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09/14/90 THOMAS D. NELSON v. UNITED STATES

September 14, 1990

THOMAS D. NELSON, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Robert A. Shuker, Trial Judge. This Opinion Substituted by Court for Vacated Opinion of September 18, 1989,

Vacated September 14, 1990. Substituted Opinion

Rogers, Chief Judge, and Ferren and Schwelb, Associate Judges.

The opinion of the court was delivered by: Ferren

A jury convicted appellant of one count of armed robbery, D.C. Code § 22-2901, -3202 (1989), one count of assault with a dangerous weapon, id. § 22-502, three counts of assault on a police officer while armed, id. §§ 22-505, -3202, and one count of carrying a pistol without a license, id. § 22-3204. Challenging only his convictions for assault on a police officer while armed, appellant claims on appeal that the trial court erred by denying his request for a self-defense instruction and by refusing to instruct the jury, in accordance with appellant's request, that the question whether appellant had reason to believe his pursuers were police officers had to be answered from appellant's perspective. We affirm.

I.

At trial, the government's evidence showed that appellant and an accomplice assaulted two men, Douglas Johnson and Wayne Davis, in a high-drug-sales area and demanded money. After the robbery, a long chase began. Several undercover police officers, one of whom had witnessed the robbery, testified that as they chased appellant they shouted "halt" and "police" in at least four different instances: at the scene of the robbery, later as appellant ran from the scene and crossed Rhode Island Avenue, still later when appellant ran through a school yard, and, finally, when appellant was confronted and before he was shot by one of the police officers, ending the chase. During the chase, appellant shot three different times at different police officers and pointed his gun at the police officer who finally shot and subdued appellant.

Appellant testified that he and a friend had gone to buy some drugs. They bought a substance, purportedly cocaine, which, when tasted, turned out not to be cocaine. Appellant and his friend returned to demand their money back. Appellant said that he ran away from the confrontation because he was afraid the drug dealers would come after him and that he kept running because he thought the drug dealers were chasing him. He specifically denied that he ever heard the police officers identify themselves.

At trial, appellant's counsel requested several self-defense instructions premised on appellant's testimony that he was unaware his attackers were police officers. During Discussion of this request, appellant's counsel acknowledged that if appellant had recognized his attackers as police officers, the only justification for appellant's use of force, in self-defense, would have been if the police had used excessive force. But counsel continued to stress two points that he believed entitled appellant to the usual self-defense instructions: first, appellant did not hear the police officers identify themselves; and, second, if the jury credited appellant's testimony that he actually believed drug dealers, not police officers, were chasing him, he was entitled to acquittal. *fn1 The court denied appellant's request. Counsel then requested a modification of the instruction about assault on a police officer, asking the court to tell the jury it must adopt appellant's perspective when evaluating whether appellant knew or "had reason to know" he was assaulting police officers. This, too, was denied.

With respect to the charge of assault on a police officer while armed, the Judge instructed the jury as follows:

Now, the next four charges that you are to consider are four separate charges of assault on a police officer while armed with a dangerous weapon. So, let me tell you the essential elements of that offense, again each of which the Government must prove beyond a reasonable doubt.

First, that the complainant was a member of a police force operating in the District of Columbia. Secondly, that the defendant assaulted the complainant. Third, that at the time the defendant did so, he did so on account of or at a time when the complainant was engaged in the performance of his official duties.

Fourth, that at the time the defendant did so, he knew or had reason to believe that the complainant was a member of the police force operating in the District of Columbia. Fifth, that at the time the defendant did so, he intended to assault the complainant and, sixth, that at the time the defendant was armed with or had readily available a deadly or dangerous weapon.

Now, it's up to you to decide whether the Government proven beyond a reasonable doubt that the defendant knew or had reason to believe that an officer in question was a police officer.

If you have a reasonable doubt as to whether he did so believe or had reason to believe, then you must find the ...


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