Fouts v. State

Decision Date06 July 1979
Docket NumberNo. 78-1741,78-1741
Citation374 So.2d 22
PartiesThomas W. FOUTS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Robert E. Jagger, Public Defender, and Jack D. Hoogewind, Asst. Public Defender, Dade City, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.

DANAHY, Judge.

This appeal from a conviction of escape presents questions which have not previously been addressed by a Florida appellate court. We hold:

1. It is reversible error in an escape trial to allow the state to reveal to the jury the nature of the crime for which the defendant was serving a term of imprisonment at the time of the alleged escape.

2. Voluntary intoxication is a defense to the crime of escape in the sense that evidence of the defendant's voluntary intoxication at the time of the alleged escape may be relied upon to establish that the defendant lacked the requisite intent to commit the crime.

3. Where there is evidence at trial from which it may reasonably be inferred that a defendant charged with escape ingested LSD prior to his unauthorized departure from the premises of a correctional institution, and within a relevant time period, it is error to exclude the opinion testimony of a psychiatrist as to the effect of that drug on the defendant's mind at the time of the alleged escape.

We find error in this case and reverse.

Appellant was charged by information with having escaped from his confinement as a prisoner at the Zephyrhills Correctional Institution. The information alleged that appellant had previously been convicted of sexual battery, a felony under Florida law, for which he had been sentenced to ten years. Appellant's motion to strike that allegation was denied, as was his motion in limine to prohibit any mention at trial of his prior conviction of sexual battery. In connection with both motions, appellant offered to stipulate that he was lawfully confined at the time of his alleged escape. He made the same offer at trial. Nevertheless, evidence of the prior conviction was admitted into evidence and, over appellant's continuing objection, references to the prior crime were permitted several times during the course of the trial. Appellant asserts that the trial judge erred in allowing the conviction of the prior crime to be revealed to the jury.

In support of his position, appellant argues that the existence of a prior conviction and sentence is not an element of the crime of escape. He points out that the escape statute, Section 944.40, Florida Statutes (1977), does not require the state to prove the nature of a prisoner's confinement, or to show that he was lawfully convicted, sentenced and sent to prison.

Appellant's observation with respect to Section 944.40 is correct; that section merely states that any prisoner who escapes from confinement shall be guilty of a felony of the second degree. However, the word "prisoner" is defined in Section 944.02 to mean any person who is under arrest and in the lawful custody of any law enforcement official or any person convicted and sentenced by any court and committed to any municipal or county jail, or to a state correctional institution. It seems clear to us that since only a prisoner can commit the crime of escape, it is essential in a trial for escape that the state establish the defendant's status as a prisoner. In appellant's case, his status as a prisoner arose from the fact that he had been convicted of a crime, sentenced, and committed to a state correctional institution. Therefore, the fact of his prior conviction was an essential element of the crime charged and the state was required to prove it. Accord, Warren v. State, 371 So.2d 219 (Fla. 2d DCA, 1979).

However, that does not mean it was proper to allow the state to introduce into evidence the nature of the prior crime. The prejudicial effect in a criminal trial of evidence of a collateral crime committed by the accused has been recognized by our supreme court in decisions narrowly defining the circumstances in which such evidence may properly be allowed. State v. Harris, 356 So.2d 315 (Fla.1978); Williams v. State, 110 So.2d 654 (Fla.1959). References to a prior irrelevant crime record are as improper in a trial for escape as in a trial for any other crime. Warren v. State, Supra. Where, as in this case, the fact of a prior conviction is relevant because it is an essential element of the crime, introduction of evidence of that fact is necessary and permissible, and perhaps not as prejudicial as in other cases because the very word "escape" no doubt alerts the jury to the fact that the defendant has had some prior contact with criminal law enforcement. Nevertheless, the prejudicial effect of such evidence must be kept to a minimum.

