Court of Appeals of Washington, Division 2.

May 9, 1975.

Review Denied July 29, 1975.

Edward G. Holm, Olympia, for appellants.

William Britton, Special Deputy Mason County Pros. Atty., Byron E. McClanahan, Pros. Atty., Shelton, for respondent.

ARMSTRONG, Chief Judge.

This is a case of arrest by combat. At least, that is what resulted when the arrestee refused to permit the police to place handcuffs on him and two members of a hostile crowd came to his assistance while the police were forcing him to submit to the use of handcuffs. The results of resisting arrest by the arrestee and his friends graphically demonstrate the physical hazards that can face those resisting arrest, as well as the danger to police officers.

By separate informations each of the defendants, Michael Westlund, John Vonhof and Richard Adams was charged with second-degree assault in that each, 'with intent to resist and prevent the lawful apprehension or detention of himself or another person, did assault with his hands and fists'--individually identified police officers. ¹ They were all tried together, and by jury verdict, each was convicted of third-degree assault under an instruction (to which no error has been assigned), which permitted the conviction if the jury found beyond a reasonable doubt that each did willfully and unlawfully assault the identified officers. Westlund's primary defense was that he merely acted in self-defense when excessive force was used by the officers who attempted to effect his arrest. Vonhof's primary defense (and so also apparently is Adams') was that he merely acted in defense of Westlund against whom excessive force was being used. All three defendants have appealed. They contend they were deprived of the opportunity to effectively argue their respective theories of defense in that the jury was improperly instructed as to the law of self-defense and because no instruction was given as to the law of defense of another. Additionally, they contend the trial court erroneously permitted introduction of inflammatory and irrelevant evidence at the trial which, they contend, was conducted in a 'circus type of atmosphere', where police officers took pictures of witnesses and spectors in the hallway of the courthouse.

The uncontroverted facts are that on Saturday, May 2, 1972, in an area called Sunset Beach, along Hood Canal in Mason County, Westlund had a party at his residence for a large group of persons. At least some of those in attendance were minors although most appear to have been young adults.

Westlund provided a keg of beer and several bottles of wine. Westlund indicated he had been drinking beer from the time he set the keg in position at about 10 a.m. One defense witness, who was with him when the police encounter began at about 6 p.m., described Westlund as not being 'falling down drunk', but that 'he had quite a bit to drink.'

The contact with police authorities began when a trooper from the Washington State Patrol, investigating a hit-and-run accident, found the suspect car near the Sunset Beach store. Westlund, a large man, who was leaving the store at about that time with a guest, appeared to the trooper to fit the reported description of the driver of the hit-and-run vehicle. The trooper asked Westlund for some identification, which Westlund had at his residence. At about that time several deputy sheriffs arrived at the scene. Two officers went to the Westlund residence where he produced identification satisfactory to the officers. While at the residence, however, they saw a crowd of young people, some of whom they identified as minors drinking beer. Defense witnesses estimated the size of the group at Westlund's residence at between 50 and 60 people.

The officers left, but believing the driver of the hit-and-run vehicle was at the residence, told Westlund to produce him in 10 minutes at which time they would return. Westlund contends the officers said they would break up the party if the driver was not produced. The officers contend they told Westlund simply that they would impound the hit-and-run vehicle. Westlund testified, 'I told them if they were going to come back to bring a search warrant, if they were going to come on the property.'

About that time the driver's wife appeared and the officers and the driver's wife left the Westlund property. Westlund indicated that 'things got tense' when the officers told him to produce the driver. The record does not reflect how, when, or where the driver was ultimately presented to the officers. He was, however, arrested.

As promised, two deputy sheriffs returned to Westlund's property and placed Westlund under arrest. The officers testified that Westlund was told he was under arrest for contributing to the delinquency of a minor. Westlund said he does not remember but it is possible he was so told. He does remember that immediately thereafter two more officers appeared and all four officers and he started toward the road.

