Pinkard v. State

• Decision Date: 06 October 1981
• Docket Number: 8 Div. 490
• Citation: 405 So.2d 411
• Parties: Harold E. PINKARD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 411

405 So.2d 411

Harold E. PINKARD v. STATE.

8 Div. 490.

Court of Criminal Appeals of Alabama.

Oct. 6, 1981.

Barry Mansell, Russellville, for appellant.

Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

The appellant was indicted by a Franklin County Grand Jury for escape in the first degree. On October 6, 1980, a Franklin County Circuit Court jury found appellant guilty of the charged offense. On November 20, 1980, in a pre-sentencing hearing, the trial court, after the state produced four certified copies of judgments of felony convictions wherein the defendant was represented by counsel, sentenced appellant to life imprisonment under the Habitual Offender Act.

The record shows that, in the early morning hours of August 4, 1980, the jailer on duty at the Franklin County jail heard bumping noises upstairs in the jailhouse. When the jailer walked upstairs to investigate, he discovered that the appellant was missing from the cell he had seen appellant in just before midnight. He noted that the lock had been sawed in two and he found a hacksaw blade in the appellant's cell.

After the jailer had reported the escape, a deputy sheriff investigated the scene. He also noticed that appellant's cell door had been tampered with and he noted that the cell door was open. While investigating outside the jailhouse, he found the lock outside of a jailhouse window that had been broken. The deputy testified that he believed that the appellant had made his escape through this broken window. The deputy then put out a bulletin to apprehend appellant.

About one week later the deputy took custody of the appellant. He was being held in the custody of a Mississippi county jail. The deputy brought appellant back to the Franklin County jail.

The state then presented evidence indicating that the appellant was serving a non-completed term of six years for the conviction of grand larceny, a felony, when he escaped.

The appellant contends that the trial court committed reversible error in overruling his motion to dismiss or to quash the indictment. The appellant claims that the indictment is fatally defective because it failed to allege a criminal offense and failed to adequately inform the defendant of the offense the state sought to charge against him. We do not agree.

The instant indictment reads as follows:

"The Grand Jury of said County charge that before the finding of this indictment Harold Edward Pinkard (appellant), whose name is unknown to the Grand Jury other than as stated, having been convicted of the offense of grand larceny, a felony, on November 27, 1979, for which he was sentenced to 6 years in the penitentiary, he escaped or attempted to escape, on to-wit: August 4, 1980, from custody imposed pursuant to that conviction, in violation of Section 13A-10-31 of the Code of Alabama."

The record shows that, on September 25, 1980, the defendant pleaded not guilty. Subsequently, on October 6, 1980, the appellant filed a motion to dismiss or quash the indictment and, on the same day, argued the motion in the trial court. The trial court overruled the motion. The record indicates that, at least as of October 6, 1980, the appellant was informed that the state intended to invoke the Habitual Offender Act in a pre-sentencing hearing if the appellant was convicted of the substantive offense of escape. Approximately six weeks after denial of the appellant's motion, the trial court held a pre-sentencing hearing in order to hear evidence of prior convictions. The trial court then sentenced appellant to life imprisonment under the Habitual Offender Act.

As this court held in Stringer v. State, Ala.Cr.App., 372 So.2d 378, cert. denied Ex parte Stringer, Ala., 372 So.2d 384 (1979) the law in Alabama is as follows:

"The proper procedure to challenge the validity of an indictment is by demurrer (cases cited). This the appellant did not do, and he now raises the issue for the first time on appeal. Ordinarily, one waives any irregularities in the indictment by appearing and pleading in the trial court, and a plea to the merits is considered an admission of a valid indictment. (cases cited). 'However, due process dictates that a defect associated with an essential element of the offense which leaves the accused unaware of the nature and cause of the charge against him cannot be waived by failure to timely demur.' Andrews v. State, Ala.Cr.App., 344 So.2d 533, cert. denied, Ala., 344 So.2d 538 (1977)."

Such a fatal defect is not present in the instant indictment.

Appellant specifically contends that the indictment is fatally flawed because (1) it failed to state that the appellant was in "lawful" custody (2) and it failed to state from where and from whose custody appellant escaped.

