Appeal from the Superior Court of the District of Columbia (F-2582-05) (Hon. Harold L. Cushenberry, Jr., Trial Judge).
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge
Submitted January 29, 2008
Before RUIZ and BLACKBURNE-RIGSBY, Associate Judges,and PRYOR, Senior Judge.
Appellant John Barnhardt was charged with assaulting or resisting a police officer, destroying property, reckless driving, and fleeing a law enforcement officer.A jury found Mr. Barnhardt guilty of reckless driving and fleeing a law enforcement officer. Mr. Barnhardt contends that the trial court erred in denying his request for a jury instruction on the affirmative defense to the charge of fleeing a police officer under D.C. Code § 50-2201.05b (c) (2005 Supp.). We affirm.
In the early morning hours of May 7, 2005, Metro Transit Officer Lennard Smith observed a vehicle blocking the flow of traffic. The vehicle was parked in the travel lane at a green traffic light, but the engine was running. The vehicle remained parked through two cycles of the light. Officer Smith sounded his emergency air horn and cycled his emergency lights, but the occupant of the car, Mr. Barnhardt, did not respond. Metropolitan Police Department (MPD) Officer Mark Treu and Metro Transit Officer Kenneth Honick arrived on the scene and were wearing their police uniforms and traveled in marked police vehicles. Officer Treu came to assist Officer Smith and observed that Mr. Barnhardt appeared to be asleep behind the wheel with a bundle of money in his hands. After Officer Treu banged his flashlight on the window, Mr. Barnhardt sat up and looked around. Mr. Barnhardt reached toward his waistband in an attempt to hide what appeared to be money and then reached for something by the center console. Officer Treu drew his service weapon, but kept it by his side, and firmly told Mr. Barnhardt to stop reaching around and open the door or roll down the window. When Mr. Barnhardt kept reaching for the center console, Officer Honick testified that all officers then drew their service weapons and pointed them at Mr. Barnhardt. Officer Honick called out "crossfire" to warn the other officers not to shoot one another.
Mr. Barnhardt did not obey the officers and continued to reach toward the console, either to hide what appeared to be money or to reach for something by the console. Officer Treu unsuccessfully attempted to break the driver's side window with his asp --a police baton. After the officer attempted to break the window, Mr. Barnhardt opened his eyes widely; put his vehicle in reverse; and backed up at a high rate of speed. Mr. Barnhardt's car struck a police vehicle, and he then fled the scene. He drove between approximately sixty and seventy miles per hour heading eastbound out of the District of Columbia and into Prince George's County, Maryland. Officer Honick followed Mr. Barnhardt with his sirens and lights turned on. Mr. Barnhardt failed to yield to any traffic lights or stop signs throughout the pursuit and, at times, exceeded posted speed limits. He took the police around in circles before traveling back into the District of Columbia, where he drove onto the sidewalk and into a field.
Officer Honick continued to pursue Mr. Barnhardt upon his return to the District, and a number of other MPD cruisers joined the pursuit. A United States Park Police helicopter illuminated the chase from above, and the police were finally able to box Mr. Barnhardt in and apprehend him near his sister's home on J Street.
At trial, Mr. Barnhardt's defense was that he failed to stop because he was afraid for his life, and he offered testimony from his sister and his father. His sister, Rosita Maria Young, testified that Mr. Barnhardt called her during the chase, that he sounded scared and upset, and that she told him to come to her home on J Street. Additionally, Mr. Barnhardt's father, Samuel Barnhardt, testified that his daughter told him that Mr. Barnhardt feared for his life and "he was not going to stop until he was where he could be secured because he was fearing safety for his life."
Mr. Barnhardt's counsel requested that the trial court instruct the jury on the affirmative defense provided by the statute to the charge of fleeing a law officer.*fn1 The government objected arguing that, because Mr. Barnhardt had not testified, there was no evidence that he had a "reasonable belief" that he was at risk. The government also noted that appellant "fled all the way into P.G. County and back" and that "[a]t some point his risk of being shot diminishe[d]." The trial court denied Mr. Barnhardt's request on the grounds that the instruction would be "wholly speculative" because there was no way for the jury to know whether Mr. Barnhardt was actually frightened, what he might have been frightened of, or what he perceived at the time he fled.
In reviewing a trial court's denial of jury instructions requested by the defense, we consider the evidence in the light most favorable to the defendant. Simms v. United States, 867 A.2d 200, 204 (D.C. 2005) (citing Adams v. United States, 558 A.2d 348, 349 (D.C. 1989)). A defendant is "entitled to jury instruction on any recognized defense for which there is sufficient evidence for a reasonable jury to find in the defendant's favor." Id. at 204 (internal quotation marks and citation omitted). A requested instruction is not appropriate if, as a matter of law, the defendant would not be entitled to the defense. See Howard v. United States, 656 A.2d 1106, 1113 (D.C. 1995).
The statutory offense of fleeing a law enforcement officer in a motor vehicle is violated pursuant to D.C. Code § 50-2201.05b when:
(b)(1) An operator of a motor vehicle who knowingly fails or refuses to bring the motor vehicle to an immediate stop, or who flees or attempts to elude a law enforcement officer, following a law enforcement officer's signal to bring the motor vehicle to a stop, shall be fined not ...