COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
WOODROW LAWRENCE, III
MEMORANDUM OPINION * BY
v. Record No. 1481-00-1 JUDGE JERE M. H. WILLIS, JR.
JUNE 5, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
E. Everett Bagnell, Judge
Christopher P. Reagan, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his conviction of assault and battery of a
police officer in violation of Code § 18.2-57(C), Woodrow
Lawrence, III contends that the trial court erred in denying his
motion for a new trial. We affirm the judgment of the trial
court.
I. BACKGROUND
On August 11, 1999, Officers J.M. Whitehead and T.D.
Shelton were dispatched to the corner of Davis Boulevard and the
road leading into Cogic Square Apartments to investigate a
possible drug transaction in progress. The dispatch resulted
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
from an anonymous tip that "a black male, heavyset, wearing
braids . . . [and] a yellow shirt with designs on the front
. . . , [and] blue jeans" was selling drugs at that location.
Upon arriving at the scene, the officers found Lawrence
talking to a young woman. They observed that he matched the
description and was dressed as described in the dispatch. They
approached Lawrence, informed him why they were there, and asked
whether they could search him. Lawrence replied that he did not
mind if they searched him. He began taking things out of his
pockets and placing them on a nearby chair.
Officer Whitehead testified that he saw "a small Zip-Loc
bag or a Saran Wrap bag in [Lawrence's clinched] hand." He
testified that he grabbed Lawrence's arm because Lawrence
"motioned like he was putting it in the chair . . . [but]
attempted to place it in his left pocket." He testified that,
when he asked Lawrence "what is that," Lawrence "elbowed [him]
in the chest and took off running." The officers tackled
Lawrence after he ran "five or ten yards." Lawrence struggled
and the officers had to subdue him with pepper spray. Officer
Whitehead stated that, during the struggle, Lawrence "bit [his]
hand" and discarded the plastic baggie. The officers did not
recover the baggie. Lawrence was arrested and charged with
assaulting a police officer and with resisting arrest.
Prior to trial, Lawrence moved to suppress the evidence
against him, arguing that it was obtained pursuant to an illegal
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seizure and search. The trial court denied the motion. On
December 17, 1999, Lawrence was tried by a jury and was
convicted of both charges. 1 A sentencing hearing was conducted
on April 16, 2000. Sentence was pronounced from the bench, but
no order was entered until June 9, 2000.
On April 24, 2000, Lawrence moved to set aside the
verdicts, arguing that the trial court had erred in denying his
suppression motion in light of the United States Supreme Court's
recent decision in Florida v. J. L., 529 U.S. 266 (2000). 2 After
hearing argument, the trial court ruled that there was "no basis
for the stop . . . therefore the arrest was not a lawful arrest,
and therefore . . . there could be no conviction for resisting
arrest." Speaking from the bench, the trial court ordered the
resisting arrest charge dismissed. The record before us
contains no order setting forth this holding or the disposition
of the resisting arrest charge.
1
Dialogue between the court and counsel, reported in the
transcripts, discloses that Lawrence was charged with resisting
arrest. The record before us contains no document specifying
that charge and no order effecting its ultimate disposition.
2
In J.L., the United States Supreme Court held that an
anonymous tip giving the location and description of an
individual allegedly carrying a gun but containing "no
predictive information" about the subject's future movements
left the police "without means to test the informant's knowledge
or credibility." J.L., 529 U.S. at 271. In that case, the
anonymous tip was held insufficient to justify a stop and frisk.
See id. at 272-73.
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With respect to the charge of assaulting a police officer,
the trial court held:
[T]he force used by [Lawrence] is not
proportionate to the degree of restraint
that the officers placed on him in this
particular case.
Not only that, the officers were
clearly police officers by their uniform and
every other indication. [Lawrence] knew in
fact that they were police officers. He was
presented with a reasonable show of
authority. Albeit later determined to be
illegal. And he was not entitled to commit
an assault under those circumstances.
Lawrence argued that because his seizure was unlawful, the
trial court had erred in denying the following proposed
instruction:
The defendant has the right to use
reasonable force to resist an unlawful
arrest. If you find that the force used to
resist the unlawful arrest was reasonable,
then you shall find the defendant not
guilty.
The trial court rejected that argument, holding:
I find that the instruction referred to by
[Lawrence] referred to the specific offense
of resisting arrest. And for that reason,
on that part of [Lawrence's] motion, I don't
find that the jury was improperly instructed
by the denial of an instruction that related
to the specific offense of resisting arrest,
which was one of the charges in this case.
The record before us contains no order setting forth the
foregoing ruling. It contains only an order of conviction and
sentence, entered June 9, 2000, upholding the jury verdict
finding Lawrence guilty of assaulting a police officer in the
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context of the evidence that we have recited in this opinion.
The evidence sufficiently supports that judgment.
The evidence supports the finding that the initial
encounter between the police officers and Lawrence was
consensual and non-coercive. Lawrence agreed to be searched and
proceeded to empty his pockets himself. While the anonymous tip
was insufficient to support a seizure, it provided a context
within which Officer Whitehead's observation of the small
Zip-Loc or Saran Wrap bag as to which Lawrence acted furtively
gave him probable cause to believe that Lawrence possessed
contraband. This supported the seizure that occurred when
Officer Whitehead grabbed Lawrence's arm. Lawrence's flight,
apprehension, and his biting Officer Whitehead's hand all
followed that seizure, in the course of the officers' lawful
performance of their duty.
The judgment of the trial court is affirmed.
Affirmed.
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