Appeal from the Superior Court of the District of Columbia. (F600-03). (Hon. Frederick H. Weisberg, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Submitted October 6, 2005
Before SCHWELB, RUIZ, and REID, Associate Judges.
After a jury trial, appellant, Steven L. Fearwell, was convicted of willfully failing to appear in court (with respect to an assault charge), in violation of the District of Columbia bail reform statute, D.C. Code § 23-1327 (a) (2001). On appeal, Mr. Fearwell challenges the trial court's refusal to give his requested jury instruction regarding the definition of willfulness under the statute. Specifically, he requested an instruction that special circumstances affected his ability to appear in court. He also argues in essence that the trial court committed reversible error when it failed to give the jury a requested curative instruction after the prosecutor argued facts not in evidence during the government's rebuttal argument. We conclude that the requested jury instruction on the meaning of willfulness should have been given because it was an accurate statement of a legal principle. Furthermore, we hold that the combination of the failure to give the requested instruction regarding a controlling principle of law, and the government's improper rebuttal argument based on a fact not in evidence resulted in substantial prejudice to Mr. Fearwell. Consequently, we reverse the judgment of the trial court and remand this case for a new trial.
The government presented evidence showing that on August 29, 2002, Mr. Fearwell signed a condition of release form which included a written notice to reappear in the Superior Court of the District of Columbia on November 14, 2002, for a status hearing in connection with a pending assault charge. On November 14, 2002, when he failed to appear, a bench warrant was issued, and Mr. Fearwell was arrested on November 28, 2002.
Trina Arguelles, Mr. Fearwell's girlfriend with whom he lived, testified in his behalf. She stated that Mr. Fearwell was HIV positive and due to this, "he suffers from fatigue." In November 2002, his health was "[v]ery poor," he was "very weak," and "it was difficult for him to move." "Within the whole period, he was very weak." During the month of November, when he went to the methadone-maintenance clinic, he "barely made it."
Mr. Fearwell testified that in November 2002, due to the advanced stages of HIV, he was in "very poor" health, "was on oxygen, . . . was very fatigued and basically bedridden." During this time, he was "barely able to feed" and bathe himself. He was "get[ting] take-home medication" due to his illness. On November 14, 2002, he was bedridden and did not go to the clinic. He was aware of the November 14 court date and because he "was incapacitated and . . . wouldn't be able to attend" court, he called Pretrial Services. He was informed that without the docket numbers, Pretrial Services could not forward his case. On cross-examination, Mr. Fearwell testified that he was aware of the penalties for not showing up to court on November 14, 2002, but that he "was unable to come in that day."
Mr. Fearwell requested the following instruction be added to the "bail jumping" violation jury instruction:*fn1
There is evidence that the defendant was too disabled by AIDS to attend court on November 14, 2002. If you find special circumstances; namely that a medical condition existed causing the defendant to be unable physically to attend court on that date, you may consider that special circumstance in determining whether the government has proved beyond a reasonable doubt that the defendant's failure to appear was willful.
The trial court refused to give the requested instruction because defense counsel impermissibly put the facts of Mr. Fearwell's testimony in the form of an instruction. The trial court proposed the following instruction: "As to the charge of failure to appear in court, Mr. Fearwell's defense is that he was physically unable to come to court on November 14, 2002; and, therefore, his failure to appear was not willful." Both parties agreed to this instruction. However, government counsel reminded the trial judge that defense counsel "provided another [instruction] regarding the definition of 'willful.'" The judge responded: "Right. I don't intend to give that." Instead, the judge announced his "inten[tion] to give the theory of the case, which says that [the failure to appear] was not willful." Defense counsel called the judge's attention to case law, specifically Foster v. United States, 699 A.2d 1113 (D.C. 1997). When the judge inquired as to why it would not be sufficient to tell the jury "that his defense is that he was not willful because he was unable to come [to court]," defense counsel replied: "The defendant's theory of the case is not actually an instruction. It's more like an advisory [sic]." Government counsel expressed "concern" that the jury not be left "with an improper view of what the law is . . . ." She argued that Mr. Fearwell had to show "that he is physically unable to show up[,] [n]ot that it was hard for him - - not just that he didn't have to show up because he was sick and bedridden, but that he was physically unable."
After reading the Foster decision, the trial court stated that "it didn't change my view as to whether the proposed instruction should be given." The court expressed the belief that Foster turned on a trial judge's "ruling [in a bench trial] which might have been inconsistent with controlling law on what constitutes willfulness." The trial court continued:
I believe that the instruction on willfulness in the Red Book instruction is an accurate statement of the law. I believe the instruction I am agreeing to give on the defendant's theory of the case accurately puts his theory of the case before the jury, that his failure to appear was not willful as defined by the law. And anything else about why he was unable to appear or ...