19 VAAPP 615 - Castell v. Commonwealth

¶1Opinion

BARROW, J.

¶2This criminal appeal is from a conviction of escape from the custody of a law enforcement officer without the use of force or violence in violation of Code § 18.2-479. We hold that the defendant was not in custody, and therefore, could not be convicted of escape. Accordingly, we reverse the judgment of conviction.

¶3Two uniformed police officers went to the defendant’s home to arrest him on a warrant for grand larceny. The defendant’s mother answered the door and went to get the defendant. He appeared in approximately one minute and stood about three feet from the officers. One officer asked him identifying questions and told the defendant that he had a warrant for the defendant’s arrest. The defendant asked why the warrant had been issued. The officer approached the defendant, reaching for his handcuffs with his left hand and reaching to grab the defendant’s arm with his right hand. He was within an inch of the defendant when the defendant turned and ran. The defendant was found and arrested some time later.

¶4At the conclusion of the Commonwealth’s evidence the defendant moved to strike, claiming that the Commonwealth had not proved that he was in custody before he ran. The defendant and his mother then testified, and once again the defendant moved to strike on the same grounds. The jury convicted the defendant, and the defendant appealed.

¶5“If any person . . . lawfully in the custody ... of any law-enforcement officer on a charge or conviction of a felony escapes” without using force or violence, he or she is guilty of a class 6 felony. Code § 18.2-479. A prerequisite for escape is “lawful custody.” In this case, the defendant was lawfully in custody only if the officer arrested him. “An arrest requires either physical force ... or, where that is absent, submission to the assertion of *617authority.” California v. Hodari D., 499 U.S. 621, 626 (1991).1

¶6In this case, although the defendant may have fled or resisted arrest, he was never “lawfully in the custody” of the officer.2 Because the officer exerted no actual physical force on the defendant and the defendant did not submit, he was never in custody, thus, cannot be guilty of escape.

¶7Therefore, the judgment of conviction is reversed.

¶8Reversed.

¶9Koontz, J., concurred.

¶10 In general, courts have required actual physical touching of the person, words or actions which subject the person to the officer’s actual control, or submission by the person to be arrested. See State v. Cole, 838 P.2d 1351, 1352 (Ariz. Ct. App. 1992) (interpreting statute); State v. Nelson, 404 S.E.2d 112, 113 (Ga. 1991); Whiting v. State, 755 S.W.2d 936, 939 (Tex. Ct. App. 1988), rev'd on other grounds, 797 S.W.2d 45 (Tex. 1990); State v. Sanders, 245 S.E.2d 674, 684 (N.C. 1978) (interpreting statute); State v. Byer, 224 S.E.2d 726, 732 (W. Va. 1976); Bouldin v. State, 350 A.2d 130, 132 (Md. 1976); State v. Williams, 116 S.E.2d 858, 860 (S.C. 1960).

¶11 The Commonwealth urges us to conduct an analysis of custody similar to that used in Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny. Such analysis would be inappropriate in this instance because Mirandaconcerns the coercive effect of custody on interrogation. Id.This concern is not at issue in the construction of our escape statute. Furthermore, our reading of Code § 18.2-479 is consistent with Code § 19.2-77, which provides for police pursuit “[wjhenever a person in the custody of an officer shall escape or whenever a person shall flee from an officer attempting to arrest him.” (emphasis added).