Brown v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Coleman and Overton

Argued at Salem, Virginia

VICTORIA PRICE BROWN

OPINION BY

v. Record No. 2917-96-3 JUDGE JOSEPH E. BAKER

APRIL 7, 1998

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY

Charles H. Smith, Jr., Judge

A. Benton Chafin, Jr. (Brian M. Ely; Chafin

and Chafin, P.C., on briefs), for appellant.

Ruth Ann Morken, Assistant Attorney General

(Richard Cullen, Attorney General, on brief),

for appellee.

Victoria Price Brown (appellant) appeals from a judgment of

the Circuit Court of Washington County (trial court) that

approved a jury verdict convicting her for obstructing justice by

resisting arrest in violation of Code § 18.2-460. 1 Appellant

1

That section provides:

Obstructing justice.--A. If any person

without just cause knowingly obstructs a

. . . law-enforcement officer in the

performance of his duties as such or fails or

refuses without just cause to cease such

obstruction when requested to do so by such

. . . law-enforcement officer, he shall be

guilty of a Class 2 misdemeanor.

B. If any person, by threats or force,

knowingly attempts to intimidate or impede a

. . . law-enforcement officer, lawfully

engaged in his duties as such, or to obstruct

or impede the administration of justice in

any court, he shall be deemed to be guilty of

a Class 1 misdemeanor.

C. If any person by threats of bodily

harm or force knowingly attempts to

intimidate or impede a . . . law-enforcement

resisted an attempt to arrest her by police officers who were

acting pursuant to a capias issued for another person whose name

was "Vicki R. Edwards, AKA Vicki Edwards Brown." Appellant

contends that because the arrest was unlawful, she had the right

to resist. The Commonwealth asserts that because the attempt to

arrest was made in "good faith," it was lawful and, therefore,

appellant had no right to resist. For the reasons that follow,

we reverse the conviction.

Upon familiar principles, we state the evidence in the light

most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom. See Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

The record discloses that on the afternoon of January 11, 1996,

Abingdon Police Officers Hay and Slagle were dispatched to

investigate a "domestic disturbance" at 284 B Street in Abingdon,

the address at which appellant resided. While en route, Hay

received a radio dispatch from Abingdon Police Sergeant Miller

stating that he had "a capias for the subject at this residence."

In fact, Miller had no such capias for appellant's arrest. In

relevant part, the capias to which Miller referred gave the

following authority to arrest:

officer, lawfully engaged in the discharge of

his duty, or to obstruct or impede the

administration of justice in any court

relating to a violation of or conspiracy to

violate § 18.2-248 or § 18.2-248.1(a)(3), (b)

or (c) he shall be guilty of a Class 5

felony.

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ARREST THIS RESPONDENT:

EDWARDS, VICKI R.

506 Lowry Drive, Apt. #1

Abingdon, VA 24210

AKA: Vicki Edwards Brown

W F 8 21 70 5 5 240 BR Br

XXX-XX-XXXX

* * * *

In re/V.

Vicki R. Edwards

The officers testified they knew appellant as Vicki Brown

and thought the capias was for appellant, notwithstanding that

Edwards' address was on the other side of town from appellant's

residence. 2

Officers Hay and Slagle arrived at appellant's house first.

When Sergeant Miller arrived, he gave the capias to Hay. The

officers' statements regarding what happened next vary and

sometimes conflict. Miller said that upon arrival at appellant's

house, they made no investigation "at all" and did not ask for

identification. Hay said that, while at the jail, appellant told

them she thought the capias was for a debt that had been

satisfied; Miller said she made that statement at her residence

as they attempted to serve the capias. Hay said that appellant

began to curse and kick and was sprayed with pepper gas as he was

reading her the warrant; Miller said appellant was not sprayed

until after she "wadded up the warrant and threw it on the

2

There was no evidence that appellant had ever been known as

Vicki Edwards or seen at Edwards' address. Likewise, there was

no evidence that the officers knew appellant as Vicki Edwards

Brown.

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floor." Slagle said Miller read the warrant to appellant; Hay

said he read the warrant to appellant. Miller said appellant

stayed on the couch where she kicked at one of the officers and

that she never stood or jumped up. Slagle claimed appellant

"jumped up" and "swung" at him. Hay contended appellant jumped

up and kicked but did not aim the kick at any officer. Miller

said it was aimed at one of the officers. None of the officers

ever said, "I have a warrant for Vicki R. Edwards, AKA Vicki

Edwards Brown."

It is apparent that the officers knew appellant as "Vicki

Brown" and that while they attempted to execute the capias,

appellant cursed, kicked without making any contact, and resisted

arrest. The Commonwealth concedes that appellant was not the

person named in the capias. Although the officers read the

warrant to appellant, none testified that they specifically told

appellant that the capias showed the warrant was to arrest

"Edwards, Vicki R. . . . AKA Vicki Edwards Brown," as it was in

fact.

