Appeal from the Superior Court of the District of Columbia (F-2621-05) (Hon. Rafael Diaz, Trial Judge).
The opinion of the court was delivered by: Ferren, Senior Judge
Before RUIZ and GLICKMAN, Associate Judges, and FERREN, Senior Judge.
Michael Dolson appeals from his conviction on one count of assaulting, resisting, opposing, impeding, intimidating, or interfering with a police officer, D.C. Code § 22-405 (a) (2001), commonly referred to as assault on a police officer or APO. We affirm.
The conviction arose from an incident between Dolson and Metropolitan Police Department Officer Maurice Clifford on April 27, 2005. While on patrol, Officer Clifford saw Dolson riding his bicycle and emptying a small bag of what the officer believed was narcotics.*fn1 At this point, Officer Clifford called out to Dolson to stop and ordered him off of his bicycle. Dolson ignored the order and rode away. Officer Clifford then followed Dolson in his patrol cruiser until Dolson stopped in front of a house where (it was later revealed) Dolson lived with his grandmother.
Upon arriving at the house, Officer Clifford left his patrol cruiser and walked up several steps to the front gate -- a latched, swinging gate in a chainlink fence that separated the house from the street. Three of Dolson's neighbors, Tracy Crutchfield, Ursula Churn, and Napoleon Pope, observed the ensuing incident between the officer and Dolson. These three, as well as Officer Clifford, testified that during the encounter Dolson and the officer were separated by the fence, with Dolson inside and Clifford on the street side. Moreover, all four witnesses testified that Officer Clifford had attempted to enter the gate but that Dolson prevented him from doing so. Furthermore, all the witnesses testified that Dolson and Officer Clifford had engaged in a physical altercation that culminated in Dolson's striking the officer in the face (and, as a result, breaking his nose). The three neighbors also testified, however, on Dolson's behalf, that Dolson had struck Officer Clifford in self defense while Clifford was choking him.
At trial, the government offered two alternative theories of conviction under the APO statute: the jury could convict Dolson either for (1) his blow against Officer Clifford ("assaults") or for (2) his conduct at the gate preventing the officer from entering the yard ("resists, opposes, impedes, intimidates, or interferes").*fn2 As to the latter, the government argued that an APO violation occurred when the officer attempted to "get through the gate, push[ed] on one side of the gate while Mr. Dolson is on the other side of the gate, resisting, pushing back, interfering with his ability to get through that gate."
Before closing argument, defense counsel tried to persuade the court that the government's second theory of conviction required additional instructions to the jury. First, citing the Fourth Amendment, counsel argued that "it is not a crime to simply stand on your . . . property, with an officer who may or may not be mistaken, and to say you can't come in here[;] . . . you need a warrant to come into my house." Second, counsel argued that Dolson's "keeping his hands on his own gate" was not sufficient for a finding of willfully resisting, opposing, impeding, etc., within the meaning of the APO statute. Later, after closing argument, defense counsel proffered specific instructions incorporating these two understandings of the law.*fn3 The trial court declined to give them. That refusal is the subject of this appeal.
"In determining whether [a] requested defense instruction was properly denied, we must review the record in the light most favorable to [the defendant]. A defendant is entitled to an instruction on any issue fairly raised by the evidence[,] . . . [and a] special instruction is warranted when there is evidence of special facts sustaining a rational defensive theory." Fearwell v. United States, 886 A.2d 95, 100 (D.C. 2005) (citations and internal quotation marks omitted). Accordingly, "if there is evidence -- however weak -- to support it, a defendant is entitled to a requested instruction. . . ." Id. at 101; see Hernandez v. United States, 853 A.2d 202, 206 (D.C. 2004). A court, however, need not give instructions that "require the jury to engage in bizarre reconstructions of the evidence." McClam v. United States, 775 A.2d 1100, 1104 (D.C. 2001) (citation and internal quotation marks omitted).
Defense counsel premised the first requested instruction, supra note 3, on the proposition that there was evidence from which the jury could find that Dolson had prevented Officer Clifford from entering his yard solely by verbally asserting his Fourth Amendment right to be free of any intrusion by the officer without a warrant. Counsel's premise reflects a correct statement of law. See Camara v. Municipal Court, 387 U.S. 523, 532-533 (1967) (Fourth Amendment precluded conviction for denying housing code inspector entry into home without warrant); District of Columbia v. Little, 339 U.S. 1, 6 (1950) (Fourth Amendment concerns, coupled with doctrine of constitutional avoidance, precluded conviction for violation of local regulation after respondent refused to unlock door for health inspector's warrantless entry); United States v. Prescott, 581 F.2d 1343, 1350-1351 (9th Cir. 1978) (consistent with Fourth Amendment, refusal to unlock door despite demands of warrantless police officers could not be used as evidence of harboring or concealing suspected felon).*fn4
Despite counsel's correctness on the law, there is a difficult question on this record whether the jury could have reasonably construed the evidence to support a finding that Dolson had used words alone to impede Officer Clifford's entry. But even if such an understanding of the evidence were possible, the defense did not present it clearly enough for us to say that counsel kept the requested instruction alive and that the trial judge committed reversible error in declining to give it. We shall look, first, at the evidence on which Dolson relies and then address the manner in which counsel dealt with it in advising the court how to instruct the jury.
At trial, Officer Clifford, Tracy Crutchfield, and Ursula Churn all testified that Dolson had physically restrained Clifford from entering the gate. Initially, the officer testified: "I believe he was trying to impede by -- hold the gate with his foot." Later, he added that Dolson had "had his hands on the gate." Crutchfield agreed that Dolson, while verbally expressing his refusal to allow Officer Clifford into the yard, "was either holding the gate or stopping the ...