We approve and adopt the reasoning of the United States Court of Appeals of the Fifth Circuit in United States v. Spletzer, 535 F.2d 950 (5th Cir. 1976), a case which involved a situation very similar to that presented here. The court in Spletzer pointed out that under federal law a federal conviction and confinement are elements of the offense of escape, but that the nature of the crime underlying the conviction is not relevant and is potentially prejudicial. The court said that the government in that case should have pursued one of two options; it could have accepted the offer of the defendant in that case to admit or stipulate to the fact that he had been previously convicted of a federal crime, or, if the government was unwilling to rely on such an admission or stipulation, it could have introduced into evidence a certified copy of the prior judgment of conviction with the language revealing the nature of the prior offense excised.

We hold that the state should have followed such a procedure in this case, and that the trial judge erred in not requiring the state to do so. Accordingly, we find that appellant is entitled to a new trial. A proper disposition of this case requires, however, that we consider additional points raised on this appeal.

Appellant introduced evidence in this case for the purpose of showing that he ingested LSD on the morning of the alleged escape. In response to that evidence, the trial judge instructed the jury that intent to avoid lawful confinement is an essential element of the crime of escape, and that intoxication from narcotics or drugs may exist to such an extent that an individual is incapable of forming such an intent. 1 The state made no objection to these instructions. On this appeal, however, the state vigorously argues that voluntary intoxication is not a defense to the crime of escape. Appellant, on the other hand, argues that this defense was available to him and that the trial judge erred in excluding the testimony of defendant's expert witness on the subject. In view of the fact that we have found appellant to be entitled to a new trial, we deem it necessary to address the state's position and appellant's claim of error.

Many years ago our supreme court adopted the rule that whenever a specific or particular intent is an essential or constituent element of a criminal offense, intoxication, though voluntary, becomes a matter for consideration, or is relevant evidence, with reference to the capacity or ability of the accused to form or entertain the particular intent. Garner v. State, 28 Fla. 113, 9 So. 835 (1891). The supreme court has recognized the continuing viability of that rule. Cirack v. State, 201 So.2d 706 (Fla.1967).

In Lewis v. State, 318 So.2d 529 (Fla. 2d DCA 1975), this court held that a particular intent, the intent to avoid lawful confinement, is an essential element of the crime of escape. We reversed the action of the trial judge in that case which foreclosed the defendant's attempt to establish that he was forced to leave confinement to avoid possible sexual assault and battery. We observed that, if true, such circumstances would constitute a valid defense insofar as they might establish a lack of wilful intent to avoid lawful confinement or at least create a reasonable doubt that there was one. This court has not had occasion since Lewis to consider whether evidence of voluntary intoxication would likewise constitute a valid defense to the crime of escape.

In reaching our decision in Lewis, we expressed our agreement with the holding of our sister court in Helton v. State, 311 So.2d 381 (Fla. 1st DCA 1975). In that case the court held that an intent to avoid lawful confinement is an essential element of the crime of escape, but went on to say "(w)e do not here find it necessary to decide whether intoxication may be relied upon to prove lack of intent; nor do we decide whether, if intoxication may be relied upon, such intoxication must have been involuntary as distinguished from voluntary." Neither that court nor any other appellate court in Florida has decided this question.

On balance, we see no reason why the crime of escape should not come within the purview of the rule expressed by the supreme court in Garner v. State, Supra. We note that the court in Helton followed the reasoning of the court in United States v. Nix, 501 F.2d 516 (7th Cir. 1974) when it elected in favor of the rule that the crime of escape involves a particular intent. The Nix court reasoned further that a defendant...

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    ...1st DCA 1996) (recognizing that both attempted burglary and burglary of a structure are specific intent crimes).13 See Fouts v. State, 374 So.2d 22 (Fla. 2d DCA 1979) (escape is specific intent crime), overruled on other grounds, Parker v. State, 408 So.2d 1037 (Fla.1982).14 See Spivey v. S......
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