Glover v. State

MOTZ, Judge. Appellant, Andrew Glover, was convicted by a jury in the Circuit Court for Dorchester County (Johnson, J.) of battery and hindering a police officer. He was sentenced to concurrent four year terms of imprisonment, with two years suspended, and three years probation upon release. On appeal, appellant’s sole contention is that the trial court erred in refusing to instruct the jury on the law of fresh pursuit.

For the reasons stated below, we affirm. ³⁹⁶ Facts On January 26, 1990, Katherine Glover, appellant’s mother, drove up to uniformed Hurlock, Maryland Police Officer John Williams, as he was walking to his marked patrol car after stopping another driver for a traffic violation in Hurlock. Ms. Glover challenged Officer Williams to a race, saying “Let’s race, dammit.” She then “took off very fast” near some pedestrians and sped away. Officer Williams returned to his patrol car and followed Ms. Glover’s car, with his emergency lights on. He followed her about a mile out of town (and out of his jurisdiction) to an open field where she had stopped and gotten out of her car near a crowd of people including appellant and other relatives.- (Ms. Glover and her family members apparently often gathered in this field, which she testified, had “belonged to her ancestors,” to drink and socialize.) Officer Williams stopped his car about twenty yards behind Ms. Glover and asked her to come over to him with her driver’s license and registration.

Appellant then walked toward Officer Williams; the officer told appellant to stop. The officer again requested Ms. Glover to come over; appellant continued to walk toward the officer and “bumped” into the officer “with his [appellant’s] chest.” Officer Williams told appellant to “get away,” but appellant responded by saying, “What are you going to do about it,” and then once again bumped Officer Williams with his chest, causing the officer’s hat to fall to the ground. Officer Williams then attempted to arrest appellant for “hindering” him. A struggle ensued 1 and appellant punched the officer and gouged him in the eye.

Others in the crowd attacked the officer and tore his clothing. The struggle finally stopped when Officer Williams pointed his gun at appellant; appellant and some ³⁹⁷ of his friends then ran away. Appellant was arrested later that day; his mother was arrested and convicted of traffic violations. Although conceding they did not check any timepiece, appellant, his mother, and his two aunts all testified that Officer Williams did not arrive at the open field until “eight to ten minutes” after Ms. Glover arrived.

Appellant further testified that he knew that Officer Williams was out of the officer’s jurisdiction and appellant was concerned as to why the officer wanted to talk to his mother. Officer Williams testified that he started his pursuit within fifteen seconds after Ms. Glover sped away from him, was never more than a “quarter of a mile” behind her, and lost sight of her only once as she drove out of town. Fresh Pursuit — the Statute Appellant bases his entire case on the dispute as to the timing of the pursuit. He claims that the time lag of eight to ten minutes showed that Officer Williams was no longer in fresh pursuit when he arrived at the field.

Thus, appellant argues that the officer, out of his jurisdiction and not in fresh pursuit, illegally accosted Ms. Glover, which permitted appellant to resist an unlawful stop of his mother and an unlawful arrest of himself. At trial, appellant requested “as an instruction the language under” Md.Ann.Code art. 27, § 599 (1957, 1987 Repl. Vol.) “where fresh pursuit is defined.” That statutory definition of fresh pursuit, however, applies only in the context of interstate pursuits and is a part of the subtitle pertaining solely to the authority of officers of other states to make arrests in Maryland. Thus, the requested instruction was not appropriate here.

The court below, recognizing this, refused to give the instruction because it “would do nothing more than confuse the jury.” Appellant objected to the trial court’s refusal to give an instruction to the jury “on fresh pursuit and an instruction on jurisdiction of a police officer or authority of a police officer ... outside of his jurisdiction.” Although unmentioned by appellant at ³⁹⁸ trial, there is a companion Maryland statute governing intrastate fresh pursuit. Md.Ann.Code art. 27, § 602A(a)(2) (1957, 1987 Repl.Vol.). Adequacy of the Bequest for a Fresh Pursuit Instruction Appellant now concedes that requesting the instruction under Section 599 was inappropriate, but contends that this flaw in the proposed instruction was not a sufficient reason for the trial court to refuse to give any instruction at all on a relevant legal issue in the case. The State maintains that the requested instruction was inaccurate and potentially misleading and so the trial court’s refusal to give it was not error.

