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  91.3 Escape: Miscellaneous Defenses And Defense Theories

    91.3.1 Escape: Defense Theory That Defendant Was Not In Custody
    91.3.2 Escape: Defense Theory That Flight From Officer Was Not An Escape From Custody
    91.3.3 Escape: Defense Theory That Defendant Was Not In Custody When Arraigned While On Bail
    91.3.4 Escape: Consent To Be Absent Or To Leave As Defense
    91.3.5 Escape: Applicability To Home Detention
    91.3.6 Escape: Defense Theory Of Unlawful Arrest Or Confinement
    91.3.7 Escape: Defense Theory That Failure To Surrender Or Report Is Not Escape
    91.3.8 Escape: Merely Being "Missing" Is Insufficient To Prove Escape
    91.3.9 Escape: Knowledge Of Custody Requires Consideration Of A Reasonable Person In Defendant’s Situation
    91.3.10 Escape: Defense Theory That Failure To Return From Furlough Is Not Escape
    91.3.11 Defense Theory That Failure To Return Is Not Sufficient To Prove Intent Or Willfulness
    91.3.12 Escape: Applicability Of Impossibility And No Duty To Act Defenses To Failure To Return To Detention Following Temporary Leave
    91.3.13 Escape: Defense Theory That Flight Was To Avoid Arrest And Not From "Custody"
    91.3.14 Escape: Defense Theory That Reasonable Person Would Not Have Known He/She Was In Custody
    91.3.15 Escape: Additional Defenses And Defense Theories

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    See FORECITE National™ 91.3.2 [Escape: Defense Theory That Flight From Officer Was Not An Escape From Custody].

    See FORECITE National™ 91.3.13 [Escape: Defense Theory That Flight Was To Avoid Arrest And Not From "Custody"].

See generally, FORECITE National™ 305.5.7 [Escape].

See FORECITE National™ 91.1.2 [Escape: Federal Circuit Model Instructions And Notes].

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    See FORECITE National™ 91.3.13 [Escape: Defense Theory That Flight Was To Avoid Arrest And Not From "Custody"].

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PRACTICE NOTE: See People v. Trotter (CA 1998) 65 CA4th 965, 966, 971 [76 CR2d 898] [defendant who is not in custody at the time of arraignment cannot be convicted of escape for running from the courtroom].

See generally, FORECITE National™ 305.5.7 [Escape].

See FORECITE National™ 91.1.2 [Escape: Federal Circuit Model Instructions And Notes].

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    91.3.4    Escape: Consent To Be Absent Or To Leave As Defense

PRACTICE NOTE:  Consent to be absent or to leave may be a proper defense upon which to instruct the jury. For example, the Supreme Court of the United States has addressed the scienter requirement for the federal escape statute, 18 USC 751(a) in United States v. Bailey, 444 U.S. 394, 100 S. Ct. 624, 62 L. Ed. 2d 575 (1980). In Bailey, the Court held that the prosecution fulfills its burden under 18 USC 751(a) if it demonstrates that an escapee knew his actions would result in his leaving physical confinement without permission. (Id. at 408.) The Supreme Court held that "escape" means simply absenting oneself from custody without permission. (Ibid; see also PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT (1998) 4.04 [Escape from Custody, 18 USC 751]; PATTERN JURY INSTRUCTIONS – FIFTH CIRCUIT (2001) 2.38 [Escape (18 USC 751(a))]; 7th CIRCUIT FEDERAL INSTRUCTIONS (1999) [078] [Escape--Elements (18 USC 751)]; 8TH CIRCUIT MODEL INSTRUCTIONS (2000) 6.18.751 [Escape From Custody (18 USC 751)]; 9TH CIRCUIT MODEL INSTRUCTIONS (2000) 8.36 [Escape from Custody (18 USC 751)]; PATTERN CRIMINAL JURY INSTRUCTIONS – FEDERAL JUDICIAL CENTER (1988) 73 [Escape (18 USC 751(a))]; (SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-5-2, comment [Escape-Elements] (State Bar of South Dakota, 1996).)

See generally, FORECITE National™ 305.5.7 [Escape].

See FORECITE National™ 91.1.2 [Escape: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: See State v. Parker (WA 1995) 888 P2d 167 [leaving home detention is properly charged as escape rather than failure to return to work release facility; distinction does not violate equal protection]; see also California Penal Code § 4532 [statute amended 1/1/99 to include "escape" from home detention].

See generally, FORECITE National™ 305.5.7 [Escape].

See FORECITE National™ 91.1.2 [Escape: Federal Circuit Model Instructions And Notes].

