Players: Washington, Nebeker, Newman. Opinion by Nebeker. Concurrence by Newman. Brian MacAvoy for Mr. Cave. Trial judge: Alprin.
Facts: Mr. Cave was seated in his parked car when he was approached by officers who ordered him out of the car. Mr. Cave refused to comply. The officer claimed that Mr. Cave struck them before fleeing; defense witnesses claimed that Mr. Cave merely protected himself from the officers. Mr. Cave is charged with assault on a police officer. The trial judge stated that he was unable to determine which version of events was accurate but convicted Mr. Cave based on his own testimony that he refused a police order to exit his car.
Issues: The parties agreed that the trial court erred by convicting Mr. Cave of assault on a police officer based entirely on his own testimony that he refused a police order to exit his vehicle. “Mere passive resistance” or conduct that does not “‘actively or physically oppose or interfere with the officers’” cannot form a basis for conviction under D.C. Code § 22-405(b). That left the following issue for appellate resolution: whether it was appropriate to remand the case for the trial judge to consider whether the remaining, disputed evidence provided an adequate basis for conviction.
Held: A remand is inappropriate. The disputed evidence provided a sufficient basis for conviction; however, the trial court’s statement that “I’ll never know” “[h]ow it happened” constituted an implicit refusal to credit the officers’ version. Thus, the trial court already determined that the remaining evidence could not sustain a conviction, and Mr. Cave’s convictions should be vacated.
Of Note: Judge Newman wrote a concurring opinion that critiqued the Court of Appeals’s frequent practice of remanding cases for further consideration by the trial judge. Judge Newman quoted Supreme Court precedent that remand is “an exceptional course” appropriate only in “special circumstances.” He further encouraged trial judges to rule in advance on potential alternate grounds and for trial counsel to request such rulings in advance or risk possible forfeiture on appeal.
How To Use: For trial counsel: The D.C. assault on a police officer statute is broad, but it has limits. Even though the text of the statute suggests that merely “opposing” a law enforcement officer is sufficient, see D.C. Code § 22-405(b), this case is a reminder that a violation of the law requires more than simple refusal to comply with a police order. For appellate counsel: Generally, you are looking for the Court of Appeals to reverse your clients’ conviction and not to take the half-measure of granting a remand that may or may not ultimately yield a reversal. If you are facing a possible remand but want a reversal, you can rely on Judge Newman’s concurrence to argue that remands should be reserved for exceptional cases. Additionally, if the trial prosecutor failed to seek an alternate ruling below, this concurrence provides you with an argument that remand is inappropriate because the government has forfeited its right to request such a ruling from the trial court and does not deserve a second bite at the apple. CK.
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