Opinion
Case No. 3-:04-CR-045.
February 2, 2006
This matter arises from an incident that occurred on March 26, 2004, in Dayton, Ohio. As a result of the incident, Defendant Edwin Annable ("Annable") was arraigned on an Information filed on April 1, 2004. Annable was charged with Assault on a Federal Officer in violation of 19 U.S.C. § 111(a)(1) which is a Class A misdemeanor.
Annable and Larry Oliver ("Oliver"), the other Defendant, filed a Motion To Suppress on April 29, 2004. A suppression hearing was held on May 18, 2004, and the Motion was subsequently denied on June 23, 2004.
Oliver pled guilty and the charge against Annable was then tried to a Jury on September 9 and 13, 2004. On September 13, 2004, the Jury returned a verdict of Guilty on Count 1, Assault on a Federal Officer and a verdict of Not Guilty on a special verdict regarding aggravated assault.
Annable was sentenced to three days imprisonment and one year of Supervised Release and was fined $1,500. An Amended Judgement was filed on January 11, 2005, and a Corrected Judgment was filed on March 4, 2005. Execution of Annable's sentence is stayed pending an appeal and probation is extended for a period up to and including December 7, 2006.
Now before the Court is a direct appeal from the Judgement entered against Annable. (Doc. #78.) The Judgment was entered by the Honorable Michael R. Merz, the Chief Magistrate Judge for the Western Division of the Southern District of Ohio, in Dayton, Ohio on January 11, 2005. Pursuant to 18 U.S.C. § 3401(a) and the General Order of Assignment and Reference, dated January 13, 2003, Chief Magistrate Judge Michael R. Merz is specifically designated to exercise jurisdiction in misdemeanor cases in the Southern District of Ohio, Western Division.
The General Order of Assignment and Reference provides that magistrate judges have jurisdiction over all proceedings in petty offense cases and in Class A misdemeanor cases unless the defendant declines to consent to magistrate judge jurisdiction. This case is a Class A misdemeanor case in which the Defendant has not declined to consent to magistrate judge jurisdiction.
This Court has subject matter jurisdiction pursuant to 18 U.S.C. § 3231 for the criminal offense for which Annable was found guilty. Further, this Court has appellate jurisdiction over Annable's appeal pursuant to 18 U.S.C. § 3742(h).
In his appeal, Annable raises three objections to the proceedings below. Each will be addressed in seriatim.
MOTION TO SUPPRESS
Annable's first objection is that the Magistrate Judge erred in overruling Defendant's Motion To Suppress Evidence Obtained after the Initial Attempt To Effect a Terry Stop. Specifically, Annable argues that Dayton Police officer Timothy Braun ("Braun") did not have a "reasonable suspicion" to initiate a Terry stop.
Before the Court are the Parties' Memoranda on the Motion To Suppress, a transcript of the hearing on the Motion To Suppress conducted on May 27, 2004, and the Parties' Memoranda on Annable's objections. The legal standard will first be set forth followed by an analysis of Annable's first objection.
Legal Standard
Article III of the U.S. Constitution mandates that the judicial power of the United States be vested in judges with life tenure. Since magistrate judges are not Article III judges, it is necessary to provide for a redetermination by the court, if requested, of matters determined by a magistrate judge. See United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985), see also United States v. Raddatz, 447 U.S. 667, 673 (1980). Therefore, the Magistrate Judge's determination regarding Annable's Motion To Suppress is reviewed de novo. Id.
However, the de novo requirement does not mandate a new evidentiary hearing on the issue. Raddatz, 447 U.S. at 673. A de novo determination is required and not a de novo hearing. Id. at 674. Therefore, the district judge may, but is not required to, rely upon the record created by the magistrate judge and upon the magistrate judge's credibility determinations. Id. at 680. Finally, when seeking suppression of evidence, the burden of proof is on the defendant to display a violation of some constitutional or statutory right. United States v. Rodrigues-Suazo, 346 F.3d 637, 643 (6th Cir. 2003).
