COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Coleman,
Willis, Elder, Bray, Annunziata, Overton, Bumgardner
and Lemons
Argued at Richmond, Virginia
ERVIN WOODSON CAVELL
OPINION BY
v. Record No. 2168-96-2 JUDGE ROSEMARIE ANNUNZIATA
NOVEMBER 10, 1998
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Cullen D. Seltzer (David J. Johnson, Public
Defender, on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Appellant, Ervin W. Cavell, was convicted of escape in
violation of Code § 18.2-479. On appeal, he contends the
evidence was insufficient to support his conviction. We agree
and reverse his conviction.
The facts are undisputed. Clad in his police uniform and
carrying a bottle of "OC" spray, Officer Lewis approached a crowd
involved in a fight. Lewis ordered the crowd to disperse, and,
as the crowd broke, Lewis identified appellant among the group.
Lewis knew of a felony warrant on file for appellant's arrest,
and he approached appellant intending to arrest him on the
warrant. From a distance of approximately ten feet, Lewis
stated, "Ervin, I need to talk to you." Appellant responded with
profanity and told Lewis to "[g]et away from [him] with [the "OC"
spray]." Lewis replied, "[the "OC" spray] is not for you. You
are under arrest. You have a felony warrant." Appellant again
responded with profanity. Lewis told appellant, "Don't run. You
are under arrest." Appellant repeated his profane remark and
told Lewis, "I am going to anyway." At that point, Lewis stood
four to five feet from appellant. Lewis testified that he "was
attempting to grab [appellant]," but that he "wasn't close enough
to do it yet." Before Lewis reached for him, appellant fled. He
ran a couple of blocks before he was subdued.
Code § 18.2-479 makes it unlawful for "any person . . .
lawfully in the custody of . . . any law-enforcement officer on a
charge or conviction of a felony" to escape. The question on
appeal is whether appellant was "lawfully in the custody" of
Lewis when he fled.
In the case before us, appellant concedes he knew he was not
free to leave but contends the police officer did not have the
immediate physical ability to place him under formal arrest, as
required by our holding in Castell v. Commonwealth, 21 Va. App.
78, 82, 461 S.E.2d 438, 439 (1995) (en banc). In Castell, we
held that for purposes of Code § 18.2-479, custody "does not
require direct physical restraint." 21 Va. App. at 82, 461
S.E.2d at 439-40. 1 In reaching this conclusion, we relied upon
1
In Castell, two uniformed officers went to the defendant's
house to arrest him on a felony warrant. The defendant's mother
answered the door. She went to get the defendant, who appeared
and stood about three feet from the officers. One officer asked
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federal cases construing the federal statutory scheme governing
the law of arrest and escape. However, we did not specifically
analyze "custody" within the context of Virginia's law of arrest.
We do so now.
"With a few statutory exceptions, . . . the common law
relating to arrest is the law on that subject in Virginia."
Galliher v. Commonwealth, 161 Va. 1014, 1021, 170 S.E. 734, 736
(1933). Under the common law, an arrest required either the
application of physical force or, where that was absent,
submission to the assertion of authority. California v. Hodari
D., 499 U.S. 621, 626 (1991); Howard v. Commonwealth, 210 Va.
674, 677, 173 S.E.2d 829, 832 (1970) ("Ordinarily, an arrest is
made by the actual restraint of the person of the defendant or by
his submission to the custody of an officer."). The immediate
physical ability to arrest, without more, was not sufficient to
effectuate an arrest. See Rollin M. Perkins, The Law of Arrest,
25 Iowa L. Rev. 201, 206 (1940).
There can be no arrest [under the common law]
without either touching or submission.
Hence, if the officer pronounces words of
arrest without an actual touching and the
other immediately runs away, there is no
escape (in the technical sense) because there
was no arrest. It would be otherwise had the
officer touched the arrestee for the purpose
(..continued)
identifying questions of appellant and informed him that he had a
warrant for his arrest. The defendant asked why the warrant had
been issued. The officer approached the defendant, reaching for
his handcuffs with one hand and reaching to grab the defendant
with the other. When the officer was within one inch of the
defendant, the defendant turned and ran. Castell, 21 Va. App. at
80, 461 S.E.2d at 439.
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of apprehending him, because touching for the
manifested purpose of arrest by one having
lawful authority completes the apprehension,
"although he does not succeed in stopping or
holding him even for an instant."
Id. (footnotes omitted).
In the present case, Lewis did not effectuate appellant's
arrest; he neither touched appellant nor obtained appellant's
submission to his show of authority. Each time Lewis spoke to
appellant, appellant responded with profanity; when Lewis told
appellant not to run, appellant responded that he was going to
run, and he did. In short, the evidence shows that appellant did
not submit, in any respect, to Lewis's show of authority, and
appellant was not detained by the exercise of any physical
restraint at the time he fled. Thus, we hold that appellant was
not under arrest and, thus, was not in custody when he fled. In
reaching this decision, we overrule the holding in Castell v.
Commonwealth, 21 Va. App. 78, 461 S.E.2d 439 (1995) (en banc).
Finding that appellant was not in Lewis's custody at the
time he ran, we reverse his conviction.
Reversed.
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