White v. Com.

• Decision Date: 16 January 2004
• Docket Number: Record No. 030476.
• Citation: 267 Va. 96,591 S.E.2d 662
• Court: Virginia Supreme Court
• Parties: Michael Maurice WHITE v. COMMONWEALTH of Virginia.

591 S.E.2d 662

267 Va. 96

Michael Maurice WHITE v. COMMONWEALTH of Virginia.

Record No. 030476.

Supreme Court of Virginia.

January 16, 2004.

Monte E. Kulingowski, Chesapeake, for appellant.

Virginia B. Theisen, Asst. Atty. Gen. (Jerry W. Kilgore, Atty. Gen., on brief), for appellee.

Present: All the Justices.

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.

In this appeal, we consider whether the evidence was sufficient to support the defendant's conviction under an indictment charging him with felony escape in violation of Code, § 18.2-479(B). The issue presented is whether the defendant was in "custody" within the meaning of that statute prior to his flight from a police officer.

BACKGROUND

"As required by established principles of appellate review, we will recite the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party in the [trial] court, and we will accord the Commonwealth the benefit of all inferences fairly deducible from that evidence." Stephens v. Commonwealth, 263 Va. 58, 59-60, 557 S.E.2d 227, 228 (2002).

On August 9, 2001, Michael A. Rushak, a motorcycle officer with the City of Chesapeake Police Department, observed a vehicle being operated without a front license plate. Rushak requested a registration check of the vehicle and was advised that the number on the rear license plate was registered to a vehicle of a different make and model. Rushak stopped the vehicle and asked the driver for his license and registration. The driver, who identified himself as Michael Maurice White, told Rushak that his driver's license had been suspended and that he had no other form of identification. White also told Rushak that the vehicle belonged to White's sister, and that he was aware that the license plate "doesn't belong on here."

Rushak ordered White to step out of his vehicle, telling him that it would be towed. As White stepped from the vehicle, Rushak noticed that White's "left hand was trembling and wouldn't stop." Concerned that White was uncharacteristically nervous for a person stopped for a routine traffic infraction, Rushak called for assistance. Officer Meredith Bowen, who was on patrol in a marked police car nearby, arrived at the scene.

Rushak directed White to place his hands on his vehicle and proceeded with a protective pat-down search of White. When Rushak placed his hand on White's right front pants pocket, White "tensed up" and said, "Don't go in my pocket." Rushak felt what seemed to him to be "little rocks in a plastic bag" inside the pocket and asked White if this was crack cocaine. At that point, White "came off the car," and a struggle ensued. Using what Rushak described as "round-house punches" while "swirling and turning," White attempted to push away from Rushak. Rushak took hold of White's T-shirt, which ripped from White's body as he fled.

Rushak and Bowen pursued White. William Goodnoh, a city employee working in a park near where White's vehicle had been stopped, saw White fleeing and observed him reach into his pocket and then toss an object into some bushes. When other officers arrived, Goodnoh directed one of them to the location where White had tossed the object, and the officer recovered a small bag containing crack cocaine from that area. White was later found hiding in a backyard some distance away by one of the officers who arrived to aid in the search.

On February 5, 2002, the grand jury returned an indictment charging that White:

On or about the 9th day of August, 2001, after lawfully having been confined in jail or after lawfully having been in the custody of a court, officer thereof, or a law enforcement officer on a charge or conviction of a felony, escape[d] such confinement or custody, in violation of § 18.2-479(B) of the Code of Virginia, 1950, as amended.

In a bench trial held on April 25, 2002, the Circuit Court of the City of Chesapeake (the trial court) heard evidence in accord with the above-recited facts.¹ In addition, Bowen testified in response to a question from the trial court that she did not "believe that [White] was under arrest" at the time she arrived on the scene. She also testified that she did not see White punch or kick Rushak, but that it appeared that he was "doing a spin and trying to get away."

