COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Felton and Kelsey
Argued at Richmond, Virginia
JAVON MONTRELL BATTLE
MEMORANDUM OPINION * BY
v. Record No. 3019-01-2 JUDGE WALTER S. FELTON, JR.
DECEMBER 31, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Gregory W. Franklin, Assistant Public
Defender (Office of the Public Defender, on
briefs), for appellant.
Michael T. Judge, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Javon Battle was convicted in a bench trial of assaulting a
police officer in violation of Code § 18.2-57(C). On appeal, he
contends that (1) the evidence was insufficient to support his
conviction because his resistance to Officer Brereton's illegal
seizure was lawful; and (2) the trial court erred in failing to
suspend the final judgment to allow it to reconsider the case
and render a decision on the merits. We affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
A. THE OFFENSE
At approximately noon on March 16, 2001, Officer William C.
Brereton of the Richmond Police Department was on patrol in the
Gilpin Court area when he came in contact with Battle. Officer
Brereton spotted Battle and two other males, Mr. Whitaker and an
unnamed male, on the second floor landing of a building on
Federal Street. As he drove his police car past the building,
he made eye contact with the three causing them to "move[] back
away into the shadows of the landing." Officer Brereton parked
his police car around the corner where it was no longer visible
from the landing and approached Battle, Whitaker, and the
unnamed male on foot. He was investigating the possibility that
all three were trespassing and that Battle was truant from
school.
The buildings in the Gilpin Court area were clearly marked
with Richmond Redevelopment and Housing Authority ("RRHA") "No
Trespassing" signs. Alone, Officer Brereton approached Battle,
Whitaker, and the unnamed male. He was in uniform and
displaying his badge of authority. As he approached, he told
them he needed to speak to them. He asked if any of them lived
in that building. Battle did not respond. However, Whitaker
stated his girlfriend lived there. When asked which apartment,
Whitaker could not provide an answer. At that time, Officer
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Brereton allowed the unnamed male, whom he knew, to leave so he
would only "have to deal with two people."
Subsequently, Battle attempted "two or three times to walk
away." Officer Brereton had to raise his voice and tell Battle
he needed to stay where he was. Battle continued to walk at
which point Officer Brereton told them he was going to walk them
down to the police car to check their names for warrants and to
determine if they lived there. Officer Brereton walked them to
the car, holding the bottom of their shirts. When they arrived
at the car he asked Battle and Whitaker to place their hands on
the car in order for him to pat them down for weapons to ensure
his safety.
Whitaker attempted to walk away. When Officer Brereton
tried to pull Whitaker back, Battle took off at a full run.
Still holding Battle by the shirt, Officer Brereton pulled
Battle back. Battle turned toward him and began punching and
scratching Officer Brereton's hand and arm. Officer Brereton
was cut, resulting in scars from the altercation. Battle then
began punching Officer Brereton in the chest at which time he
got Battle on his back, on the ground. While attempting to flip
Battle on his stomach to handcuff him, Battle began kicking
Officer Brereton in his legs, chest, and groin.
During the struggle, Battle screamed for Officer Brereton
to "get the f*** off me." He then began to scream that "this
cop is beating me. Somebody come over here and help me."
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Battle then reached into his pants pocket for something Officer
Brereton believed was a weapon. Officer Brereton attempted to
pull Battle's hand out of his pocket, but could not. As a
result, he drew his service weapon. Officer Brereton then
ordered Battle to take his hand out of his pocket. Battle would
not and continued fighting him. Officer Brereton re-holstered
his service weapon and tried to keep Battle's hand in his
pocket. He also attempted to handcuff Battle's other hand.
Battle continued screaming for help.
At that point, Officer Brereton looked up and noticed
approximately a hundred people had gathered. He stated that
during the struggle someone shoved him from behind, which
allowed Battle to get to his feet. Officer Brereton tackled
Battle, and several bottles were thrown from the crowd. Battle
continued to fight, kicking Officer Brereton in the legs, chest,
and groin. Officer Brereton then attempted to spray Battle with
mace, but failed because someone in the crowd warned Battle.
Battle covered his eyes and managed to knock the mace canister
from Officer Brereton's hand. Battle was once again able to get
to his feet and charged Officer Brereton. Battle attempted to
tackle Officer Brereton by grabbing him behind the knees with
his head between the officer's legs. As a result, Officer
Brereton deployed his asp and struck Battle once on the back of
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his legs. 1 Battle fell to his knees, then got back up. He again
attempted to tackle Officer Brereton. Officer Brereton struck
him again in the back of the legs.
