People v. Thornton

• Citation: 929 P.2d 729
• Decision Date: 16 December 1996
• Docket Number: No. 95SC35,95SC35
• Parties: 20 Colorado Journal 1868 The PEOPLE of the State of Colorado, Petitioner, v. Bryan Sidney THORNTON, Respondent.
• Court: Supreme Court of Colorado

Page 729

929 P.2d 729

20 Colorado Journal 1868

The PEOPLE of the State of Colorado, Petitioner, v. Bryan Sidney THORNTON, Respondent.

No. 95SC35.

Supreme Court of Colorado En Banc.

Dec. 16, 1996.

Rehearing Denied Jan. 13, 1997.

G.F. Sandstrom, District Attorney, Tenth Judicial District, Patrick K. Avalos, Supervising Deputy District Attorney, Pueblo, for Petitioner.

David F. Vela, Colorado State Public Defender, Victor I. Reyes, Deputy State Public Defender, Pueblo, for Respondent.

Justice LOHR delivered the Opinion of the Court.

The defendant, Bryan Sidney Thornton, was charged with one count of felony escape based on flight from police officers during the course of efforts to arrest him on a felony warrant. At the conclusion of a preliminary hearing, the trial court dismissed the escape charge for lack of probable cause, ruling that the prosecution failed to establish that the defendant was "in custody or confinement" before he fled, as required by the escape statute, section 18-8-208(3), 8B C.R.S. (1986). On appeal by the prosecution, the Colorado Court of Appeals affirmed the dismissal. People v. Thornton, 902 P.2d 381, 383 (Colo.App.1994). We granted certiorari to determine whether the court of appeals correctly defined the phrase "in custody or confinement" as it is used in section 18-8-208(3), 8B C.R.S. (1986). ¹ We now hold that the court of appeals adopted an erroneous interpretation of the statute, and that under a correct construction, the prosecution established probable cause to believe that the defendant was "in custody" before fleeing. We therefore reverse the judgment of the court of appeals and return the case to that court with directions to remand the case to the trial court for reinstatement of the escape charge.

I.

On December 10, 1993, Officers Mark Thalhamer and Eric Bravo of the Pueblo, Colorado, Police Department were on routine patrol when they spotted the defendant walking down the street. The officers recognized the defendant and knew of an outstanding felony warrant for his arrest. ² Accordingly, the officers approached the defendant, advised him of the outstanding warrant, and directed him to walk to the nearest parked car and place his hands on it. ³ In response to the defendant's inquiry as to why he was being arrested, Officer Bravo again advised the defendant of the outstanding warrant and told him to "[j]ust go over to the car."

The defendant complied with the officer's instructions. However, while Officer Bravo conducted a pat down search of the defendant, the defendant began moving as if "he was kind of uneasy," and Officer Bravo warned him not to try to run. Officer Bravo then reached up for the defendant's right hand to place him in handcuffs, but the defendant "broke and ran" from the officers. The officers pursued the defendant and apprehended him after a chase of less than one block.

Based on the foregoing events, the defendant was charged by information in Pueblo County District Court on December 17, 1993, with one count of escape, a class four felony, pursuant to section 18-8-203(3), 8B C.R.S. (1986). ⁴ The trial court held a preliminary hearing on January 12, 1994. Officer Thalhamer testified as a witness for the prosecution, and neither party presented additional evidence. Defense counsel then argued that the prosecution failed to establish probable cause as to one of the elements of the offense. Specifically, defense counsel maintained that the defendant was never "in custody or confinement" as required by section 18-8-208(3), 8B C.R.S. (1986), and therefore no probable cause existed to support the escape charge. At the close of the hearing, the trial court took the matter under advisement and granted counsel the opportunity to submit authority on the custody or confinement issue. On January 31, 1994, the court issued an oral ruling dismissing the escape charge on the basis of lack of probable cause and noted the possibility that a charge of resisting arrest might be more appropriate. The defendant agreed to accept service on a new charge, and the court granted the prosecution until February 7, 1994, to serve the defendant with any new charge. On February 7, 1994, the prosecution informed the court that it intended to appeal the dismissal of the escape charge. The court then advised counsel that it would reduce the dismissal order to writing to facilitate review. The court issued a written order on February 22, 1994.

In its written order, the trial court noted that the term "in custody" is not defined statutorily for the purpose of section 18-8-208(3), 8B C.R.S. (1986). Accordingly, the court reviewed this court's case law on the issue of custody in contexts other than escape. The trial court concluded that the custody definition set forth in People v. Armstrong, 720 P.2d 165, 168-69 (Colo.1986), decided in the context of the statute governing assault on a peace officer, also applied in the present case. As a prerequisite to a "custody" determination, the trial court interpreted Armstrong to require sufficient physical restraint of a suspect by a police officer to establish physical control and thereby to effect an arrest. Because it determined that the officers in this case did not establish physical control over the defendant before he ran away, the court held that the defendant was not in custody and therefore could not be found guilty of escape.