Analysis
Before the Trial of this matter, Annable and another Defendant, Lawrence Oliver ("Oliver"), jointly filed a Motion To Suppress contending that Braun did not have a "reasonable suspicion" to initiate a Terry stop. The Magistrate Judge denied the Motion To Suppress. In doing so, the Magistrate Judge relied upon caselaw which provides that ordinarily an investigating officer is free to ask a person for identification without implicating the Fourth Amendment. See Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 542 U.S. 177, 185 (2004) (citing I.N.S. v. Delgado, 466 U.S. 210, 216 (1984)). The Magistrate Judge then "assumes for the sake of argument" that Oliver and Annable were free to refuse to answer. He then determined that the freedom to refuse to answer did not create a privilege to assault Braun or, in the case of Annable, to threaten him with being "taken down." The Magistrate Judge found that, once the threat and assault occurred, Braun had probable cause to arrest.
Annable now argues that the Magistrate Judge's analysis is incomplete because it fails to account for circumstances which might convert a request for information into an official investigation. In support, Annable sets forth constitutional standards regarding a Terry stop and then attempts to argue that asking for identification constitutes a Terry stop. However, this is not the law. The law is as set forth by the Magistrate Judge to wit: an investigating officer is free to ask a person for identification without implicating the Fourth Amendment. In other words, asking for a person's name is not a Terry stop.
An officer may engage in a Terry stop if the officer has reasonable suspicion supported by articulable facts that criminal activity may be afoot even if the officer lacks probable cause." Terry v. Ohio, 392 U.S. 1, 30 (1968).
Annable then argues that the conclusion regarding asking for identification only applies to Braun's initial questioning. The Magistrate Judge determined that the Terry stop began and the Fourth Amendment was implicated after the threat and assault occurred. Annable now argues that the Terry stop began when Braun followed Annable and Oliver as they were leaving and continued to ask — six to ten times — for identification and when Braun actually attempted to physically detain Annable by grabbing his shirt.
Regarding physical detention, Annable testified that Braun "grabbed my shoulder and actually ripped the back of my shirt" before there was any attempt on his or Oliver's part to attempt to threaten or assault Braun. (May 27, 2004 Hrg. Tr. at 93.) However, Annable admittedly did not include this part of the incident in the statement that he prepared immediately following the incident. (Id. at 102.) In opposite to Annable's testimony, Braun testified that he never touched or tried to touch Annable until he arrested him after the alleged threat and assault. (Id. 56.) Hearing both Annable and Braun's testimony, the Magistrate Judge made a credibility determination that Braun's version of the events was credible. Based upon the record and the Magistrate Judge's credibility determination, the Terry stop began after the alleged threats and assault that justified the arrest.
Annable's final argument is that the record contains no facts that would establish that either he or Oliver were engaged in criminal activity. However, the record contains evidence that Oliver expressed a desire to kill the President of the United States and that Annable subsequently threatened and assaulted Braun. (Id. at 15, 16, 18, 22, 24, 45, 63, 72, 74.) This is evidence from which the Magistrate Judge and this Court can conclude that Annable and Oliver may have been engaged in criminal activity.
The Magistrate Judge denied Annable's Motion To Suppress. He concluded that Braun was free to ask Annable and Oliver for identification without implicating the Fourth Amendment and that Annable and Oliver were free to refuse to answer. The Magistrate Judge also determined that the freedom to refuse to answer did not create a privilege to threaten or assault Braun and that, once he was assaulted, Braun had probable cause to arrest Oliver and Braun.
This Court has conducted a de novo review of the record on Annable's Motion To Suppress as required by law and concludes, for the same reasons as did the Magistrate Judge, that Annable's Motion To Suppress should be denied. The Magistrate Judge's Decision and Order Denying Motion To Suppress is, therefore, AFFIRMED. The analysis turns to Annable's second objection.
JURY INSTRUCTIONS
Annable's second objection is that the Magistrate Judge erred in failing to give a jury instruction on the affirmative defense of mistake. Annable's third objection is that the Magistrate Judge erred in failing to give any jury instruction as to whether Annable could lawfully refuse to answer Braun's questions. The legal standard will first be set forth followed by an analysis of Annable's objection.
