State v. Sugden
| Decision Date | 04 May 1988 |
| Docket Number | No. 86-0638-CR,86-0638-CR |
| Citation | 422 N.W.2d 624,143 Wis.2d 728 |
| Parties | , 79 A.L.R.4th 1051 STATE of Wisconsin, Plaintiff-Respondent and Cross-Petitioner, v. Richard Dean SUGDEN, Jr., Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Barry M. Levenson, Asst. Atty. Gen., argued and Donald J. Hanaway, Atty. Gen., on brief for plaintiff-respondent and cross-petitioner.
Michael J. Bauer and Hopp, Hodson, Powell & Raftery, Sheboygan and Michael J. Bauer, argued, for defendant-appellant.
This is a review of the part of the decision 1 of the court of appeals which reversed a judgment of the circuit court for Sheboygan county, John Bolgert, Circuit Judge, convicting Richard Dean Sugden, Jr., (Sugden) of escape, contrary to sec. 946.42(3)(a), Stats. We reverse the decision of the court of appeals.
The issue presented here is whether the word, "custody," as used in the escape statute pertains only to the general geographical boundary of a particular state penal institution or pertains also to secure custodial facilities that are located within such an institution and to which prisoners may be confined. In this case the question is: Did Sugden escape the custody of the institution when he left the locked cottage in which he was confined according to the rules of the institution or could he escape custody of the institution only by progressing beyond the outer perimeter or fence defining the institution's outer boundaries.
We conclude that Sugden's escape from the custody in which the institution (Kettle Moraine Correctional Institution) had placed him by confining him to a secured-locked cottage constituted a completed escape from "custody of an institution." To commit the completed crime of escape from the custody of an institution it is not always necessary to progress beyond the outer perimeter of the institution's walls. In this case it was not necessary.
The statute under which Sugden was charged provides in part:
The facts are not in dispute. Sugden had been serving multiple felony sentences aggregating twenty-seven years at Waupun State Prison when he was transferred to the Kettle Moraine Correctional Institution (KMCI) on July 3, 1984. The escape from custody took place on July 8, 1984.
In accordance with the regulations of the KMCI, new transferees such as Sugden were confined in a locked separate building, the Wisconsin Cottage, until such time as, in the discretion of the prison authorities, following an evaluation and indoctrination period, they were assigned to quarters with the general prison population.
KMCI consists of numerous buildings with various security classifications. KMCI is surrounded by a double fence. According to the testimony, the distance between the fences is approximately 50 feet. That area, between the fences, is referred to as the "sally port." This area was used as a holding area for vehicles intending to enter the institution grounds. Several witnesses testified that the sally port area was considered to be outside the boundary of the institution.
In the early morning hours of July 8, while locked in the Wisconsin Cottage, the secure detention facility for new arrivees, Sugden feigned illness. The guard in charge of the facility called Lieutenant Scott, her supervisor, to talk to Sugden and to determine whether he needed emergency medical attention. Lieutenant Scott arrived in a station wagon, which he parked about 20 feet from the entrance to the cottage. He unlocked the door to the cottage and relocked it when he went in. While he was talking to Sugden, Lieutenant Scott and the guard, Rose Marie Manderle, were attacked and physically overpowered by Sugden and two other inmates. One of the inmates placed a scissor blade to Scott's throat and forced him to unlock the exterior door. In the course of the struggle within the cottage, Guard Manderle's alarm radio was taken from her and placed on a table. Unbeknownst to the escapees, placing the radio in a horizontal or "deadman's" position automatically triggered the alarm.
A general patrol guard responded to the alarm and was near the exterior door when the three inmates emerged holding Scott and Manderle as hostages. He took no overt action because he feared injury to the hostages. Manderle managed to strike Sugden in the ribs and escaped. Scott momentarily eluded his captors but was recaptured, but only after a struggle which left him with a wound on his forehead inflicted by a scissor stab.
Using Scott's keys, one of the inmates started the station wagon, and all three of them, with Scott as a hostage, proceeded at a high speed, estimated at 50 miles per hour, for the main gate. The vehicle smashed through the gate but was up-ended in the area between the inner gate and the outer perimeter of the sally port. After gunfire from guards at watch towers near the gate, Sugden and his fellow escapees were subdued.
At trial Sugden testified in his own defense. While he stated that he did not premeditate the escape until shortly before the events described, he testified that he and one of the other inmates who took part in the venture were discussing how great it would be to be on the outside. There is no serious dispute by defense counsel that Sugden and his co-defendants intended to escape.
The defense argument basically is that, even though the three pierced the inner perimeter fence and ended up in the sally port area, they were still in the custody of the institution, because they had not attained freedom by getting beyond the outermost fence. Hence, it is contended that, at most, there was an attempted escape.
The district attorney at trial argued, as the state does now on this review, that escape from custody was complete when the inmates broke out of Wisconsin Cottage. A perusal of the entire transcript of the trial reveals that such has consistently been the theory of the state's case. Even though there was some evidence that the three inmates had gone beyond the perimeters of the institution by entering the sally port, the prosecutor did not rely on that fact but took the position that the escape was a completed crime when Sugden and his companions left the locked cottage.
That the trial judge was of the opinion that such was the purport of the jury verdict is demonstrated in his comments on motions after verdict. He stated, The circuit court, after the jury verdict, found the defendant guilty of escape, taking hostages, and operating a motor vehicle without the owner's consent. Upon conviction, consecutive terms of imprisonment were imposed on Sugden for each of these offenses, respectively, five years, twenty years, and two years to be served consecutively to Sugden's previous felony sentences.
Upon appeal, the court of appeals affirmed the convictions for hostage taking and operating a motor vehicle without the owner's consent. It reversed the conviction for escape on the rationale that, because the information alleged escape from an institution, and there was no proof of progression beyond the institution grounds, the proof was insufficient. Basically, it held that, as a matter of law, escape could be a completed crime only if the inmate left the outer boundary of an institution.
Initially we conclude that the court of appeals misstated the crime charged in the information. The information did not charge escape from an institution. Rather, it charged, as was proper under the statute, escape from custody. The information in part charged:
"...having ... been duly transferred ... to the Kettle Moraine Correctional Institution, did feloniously and intentionally escape from said custody, contrary to section 946.42(3)(a)...." 2
Thus, contrary to the statement of the court of appeals, Sugden was charged not for the escape from the institution, but from custody of the institution. We believe this semantic difference signals a real and significant difference in the legislature's characterization of the nature of the crime.
Section 946.42(3), Stats., states the crime consists of an "escape from custody" by one who is sentenced to a state prison. It is not disputed that, for the purposes of this statute, KMCI is a state prison.
Custody is defined in sec. 946.42(5)(a), Stats., as follows: " 'Custody' includes without limitation actual custody of an institution...." (Emphasis supplied.) Hence, escape is not from an institution, but from the custody of that institution. Thus, it is apparent that one who escapes from a form of custody imposed violates the escape statute even though the escapee does not leave the geographical premises of the institution. " 'Escape' means to leave in any manner without lawful permission or authority." Sec. 946.42(5)(b). Under this statute then, to leave custody in any manner without permission constitutes an escape. 3
The circuit court instructed the jury with substantial correctness. It...
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