Appeal from the Superior Court of the District of Columbia. (Hon. Bruce D. Beaudin, Trial Judge)
Before Wagner, Chief Judge,* and Steadman and Sullivan, Associate Judges.
The opinion of the court was delivered by: Sullivan
SULLIVAN, Associate Judge: Appellant was indicted on one count of assault on a police officer ("APO"). *fn1 After a jury trial, he was acquitted of APO but convicted of the lesser-included offense of simple assault. *fn2 On appeal, he contends that the trial court's instructions on the elements of the offense of simple assault and appellant's right of self-defense were erroneous. The government concedes error, in part, by the trial court with regard to certain of its instructions but essentially argues that any error in instructing the jury benefitted appellant and was thus harmless. We affirm.
Appellant became involved in an altercation with a uniformed officer of the Metropolitan Police Department as the officer frisked appellant's brother for suspected possession of drugs. There was conflicting testimony at trial about whether appellant struck the officer, whether the officer struck appellant for no apparent cause, and whether appellant was under arrest or thought he was under arrest. Appellant's defense was that he acted in self-defense.
The trial court instructed the jury on APO and, as requested by appellant, on the lesser-included offense of simple assault. The court also advised the jury of appellant's limited right of self-defense as a defense to APO and the general right of self-defense as a defense to simple assault. In the course of defining simple assault, however, the trial court stated that if the jury found that appellant did not know that the person he assaulted was a police officer engaged in his official duties (an element of APO), he should be acquitted of both APO and simple assault. During deliberations, the jury sent a note to the trial Judge requesting to be reinstructed on the elements of the two offenses. Again, the trial court defined simple assault using elements from APO. Unlike the initial final instructions, however, the trial court erroneously stated in its reinstructions to the jury that, as to both offenses, appellant enjoyed a general right of self-defense. The jury subsequently found appellant not guilty of the APO charge and guilty of the offense of simple assault.
Appellant contends that we must review for constitutional error under Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), because he was denied due process by the trial court's erroneous instructions. Appellant, however, did not object to the challenged instructions at trial and raises these instructional errors for the first time on appeal. Because instructional errors are not reversible per se, see White v. United States, 613 A.2d 869, 879 (D.C. 1992) (en banc), appellant's failure to raise any objections below restricts the scope of our review to plain error. Curington v. United States, 621 A.2d 819, 821 (D.C. 1993); Allen v. United States, 495 A.2d 1145, 1151 (D.C. 1985) (en banc). *fn3
As set forth in Super. Ct. Crim. Rule 30, "no party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict." Rule 30 is equally applicable to reinstructions given by the trial court once the jury has begun its deliberations; therefore, objections to reinstructions must be made before the jury resumes deliberations. Deneal v. United States, 551 A.2d 1312, 1316-17 (D.C. 1988). The purpose of these guidelines for challenging jury instructions is "to give the trial court the opportunity to correct errors and omissions which otherwise might necessitate a new trial, thus discouraging counsel from purposefully withholding objections." Id. at 1316. Consequently, an appellant's failure to comply with Rule 30 "inevitably triggers plain error review." Allen, supra, 495 A.2d at 1151. Thus, plain error review makes noncompliance with Rule 30 particularly costly "by necessitating a greater showing of harm than that required to obtain relief under the harmless error standard." Id.
Under the very stringent plain error doctrine, reversal is warranted "only in exceptional circumstances 'where a miscarriage of Justice would otherwise result.'" Harris v. United States, 602 A.2d 154, 159 (D.C. 1992) (en banc) (citing United States v. Frady, 456 U.S. 152, 163 n.14, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982)). Appellant therefore "bears the heavy burden of showing that the instructions as given 'were so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.'" Allen, supra, 495 A.2d at 1152 (quoting Watts v. United States, 362 A.2d 706, 709 (D.C. 1976) (en banc)). For the following reasons, we conclude that appellant has not met this burden.
Appellant contends that the trial court's instructional errors prevented the jury from considering his claim to a general right of self-defense separately and distinctly from a claim to a limited right of self-defense. He further argues that the trial court erroneously charged the jury both in the original instructions and on reinstruction that an essential element of the lesser-included offense was a finding that the complainant officer was engaged in official police duties. While we agree with appellant that the trial court erred both in defining simple assault and in articulating the two standards of self-defense applicable to his case, we are not persuaded that these errors, which benefitted appellant, warrant reversal.
"Generally speaking, one cannot invoke the right of self-defense to justify assaultive behavior toward a police officer. Nelson v. United States, 580 A.2d 114, 117 (D.C. 1990) (on rehearing). *fn4 This rule is subject to two relatively narrow exceptions. First, where a defendant is charged with the felony offense of assault on a police officer, a limited right of self-defense arises when the defendant presents evidence that the officer has used excessive force in carrying out his duties. Id. Under this exception, if the defendant responded to the officer's excessive force with force that was "'reasonably necessary under the circumstances' for self-protection," then the defendant acted with justifiable and excusable cause. Id. Therefore, the jury is instructed that:
Once a defendant raises the defense of justified self-defense, the government then bears the burden to prove beyond a reasonable doubt that the defendant was not acting with justification or legal right. To carry this burden . . . the government must prove the predicate facts limiting the defendant's right to defend himself or herself were present: that the victim was a police officer; that the officer was ...