Legal Standard
When reviewing a criminal case, if no contemporaneous objection was made during the trial to an error alleged on appeal, the reviewing court should not reverse the trial court unless there is plain error. United States v. Busacca, 863 F.2d 433, 435 (6th Cir. 1988) (citing United States v. Young, 470 U.S. 1, 15-16 (1985)), cert. denied, 490 U.S. 1005 (1989). Plain error is defined as an egregious error that directly leads to a miscarriage of justice. Id.
If an objection was made at trial, a reviewing court may reverse a trial court only if there is an abuse of discretion. Id. (citing United States v. Beros, 833 F.2d 455, 458 n. 3 (3rd Cir. 1987)). An abuse of discretion occurs when the court relies upon erroneous findings of fact, applies the incorrect legal standard when reaching a conclusion or makes a clear error of judgment. Reeb v. Ohio Department of Rehabilitation and Correction, Case No. 04-3994, 2006 WL 162836 at *4 (6th Cir. Jan. 24, 2006) (citing Schachner v. Blue Cross and Blue Shield of Ohio, 77 F.3d 889, 895 (6th Cir. 1996), cert. denied, 519 U.S. 865 (1996)).
Regarding jury instructions, a proper objection is made "when the subject of the objection and its grounds were identified with sufficient precision to give the district court a full understanding of its nature." Id. (citing United States v. Eiland, 741 F.2d 738, 742 (5th Cir. 1984)). Also, a request for the jury instruction has the same effect as an objection to the omission of a charge. Id.
The standard for reviewing a court's jury charge is "whether the charge, taken as a whole, fairly and adequately submits the issues and applicable law to the jury." United States v. Martin, 740 F.2d 1352, 1361 (6th Cir. 1984) (citing Gradsky v. Sperry Rand Corp., 489 F.2d 502, 503-04 (6th Cir. 1973), cert. denied, 472 U.S. 1029 (1985). Regarding requested jury instructions, a judge does not commit error because he or she fails to use language contained in a request so long as the instruction given is accurate and sufficient. Id. at 1361. Further, the failure to give a particular charge as requested is reviewed for an abuse of discretion. United States v. Frost, 914 F.2d 756, 764 (6th Cir. 1990).
Analysis
Annable's second and third objections both involve jury instructions. Annable's second objection that the Magistrate Judge erred in failing to give a jury instruction of the affirmative defense of mistake will be addressed next followed by Annable's third objection.
(2) Alleged Failure To Give Jury Instruction On Affirmative Defense of Mistake
For his second objection, Annable argues that he asked the Court to give an instruction on the affirmative defense of mistake and/or lawful self-defense. Since Annable submitted a request for this instruction (doc. #40), the Jury Instructions, particularly with regard to the affirmative defense of mistake and/or lawful self-defense, will be reviewed for an abuse of discretion keeping in mind that a judge does not commit error because he or she fails to use language contained in a request so long as the instruction given is accurate and sufficient.
Annable's proposed jury instruction was:
Mistake and/or Lawful Self-Defense
With regard to the crime of Forcible Assault upon a Federal [O]fficer as alleged in the Information, Defendant asserts that he was mistaken and/or acting in self-defense.
If the Defendant did not know the official status of the person he allegedly assaulted, to wit: P.O. Timothy Braun, and if Defendant honestly believed that he was interfering with his otherwise lawful conduct, then defendant would be allowed to use such reasonable [force] to defend himself or to prevent such interference. Defendant, however may not use more force than is necessary to defend himself against said interference.
The Prosecution may answer this defense and sustain its burden of proof for the crime of Forcible Assault on a Federal Officer, if, in addition to proving the essential elements of the offense charged as previously given to you, the Prosecution also proves, beyond a reasonable doubt, one of the following two propositions:
One, at the time of the conduct charged in the Information, Defendant actually knew that the individual identified in the Information as a federal officer, to wit: P.O. Timothy Braun, was indeed a federal officer; or
Two, the force used by Defendant was excessive and would not have been justified even if the person identified in the Information as a federal officer was a private citizen and not a federal officer.
The Prosecution must prove beyond a reasonable doubt that the Defendant was not mistaken and did not act in lawful self-defense.
(Defendant's Proposed Jury Instructions, Doc. #40.)
