Hackett v. Commonwealth

78 Va.App. 92

889 S.E.2d 672

Jesse Ryan HACKETT, s/k/a Jessi Ryan Hackett v. COMMONWEALTH of Virginia

Record No. 1218-22-3

Court of Appeals of Virginia, Lexington.

July 25, 2023

Catherine French Zagurskie, Chief Appellate Counsel (Elena Kagan, Third Year Law Student; Virginia Indigent Defense Commission, on briefs), for appellant.

Collin C. Crookenden, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Fulton, Friedman and Raphael

OPINION BY JUDGE STUART A. RAPHAEL

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." We have construed that subsection to require flight from the officer's "immediate span of control." Peters v. Commonwealth , 72 Va. App. 378, 388, 846 S.E.2d 23 (2020) (quoting Joseph v. Commonwealth , 64 Va. App. 332, 341, 768 S.E.2d 256 (2015) ). Although the defendant here knowingly fled from a law-enforcement officer attempting to arrest him, the officer got no closer than 20 yards. Finding as a matter of law that this distance is too great to satisfy the statutory proximity requirement, we reverse the defendant's conviction.

BACKGROUND

On appeal, we recite the facts "in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth , 74 Va. App. 225, 231, 867 S.E.2d 505 (2022) (quoting Commonwealth v. Cady , 300 Va. 325, 329, 863 S.E.2d 858 (2021) ). Doing so requires that we "discard" the defendant's evidence when it conflicts with the Commonwealth's evidence, "regard as true all the credible evidence favorable to the Commonwealth," and read "all fair inferences" in the Commonwealth's favor. Cady , 300 Va. at 329, 863 S.E.2d 858 (quoting Commonwealth v. Perkins , 295 Va. 323, 324, 812 S.E.2d 212 (2018) ).

On January 16, 2022, Lynchburg Police Officer M.D. Iazzi set out to arrest Jessi Ryan Hackett on a felony-arrest warrant. After viewing a photograph of Hackett, Iazzi drove to a residence where he hoped to find him and parked at the end of the street. Iazzi wore his police uniform. As he approached the residence on foot, he observed Hackett standing outside, about 20 to 25 yards away. After making eye contact with Iazzi, however, Hackett "took off running."

Iazzi told Hackett to stop and said he was under arrest, but Hackett kept running, saying "I didn't do anything wrong." Hackett escaped into the woods. Although Iazzi called for backup, other officers could not reach him due to "a bad snow storm." The record does not reveal the amount of snow on the ground.

About an hour later, Officer Iazzi found Hackett in a nearby neighborhood. From about 50 yards away, Iazzi told him to stop, but Hackett "took off on foot" and successfully escaped again. Hackett was later arrested and charged with misdemeanor fleeing from a law-enforcement officer under Code § 18.2-460(E).

At the bench trial that followed, Hackett moved to strike the Commonwealth's evidence, arguing that the Commonwealth had failed to prove under Code § 18.2-460(E)(ii) that Officer Iazzi had the "immediate physical ability" to arrest him. The trial court denied the motion and convicted Hackett of the misdemeanor. Hackett was sentenced to 90 days’ incarceration, with 60 days suspended.

ANALYSIS

Hackett challenges his conviction under Code § 18.2-460(E), which makes it a misdemeanor if a person "intentionally prevents or attempts to prevent a law-enforcement officer from lawfully arresting him." Subsection E further provides as follows:

For purposes of this subsection, intentionally preventing or attempting to prevent a lawful arrest means fleeing from a law-enforcement officer when

(i) the officer applies physical force to the person, or (ii) the officer communicates to the person that he is under arrest and

(a) the officer has the legal authority and the immediate physical ability to place the person under arrest, and

(b) a reasonable person who receives such communication knows or should know that he is not free to leave.

Code § 18.2-460(E). Because Officer Iazzi did not "appl[y] physical force" to Hackett, as referenced in subsection (E)(i), Hackett's conviction depends on whether the Commonwealth proved the elements required by subsection (E)(ii).

Hackett does not dispute that Officer Iazzi told him that he was under arrest, that Iazzi had "the legal authority" to arrest him, that Hackett knew that he was "not free to leave," or that he fled. Hackett instead argues that Iazzi did not have the "immediate physical ability to place [Hackett] under arrest." Code § 18.2-460(E)(ii)(a). Taking the facts in the light most favorable to the Commonwealth, we assume that Iazzi came as close as 20 yards to Hackett when trying to arrest him.

