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Thurston v. United States

August 09, 2001

ARCHIE R. THURSTON, APPELLANT
v.
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.

I.

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.

II.

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 ...


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