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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Three Appeals -- The Reversal Is Important

Last week the Court of Appeals issued a single opinion and then two more today, and while the Commonwealth was the appellee in all three, only to are appeals from cases in which the defendant was convicted of a crime. Let's start with one of the criminal cases -- the one that resulted in a reversal: Jesse Ryan Hackett, s/k/a Jessi Ryan Hackett v. Commonwealth of Virginia. Code § 18.2-460(E) makes it a Class 1 misdemeanor to knowingly flee from a law-enforcement officer attempting to make a lawful arrest, but only if the officer “applies physical force to the person” or has “the immediate physical ability to place the person under arrest.”

This case deals with the latter potential. Hackett was subject to arrest on a felony warrant and a Lynchburg police officer drove to a residence where he hoped to find him and parked at the end of the street. Hackett was indeed at the residence, in fact he was standing right out front. As the officer approached and was about 20 to 25 yards away, the two made eye contact and Hackett took off like a jack rabbit that startled a rattlesnake. Well, except this was in Lynchburg, not Texas, and it was January, and it was snowing, but you get the idea. Hackett managed to elude police (including backup) for about an hour, when the original offer spotted him from about 50 yards away and Hackett again did a jack rabbit (or perhaps he did a snowshoe rabbit) when the officer commanded him to "stop."

When Hackett was finally apprehended sometime later, in addition to the felony already charged, he was charged with violation Code § 18.2-460(E), apparently by direct indictment because there was not trial in the general district court. At the trial on that charge, Hackett moved to strike at the close of the Commonwealth's evidence, asserting that the officer never had the "immediate physical ability" to arrest Hackett. The circuit court denied the motion and Hackett appealed.

As the lede told you that this was the reversal, you know what is coming. The Court of Appeals, Judge Raphael joined by Judge Friedman, with Judge Fulton concurring separately, found that the officer was never more than 20 yards close to Hackett and at that distance, the officer was not in a position to place Hackett under arrest, no was the verbal command to stop from 50 yards away relevant, because while the statute includes a provision that the officer communicates to the person that he is under arrest and "a reasonable person who receives such communication knows or should know that he is not free to leave," that provision is stated in the conjunctive with "the officer has the legal authority and the immediate physical ability to place the person under arrest."

Judge Fulton's concurrence is based on his disagreement with the majority that the defendant must be within the "immediate span" of the officer control -- a term, which he notes, the majority does not defined -- but he agrees that however close the officer has to be, 20 yards is too far.

An important distinction in this case and the offense of "escape from custody" is that the latter offense requires the defendant to be in actual custody before fleeing. In that scenario, the distance between the defendant and the officer at the time of flight is irrelevant, because one you have been detained -- whether physically or by submission to authority -- you cannot go unless and until the officer (or the court) says you can, and fleeing anytime before that is escape even if the nearest officer is in the next room . . . or the next county.

The second criminal appeal, Timothy Miles, s/k/a Timothy L. Miles v. Commonwealth of Virginia, is also 2-1-0 appeal, which may explain why it is published. A jury convicted Timothy Miles of six counts of unlawfully discharging a firearm in an occupied building, in violation of Code § 18.2-279, reduced from maliciously discharging a firearm in an occupied building, and acquitted him of attempted capital murder of a law enforcement officer and use of a firearm in the commission of that felony. All in all, not a bad result.

But Miles what not satisfied. According to him, there were not six separate offenses, because he fired six shots randomly and rapidly in succession, making it a single act of "firing." That's a creative, but not unreasonable argument. However, Miles was not done. He also argued that the building was not occupied because the only other person in the apartment was the officer investigating a prior report of shots fired, and the officer was not an "occupant" of the apartment. The capital murder charges arose out of the officer being wounded by one of Miles' "random" shots. And that was not even his most creative argument. Miles also argued that because the jury was not properly instructed on criminal negligence, he was convicted of a "non-offense" of "heat-of-passion discharge of a firearm."

This very creative argument was addressed first by the majority, Sr. Judge Haley joined by Judge Ortiz, which found that while Miles raised this issue after the verdict, he in fact had agreed to the jury instruction that he subsequently claimed permitted the jury to convict him of a "non-offense." The majority said that this was approbating and reprobating, and the objection was untimely besides, and the ends of justice did not require them to forgive either of these sins. Judge Chaney concurred, saying there was no need to procedurally bar the argument because Miles' assertion that the jury convicted him of the "non-offense" was so much buncombe, and the jury was properly instructed.

As to the slightly less creative, but still creative argument, that the officer was not an "occupant" of the apartment, the Court states that in this context "occupied" means that another human is present, and has nothing to do with the right to occupy. Similar the most legitimate issue -- is six shots rapidly fired a single offense of firing -- is on of practicality, Regardless of how rapidly Miles pulled the trigger, he had to pull it six times. The six actions of discharging the firearm. One supposes that this leaves open the question of what the Court would do if a defendant had a submachine gun set to full auto and empty the clip in a single action.

The final case, the one released last week, is Nigel Elliot Walker v. Commonwealth of Virginia, and as explained, does not involve a conviction. Walker was acquitted, in 2016, of first degree murder upon a finding that he was insane at the time of the offense. Walker was duly committed to Central State Hospital and responded well to treatment. In 2020, Walker was released to a transitional living facility in what is know as a conditional release.

In 2022, Walker was recommended for independent living. He would still be subject to certain conditions and monitoring, but he would essentially be living in the community without restrictions. The Commonwealth opposed the plan. The Court of Appeals, Chief Judge Decker joined by Judges Maleveaux and Causey, has recited the evidence and argument presented in the circuit court on both sides, and frankly, its a very close case. The circuit court was clearly sympathetic to Walker and his recovery, but ultimately found that the continuing danger to the public and the nature of the underlying offense, weighed against permitting Walker to be permitted to live independently at this time.

The Court affirmed this judgment, primarily because it ultimately to the circuit court exercise of its discretion. As in so many instances, an appellate judge may have exercised that discretion differently, but that does not make the trial court's actions abusive.

On average, person acquitted by reason on insanity are not eligible for full release without any monitoring for many years after the are allowed on community release. Typically, the average time in confined custody is 5 years, but this is skewed by those acquittees how do not respond (or refuse) treatment and, thus, are never released. Walker is clearly ahead of the curve, but I cannot find fault with the Court of Appeals affirmance of the trial court's caution. Walker will be eligible for future reviews and, undoubtedly, if he continues to respond well to treatment and maintain his compliance with the terms of his release, he will eventually be granted more freedom.

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