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    91.3.6    Escape: Defense Theory Of Unlawful Arrest Or Confinement

PRACTICE NOTE: Some jurisdictions hold that the legality of the custody is not an element of escape. Under this view imprisonment which is at least under color of law must be challenged through regular legal channels.  (See State v. Snofly (SD 1971) 192 NW2d 133, 136 [legality of custody not element of escape]; see also SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-5-2, comment [Escape-Elements] (State Bar of South Dakota, 1996); Wharton’s Criminal Law (West, 15th ed. 1993) § 640, pp. 451-53.)

    However, if the escape is from an immediately preceding arrest, the unlawfulness of that arrest may be a defense theory. (See U.S. v. McKim (1975) 509 F2d 769, 774 [18 USC 751(a) requires escape from a lawful arrest]; People v. Marsh (MI 1986) 402 NW2d 100, 102; State v. Pace (MO 1966) 402 SW2d 351, 353; People v. Allah (NY 1981) 444 NYS2d 412, 414 [defendant may not be convicted of escape in the second degree in New York if the original arrest was unlawful]; but see Morris v. State (TX 1985) 696 SW2d 616, 619; see also FORECITE National™ 99.3.9 [Resisting Arrest: Unlawfulness Of Warrantless Arrest As Defense Theory].)

    The basis for such a defense is that the defendant was not in lawful custody. (See State ex rel. Law v. District Court (MN 1967) 150 NW2d 18, 23 [if the arrest or confinement is unlawful defendant is not guilty of escape in departing]; People v. Allah (NY 1991) 444 NYS2d 412, 414; see also MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 24.02, comment [Escape From Custody-Elements] (West, 4TH ed. 2000/01).)

    It has been held that a defendant may not be convicted of escape if the original arrest was unlawful. (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 28:06 [Escape-Second Degree Model Charge–Commentary] (West, 1999).)

    See also FORECITE National™ 91.2.4 [Escape: Whether Lawful Custody Is Factual Or Legal Question].

RESEARCH NOTES:

See generally, FORECITE National™ 305.5.7 [Escape].

See FORECITE National™ 91.1.2 [Escape: Federal Circuit Model Instructions And Notes].

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    91.3.7    Escape: Defense Theory That Failure To Surrender Or Report Is Not Escape

    See also FORECITE National™ 91.3.10 [Escape: Defense Theory That Failure to Return From Furlough Is Not Escape].

    See also FORECITE National™ 91.3.3 [Escape: Defense Theory That Defendant Was Not In Custody When Arraigned While On Bail].

See generally, FORECITE National™ 305.5.7 [Escape].

See FORECITE National™ 91.1.2 [Escape: Federal Circuit Model Instructions And Notes].

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    91.3.8    Escape: Merely Being "Missing" Is Insufficient To Prove Escape

PRACTICE NOTE: In People v. Lavaie (CA 1999) 70 CA4th 456 [82 CR2d 719], the defendant was charged with escape without force or violence after guards conducted a head count and discovered him "missing." A search of the grounds indicated that the prisoner was in none of the areas he was authorized to be, and he was later found in an "off-limits" area. The court concluded that while the evidence may have been sufficient to show a violation of prison rules, it was insufficient to prove an escape. (Lavaie, 70 CA4th at 462.)

See generally, FORECITE National™ 305.5.7 [Escape].

See FORECITE National™ 91.1.2 [Escape: Federal Circuit Model Instructions And Notes].

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    See FORECITE National™ 91.3.14 [Escape: Defense Theory That Reasonable Person Would Not Have Known He/She Was In Custody].

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PRACTICE NOTE: There is a conflict of authority as to whether a failure to return from a furlough or other form of temporary release is escape. (See Annotation, Failure of Prisoner To Return At Expiration Of Work Furlough Or Other Permissive Release Period As Crime Of Escape, 76 ALR3d 658.)

    Some jurisdictions hold that "a prisoner commits escape when he fails to return to prison or a prison work camp upon the expiration of a furlough; when he fails to return to prison upon expiration of his work release, or when, as a trusty who is allowed to work outside the prison unguarded, he leaves his work station without authority." (Wharton’s Criminal Law (West, 15th ed. 1996) § 633, pp. 440-45; see also Commonwealth v. Hughes (MA 1973) 305 NE2d 117, 120 [prisoner who violates the terms of his furlough has removed himself from the "custody of the correctional facility" within meaning of statute defining and prohibiting escape].)

