Andrews v. State, 7 Div. 294

• Decision Date: 14 May 1985
• Docket Number: 7 Div. 294
• Citation: 473 So.2d 1211
• Parties: Perry Michael ANDREWS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1211

473 So.2d 1211

Perry Michael ANDREWS v. STATE.

7 Div. 294.

Court of Criminal Appeals of Alabama.

May 14, 1985.

Rehearing Denied June 11, 1985.

Certiorari Denied Aug. 23, 1985

Alabama Supreme Court 84-986.

Al Shumaker of Burns, Shumaker & Davis, Centre, for appellant.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

PATTERSON, Judge.

Appellant was indicted by separate indictments by a Cherokee County Grand Jury for escape in the second degree and theft of property in the first degree, conduct proscribed by § 13A-10-32 and § 13A-8-3, Code of Alabama 1975, respectively. The two charges arose out of the same incident. Andrews entered pleas of not guilty, and the cases were consolidated and tried to a jury. He was convicted as charged in each indictment, and sentenced as a habitual felony offender to life imprisonment on the theft of property charge and fifteen years for escape. The sentences were ordered to run concurrently. Appellant appeals from these convictions.

Upon conclusion of the State's case, Andrews moved to exclude the evidence on the ground that the State had failed to prove a prima facie case on either of the charges. The motion was denied by the trial court. The correctness of this ruling is the main issue raised on appeal.

I

Appellant's first contention of error is that the trial court committed reversible error in denying appellant's motion to exclude the evidence due to the State's failure to prove that appellant escaped from custody.

Appellant was charged with escape in the second degree. Such conduct is proscribed by § 13A-10-32, Code of Alabama 1975, which states in pertinent part as follows:

"(a) A person commits the crime of escape in the second degree if he escapes ... from a penal facility."

A penal facility is defined in § 13A-10-30, Code of Alabama 1975, as follows:

"(b)(3) Penal facility. Any security correctional institution for the confinement of persons arrested for, charged with or convicted of a criminal offense, including but not limited to the following security facilities: the state penitentiary and any branch thereof or any county or city jail."

When a motion to exclude the State's evidence is made on the ground that the State has failed to establish a prima facie case, it is the duty of the trial court to determine the sufficiency of the evidence to sustain a conviction under the indictment. In its determination, the trial court should consider only the evidence before the jury at the time the motion is made and must consider it most favorably to the State. When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit it to the jury, and, in such a case, this court will not disturb the trial court's decision. Koger v. State, 443 So.2d 1343 (Ala.Crim.App.1983), Sullivan v. State, 441 So.2d 130 (Ala.Crim.App.1983); Bozeman v. State, 401 So.2d 167 (Ala.Crim.App.), cert. denied, 401 So.2d 171 (Ala.), cert. denied, 454 U.S. 1058 (1981); Johnson v. State, 378 So.2d 1164 (Ala.Crim.App.), writ quashed, 378 So.2d 1173 (Ala.1979); A.R.Crim.P.Temp. 12.1(a),(b), and 12.2(a)-(c).

The State's evidence before the jury at the time of the motion to exclude showed that the jailer, Wooten, came to work at the Cherokee County jail early in the morning of May 6, 1983. He relieved the night jailer, who immediately left the jail. He, therefore, was apparently the only person in the jail other than the prisoners. Cell 2 contained appellant, Ronnie Gwin, and two other prisoners. The jailer inadvertently unlocked Cell 2 and Gwin came out. Against the jailer's wishes, Gwin went downstairs to use the telephone. The jailer went downstairs and brought Gwin back to his cell. When the jailer got near the cell, Gwin and appellant "grabbed" him by the arms and forced him into Cell 4 and locked the door. Appellant demanded the jailer's car keys, and the jailer gave them to him. Gwin took the jail keys from the jailer. Appellant, Gwin and another prisoner named Sidney Rowland left the jail. Appellant was familiar with the jailer's automobile and where he parked it. The automobile which the jailer used belonged to his wife and was parked behind the jail. A short time after the three prisoners left the jail, the jailer was released, and he discovered that his wife's automobile was missing. Two days later the automobile was found abandoned in Jacksonville, Alabama, with the keys in the ignition. They were the same keys that the jailer had given appellant. The jailer testified that appellant, Gwin, and Rowland were "prisoners" in the jail at the time of their departure. Chief Deputy Sheriff Ray Wynn testified that on May 10, 1983, four days after the escape, he went to Anniston, where appellant was being held in the Calhoun County jail, and brought him back to the Cherokee County jail. He further testified that appellant was not in the Cherokee county jail from May 6 to May 10.

