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State v. Catlin7/10/1990
Fain, J.
Defendant-appellant Oscar Catlin appeals from his conviction and sentence for felonious assault, with a firearm specification. Catlin contends that the trial court erred by refusing to give an instruction that Catlin had the right to use such force as was reasonably necessary to eject the victim, whom he considered to be a trespasser, from his home, and that this force might include deadly force, regardless of whether Catlin was in reasonable fear of death or great bodily harm; that the trial court abused its discretion under Evid. R. 403 by excluding certain testimony concerning the victim's propensity to beat his wife when drunk; and that Catlin was denied the effective assistance of counsel when his trial counsel failed to request that the jury be instructed concerning the elements of aggravated assault, as a lesser included offense.
We conclude that the decision not to seek any instruction concerning aggravated assault was a calculated and reasonable trial strategy aimed at obtaining a complete acquittal; that the trial court was within its discretion in excluding testimony concerning the victim's wife-beating propensities; and that Catlin had no right to an instruction that he was privileged to use deadly force, even to eject a trespasser in his home, in the absence of a reasonable belief that he was in danger of death or great bodily harm. Accordingly, the judgment of the trial court will be affirmed.
Defendant-appellant Oscar Catlin and the victim, Billy Catlin, are brothers. There was evidence of at least one previous violent encounter between the Catlin brothers. Catlin presented evidence that his brother had a tendency to become violent when under the influence of alcohol. It was stipulated that Catlin's brother had a blood-alcohol level of 0.17 percent when he was admitted to the hospital following the shooting.
There was general agreement in the testimony that on the night of thsshooting, Catlin's brother, accompanied by two other men, called upon Catlin at his home. Catlin's brother wished to discuss some money that Catlin owed, his failure to support his daughter, and his plans to marry. An argument ensued.
According to the state's witnesses, no force was used by the victim or the men accompanying him, nor was Catlin threatened with physical harm. The testimony of one of the state's witnesses was as follows:
"At the time I was talking to Sharon Tann. When I turned around, that's what I heard and he said-he [Catlin's brother Billy] said, why are you marrying this bitch and you can't take care of your own daughter.
"At that point in time, Oscar was rubbing his head. He walked in the back of his room and I heard drawers shuffling and I told H. C., I mean Hulon Catlin, Jr., and I said Billy Catlin, I said, he's getting a gun, so I went to the door and I had my hand on the door and I had my head sticking through the living room because I wanted to see what was going on but I was so scared that somebody was going to get hurt. Oscar came back out, took three steps, shot Billy, and said do we have a problem. At that time I ran. I ran."
Catlin's testimony concerning the shooting was as follows:
"A. Yeah, he started talking to my wife and so we was all standing in the front room there and that's when he started cussing at me, telling me-
"Q. Who did?
"A. Billy, He said he was going to jump on me and kick my ass and all this other nasty stuff he was saying.
"* * *
"Q. Okay. What happened next?
"A. Okay. Then we got into the shoving match, you know, where he got to pus
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