The crowd began to move closer, and threats were made from
the crowd. Officer Brereton turned his attention to the crowd
and told them to get back. Battle got to his feet, and the
struggle continued. Officer Brereton grabbed Battle by his
clothing, but he was able to pull out of his two shirts and his
jacket. Battle fled, and Officer Brereton pursued him a short
distance down St. John Street. However, Officer Brereton had to
halt his pursuit because the crowd began chasing him. He called
for backup and turned his attention toward the crowd.
Officer Brereton was able to determine that Battle was not
a resident of Gilpin Court, but that he had a grandmother that
lived nearby on Hill Street. He and other officers proceeded to
Hill Street and found Battle, wearing the same pants but a
different shirt. Battle was arrested and charged with
assaulting a police officer, in violation of Code § 18.2-57(C).
B. TRIAL AND MOTION TO RECONSIDER AND VACATE
At his bench trial, Battle testified in his own behalf.
Battle stated that Officer Brereton initially referred to him as
"Shawn." He claimed he told Officer Brereton that Shawn was not
his name and he attempted to walk away. He admitted attempting
1
An asp is a tactical, expandable baton used by the police,
similar in nature to a traditional nightstick.
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to get away several times afterwards. Battle claimed that
Officer Brereton attempted to slam him on the car trunk, but he
landed on the ground instead. Officer Brereton then pinned him
to the ground by placing his knees in his back. Battle further
claimed that Officer Brereton had him by the collar of his shirt
and was choking him.
Battle admitted struggling with Officer Brereton, but
denied ever kicking him, hitting him in the hand or chest,
calling out for help, or telling Officer Brereton to "get the
f*** off me." Battle also denied having his hand in his pocket
or having drugs in his pocket. However, he admitted that on the
same day he struggled with Officer Brereton, he was charged with
possessing six rocks of crack cocaine and later pleaded guilty
to the charge. Battle further admitted that he did not live in
Gilpin Court.
Battle was found guilty of assaulting a police officer.
The court entered a final conviction and sentencing order on
October 9, 2001. On October 24, 2001, Battle filed a motion to
reconsider and vacate his conviction. The motion cited recent
authority in support of his motion to set aside the conviction
based on his assertion that he was legally resisting detention
that was not supported by reasonable suspicion. 2 The motion was
2
Battle cited, what was then, the recently decided cases of
Harris v. Commonwealth, 262 Va. 407, 551 S.E.2d 606 (2001); Hill
v. Commonwealth, 37 Va. App. 1, 553 S.E.2d 529 (2001), rev'd,
264 Va. 541, 570 S.E.2d 805 (2002); and Hicks v. Commonwealth,
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heard on October 25, 2001. The court stated it would take the
matter under advisement and directed Battle's attorney to
provide the court with the transcript of the trial proceedings.
The following colloquy ensued:
MS. McCONNELL [Battle's attorney]: And in
that case will you stay the 21 days?
THE COURT: Yes. The motion was filed prior
to the 21-day period.
MS. McCONNELL: Thank you very much.
On October 25, 2001, the trial court entered an order stating
the motion was taken under advisement. It did not, however,
suspend the twenty-one days or vacate the final judgment order.
The sentencing order became final upon the expiration of the
twenty-one days.
II. SUFFICIENCY OF THE EVIDENCE
We first consider whether the evidence was sufficient to
support Battle's conviction of assaulting a police officer.
When the sufficiency of the evidence is
challenged on appeal, it is well established
that we must view the evidence in the light
most favorable to the Commonwealth, granting
to it all reasonable inferences fairly
deducible therefrom. The conviction will be
disturbed only if plainly wrong or without
evidence to support it.
Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196
(1992). Battle contends that the evidence was insufficient
36 Va. App. 49, 548 S.E.2d 249 (2001), aff'd on other grounds,
264 Va. 48, 563 S.E.2d 674 (2002).
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because he was resisting an unlawful detention by Officer
Brereton. Assuming, without deciding, that Battle was the
subject of an unlawful detention, he possessed no right to use
force to resist the detention or "pat down" search. The recent
Supreme Court decision in Commonwealth v. Hill, 264 Va. 541, 570
S.E.2d 805 (2002), is determinative on this issue.
In Hill, the defendant was indicted for assault and battery
of a law enforcement officer. Hill was the subject of a "pat
down" search by a police officer to determine if he was carrying
a weapon. During the pat down, the officer noticed a bulge in
Hill's right pants pocket. As the officer attempted to pat down
the pocket, Hill pushed the officer's hand away. The officer
again attempted to pat down the right pants pocket, and Hill put
his hand in that pocket. When the officer grabbed Hill's hand
and removed it, Hill turned and tried to run away. In the
process, he struck the officer in the mouth with his open hand,
splitting the officer's lip. A panel of this Court determined
that Hill had been illegally detained and that the force used in
resisting that detention was lawful. Hill v. Commonwealth, 37
Va. App. 1, 9, 553 S.E.2d 529, 533 (2001).