Westlund's version of the events following his arrest begins: 'I remember the one on this side had pulled my arm down and put a handcuff on it and I looked at him and I said, 'I'll go peacefully." One defense witness, who described herself as 'a very good friend' of Westlund, when asked whether he was resisting during the initial moments of the arrest, responded, 'No, he wasn't fighting them or anything. He was dropping his hands and trying to keep them from trying to grab a hold of him.'

Vonhof, who witnessed the arrest, said that he saw the officers had a handcuff on Westlund's left hadn, 'but he stiffened his arms out and wouldn't permit them to bend his right arm behind his back.' Another defense witness, a guest at the party, indicated that initially Westlund 'was resisting having his arms forced behind his back.' However, after one handcuff was placed, the witness saw Westlund's other arm go stiff, one of the officers struck it with a hard blow, and all of the group then fell to the ground in the middle of the road. Westlund indicated that 3 or 4 of the officers were on top of him. The situation deteriorated to the point where it ended up in a big commotion in the middle of the road.

At that point Vonhof and Adams entered into the affray. Vonhof disengaged a trooper from the melee; Adams was able to remove a deputy sheriff. Adams did not testify. We cannot specify what he saw or precisely why he became involved. However, when asked why he became engaged in the fighting, Vonhof said: 'I was stopping them from beating him up lafter they had already been beating him up for maybe 10, 15 seconds.'

Ultimately, all three defendants were subdued and arrested, but not without considerable escalation in the ferocity of the police. Seven deputy sheriffs and three troopers became active participants. Two officers acknowledged using sap gloves; a bystander said he unmistakably saw an officer use a sap; another officer acknowledged that he later 'maced' Westlund; several other officers seized a camera from a bystander, exposed the film, and threatened to arrest the owner for littering when he threw the exposed film on the ground. Westlund's face was described as looking like hamburger; he was spitting blood extensively. Ferocity was not limited to the police. One trooper sustained a concussion, required hospital care, and experienced a protracted period of recuperation. Rocks were thrown by several bystanders. Two police cars sustained considerable damage.

We have deliberately summarized the facts in a light most favorable to Westlund and the other two defendants in order to determine whether they were deprived of the right to present their respective defenses effectively to the jury. Concerning Westlund's use of force as self-defense, the jury was instructed, in relevant part, in instruction No. 16:

If you find that the force used by law officers at the time of arresting MICHAEL JAMES WESTLUND was excessive, then if you further find that MICHAEL JAMES WESTLUND was about to be seriously injured, you are instructed that defendant MICHAEL JAMES WESTLUND had the right to defend himself and to resist the excessive force and prevent serious injury with force reasonable and proportioned to the injury attempted upon him.

The jury was given no instruction on the issue of the right of third persons to come to the aid of another being unlawfully arrested.

The law in the State of Washington has been that one may resist an Unlawful arrest by an amount of force reasonable and in proportion to the injury the arrestee faces. State v. Rousseau, 40 Wash.2d 92, 241 P.2d 447 (1952); State v. Schulze, 51 Wash.2d 878, 322 P.2d 839 (1958); State v. Eckman, 9 Wash.App. 905, 515 P.2d 837 (1973). The right of a third party to go to the aid of one being lawfully or unlawfully arrested has not been discussed in the case law of Washington.

There is no challenge on appeal to the legality of the initial arrest. This was clearly a case of lawful arrest for contributing to the delinquency of minors. Minors were present at the party and a trooper observed one person known to him to be 16 years of age holding a beer bottle. Rather, we are faced here with an assertion that excessive force was used in accomplishing a lawful arrest. The court in essence, charged the jury that Westlund had the right to defend himself and resist excessive force if he was About to be seriously injured. Defendants seek to extend the rule of State v. Miller, 141 Wash. 104, 250 P. 645 (1926), to a situation in which one is lawfully being arrested by a police officer. The Miller rule is that an accused assailant, in asserting self-defense, is entitled to rely upon his reasonable understanding of the circumstances. Under that rule, if a person reasonably but mistakenly believes himself to be in genuine danger of...