The prosecution appealed the trial court's ruling, contending that the definition of custody in the Colorado Code of Criminal Procedure, § 16-1-104(9), 8A C.R.S. (1986), ⁵ applies to the escape statute and that such definition requires neither application of physical force or restraint nor a formal arrest. The court of appeals held that even if section 16-1-104(9) applied, the custody definition in section 16-1-104(9) contemplates a physical restraint. The court held that Armstrong and the cases that have followed it bolstered a conclusion that a "custody" determination requires physical restraint for the purposes of section 18-8-208(3), 8B C.R.S. (1986). Thornton, 902 P.2d at 383. Therefore, the court of appeals affirmed the trial court's dismissal of the escape charge. Id.

II.

The issue before us is whether the trial court correctly ruled that the prosecution failed to establish probable cause to believe that the defendant was "in custody or confinement" within the meaning of the escape statute, section 18-8-208(3), 8B C.R.S. (1986), at the time he fled from the police officers. To resolve this issue, we first must determine the proper construction of the term "in custody or confinement" as it appears in the escape statute. Section 18-8-208(3) provides:

A person commits a class 4 felony if, while being in custody or confinement and held for or charged with but not convicted of a felony, he knowingly escapes from said custody or confinement.

§ 18-8-208(3), 8B C.R.S. (1986). Neither the phrase "in custody or confinement" nor the term "escapes" is defined in the escape statute or elsewhere in the Colorado Criminal Code. See §§ 18-1-101 to -22-103, 8B C.R.S. (1986 & 1996 Supp.) (Colorado Criminal Code).

We have held that "[t]he fundamental purpose of the [escape] statute is to prevent the evasion of the due course of justice." People v. Velarde, 657 P.2d 953, 955 (Colo.1983). At common law, "escape" had a well-recognized meaning as a " 'voluntary departure from lawful custody by a prisoner with the intent to evade the due course of justice.' " Massey v. People, 649 P.2d 1070, 1072 (Colo.1982) (quoting Gallegos v. People, 159 Colo. 379, 387, 411 P.2d 956, 960 (1966)). Prior to the enactment of the Colorado Criminal Code in 1971, we ascribed the common law meaning to the term "escape" in the absence of a statutory definition. Gallegos, 159 Colo. at 386-88, 411 P.2d at 959.

In amending the Colorado Criminal Code in 1977 and 1978, however, the legislature specifically adopted a general intent standard, i.e., the mental state of "knowingly," with respect to escape offenses instead of the specific intent contained in the common law definition, i.e., the intent to evade the due course of justice. Ch. 224, sec. 43, § 18-8-208, 1977 Colo. Sess. Laws 959, 966; Ch. 44, sec. 50, § 18-8-208(8), 1978 Colo. Sess. Laws 252, 263; People v. Williams, 199 Colo. 515, 518-19, 611 P.2d 973, 975 (1980). All classes of escape, as currently defined and codified at section 18-8-208, 8A C.R.S. (1986 & 1996 Supp.), continue to be general intent offenses. The statute has been applied to persons who have fled from confinement in prison, Massey, 649 P.2d at 1071, in county jail, Williams, 199 Colo. at 516-17, 611 P.2d at 975, in a hospital while under custodial arrest, Velarde 657 P.2d at 954, in the state hospital while committed as a result of an insanity adjudication, People v. Giles, 662 P.2d 1073, 1074 (Colo.1983), and in a penitentiary work release facility, People v. Lucero, 654 P.2d 835, 836 (Colo.1982). We have not had occasion until now to address the circumstances under which flight from a police officer violates the escape statute, when the flight occurs outside of a confinement facility context.

It is clear that the legislature has not limited "escape" to situations where a person committed to a confinement facility, such as a prison or a jail, flees from confinement. The statute employs the disjunctive "or," specifying as one element of the crime that the person be "in custody or confinement." § 18-8-208(3), 8B C.R.S. (1986) (emphasis added). In the present case, the police officers stopped the defendant on the street. The defendant was not in confinement. The pertinent question is whether he was in custody.

We addressed an analogous question in People v. Armstrong, 720 P.2d 165 (Colo.1986). There, the defendant was charged with two counts of second degree assault on a peace officer under section 18-3-203(1)(f), 8 C.R.S. (1978 & 1985 Supp.). The trial court dismissed those charges on the basis that the second...