    Others hold that failure to return from furlough is not an escape. (See e.g., In re Thanh Q (CA 1992) 2 CA4th 1386, 1387-89 [4 CR2d 19]; see also State v. Woods (CT 1995) 662 A2d 732, 737-38 [failure to report to supervisor insufficient, standing alone, to prove unauthorized physical departure necessary for escape]; State v. Bember (CT 1995) 664 A2d 832, 834-35 [failure to report to parole officer]; Pumphrey v. State (FL 1988) 527 So2d 1382, 1384 [failure to appear following pretrial release]; Farris v. State (MD 1998) 716 A2d 237, 242-44 [failure to return to prison to serve weekend sentence is not escape]; State v. Lewandowski (MN 1989) 443 NW2d 551, 554 [failure to report to custody chargeable as failure to appear, not escape]; State v. Manley (OR 1997) 951 P2d 686, 687 [failure to return to county correctional facility as ordered, upon completion of alcohol treatment program located elsewhere, was misdemeanor offense of unlawful departure, rather than felony offense of escape]; Simmons v. Commonwealth (VA 1993) 431 SE2d 335, 336 [charge of escape from a correctional facility is not sustained by the defendant's failure to return to jail after being released on an unsupervised furlough]; State v. Dorn (WA 1999) 969 P2d 129, 131.)

    For example, in U.S. v. Baxley (9th Cir. 1992) 982 F2d 1265, 1269, the defendant was released on personal recognizance to a half-way house while awaiting trial. The defendant left the half-way house and failed to return and was charged with escape under 18 USC 751(a). The court held that this was not escape because the conditions of the defendant’s release "were more analogous to probation than they were to imprisonment or 'custody'....If an individual violates probation he is not tried for escape; rather, his probation is revoked, and he can be indicted for escape only if he thereafter fails to report for custodial incarceration."

See generally, FORECITE National™ 305.5.7 [Escape].

See FORECITE National™ 91.1.2 [Escape: Federal Circuit Model Instructions And Notes].

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    91.3.11    Defense Theory That Failure To Return Is Not Sufficient To Prove Intent Or Willfulness

PRACTICE NOTE: Even if the failure to return from furlough is an escape (but see FORECITE National™  91.3.10 [Escape: Defense Theory That Failure To Return From Furlough Is Not Escape), that fact does not relieve the prosecution of its burden to prove that the failure to return was willful or intentional. The prosecution must present evidence which establishes an intentional, knowing and voluntary failure to return. (Lambert v. Commonwealth (VA 1988) 367 SE2d 745, 746; see also FORECITE National™ 91.3.14 [Escape: Defense Theory That Reasonable Person Would Not Have Known He/She Was In Custody].)

    The mere fact that the defendant failed to return should not be sufficient to establish this element since there may be other equally reasonable inferences consistent with innocence which may be drawn from this fact. (See generally FORECITE National™ 270.2.17 [Burden Of Proof Is Not Satisfied By Equally Conflicting Inferences That Are In A State Of Equipoise].)

See generally, FORECITE National™ 305.5.7 [Escape].

See FORECITE National™ 91.1.2 [Escape: Federal Circuit Model Instructions And Notes].

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    91.3.12    Escape: Applicability Of Impossibility And No Duty To Act Defenses To Failure To Return To Detention Following Temporary Leave

PRACTICE NOTE: "Because escape may be committed by an omission -- for example, a failure to return to detention following temporary leave -- the defenses of no-duty-to-act and impossibility should be available." (Robinson, Criminal Law Defenses (West, 1984) § 112(d) p. 572 [footnotes omitted].)

    Additionally, where knowing and/or intentional violation of the duty to return is required as an element of the charge, lack of knowledge as to that duty should be available to negate that element of the charge. (Ibid.)

    See also FORECITE National™ 252.8.1.1 [Mistake Or Ignorance May Negate An Element Of The Offense].

    See also FORECITE National™ 44.2 [Criminal Liability For Omission Of Statutory Duties Requires Knowledge Of That Duty].

    See also FORECITE National™ 44.6 [Physical Impossibility As Defense To Charge Based On Omission Of Duty Or Failure To Act].

See generally, FORECITE National™ 305.5.7 [Escape].

See FORECITE National™ 91.1.2 [Escape: Federal Circuit Model Instructions And Notes].

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    91.3.13    Escape: Defense Theory That Flight Was To Avoid Arrest And Not From "Custody"

RATIONALE: If an escape statute requires flight from custody, a person who flees before actually being physically restrained is not guilty of escape.

POINTS AND AUTHORITIES: If, as a result of successfully resisting arrest, a person is never taken into custody, then he cannot be guilty of escape. (Wharton’s Criminal Law (West, 15th ed. 1993) § 633, p. 440; see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 28:01 [Escape-Nature And Definition Of Offense] (West, 1999); State v. Smith (LA 1996) 686 So2d 137, 141 [defendant cannot be guilty of simple escape if he was fleeing to avoid arrest]; People v. Caffey (NY 1987) 521 NYS2d 937, 938; Coleman v. State (TX 1992) 825 SW2d 735, 736 [evading arrest applies when the suspect flees prior to arrest; escape applies to flight after arrest].)

    Hence, a person who flees the police in order to avoid arrest is not in "custody" and cannot be convicted of escape from custody. (See People v. Caffey (NY 1987) 521 NYS2d 937; Cavell v. Commonwealth (VA 1998) 506 SE2d 552, 553.)

