Lead Opinion
Aрpellant William Cave appeals his conviction, after a bench trial, for assault on a police officer under D.C.Code § 22-405(b) (2007 Supp.). The government concedes that the trial court errеd when it convicted Cave without addressing the evidence in its entirety and requests a remand of the record in order for the trial court to make additional factual findings.
Section 22-405(b) provides that anyone who “without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer ... shall be guilty of a misdemeanor.” We have explained that, in order for a person’s “resistance” to an officer to be punished under this statute, that resistance must “cross the line into active confrontation, obstruction or other action directed against an officer’s performance in the line of duty.” In re C.L.D.,
In this case, Cave was seatеd in his parked car when he was approached by officers from D.C. Protective Services. The officers ordered Cave out of his car, and he refused to comply. The officers, Cave, аnd Cave’s witnesses presented conflicting testimony about what happened next. The officers claimed that Cave began to struggle and strike them before fleeing into a nearby homeless shelter whеre he hid under his bunk until the officers apprehended him. Cave and his witnesses claimed that he only attempted to protect himself from blows of the officers’ batons, did not strike the officers at all, and complied with the officers requests inside the homeless shelter.
The trial court, in its findings, stated:
The defendant’s own testimony it seems to me goes a long way to convict him in this matter. He agrees he did not comply with the officer’s command оr direction to get out of the vehicle. He says he had a good reason and maybe it is a good reason. I don’t dispute that but that does not create an exception to the statute that rеquires a civilian not [to] resist a police officer in the lawful performance of his duties. It is pretty clear here that Mr. Cave, he may not agree in his mind that he did it and it sounds like he got the worst end of the stiсk, no pun intended, in this matter but his testimony leads me to conclude that he did in fact resist the police officer.
How it happened afterwards, who struck whom, whether there was flailing*147 of arms and legs and in what оrder is something I’ll never know. It is also clear that the officers involved here did not handle this with the softest of touches and that this matter could have been perhaps handled differently and avoided, this unpleasantness, but from Mr. Cave’s own testimony and the, from the testimony of the two officers who testified, I am required, a little bit reluctantly, but I am required to find him guilty of assault on a police officer and that is my finding.
The trial court explained that Cave’s “own testimony” established that “he did not comply with the officer’s command or direction to get out of the vehicle.” On this basis, the trial court concluded that Cave “did in fact resist thе police officer.” As for the factual dispute about “[h]ow it happened afterwards, who struck whom, whether there was flailing of the arms and legs and in what order,” the trial court declined to resolvе the question one way or the other, characterizing it as “something I’ll never know.” The trial court, then, “a little bit reluctantly,” found Cave “guilty of assault on a police officer.”
The government concеdes, and we agree, that Cave cannot be convicted under D.C.Code § 22-405(b) merely for refusing to get out of his car as the officer demanded. Our decisions in Howard,
The trial court made a finding— “I’ll never know” — rejecting the government’s evidence, or at least, deeming it insufficient to prove the government’s case beyond a reasonable doubt. Implicitly, the trial court refused to credit the testimony of the police officers on which the government relies when it suggests that remand for a full consideration of the evidence is appropriate. Just as “[a]ny ‘factual finding anchored in credibility assessments dеrived from personal observations of the witnesses is beyond appellate reversal unless those factual findings are clearly erroneous,’ ” Hill v. United States,
There is nо basis for remanding the record for findings the trial court has already made. Since the facts found by the trial court are not sufficient to support the conviction, we vacate appellant’s сonviction without a remand of the record. The conviction is reversed and the case is remanded with directions to enter a judgment of acquittal.
So ordered.
Notes
. The authority for this court to remand an appеal is found in D.C.Code § 17-306 (2013 RepL): "The District of Columbia Court of Appeals may affirm, modify, vacate, set aside or reverse any order or judgment of a court ... and may remand the cause and direct the entry оf such appropriate order, judgment, or decision, or require such further proceedings to be had, as is just in the circumstances.” With jeopardy having attached and a verdict rendered, the "cirсumstances” here prevent the remand requested by the government.
Concurrence Opinion
concurring.
I concur in the opinion of the court and write separately to re-iterate views about “remands” I have expressed previously. See Porter v. United States, 37 A.Sd 251, 268-82 (D.C.2012) (Newman, J., dissenting).
As the court’s opinion states, our remand authority emanates from D.C.Code § 17-306 (2001). Our authority under that section is identical to that of federal courts under 28 U.S.C. § 2106 (2006). Foster v. United States,
Here, the government had a full and fair opportunity to litigate the matter at trial. As the court’s opinion makes clear, the trial judge did in fact “decide” the issue which the government seeks a remand for decision. That ruling was adverse to the government, i.e. thе evidence was insufficient to establish guilt beyond a reasonable doubt on the issue of active resistance. That is sufficient to decide this appeal as the court’s opinion does.
Howevеr, since the issue of remand is a recurring issue, what the United States Court of Appeals for the District of Columbia said in analogous circumstances bears repeating:
In our jurisprudential system, trial and apрellate processes are synchronized in contemplation that review will normally be confined to matters appropriately submitted for determination in the court of first resort. Questions not properly raised and preserved during the proceedings under examination, and points not asserted with sufficient precision to indicate distinctly the party’s thesis, will normally be spurned on appeаl. Canons of this tenor reflect, not obeisance to ritual, but considerations of fairness to the court and the parties and of the public interest in bringing litigation to an end after fair opportunity has bеen afforded to present all issues of law and fact. The injunction that trial ventilation precede appellate exploration best subserves that policy without appreciable imposition upon the litigants. It requires them to deal fairly and frankly with each other and with the trial tribunal with respect to their controversies. It prevents the trial of cases piecemeal or in installmеnt. It tends to put an end to litigation. We think that sound judicial administration embraces importantly the elimination of expenditures of time and energy — by parties as well as courts — incidental to potentially unnеcessary appeals.
Miller v. Avirom,
Where there are alternative bases for decision presented to the trial court, we have urged trial judges to rulе on both alternatives. For example, where there is a challenge to the admissibility of eyewitness identification as a result of pre-trial identification procedures, see Neil v. Biggers,
That advice is equally valid on the issuе presented by these recurring “remand” is