Still, whether Hackett was close enough to be within Iazzi's "immediate physical ability" to place him under arrest, id. , presents a question of law that we review de novo. See Peters , 72 Va. App. at 390-91, 846 S.E.2d 23. Examining the text, context, and drafting history of Code § 18.2-460(E), as well as the caselaw construing this statute and its predecessor, we conclude that Officer Iazzi did not have the "immediate physical ability" to arrest Hackett because, at 20 yards away, Hackett was outside of Iazzi's "immediate span of control." Peters , 72 Va. App. at 388, 846 S.E.2d 23 (quoting Joseph , 64 Va. App. at 341, 768 S.E.2d 256 ).

A. The common understanding of "immediate"

"[W]e start with the text." Levick v. MacDougall , 294 Va. 283, 292, 805 S.E.2d 775 (2017). The statute does not define immediate in the phrase immediate physical ability , so we turn to the "common meaning of the word." Joseph , 64 Va. App. at 338, 768 S.E.2d 256. Black's Law Dictionary defines immediate as "[o]ccurring without delay; instant"; "[n]ot separated by other persons or things." Immediate , Black's Law Dictionary (11th ed. 2019). Webster's defines immediate to mean "occurring, acting, or accomplished without loss of time: made or done at once: INSTANT"; and "characterized by contiguity: existing without intervening space or substance." Immediate , Webster's Third New Int'l Dictionary Unabridged (2021). The Oxford English Dictionary (O.E.D.) gives this definition: "Having no person, thing, or space intervening, in place order, or succession .... In reference to place often used loosely of a distance which is treated as of no account." Immediate , Compact Edition of the Oxford English Dictionary (1971).

None of those definitions supports the Commonwealth's position that Officer Iazzi had the immediate physical ability to arrest Hackett when Iazzi got no closer to him than 20 yards. The time and space to close that distance prevented Iazzi from arresting him "without loss of time" or "without intervening space" ( Webster's ), let alone "without delay" ( Black's ). The 60 feet separating Iazzi from Hackett could not be "treated as of no account" (O.E.D.).

B. The statutory context

"[A] statute should be read and considered as a whole, and the language of a statute should be examined in its entirety to determine the intent of the General Assembly from the words contained in the statute." Oraee v. Breeding , 270 Va. 488, 498, 621 S.E.2d 48 (2005) (alteration in original) (quoting Dep't of Med. Assistance Servs. v. Beverly Healthcare of Fredericksburg , 268 Va. 278, 285, 601 S.E.2d 604 (2004) ). In particular, the individual subsections of a statute should be "construed together." Id. ; Erlenbaugh v. United States , 409 U.S. 239, 244, 93 S.Ct. 477, 480, 34 L.Ed.2d 446 (1972) ("[I]ndividual sections of a single statute should be construed together.").

Subsection (E)(i) of Code § 18.2-460 informs the meaning of subsection (E)(ii), showing that "immediate physical ability" to arrest requires close physical proximity between the officer and the defendant. A person violates subsection (E)(i) if he flees from the officer when "the officer applies physical force to the person." Accord California v. Hodari D. , 499 U.S. 621, 625, 111 S.Ct. 1547, 1550, 113 L.Ed.2d 690 (1991) ("[A]n arrest is effected by the slightest application of physical force, despite the arrestee's escape ...."). The officer, of course, must be close enough to the defendant to apply such force. But what if the defendant runs away before the officer makes physical contact?

Subsection (E)(ii) addresses that scenario. Thus, a defendant violates the statute by fleeing when "the officer communicates ... that he is under arrest and (a) the officer has the legal authority and the immediate physical ability to place the person under arrest, and (b) a reasonable person who receives such communication knows or should know that he is not free to leave." Code § 18.2-460(E)(ii) (emphasis added). Reading the two subsections together suggests that immediate physical ability to arrest in subsection (E)(ii)(a) requires that the officer be close enough to "appl[y] physical force to the person," even if the defendant gets away before the officer can successfully lay hands on him.

C. The pre-2003 case law and the General Assembly's response

The legislative history of Code § 18.2-479.1 —the predecessor of Code § 18.2-460(E) —corroborates our conclusion that the immediate-physical-ability-to-arrest element requires that the officer be in close physical proximity to the defendant. The statute was enacted in 2003 against the backdrop of two of our earlier en banc decisions that addressed escaping from "custody," not from "arrest." So we begin with those earlier opinions.

In 1995, we held that a defendant could be guilty of escaping from "custody" under Code § 18.2-479(B), even if the law-enforcement officer had not laid hands on him, provided the officer had "the immediate ability to place [the defendant] under formal arrest."

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