When the Commonwealth rested, appellant moved to strike the

evidence against her. Appellant argued that because the capias

was for Vicki R. Edwards, who was shown to reside at an address

different from that of appellant, the attempt to arrest was "a

warrantless arrest," without probable cause, for a misdemeanor

not committed in the officers' presence. Appellant further

argued that, in Virginia, "a person has the absolute right to

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resist an illegal arrest by whatever force is necessary and

reasonable under the circumstances."

The Commonwealth contends that, notwithstanding the

officers' arrest of the wrong person, because the arrest was made

in good faith, appellant had no right to resist. We disagree.

In Polk v. Commonwealth, 4 Va. App. 590, 596, 358 S.E.2d

770, 773 (1987), this Court clearly established that "an

individual is not entitled to resist a lawful arrest." All

authorities are in agreement on this legal principle.

Contending that the arrest was lawful, the Commonwealth

cites several cases holding that erroneous arrests were held to

be lawful when made in "good faith." See, e.g., Hill v.

California, 401 U.S. 797 (1971); DeChene v. Smallwood, 226 Va.

475, 311 S.E.2d 749 (1984); Yeatts v. Minton, 211 Va. 402, 177

S.E.2d 646 (1970); Barnette v. Commonwealth, 23 Va. App. 581, 478

S.E.2d 707 (1996); Shears v. Commonwealth, 23 Va. App. 394, 477

S.E.2d 309 (1996). None of these cases address the specific

issue before us. For example, in Hill, Shears, and Barnette, the

issue was whether, when the officers arrested the defendants

erroneously but in good faith, the evidence of contraband found

during the search that followed the arrest should have been

suppressed. DeChene and Yeatts merely held that where the

erroneous arrests were made in good faith, the officers could not

be held liable for civil damages. Here, the issue is whether, or

to what extent, an arrestee may resist an arrest claimed to have

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been made in "good faith" but made without a lawful warrant or

probable cause to arrest for a misdemeanor not committed in the

presence of the arresting officers.

In Virginia, authorization to make a warrantless arrest is

limited to those situations provided for in the Code of Virginia.

See Code §§ 19.2-77, 19.2-81, 19.2-100. The lawfulness of an

attempted arrest is determined by those code sections. See Foote

v. Commonwealth, 11 Va. App. 61, 65, 396 S.E.2d 851, 854 (1990)

(citing Code § 19.2-81). Appellant's arrest was not made

pursuant to any of the cited code sections.

Cases that protect police officers from civil liability or

that apply the good faith exception to the exclusionary rule to

evidence acquired pursuant to an erroneous arrest are not

controlling.

It has long been held in Virginia that where an officer

attempts an unlawful arrest, the officer is an aggressor which

gives the arrestee the right to use self-defense to resist so

long as the force used is reasonable. See id. at 69, 396 S.E.2d

at 856; see also Annotation, Modern Status of Rules as to Right

to Forcefully Resist Illegal Arrest, 44 A.L.R. 3d 1078 (1972).

"[T]he amount of force used [always] must be reasonable in

relation to the harm threatened." Diffendal v. Commonwealth, 8

Va. App. 417, 421, 382 S.E.2d 24, 26 (1989).

When the issue on appeal is whether there is sufficient

evidence to support a criminal conviction, we view conflicting

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evidence in the light most favorable to the Commonwealth.

However, when the issues are the lawfulness of an arrest and the

reasonableness of force used to resist an unlawful arrest, the

ultimate questions involve law and fact and are reviewed de novo

on appeal. See Foote, 11 Va. App. at 65, 396 S.E.2d at 853-54;

see also McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487

S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United

States, 517 U.S. 690 (1996)).

The Commonwealth's evidence relevant to the confrontation

conflicts. One officer, Sergeant Miller, the supervisor who had

the capias in his vehicle, testified that appellant did not jump

from the sofa but instead that her entire resistance was by

cursing and kicking while remaining seated on the sofa. Hay, who

had been given the capias to read to appellant, said that

appellant "jumped" from the sofa and kicked, but that the kicking

was not "aimed" at any of the officers. None of those acts

constituted the use of unreasonable force to resist an unlawful

arrest.

Moreover, even a casual reading of the capias discloses that

the officers were authorized to arrest only Vicki R. Edwards or a

person sometimes known as Vicki Edwards Brown. Careless reading

of the capias cannot divest a wrongly accused person of a right

otherwise possessed by law. The officers' mistaken belief that

appellant was the person named in the capias did not make the

capias an instrument upon which the police could lawfully arrest

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appellant, even if that mistake was made in good faith.

The police officers became aggressors when they attempted to

arrest a person not named in the capias upon which they relied

for the arrest, and they were at fault in the confrontation. See

Foote, 11 Va. App. at 69, 396 S.E.2d at 856. Appellant was not

required to surrender to the officers based on the capias issued

for another person's arrest. Because the arrest was unlawful,

appellant had the right to resist upon self-defense principles.

The Commonwealth cannot expunge that right even by showing the

officers acted in "good faith."

Accordingly, for the reasons stated, we reverse the judgment

of the trial court and dismiss appellant from further prosecution

on the charge.

Reversed and dismissed.

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