Coghill v. U.S., No. 06-CF-961.

• Decision Date: 29 October 2009
• Docket Number: No. 06-CF-961.,No. 06-CF-990.
• Citation: Coghill v. U.S., 982 A.2d 802 (D.C. 2009)
• Parties: Darius COGHILL and Shannon Marshall, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

982 A.2d 802

Darius COGHILL and Shannon Marshall, Appellants, v.UNITED STATES, Appellee.

No. 06-CF-961.

No. 06-CF-990.

District of Columbia Court of Appeals.

Argued November 13, 2008.

Decided October 29, 2009.

Brigitte L. Adams, for appellantDarius Coghill.

Sicilia C. Englert, Greenbelt, MD, for appellantShannon Marshall.

Leslie Ann Gerardo, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney at the time the brief was filed, and Roy W. McLeese III, Assistant United States Attorney, and Florence Pan, Assistant United States Attorney at the time the brief was filed, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and FERREN, Senior Judge.

WASHINGTON, Chief Judge:

A jury found co-defendantsShannon Marshall and Darius Coghill each guilty of one count of assaulting, resisting, or interfering with a police officer's duties, D.C.Code § 22-405(a)(2005), commonly referred to as assaulting a police officer or APO, and also found Marshall guilty of one count of possession of marijuana, D.C.Code § 48-904.1(d).Coghill appeals his APO conviction on the grounds that the government failed to put forth sufficient evidence to support the conviction.Marshall appeals his APO conviction on the grounds that the jury was improperly instructed, the government failed to set forth sufficient evidence to support the conviction, and that the arresting officer lacked probable cause to arrest him for APO.Because we agree that the jury was improperly instructed as to Marshall's APO charge, we affirm in part and reverse in part.

I.

The instant convictions arose from an incident between appellants and the D.C. Metropolitan Police.On the evening of August 1, 2005, three uniformed D.C. Metropolitan Police officers, Officers Greer, Glenn, and Heraud, were patrolling in Northeast Washington, D.C. in a marked car.The officers observed an automobile pass by with windows they believed to be tinted too darkly, and thus unlawfully.The officers signaled for the driver of the vehicle to stop and the driver obeyed.There were four people in the stopped vehicle.Officer Greer used a tint meter and determined that the windows were unlawfully tinted.The driver, Darius Coghill, presented his license and registration, began to argue with the officers about the basis for the stop, and when asked, denied having any contraband in the car and refused to consent to a search of the vehicle.Officer Greer returned to the patrol car to issue the citation while the other two officers remained by the stopped vehicle.Meanwhile, two additional officers, Officers Geddies and Sulla, arrived at the scene in another patrol car.While Officer Greer wrote a citation for the unlawfully tinted windows, Officer Heraud asked Coghill additional questions.Because of Coghill's nervousness, unwillingness to answer the questions, and because Officer Heraud could not see into the car, he asked Coghill to exit the vehicle, and told the other passengers to remain in the vehicle.The government's evidence established that Coghill complied, and Officer Heraud began a pat-down for weapons, but before the officer completed the pat-down, Coghill sat back down in the vehicle, and refused to exit again when asked.After Coghill repeatedly ignored Officer Heraud's orders to get out of the vehicle, Officers Heraud, Sulla, and Geddies attempted to forcibly remove Coghill from the vehicle.Coghill resisted the officers' efforts by bracing his feet on the floorboard and gripping the steering wheel.Meanwhile, another passenger—it was not clear who— urged Coghill to drive away.Coghill then engaged the gear shift and the vehicle began to roll away.Although Coghill resisted, the officers were able to forcibly remove him from the car, stop the vehicle, and handcuff him.

After stopping the car from rolling away, Officer Greer attempted to remove the key from the ignition, and at the same time, Shannon Marshall, a passenger in the back seat, exited the vehicle and fled.Officer Greer pursued Marshall and found him hiding in a grove of trees, laying down with his arms under his body.Not knowing if Marshall was armed, the officer repeatedly ordered Marshall to show his hands, but Marshall did not obey.The government's evidence established that Marshall resisted Officer Greer's attempt to handcuff him, causing the officer to struggle to access Marshall's arms in order to secure the handcuffs.The officer was able to handcuff Marshall, but when he walked him back to the location where the vehicle had been stopped, the vehicle was no longer there.Apparently, after Coghill was removed from the car and Marshall fled, the remaining two passengers drove off with the car.Marshall and Coghill were taken to the police station, where the police found marijuana in Marshall's wallet.