Rushak testified that he conducted the pat-down search because "the sooner I know I'm dealing with somebody that appears not to have any weapons, the more comfortable I feel." He further testified that he intended to arrest White and that when he reached for his handcuffs and they made a noise, White made some comment to the effect that he was going to be arrested. On cross-examination, conceding that White was not under arrest at the time he conducted the pat-down search, Rushak testified that White "was being detained." Rushak further testified that when he suspected White was in possession of cocaine, he decided that White "was going into custody. We were working our way there."

At the conclusion of the Commonwealth's case-in-chief, White moved to strike the evidence of felony escape, asserting that the evidence failed to establish that White was in custody within the meaning of Code § 18.2-479(B) when he fled from Rushak. The Commonwealth responded that White had been in custody because Rushak "was about to place him under arrest" and he "was going to place him in custody for driving on a suspended license." The trial court described the evidence as to whether White was in custody as being "a little close," but ruled that it was sufficient to sustain the Commonwealth's burden "at this stage."

White testified on his own behalf. He recounted that he thought he was "just going to get a summons" when he was initially stopped by Rushak. White maintained that after the pat-down search he did not "know whether [Rushak was] going to lock me up or I'm going to get a summons but I'm pretty sure that it ain't going to turn out for the good" and he "had a feeling that I might get locked up." White denied deliberately striking Rushak.

White further testified that although he purposely fled from Rushak, he knew the police would ultimately find him because he had given Rushak his correct name and other identifying information. White claimed that he intended to turn himself in after getting his paycheck later that week.

After concluding his testimony, White rested his case and argued against a conviction on the felony escape charge. He contended that "the elements of escape are simply not met" because under the facts of the case he was not told that he was under arrest and he "wasn't in custody." The trial court noted that White testified that "he knew he was going to be arrested because he wanted to come down Friday and give himself up." White conceded that this was his subjective understanding, but asserted that the "case falls short" because the evidence showed that he was not under arrest and the officer was merely conducting a pat-down search when he ran away from the officer.

The trial court convicted White of felony escape, with White noting his objection. Following consideration of a presentence report, the trial court sentenced White to three years in prison for felony escape and suspended the entire sentence.

White filed a petition for appeal in the Court of Appeals of Virginia. Relevant to the issue raised here, the Court of Appeals denied White's petition, finding that "[t]he Commonwealth's evidence was competent, was not inherently incredible, and was sufficient to prove beyond a reasonable doubt" that White "was in Rushak's custody when he escaped." We awarded White an appeal limited to the question whether the evidence was sufficient to establish that White was "in police custody at the time of his flight."

DISCUSSION

Before addressing the merits of the issue presented in this appeal, we first consider the procedural default asserted by the Commonwealth to limit the scope of White's assignment of error. As relevant to the facts of this case, Code § 18.2-479(B) defines as a class 6 felony the escape of "any person . . . lawfully in the custody of ... any law-enforcement officer on a charge or conviction of a felony."² In his petition for appeal in this Court, White limited his assignment of error to the question whether the evidence was sufficient to prove that he was "in police custody at the time of his flight." In briefing that assignment of error in the petition, White similarly limited his argument to contesting whether he was in custody, and did not address the further provision of the statute that requires the custody to be "on a charge or conviction of a felony." Our order awarding an appeal to White, as noted above, limited the appeal to the issue argued in his petition, quoting verbatim the language of the assignment of error as White had framed it.

In his opening brief, however, White modified his assignment of error to include language asserting that his conviction was barred because he was not in "custody on a charge or conviction of a felony." (Emphasis added). The Commonwealth, while not expressly objecting to the modification of the assignment of error, contends that White did not raise the issue of this requirement of the custody contemplated by Code § 18.2-479(B) in the trial court. Accordingly, the Commonwealth further contends that White's appeal, or at least so much of it as is directed to the question whether he was in custody "on a charge or conviction of a felony," is barred by Rule 5:25.

Although we agree with the Commonwealth that White did not expressly make the same argument and objection to his conviction in the trial court which he now asserts, we need not consider whether the argument and objections that were made below are sufficient under Rule 5:25 to preserve the issue for appeal as now asserted by White. The order awarding White this appeal set forth the assignment of error as it was worded in his petition. It is impermissible for an appellant...