Thus our initial inquiry is whether the request made by the defendant here triggered an obligation by the circuit court to. give a fresh pursuit instruction, assuming such an instruction would have been relevant. Where a requested jury instruction is “potentially misleading” Hunt v. State, 321 Md. 387, 405 , 583 A.2d 218, 226 (1990), cert. pet. filed, No. 90-8164 (May 1, 1991), or “inaccurate” Collins v. State, 318 Md. 269, 290 , 568 A.2d 1, 11 , cert. denied, — U.S.-, 110 S.Ct. 3296 , 111 L.Ed.2d 805 (1990), a defendant has no right to it and a trial judge’s refusal to grant it is not error. On the other hand, where a request for a jury instruction is “technically erroneous,” the trial court should include “a correct instruction in his charge” and failure to do so is error. Privette v. State, 320 Md. 738, 748 , 580 A.2d 188, 192 (1990); Noel v. State, 202 Md. 247, 252 , 96 A.2d 7, 10 (1953) (dicta).

See also Clark v. State, 80 Md.App. 405, 411-15 , 564 A.2d 90, 94 (1989); Gooch v. State, 34 Md.App. 331, 337 , 367 A.2d 90, 94 (1976). On its face, the difference between a jury instruction which is “potentially misleading” and one which is “technically erroneous” is not crystal clear. Our review of the above cited cases, however, suggests that upon examination of their facts and the requested jury instructions, a worka ³⁹⁹ ble principle emerges as to when refusal to modify an erroneous instruction is error. In Hunt , the defendant requested an instruction that he “would” serve 20 years in prison for a handgun violation “in addition to” the life sentence the jury might impose for the murder conviction. 321 Md. at 404 , 583 A.2d at 226 .

The Court of Appeals rightly concluded that such an instruction was fundamentally misleading because while consecutive sentences could extend the defendant’s mandatory minimum sentence, concurrent sentences would not. Id. at 405 , 583 A.2d at 226 . Only the trial judge could determine if the sentences were concurrent or consecutive and that would not be done until the defendant had an opportunity to present an allocution. Id.

Thus there was no way that the trial judge could have modified the proposed instruction to eliminate its inherently misleading quality. Similarly, in Collins v. State, 318 Md. at 289 , 568 A.2d at 11 , the fundamental premise of the requested instruction, i.e., “sentence of life imprisonment presumptively means that the prisoner will spend the remainder of his natural life in prison” was directly contrary to Md.Ann.Code art. 27, § 413A (1957, 1987 Repl.Vol.) which provides that “judge[s] may not instruct the jury that the jury must assume that sentence for life imprisonment is for the natural life of the defendant.” Because that premise could not be “cured” by any revision by the trial judge, his refusal to give the requested instruction was not error. In contrast, in Privette v. State, 320 Md. at 746 , 580 A.2d at 191 , the gist of the instruction requested by the defendant was legitimate, i.e., the Motor Vehicle Administration (MVA) arguably had a statutory duty to notify a driver of a lapse in his insurance and instruct him to surrender his license. The actual language of the instruction requested on this point was “a mish-mash of garbled verbiage, more apt to confuse than to inform.” Id. at 747 , 580 A.2d at 192 .

But because it nonetheless raised an arguable defense, the trial judge’s refusal to modify the requested instruction and give an accurate, clear instruction on the MVA’s statutory ⁴⁰⁰ duty was error. Id. Similarly, in Clark v. State, 80 Md. App. at 411 , 564 A.2d at 93 the defendant “timely requested an instruction on the consequences of a verdict of not criminally responsible,” an admittedly proper area of instruction. Although the language of the instruction sought contained some misstatements, we held that the circuit court’s failure to instruct the jury on criminal responsibility was error because this was relevant, i.e., “a proper subject for instructions.” 80 Md.App. at 412 , 564 A.2d at 94 .

Therefore, we believe that the following principle emerges from the case law. If the premise of the instruction requested by defendant is relevant and sanctioned by law, rather than one contrary to it, a circuit court has an obligation to instruct on the point even if the language of the instruction offered by the defendant is in some respects erroneous. The premise here — the doctrine of fresh pursuit — is clearly a relevant defense sanctioned by law, rather than one contrary to it. Accordingly, even though an instruction based on the exact language “under” art. 27, § 599 was erroneous, the circuit court had an obligation to instruct correctly on the doctrine of fresh pursuit {i.e., pursuant to art. 27, § 602A(a)(2)) if the issue was supported by the evidence, thereby making it relevant.