As to the contention that the absence of the words "lawful custody" was a fatal defect in the indictment, this court recently ruled that such an absence was not fatal to the indictment. In Black v. State of Alabama (1981) 401 So.2d 320 (Ala.Cr.App. 1981), this court stated:

"Appellant asserts that without a 'lawful' detention there can be no offense of escape; therefore, it must be spelled out in the indictment. In lieu of ruling on this assertion, we need only point to the case of Summers v. State, Ala.Cr.App., 348 So.2d 1126, cert. denied, 348 So.2d 1136 (Ala.), cert. denied, 435 U.S. 981, 98 S.Ct. 1633 (1977), for the following statement as to the due process requirements for a sufficient indictment:

" 'An indictment should be specific in its averments in four prime aspects to insure this guaranty: (a) to identify the accusation lest the accused should be tried for an offense different from that intended by the grand jury; (b) to enable the defendant to prepare for his defense; (c) that the judgment may insure to his subsequent protection and foreclose the possibility of being twice put in jeopardy for the same offense, and (d) to enable the Court, after conviction, to pronounce judgment on the record.'

"Based on these guidelines, which also embody our preference for substance over form in our modern pleading, we find that this indictment was clearly sufficient to apprise the appellant of the charge against him and to safeguard against double jeopardy and improper judgments."

The appellant also contends that the indictment is fatally defective because it does not specify from whose custody or from where appellant escaped. Assuming for a moment that such language is essential without actually deciding the issue, the indictment does in fact state from whose custody and from where appellant escaped.

The indictment refers to the statute under which the appellant was prosecuted (Section 13A-10-31, Code of Alabama) and tracks almost the identical language of the relevant portion of the statute. The statute states that a person commits the crime of escape in the first degree if the defendant "having been convicted of a felony, y(3)27 escapes or attempts to escape from custody imposed pursuant to that conviction." (Emphasis added.) Under Section 13A-10-30, the definitional statute for escape offenses, custody is defined as "A restraint or detention by a public servant pursuant to a lawful arrest, conviction or order of court ..." (Emphasis added.)

The commentary to Sections 13A-10-31 through 13A-10-33 defines "custody" as any detention pursuant to lawful arrest or court order.

Therefore, the new statute on first degree escape coupled with the general definitional statute on escape, states from whose custody the appellant escaped ("... detention by a public servant") and from where appellant escaped (from "custody" defined as any detention pursuant to lawful arrest).

The appellant cites two cases, Eady v. State, Ala.Cr.App., 369 So.2d 841, (1979); Brantley v. State, Ala.Cr.App., 340 So.2d 902 (1976), to support his contention that the absence of the above discussed information was a fatal defect in the indictment. A reading of these cases does not support this contention. The two cases did not hold that certain information must be included in an indictment charging escape. Instead, the two cases addressed an issue of a variance between pleadings and proof, an issue not raised here.

Further, both cases were decided prior to January 1, 1980, the date the new criminal code came into effect. Thus, the cases dealt with the previous escape statutes (Sections 13-5-65 and -63, Code of Alabama 1975) that contained different elements than the present statute (Section 13A-10-31, Code of Alabama). Therefore, no pre-1980 cases dealing with indictments under the prior law of escape can be used to determine the sufficiency of indictments under the present law of escape.

Since the information at issue is either in the indictment or, if absent, was not an essential element of the offense that leaves the accused unaware of the nature and cause of the charge against the appellant, there is no fatal defect in the indictment. As such, we find no defect in the indictment rendering it void and subject to challenge in any manner other than by way of demurrer timely filed in the trial court. The appellant failed to file a proper and timely challenge, and no error can thus be attributed to the trial court in this regard. Stringer, supra.

Although the appellant chose not to argue the issue on appeal, the appellant contended in the trial court that the indictment was fatally defective because it did not mention that the prosecution intended to invoke the Habitual Offender Act at trial. This issue was argued in a pre-trial hearing just prior to trial on the motion to quash the indictment. Thus, appellant was notified before trial. This court, in Sullen v. State of Alabama, (Ms. October 6, 1981) (Ala.Cr.App. 1981) recently addressed the issue of pre-trial notice of sentencing under the Habitual Offender Act. The court stated, "Appellant's final assertion is that he had an absolute right to be informed...