After consideration, the Magistrate Judge gave the following instruction regarding self-defense:
In regard to the assault portion of the charge, Defendant asserts that he was acting in self-defense.
If Defendant did not know the official status of Timothy M. Braun and honestly believed that he was being attacked by a private citizen, Defendant would be allowed to use reasonable force to defend himself. However, Defendant may not use more force than is necessary to defend himself.
The government has to respond to that defense and may sustain its burden of proof for the crime of forcible assault on a federal officer if, in addition to proving the four (4) essential elements of the offense charged about which I have previously instructed you, the government also proves beyond a reasonable doubt either one of the following two things:
One, at the time of the conduct, the Defendant actually knew that Timothy Braun was a government officer, or
Two, that the force used was excessive and would not have been justified even if Timothy Braun was a private citizen and not a federal officer.
The government must prove beyond a reasonable doubt that Defendant did not act in lawful self-defense.
(Sept. 9 13, 2004 Jury Trial Tr. at 242-43.)
A comparison of the requested jury instruction and the jury instruction actually given reveals that the Magistrate Judge not only agreed to give the requested jury instruction but also gave the requested jury instruction almost word for word. Therefore, the Magistrate Judge did not abuse his discretion with regard to a jury instruction on the affirmative defense of mistake and the jury instructions, as a whole, fairly, accurately and sufficiently submitted the issue of self-defense to the jury for consideration. Annable's second objection is not well founded.
(3) Alleged Failure To Instruct as To Whether Defendant Could Lawfully Refuse To Answer Braun's Questions
Annable's third objection is that the Magistrate Judge confused the jury by giving a corrective instruction that Annable did not have a privilege under the Fourth Amendment to refuse to identify himself to a police officer. However, the Magistrate Judge gave a corrective instruction that Annable did not have a privilege under the Fifth Amendment to refuse to identify himself. The Magistrate Judge's corrective instruction does not refer to the Fourth Amendment. Recognizing that Annable's Counsel may have misstated his objection, the analysis will proceed as if Annable's third objection is that the Magistrate Judge confused the jury by giving a corrective instruction that Annable did not have a privilege under the Fifth Amendment to refuse to identify himself to a police officer. Annable also argues that the Magistrate Judge confused the Jury by not giving an instruction that, if Braun's questioning did not invoke the Fourth Amendment, Annable could lawfully refuse to speak with Braun.
Annable's Counsel also misstated the law in his closing argument.
Annable voiced what could be viewed as an objection on the record regarding self identification at the conclusion of the jury charge. (Sept. 9 13, 2004 Jury Trial Tr. at 248-49.) Therefore, again giving Annable benefit of the doubt, the Jury Instructions, particularly with regard to the instruction on self identification, will be reviewed for an abuse of discretion keeping in mind that a judge does not commit error because he or she fails to use specific language contained in a request so long as the instruction given is accurate and sufficient.
In his closing argument, Annable's Counsel made the following remarks:
Now the prosecution has said something to the effect that he [Braun] had an obligation to investigate, to determine whether or not there was a threat against the President. It is true he has a right to investigate, he has the right to ask for identification. Under the Fifth Amendment all individuals like Mr. Annable have a right to refuse, which is what happened. And that should be the end of it.
(Sept. 9 13, 2004 Jury Trial Tr. at 217)
In the course of instructing the jury, the Magistrate Judge gave an instruction regarding these remarks made by Annable's Counsel as follows:
In closing argument Mr. For[g] asserted to you in his closing arguments that Mr. Annable had a privilege under the Fifth Amendment of the United States Constitution not to respond, not to answer.
That question of law was in doubt until the last term of the United States Supreme Court but the Supreme Court has decided that a citizen does not have a privilege to refuse to identify himself to an officer under the Fifth Amendment.
(Sept. 9 13, 2004 Jury Trial Tr. at 243.)
Following the Jury Charge, Annable's Counsel objected stating that the Magistrate Judge "may have misstated the law on the Fifth Amendment. The impression that is left with the jury at this point is that he, Mr. Annable and Mr. Oliver, were required to give their name or answer the police officer. I don't believe that is what the law says." The Magistrate Judge responded that, "I have corrected a misstatement of the Fifth Amendment. That is all that I have done."
