English v. Commonwealth
| Decision Date | 21 February 2023 |
| Docket Number | 0470-22-2 |
| Parties | REVA NICOLE ENGLISH v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY Ricardo Rigual Judge
Andrew J. Cornick (Andrew J. Cornick, LLC, on brief), for appellant.
Rebecca M. Garcia, Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.
Present: Judges Chaney, Raphael and Callins Argued at Richmond, Virginia
Appellant Reva Nicole English appeals her conviction following a jury trial for assault and battery on a law-enforcement officer in violation of Code § 18.2-57. She claims that her arrest was unlawful and argues that the common law permitted her to use reasonable force to resist. The trial court rejected that argument, concluding that English had only been detained, not arrested. Applying Commonwealth v. Hill, 264 Va. 541 (2002), the court concluded that the common-law privilege to use reasonable force to resist an unlawful arrest did not apply to her detention. We affirm on different grounds. Assuming without deciding that English was arrested, we conclude that her arrest was not unlawful because it was supported by probable cause. Thus, she did not have the right to resist a lawful arrest.
Background[1]
Shortly before 9:00 p.m. on January 12, 2019, Bonita Hernandez called 911 to report a domestic assault. She said that English had used a bottle to hit her brother, Randall Branch, and that to defend Branch, Hernandez had struck English with a flashlight. Hernandez also said that English was intoxicated. Spotsylvania County Sheriff's Deputy Kenneth Camp was dispatched to Hernandez's residence to investigate.[2] The dispatcher relayed Hernandez's report and further informed Camp of English's criminal record, which included multiple convictions for crimes of violence. Using DMV records, the dispatcher also provided English's "[h]eight, weight, skin color, [and] eye color."
At 9:07 p.m., Deputy Camp found English walking along the road, about a tenth of a mile from the residence. Snow had fallen that night, the temperature was below freezing, and English wore only a light hoodie, pants, and a shirt. She appeared to have been in a fight. She held a paper towel to her eyebrow, nursing a head injury, and she had blood on her chest.
Deputy Camp approached English to confirm her identity and asked if she needed help. English gave her name but denied needing medical attention. Camp radioed for medical assistance anyway. At 9:10 p.m., Camp "detained" English. He told English that she was reportedly "the primary aggressor" in the domestic incident. Camp "searched" English, placed her in handcuffs, and transported her in the backseat of his cruiser to the residence, arriving at 9:15 pm. The record does not reveal the extent of the search performed by Camp.
Deputy Jason Hager arrived in his cruiser about a minute later. Camp walked up to the front door of the residence to speak with Hernandez while Hager stayed by Camp's patrol car. Deputy Kyle McGinnis also responded to the scene and joined Camp.
Hernandez repeated to Camp that English had struck Branch with a bottle and that Hernandez had hit English in the head with a flashlight. But she would not let Camp inside, claiming that Branch had left. After Camp threatened to charge her with obstruction, however, Hernandez allowed Camp to search for Branch; he was not there.
In the meantime, Deputy Hager stood by the patrol car, with English sitting in the backseat. Video from Hager's body camera was admitted into evidence at trial. Hager testified that, when he arrived at the scene, he understood that English had not been arrested and was simply being detained. According to standard procedure, Camp would have informed Hager upon his arrival if Camp had arrested English.
When Hager asked English if she needed medical attention, English became irate and repeatedly insulted him. Hager said that he read English her Miranda[3] rights to err on the side of caution. At about 9:24 p.m., Hager noticed that English had slipped out of her handcuffs. He removed English from the car to put them back on. English asked-"do I [have] to go to an ambulance, with handcuffs, with my head bleeding?"-to which Hager responded, "yes." At about the same time, emergency medical responders arrived to treat English's injuries, and Camp returned from the house.
While they all stood outside the patrol car and Hager struggled to "double-lock" the handcuffs, English became more agitated, yelling racial epithets and profanity, and threatening to fight Hager. English suddenly turned and "bucked" at him, headbutting his chest and striking him with her shoulder. She then "mule kicked [his] right knee."
