Opinion
No. 75-093
Decided December 18, 1975. Rehearing denied January 8, 1976. Certiorari granted March 8, 1976.
Assault and battery action initiated to recover for damages sustained when defendant, a police officer, shot plaintiff while police, who had been called to quell a family disturbance, were attempting to subdue plaintiff and remove a knife from him. Jury found for defendant, and plaintiff appealed.
Reversed
1. TRIAL — Objection — General Class of Evidence — Sufficient — Preserve Error — Further Objections — Unnecessary. Where an objection has been made to a certain class of evidence, and such objection is overruled, counsel may well desist from renewing fruitless objections to the same class of evidence; thus, where, in assault and battery action, objection was made to any evidence of incidents that occurred prior to the arrival of the police, that objection was sufficient to preserve any error in the admission of two witnesses' testimony relative thereto, even though objections to that testimony were not lodged at the time the witnesses testified.
2. ASSAULT AND BATTERY — Evidence — Incident — Prior to Assault — Inadmissible — Plaintiff's State of Mind — Not Relevant — Not Part of Res Gestae. In action for damages against police officer who shot plaintiff during the course of an attempt to quell a family disturbance, evidence relating to the incident which led to the police being called to the scene was not admissible to show the state of mind of the plaintiff since, self-defense having been asserted by the defendant, it was only the defendant's state of mind that was relevant; nor was the evidence admissible as part of the res gestae in view of the fact that at the time of the shooting, the officer had no knowledge regarding the plaintiff nor any information concerning the particular incident.
Appeal from the District Court of the City and County of Denver, Honorable Henry E. Santo, Judge.
F. Nelson Pabst, for plaintiff-appellant.
Wesley H. Doan, for defendants-appellees. Division II.
Jimmy Dale Gallegos, plaintiff, brought an action against the City and County of Denver and one of its employees, Jon L. Teel, a police officer, alleging damages for a battery. A jury returned a verdict in favor of defendants, and Gallegos appeals from the judgment entered thereon. We reverse.
The following facts were elicited at trial. The Denver Police received a call indicating that a family disturbance was occurring, and upon their arrival at the designated address encountered Gallegos emerging from the house in a excited state, carrying a large knife. The officers attempted to convince Gallegos to surrender the knife, but were unsuccessful. The officers at the scene requested assistance and Officer Teel was one of the officers who responded to the call. The officers continued their attempts to remove the knife from Gallegos' possession, but were unable to convince him to drop it or to subdue him. At one point Gallegos rushed toward one of the officers. Officer Teel then threw a night stick at him, whereupon he turned and rushed toward Officer Teel, brandishing the knife in front of him. When Gallegos was approximately two feet from Officer Teel, the officer shot him. This shot resulted in permanent damage to the spinal cord of Gallegos. Gallegos alleged that he never intended to attack Officer Teel, and was intent upon self-destruction; while Officer Teel claimed self defense as justification for his action.
The sole issue before this court is whether it was error for the trial court to admit testimony as to the particulars of the family disturbance in the Gallegos home, which occurred prior to the arrival of the police and which were unknown to them at the time of the incident. The plaintiff maintains that the evidence was irrelevant to the issues framed in the complaint, and was prejudicial to his case. The testimony to which plaintiff objects came from several witnesses who testified that the family disturbance, which resulted in the arrival of the police officers, consisted of Gallegos beating his pregnant wife.
[1] The defendants argue that the plaintiff may not complain of the testimony of two of the witnesses, since he did not object to it at the time of the trial. However, the first time that questions were asked, during the cross-examination of Gallegos, concerning the events which occurred prior to the arrival of the police officers, plaintiff's counsel made a general objection to any testimony about what had happened in the Gallegos home prior to the time the officers arrived, arguing that such testimony was immaterial. Where an objection has been made to a certain class of evidence, and such objection is overruled, counsel may well desist from renewing fruitless objections to the same class of evidence. Thomas v. Carey, 26 Colo. 485, 58 P. 1093; Graves v. People, 18 Colo. 170, 32 P. 63. Thus, we find that the objection made to any evidence of the incidents which occurred prior to the arrival of the police is sufficient to be considered as an objection to the general class of evidence on this issue and sufficient to preserve any error in admitting this testimony as it was elicited from other witnesses.
Defendants next argue that this evidence was relevant to show the state of mind of the plaintiff, Mr. Gallegos. However, self defense having been asserted, it was the state of mind of the defendant which was relevant, not the state of mind of the plaintiff. The question is "what the defendant believed, or what, under all the circumstances, he might have reasonable cause to believe to be the intention of the deceased." Bailey v. People, 54 Colo. 337, 130 P. 832.
In this case Officer Teel had no prior knowledge of that which had occurred before he arrived on the scene, he merely responded to a request for assistance. And, between the time of his arrival and the time of the shooting, he learned nothing about Gallegos' prior activities in the house. Accordingly, since the defendant did not know the plaintiff prior to the incident, and since he did not have knowledge at the time of the incident of plaintiff's prior violent activity, such evidence is irrelevant to the defendant's state of mind at the time of the battery. See Catalina v. People, 104 Colo. 585, 93 P.2d 897.
[2] The decision relied on by defendants, Wagman v. Knorr, 69 Colo. 468, 195 P. 1034, is distinguishable on its facts. In that case the court stated that the previous relations of the parties would be relevant to motive in an assault and battery case. Here, the parties had never met prior to the incident, nor did Officer Teel have any knowledge concerning Gallegos other than his observations at the time of the incident. Thus, since the issue was the reasonableness of the perceptions of the officer, evidence as to plaintiff's state of mind was irrelevant.
Defendants also urge that this evidence was admissible to explain the incident as part of the res gestae, citing Daniels v. Van De Venter, 382 F.2d 29 (10th Cir.). The court there permitted evidence of "immoral" conduct of the plaintiff with the person she allegedly assaulted. In that case, however, the plaintiff, in suing the arresting officers for a violation of her civil rights, had asked for damages to her reputation. The court indicated that since the complaint had made her reputation an issue, the evidence was material and properly admitted. Although the court did indicate that the evidence served to explain the incident, it also indicated that the evidence was otherwise relevant under her complaint, and we therefore find that case distinguishable. In order for the jury to determine the reasonableness of the officer's apprehension of great bodily harm at the time of the shooting, the jury was entitled only to the same knowledge available to the officer at that time. Hence, this evidence was not admissible as part of the res gestae.
We hold that the evidence was immaterial and irrelevant to any issue of the case as framed by the complaint. Therefore, since the evidence was highly prejudicial, the judgment must be reversed and the cause remanded for a new trial in which the evidence discussed herein should be excluded. Ferch v. Morris, 112 Colo. 515, 151 P.2d 187.
Judgment reversed and cause remanded for new trial.
JUDGE PIERCE and JUDGE KELLY concur.