Annable now argues that, while the Magistrate Judge's instruction correctly states the law, it was confusing under the circumstances presented in this case. However, it was not confusing. Annable's Counsel misstated the law regarding the Fifth Amendment and the Magistrate Judge corrected the misstatement.
Annable also argues that his Counsel asked for a further instruction "clarifying Annable's obligations where the Fourth Amendment was not implicated." However, the transcript of the trial record does not indicate that Annable's Counsel asked for a further instruction. The record indicates that Annable's Counsel stated that the Magistrate Judge "may have misstated the law on the Fifth Amendment." After the Magistrate Judge said that he was correcting a misstatement of the Fifth Amendment, the record then indicates that Annable's Counsel said, "Okay. I still think the impression has been left that Mr. Annable has to answer the question and I don't think that is what the law is." However, the record does not support Annable's argument that his Counsel asked for a further instruction clarifying Annable's obligations. Annable's counsel agreed that the Magistrate Judge had corrected a misstatement of the law but he did not propose a further instruction.
Annable's Counsel's argument regarding Annable's obligation to answer is not consistent. He argues that Annable does not have to answer if the Fourth Amendment is implicated but offers no reason why Annable does not have to answer if the Fourth Amendment is not implicated.
Finally, the reasoning presented by Annable's Counsel on this issue is flawed. Annable's Counsel argues that Annable did not have to identify himself because the police officer in this case, according to the Magistrate Judge, was not invoking the Fourth Amendment. However, the law that Annable's Counsel cites in support of this argument discusses a situation where the Fourth Amendment was allegedly invoked.
In Florida v. Royer, the case cited by Annable's Counsel, the Supreme Court held that law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street and asking questions. 460 U.S. 491, 497 (1983). However, if the Fourth Amendment is implicated, the individual being detained need not answer. Id.
In a later case referred to by the Magistrate Judge in this case, the Supreme Court held that, "In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment." Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 542 U.S. 177, 185 (2004). Therefore, Braun was free to ask Annable for his name without implicating the Fourth Amendment. And, if the stop turned into more and the Fourth Amendment was implicated, Annable was not required to answer.
In this case, Annable has not shown that he was not required to answer or that the Jury Instructions indicate that he was required to answer. Annable also has not shown that Braun's initial questions regarding Annable's identification implicated the Fourth Amendment. Further, the jury instructions make no mention of any requirement to answer and the only relative jury instruction was the corrective instruction given by the Magistrate Judge that, "a citizen does not have a privilege to refuse to identify himself to an officer under the Fifth Amendment."
It was necessary for the Magistrate Judge to give the instruction regarding the Fifth Amendment because Annable's Counsel had misstated Fifth Amendment law. To give further instruction when none was warranted, particularly with regard to the Fourth Amendment, would only serve to further confuse the jury.
The Magistrate Judge's instruction correctly states the law, as agreed by Annable. Also, clarifying a misstatement of the law made by counsel is not an abuse of discretion. Finally, when read as a whole, the jury instructions are correct and need not indicate that Annable had a right to refuse to identify himself. Annable's third objection is, therefore, not well founded.
SUMMARY
None of Annable's objections are well taken. Upon de novo review of the record and accepting the credibility determinations of the Magistrate Judge, the Magistrate Judge did not err in overruling Annable's Motion To Suppress. Further, the Magistrate Judge essentially gave the jury instruction regarding the defense of mistake that Annable submitted and, therefore, did not err in failing to give a jury instruction on the defense of mistake.
Finally, the Magistrate Judge did not err in failing to give an instruction as to whether Annable could lawfully refuse to answer Braun's questions because the Magistrate Judge's instruction regarding self identification correctly states that law and was given to clarify a misstatement of the law by Annable's Counsel. When read as a whole, the jury instructions are correct and need not indicate that Annable had a right to refuse to identify himself.
Defendant's Objections (doc. #78) are OVERRULED. The Magistrate Judge's decisions that are challenged by Annable are AFFIRMED.
The execution of Annable's sentence to incarceration has been stayed pending a decision on his objections. This is that decision. Therefore, the Order staying the execution of Annable's sentence to incarceration is VACATED.
DONE and ORDERED.