Reversing our decision, the Supreme Court held that a
person does not have the right to use force to resist an
unlawful detention or "pat down" search. Hill, 264 Va. at 548,
570 S.E.2d at 809. The Court reasoned that
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[b]ecause a detention is, by its nature, a
brief intrusion on an individual's liberty,
the provocation resulting from an illegal
detention is far less significant than the
provocation that attends an illegal arrest.
Thus, recognition of a right to resist an
unlawful detention would not advance the
rationale supporting the common law right to
use reasonable force to resist an unlawful
arrest, but would only serve to increase the
danger of violence inherent in such
detentions.
Id. at 548, 570 S.E.2d at 808-09.
Regardless of whether Battle's detention was unlawful or
not, he was not entitled to use force to resist the detention.
Thus, the evidence was sufficient beyond a reasonable doubt to
sustain his conviction of assaulting a police officer.
III. FAILURE TO SUSPEND FINAL JUDGMENT
We next consider whether the trial court erred in failing
to suspend the final judgment to allow the court to consider a
post-trial motion. Rule 1:1 states in pertinent part:
All final judgments, orders, and decrees,
irrespective of terms of court, shall remain
under the control of the trial court and
subject to be modified, vacated, or
suspended for twenty-one days after the date
of entry, and no longer. . . . The date of
entry of any final judgment, order, or
decree shall be the date the judgment,
order, or decree is signed by the judge.
Battle argues that he was denied due process by the trial
court's failure to make good on its ruling to suspend the final
judgment order. We disagree.
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In Berean Law Group, P.C. v. Cox, 259 Va. 622, 528 S.E.2d
108 (2000), the trial court entered an order on September 24,
1998, stating that the defendant's demurrers would be sustained
and Cox's action against the defendants dismissed unless Cox
filed an amended motion for judgment on or before September 17,
1998. Subsequent to the September 1998 order, the circuit court
agreed orally during a phone conference with all counsel to
permit Cox to file an amended motion for judgment on a date
later than the date specified in the September 24, 1998 written
order. On November 16, 1998, Cox filed the amended motion for
judgment. The defendants filed a motion to reject and dismiss
Cox's amended motion for judgment arguing that more than
twenty-one days had elapsed from the entry of the September 24,
1998 order. The trial court considered counsel's arguments and
in an April 1999 order, permitted Cox to nonsuit his action.
Id. at 624-25, 528 S.E.2d at 109-10.
On appeal, the Supreme Court held that allowing Cox to
nonsuit his action was in error. According to the Court, the
circuit court lost control of the September 24, 1998 order
pursuant to Rule 1:1. No written order was entered that
modified, vacated, or suspended the September 24, 1998 order.
It is true that there was an oral agreement to permit Cox to
file an amended motion for judgment after the specified date in
the September 24, 1998 order. However, "the circuit court's
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oral ruling cannot nullify its written final order, and it was
incumbent upon the plaintiff to submit timely a written order to
the circuit court suspending, modifying, or vacating the
September 24, 1998 order . . . ." Id. at 111, 528 S.E.2d at
627.
As in Cox, no written order suspending, modifying, or
vacating the twenty-one day period was entered prior to
expiration of the twenty-one days. The trial court lost control
over the final order on October 30, 2001, twenty-one days after
its entry. The fact the trial court orally agreed it would
suspend the final judgment in this case is of no consequence
since the trial court's oral ruling cannot nullify its written
order. It was Battle's responsibility to submit a timely
written order to the trial court suspending, modifying, or
vacating the October 9, 2001 order.
Although Battle procedurally defaulted in failing to submit
a written order to the trial court suspending the final order,
that issue is rendered moot by the fact that he properly
preserved for appeal the issue of justifiable resistance to an
illegal detention. That issue is disposed of in this opinion.
As a general rule, "'[m]oot questions are not justiciable and
courts do not rule on such questions to avoid issuing advisory
opinions.'" In re Times-World Corp., 7 Va. App. 317, 323, 373
S.E.2d
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474, 477 (1988) (quoting United States v. Peters, 754 F.2d 753,
757 (7th Cir. 1985)).
The judgment of the trial court is affirmed.
Affirmed.
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Javon Montrell Battle v. Commonwealth
Combined Opinion