Barnhard v. State

ROSALYN B. BELL, Judge. A jury in the Circuit Court for Montgomery County convicted John William Barnhard, Jr. of resisting arrest. He raises four issues for our review: — Whether the acts of the police amounted to an arrest or detention at the time that Barnhard was told that he could not leave without giving his name. ⁵²¹ — Whether the arrest or detention, which occurred at the time Barnhard was advised that he could not leave without giving his name, was a lawful arrest or detention. — Whether Barnhard’s initial reactions to being told that he could not leave amounted to unlawful resisting arrest as a matter of law. — Whether the trial court was correct in this case in instructing the jury that it was bound by the law and that counsel could not argue the law to the jury. The first two issues, in essence, challenge the jury instructions dealing with Barnhard’s detention; namely, whether it was an arrest.

We will address the issue of those instructions together with the fourth issue. The third issue will be dealt with separately because it is essentially an attack on the sufficiency of the evidence. We will affirm. FACTS A stabbing occurred at Bubba Louie’s Bar in Wheaton on November 27, 1989. 1 Beyond this, Barnhard and the State agree on little else.

In the interests of clarity and brevity, we have condensed the testimony into “prosecution” and “defense.” —Prosecution— Numerous police officers testified at trial on behalf of the prosecution. Generally, they stated that Barnhard was disorderly, which prompted his arrest. In their view, Barn-hard impeded their investigation of the stabbing immediately upon their arrival by blocking access to the crime scene, disrupting the investigation, and inciting the crowd. Barn-hard refused to answer questions regarding his identity.

He was loud and abusive to the police, using obscenities, gestures and threats. Barnhard insisted the police could ⁵²² not stop him or talk to him and if they persisted in interfering with him, there would be.violence. According to the police officers, Barnhard continued to gesture threateningly. Because the conduct continued, Barnhard was placed under arrest for disorderly conduct.

At this point, the officers testified that Barnhard resisted arrest and assaulted them by throwing punches, breaking their hold on him, and attempting to strike them with a flashlight and a loose handcuff. Ultimately, one officer struck Barnhard three times with her flashlight to subdue him. —Defense— Barnhard and his witnesses saw it differently. In their view, the police instigated the confrontation by not allowing Barnhard to leave and threatening him with arrest if he did not give his name. Finally, they seized him and, in response, Barnhard resisted.

Defense testimony indicated that Barnhard repeatedly tried to leave the scene, but was stopped and even threatened with arrest for not providing his name to the police. Barnhard declined to give his name but allowed the police to search his jacket upon request. According to defense witnesses, the jacket ended up on the floor. Barnhard testified that the officer searching the jacket told him she was “starting trouble” with him.

Testimony indicated that at this time handcuffing was attempted, but Barnhard pulled his arm away. In response, a female officer hit him on the head with a flashlight. Barn-hard left the premises under arrest. He was later charged with counts of assault, resisting arrest and disorderly conduct. • JURY INSTRUCTIONS AND COUNSEL’S CLOSING ARGUMENT Appellant claims the trial court should have instructed the jury that he was arrested at the point when the police initially detained him to learn his identity.

He also argues that the trial court erred in instructing the jury that it was bound by the court’s instructions as to the law. He further ⁵²³ contends that the court erred when it prevented counsel from arguing his interpretation of the law. —Instruction that Appellant was Arrested when the Police Sought to Detain Him to Learn His Identity— After discussions with counsel, the trial court gave extensive instructions on the resisting arrest charge. The court prefaced its instructions with a factual chronology that the court emphasized was only illustrative and not binding on the jury. The court stated at one point: “I don’t mean for you to find the facts this way.” The court began its instructions to the jury by noting that the evidence appeared to show that the police responded to a stabbing; an encounter with appellant ensued; and the police alleged that he acted in a disorderly fashion.

The court stated that appellant “contested that, and of course that is going to be something you are going to have to find.” Continuing, the court noted that the police alleged that they then attempted to arrest him, that he resisted arrest, and that he assaulted each of the officers. Turning to the encounter with appellant, the court stated: “You are advised that the officer, let me speak generally here for a moment; officers have the right to detain an individual briefly short of arresting him for purposes of questioning where a crime has been committed and the individual is known to have been a witness to that crime. “Now, this is short of arresting, understand; questioning. For purposes of this case you may also assume that the [appellant] had the right to refuse to identify himself to the officers. He needn’t answer that question.

The issue in this case, or one of the underlying issues in this case is whether in refusing to identify himself to the officers the [appellant] did so in a way as to engage in disorderly conduct. “That is the issue in this case, not whether or not he had a right to refuse but whether he in some fashion refused to do so in a disorderly fashion. Now, you are going to consider this in two ways because I am going to ⁵²⁴ go back and give you the specific ways in which this develops in a moment. “One of the questions you are going to have to answer in this case is did the [appellant] commit disorderly conduct because that is one of the charges he is concerned with. The State is going to have to prove each and every element beyond a reasonable doubt and I will tell you about the elements in disorderly conduct in a minute. “Now, there is a second way in which you have to consider the disorderly conduct charge and that is in connection with the resisting arrest. The question you are going to have to answer there is did the police have probable cause to believe that the [appellant] committed disorderly conduct. “In other words, the police when they arrested him may have had good — some sufficient reason — I will explain what this means in a moment — to arrest him even though in the end he ends up not being guilty of disorderly conduct.

