Appeal from the Superior Court of the District of Columbia (F-6145-01) (Hon. Robert I. Richter, Trial Judge).
The opinion of the court was delivered by: Terry, Senior Judge
Argued September 22, 2005
Before REID, Associate Judge, and BELSON and TERRY, Senior Judges.*fn1
After a jury trial, appellant was convicted of assault on a police officer ("APO") and carrying a pistol without a license ("CPWL"). On appeal he contends that the trial judge committed reversible error when, after realizing that he had instructed the jury on an unindicted charge of APO while armed, he withdrew the indicted charge of APO with a dangerous weapon and reinstructed the jury, after it had begun deliberations, on the lesser included charge of APO. Appellant also argues that the trial judge committed reversible error when he denied a defense request to instruct the jury on justifiable or excusable cause. We find no error and accordingly affirm appellant's convictions.
Appellant was charged in a five-count indictment with APO with a dangerous weapon (Count One),*fn2 possession of a firearm during a crime of violence ("PFCV") based on the APO with a dangerous weapon (Count Two), assault with a dangerous weapon ("ADW") (Count Three), PFCV based on the ADW (Count Four), and CPWL (Count Five). These charges were based on an incident involving Metropolitan Police Officers Lance Andriani and Bryan Waid, who were investigating a parked car in a residential parking lot in Southeast Washington at about 7:30 a.m. on September 28, 2001. Appellant and two other men were seated in that car. Although there was conflicting evidence as to when the officers realized that the car had three occupants, there is no serious dispute that appellant had a gun in his possession.*fn3
When appellant got out of the car, Officer Waid saw that he had a gun in his hand. Appellant started to raise the gun and point it toward Officer Waid. Fearing that he was in danger of being shot, the officer moved toward appellant and tried to tackle him. As the two of them wrestled with each other, the officer felt the gun's barrel hit his legs and then come up underneath his protective vest. Officer Waid immediately struck appellant's hand, and the gun fell to the ground. The two men continued their struggle, in the course of which appellant struck Waid in the face several times and knocked his glasses off, until Officer Andriani came to Officer Waid's assistance. The two officers then tried to subdue appellant with the use of pepper spray, but he continued to resist and, according to Officer Andriani, tried to grab Andriani's gun from its holster. Finally, after Officer Andriani drew his baton, appellant fell to the ground, and the officers managed to handcuff him. Neither officer actually struck appellant with a baton or with any other object.
When the case came to trial, the court erroneously informed the prospective jurors at the beginning of the voir dire that the offense charged in the first count was APO, not APO with a dangerous weapon. A few minutes later, still during the voir dire, the court again incorrectly stated that "the charges in this case include assault on a police officer, possessing a pistol." Neither the prosecutor nor defense counsel noticed or pointed out the court's error. The next day, after the voir dire was completed, the court correctly read the charges from the indictment to the newly empaneled jury.
During closing argument, defense counsel asked the jury to acquit appellant of Counts One through Four because, in order to obtain a conviction, the government had to prove that appellant "had a gun in his hand when the acts were committed." The government objected, and the court sustained the objection because it mistakenly believed that the offense charged in Count One was APO while armed.*fn4 Again, no one noticed the court's error.
In its final instructions, the court again told the jury that Count One charged APO while armed, rather than APO with a dangerous weapon. Specifically, the court said, "At the time of the offense the defendant was armed with or had readily available a pistol." However, about three hours after the jury had begun its deliberations, the court realized that it had improperly instructed the jury on Count One and summoned both counsel to the courtroom to consider how to resolve the situation. After some discussion, the court denied defense counsel's request to reinstruct the jury on the correct elements of APO with a dangerous weapon. Instead, the court withdrew the APO with a dangerous weapon charge entirely and gave new instructions on the lesser included offense of APO. Count Two, charging PFCV (based on the offense charged in Count One), was also withdrawn from the jury's consideration.
The court then allowed both counsel to present additional closing arguments to the jury based on these changes, but it denied defense counsel's renewed request to include in the jury instructions for Count One a statement that the government must prove that appellant "acted without justifiable or excusable cause."*fn5 See CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 4.11 (4th ed. 1993). After being reinstructed, the jury deliberated for less than two hours before finding appellant guilty of APO and CPWL.
We review decisions on whether to reinstruct a jury for abuse of discretion. Alcindore v. United States, 818 A.2d 152, 155 (D.C. 2003); Davis v. United States, 510 A.2d 1051, 1052 (D.C. 1986). This court has previously upheld a trial court's decision to give supplemental instructions to a jury on a new theory of criminal responsibility. See Bouknight v. United States, 641 A.2d 857 (D.C. 1994). However, we have not yet considered whether it is an abuse of discretion for a trial court in a criminal case to withdraw a charge and reinstruct the jury on a lesser included offense of that charge after it has begun its deliberations.
In this case both parties (and the trial judge, as the record makes clear) agreed that the original instruction that was given to the jury was erroneous. The issue before us is whether the reinstruction, despite its accuracy as an instruction on the lesser included offense of APO, requires reversal. We hold ...