Appellant argues that a mere showing that he was a prisoner in the county jail was insufficient, and that the State in order to make out a prima facie case of escape in the second degree was required to prove the underlying legal authority for the prisoner's custody.

On the other hand, the State argues that appellant's contentions and cited authorities are based upon the old escape statutes, and that the new statute (previously cited) under which appellant is charged, only requires proof that appellant escaped from a "penal facility" and does not require proof of the underlying legal authority for the detention or proof of "custody" as defined in the statute.

Appellant cites three cases, Eady v. State, 369 So.2d 841 (Ala.Crim.App.), cert. denied, 369 So.2d 843 (Ala.1979); Gibson v. State, 48 Ala.App. 237, 263 So.2d 694 (1972); Artrip v. State, 41 Ala.App. 492, 136 So.2d 574 (1962); and to support his contention that proof of escape from "custody," as such term is defined in the escape statute, is essential to a valid conviction of escape in the second degree. These cases were decided prior to January 1, 1980, the date the new criminal code came into effect. These cases dealt with a previous escape statute (Tit. 14, § 153, Code of Alabama 1940, recompiled 1958; recodified as § 13-5-65, Code of Alabama 1975), which is substantially different from the present statute with which we are concerned. Thus, these pre-1980 cases are not useful in determining the essential elements to support a conviction of escape in the second degree under the new statute.

The former prisoner escape statutes (§ 13-5-60 through § 13-5-71, Code of Alabama 1975) were a confusing and helter-skelter treatment of the subject. The new statutes (§ 13A-10-30 through § 13A-10- 35) constitute a complete revision and updating of the law of escape. See Commentary, § 13A-10-30 through § 13A-10-33. Alabama's new escape statute was based upon the New York Penal Code. See, New York Revised Penal Law §§ 205.00, 205.05, 205.10, and 205.15. Second degree escape under the New York statute (§ 205.10) is substantially the same as second degree escape under the Alabama statute (§ 13A-10-32).

The commentary to § 13A-10-32 states: "This section covers escape from a penal facility regardless of the underlying charge because a penal facility is an institution which has substantial security requirements and there is, therefore, a great element of danger in planning and executing escapes. A penal facility may be a state prison, jail or reformatory." Section 205.05 of the New York Penal Code contains a similar commentary.

To find one guilty of escape in the first degree, § 13A-10-31, and escape in the third degree, § 13A-10-33, under the present Alabama escape statute, requires proof of escape from "custody." "Custody" is defined as "[a] restraint or detention by a public servant pursuant to a lawful arrest, conviction or order of court, but does not include mere supervision of probation or parole, or constraint incidental to release on bail." Ala.Code (1975) § 13A-10-30(b)(1). The legislature omitted the requirement that the escape be from "custody" in the section proscribing escape in the second degree, § 13A-10-32. It is apparent that the Alabama legislature did not intend to require proof of "custody" as defined or proof of the legality of the underlying charge in delineating the requirements for proof of escape in the second degree. In the case of Murphy v. State, 399 So.2d 340, 346 (Ala.Crim.App.), cert. denied, 399 So.2d 347 (Ala.1981), Judge Clark, speaking for this court, in discussing the requirement for proof of "custody" stated that proof that the defendant was in "custody" was an essential element of § 13A-10-31 (first degree escape), but not an element of § 13A-10-32 (second degree escape). Murphy in this regard, was cited with apparent approval by Presiding Judge Bowen in Dietz v. State, 474 So.2d 120 (Ala.Crim.App.1984).

In the instant case the evidence showed that just prior to his departure appellant was a "prisoner" in the Cherokee County jail and that he was incarcerated in Cell 2. A "prisoner" is defined in Black's Law Dictionary (4th ed. 1951), as "one who is deprived of his liberty; one who is against his will kept in confinement or custody." A reasonable inference to be drawn from the evidence was that appellant was confined in the Cherokee County jail. The evidence further revealed that appellant voluntarily departed from the jail without legal authorization and remained absent until apprehended several days later and returned to the jail by the sheriff. The term "escape" as used in the law is to be given its ordinary, accepted meaning and connotes in this case an unauthorized and voluntary departure from the penal facility. A prisoner's unauthorized absence from his legal place of detention makes out a factually presumptive case of escape. King v. State, 46 Ala.App. 635, 247 So.2d 677 (1971).

Appellant...