See Chaplin v. Cruikshanks, 2 H. & J. 215 , 216 (1808); Mason v. State, 12 Md.App. 655, 661 , 280 A.2d 753, 758 (1971). Relevancy of the Requested Instruction Our next inquiry, therefore, is whether the fresh pursuit doctrine is a relevant issue in this case. If, as a matter of law, the officer was acting in fresh pursuit or, even if he was not acting in fresh pursuit, appellant’s conduct was not justified then the fresh pursuit doctrine is irrelevant and there was no need for a jury instruction as to it. (1) The common law doctrine of fresh pursuit allows a police officer to pursue and arrest a person outside of the officer’s geographic jurisdiction, without a warrant, for ⁴⁰¹ misdemeanors committed in his presence within a reasonable time thereafter.

Gattus v. State, 204 Md. 589, 600-01 , 105 A.2d 661, 666 (1954) (emphasis added). This common law doctrine has been codified in many states, including Maryland. Md.Ann.Code art. 27, § 602A(a)(2), which defines intrastate fresh pursuit, specifically provides that pursuit must be “continuous and without unreasonable delay, but does not require instant pursuit.” Even assuming that Officer Williams did not arrive at the field until ten minutes after his pursuit began, arguably this evidence is insufficient, as a matter of law, to support a claim that he failed to act in fresh pursuit, i.e., 1) continuously and 2) without unreasonable delay. See Poss v. State, 167 Ga.

App. 86 , 305 S.E.2d 884, 887 (1983) (no error not to give requested instruction on fresh pursuit because, as a matter of law, officers were within jurisdictional authority.) It seems clear that the maximum possible ten minute time lag here cannot be construed as an “unreasonable delay.” Generally, there is no specific rule as to what constitutes such a delay; rather, reasonableness must be determined under the particular circumstances of each case. Swain v. State, 50 Md.App. 29, 39-40 , 435 A.2d 805, 810 (1981) (interpreting similar language in Uniform Act on Fresh Pursuit concerning interstate fresh pursuit). Our research, however, has failed to uncover any case, in any jurisdiction, where a similar time period was found to constitute an “unreasonable delay.” Rather, in numerous cases where time lapses of similar duration, or even longer were considered, courts have held, as a matter of law, that the officer was acting in fresh pursuit. See e.g., United States v. Getz, 381 F.Supp. 43, 46 (E.D.Pa.1974) aff'd 510 F.2d 971 (3d Cir.), cert. denied, 421 U.S. 950 , 95 S.Ct. 1684 , 44 L.Ed.2d 105 (1975) (35 minutes); Reyes v. Slayton, 331 F.Supp. 325, 327 (W.D.Va.1971) (15-20 minutes); Duenez v. State, 735 S.W.2d 563, 565-66 (Tex.Ct.App.1987) (17 minutes); Six Feathers v. State, 611 P.2d 857, 861 (Wyo.1980) (41 minutes); Charnes v. Arnold, 198 Colo. 362 , 600 P.2d 64, 66 (1979) (en banc) (10-15 minutes); People v. Clark, 46 ⁴⁰² Ill.App.3d 240, 4 Ill.Dec. 785, 788 , 360 N.E.2d 1160, 1163 (1977) (17 minutes).

Whether, as a matter of law, the “continuous” pursuit requirement was met here is more problematic. The rationale for this requirement is that if police cease their pursuit, the policy permitting extra jurisdictional arrest (to permit apprehension which would be impossible if other authorities had to be notified) vanishes. Swain v. State, 50 Md.App. at 39-40 , 435 A.2d at 810 . Thus, although an officer need not engage in a bumper to bumper, “fender-smashing Hollywood style chase,” United States v. Getz, 381 F.Supp. at 46 ; Charnes v. Arnold, 600 P.2d at 66 , if he interrupts his pursuit for a sufficient length of time to allow him a reasonable opportunity to obtain a warrant or notify other authorities, he should do so.

See People v. Escudero, 23 Cal.3d 800 , 153 Cal.Rptr. 825, 831 , 592 P.2d 312, 318 (1979). Arguably, ten minutes simply did not provide Officer Williams with a reasonable amount of time to notify other authorities or obtain a warrant and so, even assuming there was this