    For example, a person who flees in response to an officer’s demand to "freeze" is not "in custody" for purposes of escape unless and until the person’s liberty is restrained. (State v. Turgeon (VT 1996) 676 A2d 339, 343; compare State v. Laws (CT 1995) 655 A2d 1131, 1137 [defendant in custody when grabbed by officer and told "you are under arrest"].)

    "An arrest requires either physical force... or, where that is absent, submission to the assertion of authority." (California v. Hodari D. (1991) 499 US 621, 626 [111 SCt 1547; 113 LEd2d 690] [internal citations and quote marks omitted].) Hence, a person who flees the police in order to avoid arrest is not in "custody" and cannot be convicted of escape. (See People v. Diaz (CA 1978) 22 C3d 712, 715 [150 CR 471] [the term "prisoner" was intended to limit escape statute either to those incarcerated in prison or to prisoners incarcerated in facilities other than prisons or who might be temporarily in custody outside the walls of a custodial facility]; State v. Sanchez (AZ 1985) 701 P2d 571, 572 [defendant who was told by police officer that he was under arrest due to outstanding misdemeanor warrant was not under "constructive restraint," within the meaning of section of escape law defining "custody", so that defendant's subsequent flight before being placed in actual physical custody of police did not constitute escape]; State v. Hicks (NE 1987) 404 NW2d 923, 925 [some degree of custody is essential before one can be considered to be in "official detention," for purposes of escape statute]; State v. Swanson (OR 1978) 578 P2d 411, 412; Lawhorn v. State (TX 1995) 898 SW2d 886, 889 [it is element of the offense of escape that defendant is in custody prior to the offense and it is also element of the offense that defendant departed from custody without permission].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

USE NOTE: The same principle applies to preclude a conviction of escape if a defendant, who was not in custody at the time, runs from the courtroom. (See e.g., People v. Trotter (CA 1998) 65 CA4th 965, 966, 971 [76 CR2d 898] [defendant who is not in custody at the time of arraignment cannot be convicted of escape for running from the courtroom].)

See generally, FORECITE National™ 305.5.7 [Escape].

See FORECITE National™ 91.1.2 [Escape: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION # 1:

    An essential element of the offense of escape is that the person be in custody.  Therefore, a person who flees the police to avoid arrest or detention is not guilty of escape.  If after consideration of all the evidence you have a reasonable doubt whether the defendant was in custody when [he] [she] [allegedly] fled, you must give the defendant the benefit of that doubt and return a verdict of not guilty.

[Source:  FORECITE National™.]

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RATIONALE: Without an explanatory instruction the jury may not understand that the knowledge-of-custody element of escape must be measured by the objective reasonable person standard.

POINTS AND AUTHORITIES: When a statute imposes criminal liability based upon constructive knowledge of a fact -- i.e., the defendant "should have known" the fact -- an objective "reasonable person" standard applies. (See FORECITE National™ Chapter 48 [Objective Unreasonableness (Reasonable Person Standard)].) This standard requires consideration of a reasonable person in defendant's situation." (See FORECITE National™ 48.1.4 [Reasonable Person's Standard: Consideration Of Defendant’s "Situation"].) Thus, any evidence which would impair the defendant's ability to know the fact in issue such as intoxication or physical disability, etc., must be considered by the jury in determining whether a reasonable person in the defendant's position would have or should have known the fact in issue. (See also FORECITE National™  48.1.3 [Objective Reasonable Person Standard: Consideration Of Past Experiences].)

    Hence, for purposes of the crime of escape, the trier of fact's determination that defendant understood he was being arrested at time of his escape should rest on analysis of whether a reasonable person or average citizen in similar circumstances would think they were under arrest. (Sweeney v. State (FL 1994) 633 So2d 66, 68; see also State v. Cole (AZ 1992) 838 P2d 1351, 1352 [whether reasonable person in defendant's position would have believed that he was being arrested].)

    See also FORECITE National™ 47.3 [Constructive Knowledge].

    See also FORECITE National™ 47.4 [Deliberate Ignorance/Willful Blindness].

    See also FORECITE National™ 256.6.1.15 [Intoxication Or Mental Impairment: Negation Of Knowledge Element].

    See also FORECITE National™ 256.7.3.15 [Physical Disability As Affecting Objective Reasonable Person Standard].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.5.7 [Escape].

See 1st Circuit Pattern Jury Instructions - Criminal 4.04.

See also 1st Circuit Pattern Jury Instructions - Criminal 4.05.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.38.

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PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)

See generally, FORECITE National™ 305.5.7 [Escape].

See 1st Circuit Pattern Jury Instructions - Criminal 4.04.

See also 1st Circuit Pattern Jury Instructions - Criminal 4.05.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.38.