II.

Under District of Columbia law, "[w]hoever without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer on account of, or while that law enforcement officer is engaged in the performance of his or her official duties" is guilty of APO.D.C.Code § 22-405(b)(2005).¹"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."Id.§ 22-405(d).Further, "mere passive resistance or avoidance" does not violate the APO statute.In re C.L.D.,739 A.2d 353, 357(D.C.1999).Coghill and Marshall both argue that the government's evidence only establishes that they exerted passive resistance, and therefore the evidence is insufficient to support their APO convictions.We review challenges to the sufficiency of the evidence by viewing the "evidence in the light most favorable to the government, giving full play to the right of the [fact finder] to determine credibility, weigh the evidence, and draw justifiable inferences of fact."Sousa v. United States,400 A.2d 1036, 1043(D.C.1979).

A.

To violate the APO statute a person's conduct must "cross the line into active confrontation, obstruction or other action directed against an officer's performance in the line of duty" by "actively interposing some obstacle that precluded the officer from questioning him or attempting to arrest him."In re C.L.D., supra,739 A.2d at 357-58.Recognizing that the statute was intended to "deescalate the potential for violence which exists whenever a police officer encounters an individual in the line of duty,"id. at 355, we held that "the key to establishing any violation of the APO statute is `the active and oppositional nature of the conduct for the purpose of thwarting a police officer in his or her duties.'"Dolson v. United States,948 A.2d 1193, 1202(D.C.2008)(quotingIn re C.L.D., supra,739 A.2d at 357).

Coghill's APO conviction was based on the government's evidence that while he was stopped for driving a car with unlawfully tinted windows, he abruptly sat back in the driver's seat while Officer Heraud was attempting to conduct a pat-down, shifted the parked vehicle into gear, and braced his arms against the steering wheel to prevent being removed from the vehicle by several officers.Coghill's actions were active and directed at the officers; the actions impeded and interfered with Officer Heraud's pat-down search, the officers' attempt to remove him from the car, and the officers' completion of the traffic stop.Particularly by bracing himself in the car and resisting being removed, Coghill imposed an active, physical obstacle to the officers' effectuation of their duties.In Dolson, putting a finer point on the distinction between passive and active resistance, we held that "reinforc[ing] an existing barrier" or "the creation of a new barrier" is active resistance that violates the APO statute.948 A.2d at 1202.In Dolson,the defendant's act of holding a gate shut while an officer tried to enter was conduct sufficient to violate the APO statute because the defendant's conduct was active resistance of the police officer.

Coghill's active resistance of the pat-down and attempts to remove him from the vehicle are precisely the type of escalating conduct that increases the likelihood of violence during police encounters and that the statute was designed to prevent.Id.("If resistance to an arrest or a search made under the color of law is allowed, violence is not only invited but can be expected.").Here, unlike the minor in In re C.L.D., but similar to the defendant in Dolson, Coghill engaged in "active and oppositional conduct ... for the purpose of thwarting a police officer in his duties."SeeIn re C.L.D., supra,739 A.2d at 357.Accordingly, we are satisfied that the evidence sufficiently supports Coghill's APO conviction.

B.

With regard to the sufficiency of the evidence underlying Marshall's APO conviction we must first address Marshall's argument that, with regard to him, the trial court improperly instructed the jury on what evidence is properly considered for APO.During jury deliberations, the jury sent a note to the trial court that asked: "For count two against Marshall, can we consider his exiting the vehicle and running from the scene as the basis of his resistance?Or can we only consider his behavior while on the ground in the woods in not making his hands available to Officer Greer quickly enough."In response, the trial court instructed the jury that there was no limiting instruction as to how it should consider the evidence.Marshall's trial counsel objected to the trial court's clarification.On appeal, Marshall argues that flight is not evidence of active resistance sufficient to violate the APO statute, and we agree.

Marshall's flight and the defendant's conduct in In re C.L.D. are materially the same with regard to the APO statute; both refused to comply with an...