Appeal from the Superior Court of the District of Columbia (CMD-1110-10) (Hon. Jennifer M. Anderson, Trial Judge)
The opinion of the court was delivered by: Terry, Senior Judge:
Submitted September 14, 2011
Before FISHER, Associate Judge, and NEWMAN and TERRY, Senior Judges.
After a non-jury trial, appellant was convicted
of misdemeanor assault on a police officer ("APO").*fn1
On appeal from that conviction,
he argues that the trial court erred in not making a specific finding
as to the defense of justifiable or excusable cause, even though he
never requested such a finding. We hold that the court committed no
error and accordingly affirm the conviction.
Appellant was charged by information with APO, unlawful entry, and disorderly conduct. The government dismissed the unlawful entry charge before trial. At the end of the trial, the court granted appellant's motion for judgment of acquittal on the disorderly conduct charge but found him guilty on the APO charge. The court sentenced appellant to ninety days in jail; execution of the sentence was suspended, and appellant was placed on probation for one year.
The charges against appellant arose from events that occurred at the Gallery Place Metro station shortly after 8:00 p.m. on Saturday, January 16, 2010. Metro Transit Police Officer Gregory Holloway testified that he had noticed appellant loitering in and around the Metro station for about thirty minutes or so. When he saw appellant approach another young man, Holloway believed that the two men were going to have a physical altercation, so Holloway told appellant to leave the area. Appellant walked away but returned within five minutes. Holloway, along with Metro Transit Police Officer Logan Kent, again instructed appellant to leave. Appellant then became combative and started shouting at the officers.
When Officer Kent tried to place appellant under arrest, appellant began to struggle. Both officers then grabbed appellant's arms and forced him to the ground. Appellant continued to struggle, flailing and kicking against Officer Kent. Kent struck appellant with his hands and knees, and Holloway struck appellant twice in the legs with his baton.
The defense presented two witnesses who offered a different version of what happened. Appellant and his friend Dominique Dean both testified that the police officers had knocked appellant down without warning and that appellant had not resisted the arrest. Appellant also stated that the officers did not ask him to leave before they arrested him.
Appellant argues that the trial court erred by not specifically making a finding on whether he had "justifiable or excusable cause" to resist Officer Kent. Specifically, he argues that he preserved this claim when his counsel referred to Officer Kent's actions as a "a very violent assault upon my client." Counsel, however, did not request specific findings on this defense.*fn2 He further maintains that even if we consider this case under a plain error standard, the trial court committed plain error by failing to consider the defense of justifiable or excusable cause. Appellant's argument lacks merit because (1) he did not preserve his right to specific findings, and (2) the trial court's findings show that the court properly considered whether appellant's actions were justified and concluded that they were not.
We note in any event that a defense claim of "justifiable or excusable cause" is specifically barred by statute when the defendant is charged with assault on a police officer. D.C. Code § 22-405 (d) (2011 Supp.), part of the APO statute, provides:
It is neither justifiable nor excusable cause for a person to use force to resist an arrest when such an arrest is made by an individual he or she has reason to believe is a law enforcement officer, whether or not such arrest is lawful.
Thus we have held that, "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). In Nelson we recognized two exceptions to this general rule, one of which "comes into play when the defendant is charged only with simple assault . . . against a police officer complainant," id. (citation omitted). and is therefore not pertinent here because appellant was not charged with simple assault. The other exception requires the defense to make a showing that the officer used "excessive force" and that the defendant "responded with force that was reasonably necessary under the circumstances for self-protection . . . ." Id. (citations and internal ...