Fearwell v. US
| Citation | 886 A.2d 95 |
| Decision Date | 10 November 2005 |
| Docket Number | No. 03-CF-662.,03-CF-662. |
| Parties | Steven L. FEARWELL, Appellant, v. UNITED STATES, Appellee. |
| Court | Court of Appeals of Columbia District |
Sara E. Kopecki, Washington, DC, appointed by the court, was on the brief for appellant.
Kenneth L. Wainstein, United States Attorney, John R. Fisher, Assistant United States Attorney at the time the brief was filed, and Ann H. Petalas and L. Jackson Thomas II, Assistant United States Attorneys, were on the brief for appellee.
Before SCHWELB, RUIZ, and REID, Associate Judges.
After a jury trial, appellant, Steven L. Fearwell, was convicted of willfully failing to appear in court (with respect to an assault charge), in violation of the District of Columbia bail reform statute, D.C.Code § 23-1327(a) (2001). On appeal, Mr. Fearwell challenges the trial court's refusal to give his requested jury instruction regarding the definition of willfulness under the statute. Specifically, he requested an instruction that special circumstances affected his ability to appear in court. He also argues in essence that the trial court committed reversible error when it failed to give the jury a requested curative instruction after the prosecutor argued facts not in evidence during the government's rebuttal argument. We conclude that the requested jury instruction on the meaning of willfulness should have been given because it was an accurate statement of a legal principle. Furthermore, we hold that the combination of the failure to give the requested instruction regarding a controlling principle of law, and the government's improper rebuttal argument based on a fact not in evidence resulted in substantial prejudice to Mr. Fearwell. Consequently, we reverse the judgment of the trial court and remand this case for a new trial.
The government presented evidence showing that on August 29, 2002, Mr. Fearwell signed a condition of release form which included a written notice to reappear in the Superior Court of the District of Columbia on November 14, 2002, for a status hearing in connection with a pending assault charge. On November 14, 2002, when he failed to appear, a bench warrant was issued, and Mr. Fearwell was arrested on November 28, 2002. Trina Arguelles, Mr. Fearwell's girlfriend with whom he lived, testified in his behalf. She stated that Mr. Fearwell was HIV positive and due to this, "he suffers from fatigue." In November 2002, his health was "[v]ery poor," he was "very weak," and "it was difficult for him to move." "Within the whole period, he was very weak." During the month of November, when he went to the methadone-maintenance clinic, he "barely made it."
Mr. Fearwell testified that in November 2002, due to the advanced stages of HIV, he was in "very poor" health, "was on oxygen, ... was very fatigued and basically bedridden." During this time, he was "barely able to feed" and bathe himself. He was "get[ting] take-home medication" due to his illness. On November 14, 2002, he was bedridden and did not go to the clinic. He was aware of the November 14 court date and because he "was incapacitated and ... wouldn't be able to attend" court, he called Pretrial Services. He was informed that without the docket numbers, Pretrial Services could not forward his case. On cross-examination, Mr. Fearwell testified that he was aware of the penalties for not showing up to court on November 14, 2002, but that he "was unable to come in that day."
Mr. Fearwell requested the following instruction be added to the "bail jumping" violation jury instruction:1
There is evidence that the defendant was too disabled by AIDS to attend court on November 14, 2002. If you find special circumstances; namely that a medical condition existed causing the defendant to be unable physically to attend court on that date, you may consider that special circumstance[] in determining whether the government has proved beyond a reasonable doubt that the defendant's failure to appear was willful.
The trial court refused to give the requested instruction because defense counsel impermissibly put the facts of Mr. Fearwell's testimony in the form of an instruction. The trial court proposed the following instruction: "As to the charge of failure to appear in court, Mr. Fearwell's defense is that he was physically unable to come to court on November 14, 2002; and, therefore, his failure to appear was not willful." Both parties agreed to this instruction. However, government counsel reminded the trial judge that defense counsel "provided another [instruction] regarding the definition of `willful.'" The judge responded: Instead, the judge announced his "inten[tion] to give the theory of the case, which says that [the failure to appear] was not willful." Defense counsel called the judge's attention to case law, specifically Foster v. United States, 699 A.2d 1113 (D.C.1997). When the judge inquired as to why it would not be sufficient to tell the jury "that his defense is that he was not willful because he was unable to come [to court]," defense counsel replied: Government counsel expressed "concern" that the jury not be left "with an improper view of what the law is ...." She argued that Mr. Fearwell had to show "that he is physically unable to show up[,] [n]ot that it was hard for him — not just that he didn't have to show up because he was sick and bedridden, but that he was physically unable."
After reading the Foster decision, the trial court stated that "it didn't change my view as to whether the proposed instruction should be given." The court expressed the belief that Foster turned on a trial judge's "ruling [in a bench trial] which might have been inconsistent with controlling law on what constitutes willfulness." The trial court continued:
During its rebuttal closing argument, the government stated:
The defendant told you he chose not to come to court that day. He knew he had to come to court that day. He told you it was not impossible to come to court. He told you he was not in the hospital. He was not under a doctor's care. And as Trina told you, during that month he was going out to the clinic that day.
Defense counsel objected stating, "Mr. Fearwell never testified that he could get to court that day." The trial court overruled the objection, saying: "I don't think [the government] unfairly mischaracterized the evidence." The record shows that during cross-examination of Mr. Fearwell, the following exchange occurred:
Defense counsel asked the trial court "to advise the jury to strike [the prosecutor's statement that Mr. Fearwell chose not to come into court] because — or allow [the defense] to address it again." Defense counsel then "ask[ed] that the next instruction to the jury be that their recollection controls." The trial judge replied:
Mr. Fearwell was sentenced to eighteen months' imprisonment on the failure to appear charge under the bail reform statute. He was found not guilty on the assault charge.
Mr. Fearwell argues that the trial court failed to give a jury instruction regarding the defense of special circumstances affecting his ability to appear in court. The government maintains that Mr. Fearwell consented to the trial court's final failure to appear instruction and cannot now argue in favor of a contrary position.3 To convict a person under the failure to appear section of the bail reform statute, "`the trier of fact must find (1) that the defendant was released pending trial or sentencing, (2) that he was required to appear in court on a specified date or at a specified time, (3) that he failed to appear, and (4) that his failure was willful.'" Foster, supra, 699 A.2d at 1115 (quoting Trice v. United States, 525 A.2d 176, 179 (D.C.1987)); see also D.C.Code § 23-1327(a). Mr. Fearwell's request for a special circumstances instruction was directed at the fourth element of a failure to appear case.
"In determining whether the requested defense instruction was properly denied, we must review the record 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 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.'" Id. (quoting Martin v. United States, 452 A.2d 360, 362 (D.C.1982)) (inner quotations omitted). We have recognized that a defendant may raise an affirmative defense to a "bail jumping" charge and that the defendant has the burden of proof as to that defense. See Raymond v. United States, 396 A.2d 975, 978 (D.C.1979)
.
In Raymond, we stressed the importance of the special circumstances defense to an alleged failure to appear...
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