Henry v. Commonwealth

Willie Jerome Henry was convicted of violating Code § 18.2^178, which provides in pertinent part as follows:

*149[I]f any person lawfully in the custody of any police officer on a charge of criminal offense escapes from such custody by force or violence, he shall be guilty of a Class 6 felony.

Because the police officer never had control of Henry’s person, I would hold that Henry was not in lawful custody and could not have violated this statute when he fled. See Johnson v. Commonwealth, 21 Va.App. 102, 108, 462 S.E.2d 125, 128 (1995) (Benton, J., dissenting); Castell v. Commonwealth, 21 Va.App.…