If the police had probable cause, something less than that, to arrest him for then he yet may be guilty of resisting arrest even though you would finally find him not guilty of disorderly conduct. “If the police had reasonable cause at the time they attempted to do so you could still find him guilty of resisting an arrest, a lawful arrest, on the theory that the police do not always know and can't prove then and there that somebody is absolutely guilty of an offense but there may be reason within which somebody can be apprehended. “I just want you to see that that is the way that disorderly conduct functions. In the one instance you are going to have to find that in fact he was guilty of disorderly conduct and then when we talk about resisting arrest you are going to have to consider disorderly conduct whether the police had probable cause to believe, that is something less than absolute proof to believe that he was guilty of disorderly conduct.” ⁵²⁵ The court moved on to an instruction on the elements of disorderly conduct, followed by a detailed instruction on the elements of resisting arrest. The court said that the crime consisted of three elements: (1) the defendant must be arrested; (2) the arrest must be lawful; and (3) the defendant resists or refuses to submit to that arrest. The court then discussed what constitutes an arrest.

Next, the court defined a lawful arrest. The court repeatedly emphasized that the only issue the jury was to consider with regard to the lawfulness of the arrest was whether there was probable cause to believe appellant was guilty of disorderly conduct. Finally, the court also defined the concept of resistance. The court emphasized that, if an arrest is unlawful, the arrestee can use any reasonable means, including force, to escape.

If appellant used unreasonable force, then the jury could find him guilty of an assault. The court then defined the crime of assault. At the conclusion of the instructions, defense counsel objected, stating that he disagreed with the court in connection with the law as it applied to the original detention. Counsel requested that the court instruct the jury that, “at the time the police officer approached [appellant,] he was considered arrested[.]” The court stated that counsel could argue to the jury when the arrest occurred.

The court, however, declined to instruct the jury as to when it occurred, noting that a “fair difference of opinion” existed about when the arrest did occur. The court instructed the jury that when the arrest occurred constituted one of the significant issues. The court stated that the jury could find appellant not guilty of disorderly conduct if the disorderly conduct occurred subsequent to the arrest and the conduct was committed resisting an unlawful arrest. The court continued, stating that, if the conduct occurred before the arrest, it could serve as the basis of a lawful arrest. ⁵²⁶ The trial court’s extensive instructions were not erroneous.

Appellant claims the court erred by not informing the jury that a detention of any sort constituted an “arrest” and, therefore, resistance to that detention would be justified. We do not agree. The detention must rise to the level of an arrest as well as be unlawful to justify appellant’s conduct. When a police officer stops a person, that action is not tantamount to an arrest.

See generally Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). In McChan v. State, 238 Md. 149, 157 , 207 A.2d 632 (1965), cert. denied, 384 U.S. 1021 , 86 S.Ct. 1929 , 16 L.Ed.2d 1022 (1966), the Court of Appeals discussed arrest: “An arrest has been defined as ‘the detention of a known or suspected offender for the purpose of prosecuting him for a crime.’ Cornish v. State, 215 Md. 64, 67 , 137 A.2d 170, 172 (1957). As that case points out there is a detention only when there is a touching by the arrestor or when the arrestee is told that he is under arrest and submits. Where there is no touching, the intention of the arrestor and the understanding of the arrestee are determinative, for in order for there to be an arrest in such case, there must always be an intent on the part of one to arrest the other and an intent on the part of such other to submit.

When one is approached by a police officer and merely questioned as to his identity and actions, this is only an accosting and not an arrest.” In contrast, a stop is much less intrusive than an arrest. See generally Terry, 392 U.S. 1 , 88 S.Ct. 1868 , supra. Whether the initial detention in this case amounted to an arrest is factually a very close question. Appellant presented evidence that the officers indicated, and he believed, that he was under arrest before he became assaultive.

The State, however, presented evidence that his assaultive conduct occurred when the police were merely questioning him. The State’s evidence indicated that he was arrested after he became hostile. Thus, whether the ⁵²⁷ initial detention was an arrest or a stop was a question for the jury to decide. Apparently, the jury decided the initial detention was a stop and we cannot say it was wrong as a matter of law.

In Maryland, if a person is illegally arrested, he or she may use any reasonable means, including reasonable force, to effect his or her escape. Rodgers v. State, 280 Md. 406, 410 , 373 A.2d 944 , cert. denied, 434 U.S. 928 , 98 S.Ct. 412 , 54 L.Ed.2d 287 (1977). In Rodgers , the Court reviewed the history of the right to resist an unlawful arrest. It noted that the underlying rationale for this right was the “provocation” of the unlawful arrest, which served to excuse an assault designed to thwart the unlawful arrest.

Rodgers, 280 Md. at 412 , 373 A.2d 944 . The Rodgers Court