The deputies arrested English for assault on a law-enforcement officer. In total, 23 minutes had elapsed from when English was first detained until she attacked Hager. Deputy Camp tried but failed to locate Branch. Unable to find the "primary victim," Camp concluded his investigation. Camp testified that he would have released English if she had not assaulted Hager.
A grand jury indicted English for assault on a law-enforcement officer in violation of Code § 18.2-57(C). Before trial, English moved to dismiss the indictment. She argued that by handcuffing and searching her, transporting her in a patrol car, and reading Miranda warnings to her, the deputies effected a de facto arrest without probable cause. English argued that she used reasonable force to resist that illegal arrest. Alternatively, English asked the trial court to find that her arrest was unlawful and to let the jury decide whether her resistance was reasonable. The prosecution responded that English's seizure was merely an investigatory detention until she was arrested for assaulting Hager. The circuit court agreed, finding that English had been "detained clearly for investigative purposes."
After the close of evidence, the trial court denied English's motion to strike and again rejected her claim that her detention was unlawful. The court found that English "was being detained temporarily" and that "there was an active investigation going on based on a credible report corroborated by physical evidence that a domestic assault had occurred." The court noted that every witness, including English, testified that "she was told that she was being detained and not arrested." The court observed that the investigation continued even after English's arrest for assaulting Deputy Hager. The court concluded that "the circumstances and length of her detention were not unreasonable" and there "was no evidence" that her detention was unlawful.
The jury found English guilty of assaulting a law-enforcement officer, and the court sentenced her to a year's imprisonment with five months suspended. English noted a timely appeal.
"[W]hen 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." Doscoli v. Commonwealth, 66 Va.App. 419, 424-25 (2016) (quoting Brown v. City of Danville, 44 Va.App. 586, 603 (2004)). We likewise "review de novo whether a police officer had probable cause to make an arrest." Id. at 424.
"The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly." Code § 1-200. "Under the common law, a citizen generally is permitted to use reasonable force to resist an illegal arrest." Hill, 264 Va. at 546. "The underlying rationale supporting this common law right is the 'provocation' of an illegal arrest, which operates to excuse an assault directed at thwarting the unlawful arrest." Id. at 547. "Because of the danger of violence implicated in resisting arrest, 'the overall trend in a majority of states has been toward abrogation of the common law right to use reasonable force to resist an unlawful arrest.'" Doscoli, 66 Va.App. at 426 n.2 (quoting Hill, 264 Va. at 548 n.2). But we have recognized that, however wise it might be to change the common-law rule, "the authority to abrogate the common law rests with the General Assembly and not with this Court." Id.
Still, the Supreme Court held in Hill that the common-law privilege to use reasonable force to resist an unlawful arrest does not apply when the person is seized as part of an investigative detention. 264 Va. at 547. The Court reasoned that an "investigative detention constitutes a brief, though not inconsequential, restriction on an individual's freedom of movement." Id. So there is no right to use force to resist a detention, even an "unlawful" one. Id. at 548.
Both sides agree that the threshold question is whether English was detained or arrested when Camp handcuffed her, placed her in the backseat of his cruiser, and transported her to the scene of the reported assault on Branch. "During [an investigatory] stop, the individual is not free to leave, but he is not under arrest." White v. Commonwealth, 267 Va. 96, 104 (2004). There can be "difficult line-drawing problems in distinguishing an investigative stop from a de facto arrest." United States v. Sharpe, 470 U.S. 675, 685 (1985). No rigid time limitations or bright-line rules differentiate them. Id. The "scope of the intrusion permitted [during an investigatory stop] will vary" with each case. Florida v. Royer, 460 U.S. 491, 500 (1983).
When evaluating the suspect's "custodial status," a court "must determine 'how a reasonable person in the suspect's situation would...
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