Dolson v. U.S., No. 05-CF-1438.

• Decision Date: 29 May 2008
• Docket Number: No. 05-CF-1438.
• Citation: Dolson v. U.S., 948 A.2d 1193 (D.C. 2008)
• Parties: Michael J. DOLSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

948 A.2d 1193

Michael J. DOLSON, Appellant, v.UNITED STATES, Appellee.

No. 05-CF-1438.

District of Columbia Court of Appeals.

Argued January 22, 2008.

Decided May 29, 2008.

Mikel-Meredith Weidman, with whom James Klein, Public Defender Service, was on the brief, for appellant.

Bryan Seeley, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney, and Roy W. McLeese III, Thomas J. Tourish, Jr., and Mark J. O'Brien, Assistant United States Attorneys, were on the brief, for appellee.

Before RUIZ and GLICKMAN, Associate Judges, and FERREN, Senior Judge.

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.

I.

The conviction arose from an incident between Dolson and Metropolitan Police Department OfficerMaurice 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.¹At 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").²As 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.³The trial court declined to give them.That refusal is the subject of this appeal.

II.

"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;seeHernandez 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.SeeCamara v. Municipal Court,387 U.S. 523, 532-533, 87 S.Ct. 1727, 18 L.Ed.2d 930(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, 70 S.Ct. 468, 94 L.Ed. 599(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).⁴

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 gate from being pushed open."And Churn acknowledged that Dolson and Clifford were "tugging back and forth at the gate."

For evidence that Dolson used words alone to restrain Officer Clifford, Dolson relies on the fourth witness, Napoleon Pope, who testified on cross-examination as follows:

Q. Michael Dolson, after he — he comes back down to the gate and he closed the gate, right?

A.Yeah, and he locked it.

Q.And he locked it.Okay.And it was at this point in time that Officer Clifford walks up to the gate and he tries to get through the gate?

A.Yes.

Q. Michael Dolson wouldn't let him get through the gate?

A.Told him he had no warrant to come through his gate.

Q.And so he was preventing him from getting through that gate?

A.Right.

The defense argues that because Dolson's words at the scene ("[t]old him he had no warrant") were unaccompanied by a reference to any other specified action, the jury could reasonably have found from Pope's testimony that Dolson's words alone were the sole barrier Dolson erected to forestall Officer Clifford's entry ("And sohe was preventing him from getting through the gate"?"Right.")(emphasis added).At first glance, this particular portion of Pope's testimony — the only testimony on which the defense relies for the first proffered instruction — is sufficiently ambiguous to permit the defense interpretation as one (though not the only) possibility.⁵On the other hand, in light of unanimous testimony by the other witnesses that physical restraint had been used, Dolson's testimony could be understood to convey little more than an end result: Dolson "was preventing" entry by means not necessarily limited to speech.⁶We need not resolve, however, whether the evidence would have supported the first, "words only" instruction defense counsel submitted; as the proceedings at trial make clear, that request was effectively withdrawn.

When defense counsel, before closing arguments, asked for an instruction that the jury could not convict Dolson for telling Officer Clifford that he could not come into the yard without a warrant, the trial judge replied that the testimony showed "the defendant was preventing the officer from opening the gate."(Emphasis added.)Instead of responding directly to the judge's comment about prevention, defense counsel replied that he was afraid the jury "may disbelieve everything about Officer Clifford, essentially the government's case, but convict [Dolson] for saying you need a warrant to come on my property."The government responded that it was "not suggesting that the defendant's statement[s] are a violation of the statute.It's his conduct of holding the gate shut."The government then stressed that according to the jury instruction (4.11) explaining the APO statute, one "cannot interfere with that officer, even if that officer is making a stop that turns out to be unlawful."

Instead of...