August 09, 2001
ARCHIE R. THURSTON, APPELLANT
UNITED STATES, APPELLEE
Before Steadman, Ruiz and Glickman, Associate Judges.
The opinion of the court was delivered by: Steadman, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Judith E. Retchin, Trial Judge)
Submitted May 3, 2001
Appellant was convicted of escape under D.C. Code § 22-2601(a)(1) (1996 Repl.) for failing to return to his halfway house. At trial, appellant, relying on standard Criminal Jury Instruction for the District of Columbia No. 4.99A (4th ed. 1996 Supp.), argued that the government was required to prove an "intent to avoid further confinement" as an element of the crime of escape and that the trial court erred in refusing to include that requirement in its instructions to the jury. The trial court was correct. The error is in the standard instruction.
On February 17, 1999, appellant pled guilty to two misdemeanor offenses. Pursuant to this plea, appellant was assigned to Community Correction Center Number Four on New York Avenue. During his stay, appellant was given forms explaining that he must sign out and return to the halfway house at designated times, otherwise it would be construed as an "escape." On March 15, appellant signed out for work at 5 p.m., but did not return to the halfway house. Appellant was charged with escape in violation of § 22-2601(a)(1).
On the eve of trial, the government argued, in a motion in limine, that the appellant should be precluded from arguing duress as a defense. Appellant insisted that his defense was not duress, but rather a lack of intent to avoid further confinement when he failed to return to the halfway house, which he argued was an element of escape. In support, appellant pointed to his alleged reason for not returning to the halfway house, i.e. someone had a gun inside and he feared for his safety, *fn1 and the fact that he "surrender[ed] himself to the Court as soon as practicable." The trial court denied the government's motion, but disagreed with appellant's characterization of his defense: And you say that it is not really a duress defense but that it's a defense alleging that the Government has not proved the element of --with the intent to avoid confinement. And I think no matter how you're trying to dress it up to be something else, . . . it is a duress defense.
At the close of the government's case, the court presented its proposed jury instructions, including a duress instruction. Reiterating his earlier argument, appellant insisted that the court define escape in accordance with the above-cited standard Criminal Jury Instruction 4.99A *fn2 : "to knowingly and deliberately fail to return to lawful custody without permission or authorization and with the intent to avoid further confinement." (Italics added) The court refused, pointing out that the statute making escape an offense did not contain such language, and that the Supreme Court, in United States v. Bailey, 444 U.S. 394 (1980), rejected the "requirement that the escape be accompanied by an intent to avoid confinement." Accordingly, the trial court did not include that language in drafting its jury instruction on escape, *fn3 noting that the terms "knowingly" and "deliberately" encompassed the intent language that appellant had requested.
The crime of escape for which appellant was convicted *fn4 was enacted in its present form in 1994 *fn5 and reads as follows:
(a) No person shall escape or attempt to escape from:
(1) Any penal institution or facility in which that person is confined pursuant to an order issued by a court, judge, or commissioner of the District of Columbia; or
(2) The lawful custody of an officer or employee of the District of Columbia or of the United States.
(b) Any person who violates subsection (a) of this section shall be fined not more than $5,000 or imprisoned not more than 5 years, or both, said sentence to begin, if the person is an escaped prisoner, upon the expiration of the original sentence. D.C. Code § 22-2601.
As the trial court noted, there is nothing in the language of the statute that requires the government to prove that the defendant acted with the intent to avoid further confinement. Nor do the notes or legislative history to § 22-2601 provide any such reference.
Appellant's contention stems from the fact that standard Criminal Jury Instruction 4.99A contains that language. *fn6 However, a review of the standard jury instructions fails to reveal how "intent to avoid further confinement" was thought to be an element of escape under the statute. Although the Comment section of the instruction states that it was added to the standard jury instructions in the 1996 Supplement, it gives no relevant explanation of the disputed language: "[The 1996 Supplement] incorporates the changes made by the Omnibus Criminal Justice Reform Amendment Act of 1994, D.C. Law 10-151, which created the crime of escape from an institution or officer." The legislative history behind D.C. Law 101-51 adds nothing pertinent to the inquiry. This court has never explicitly adopted such an intent component as an element of escape, thereby requiring trial judges to give an instruction containing such language.
Conceivably, the language in question stems from United States v. Bailey ("Bailey I"), 190 U.S. App. D.C. 142, 585 F.2d 1087 (D.C. Cir. 1978) (subsequent history omitted). In that case, four federal prisoners crawled out of a window at the District of Columbia jail and remained at large for several months. At trial, all four of the prisoners attempted to introduce evidence depicting the conditions and events at the jail, which, they argued, was the cause of their "escape," thereby preventing them from possessing an "intent to avoid confinement" during their flight. The D.C. Circuit agreed, and held that "intent to avoid confinement" was an element of the crime of escape under federal law. See 190 U.S. App. D.C. at 148, 585 F.2d at 1093. *fn7
That case, however, was reversed by the Supreme Court in United States v. Bailey ("Bailey II"), 444 U.S. 394 (1980), the very case relied on by the trial court here. In Bailey II, the Supreme Court was asked to decide whether the government must prove as an element of escape that the defendant had an "intent to avoid confinement." The Court held that it did not. See 444 U.S. at 408. "[T]he prosecution fulfills its burden under § 751(a) if it demonstrates that an escapee knew his action would result in his leaving physical confinement without permission." Id. In addition, the Court recognized the availability and clarified the adequacy of a duress defense: "where a criminal defendant is charged with escape and claims that he is entitled to an instruction on the theory of duress . . . he must proffer evidence of a bone fide effort to surrender or return to custody as soon as the claimed duress . . . has lost its coercive force." Id. at 415; *fn8 see also Stewart v. United States, 370 A.2d 1374 (D.C. 1977) (duress available as defense for failure to return to halfway house).
When analyzing D.C. Code § 22-2601(a), this court often looks to interpretations of the federal equivalent of our escape statute. See, e.g., Craig v. United States, 551 A.2d 440, 441 (D.C. 1998). We see nothing in the current version of our escape statute that meaningfully distinguishes it with respect to the issue before us from the federal escape statute interpreted by the Supreme Court. The trial court properly relied on Bailey II in holding that its instructions to the jury should not contain the requested language. Accordingly, the judgment appealed from is