Tuesday, October 18, 2016

Failing to Check-in is not “Custody” and is not Escape

State v. Paris (HSC August 8, 2016)
Background. Eugene Paris had been sentenced and at some point entered into a work furlough agreement. Under the terms of the agreement, Paris would be released from jail or prison and subject to certain conditions. The terms identified his furlough home in Wahiawa and required Paris to make frequent check-ins. Failure to comply with the check-in is deemed an “administrative” escape and makes no reference to criminal liability. Paris was later charged with Escape in the Second Degree in violation of HRS § 710-1021. Paris moved to dismiss the charge on the grounds that the failure to include the statutory definition of the term “custody” rendered the pleading deficient. The motion was denied. At trial, the prosecution presented a theory that work furlough was a form of “custody” and that Paris’s failure to comply by not checking in was a form of escape. Paris was found guilty. The ICA affirmed.

Insufficient Charging Instrument . . . “In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation[.]” Haw. Const. Art. I, Sec. 14. A charging instrument is constitutionally sufficient only when “it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what must be prepared to meet . . . .” State v. Wheeler, 121 Hawaii 383, 391, 219 P.3d 1170, 1178 (2009). While most statutory terms need not be included in the charging instrument, when a term is neither “unmistakable” nor “readily comprehensible to persons of common understanding,” the statutory term must be included. Id. at 393, 219 P.3d at 1181.

“Custody’s” Last Stand. Here, the felony information used the word “custody,” but failed to allege the statutory definition of the term. A person commits the offense of escape in the second degree when the person intentionally escapes from a correctional or detention facility “or from custody.” HRS § 710-1021. “Custody” means “restraint by a public servant pursuant to arrest, detention, or order of a court[.]” HRS § 710-1000.

According to the HSC, this statutory term creates additional attendant circumstances that do not make it readily comprehensible for persons of common understanding. It creates additional circumstances of who can restrain the person (“a public servant”) and by what means (“arrest, detention, or order of a court”). And so the ICA and the circuit court erred in upholding the sufficiency of the pleading.

. . . AND Insufficient Evidence. The HSC moved on to examine Paris’s challenge to the sufficiency of the evidence at trial. The prosecution must prove the element of “custody” in order to prove escape in the second degree. “Custody” means “restraint . . . pursuant to arrest, detention, or order of a court.” HRS § 710-1000. The HSC held that Paris’s “restraint” was not pursuant to an arrest or an order of the court. Thus, the only feasible restraint would be by “detention.” The HSC noted that failing to check in with the furlough center is not “detention” under the terms of the statute. He was not detained at the furlough center. His place of detention was actually the Wahiawa house. And so the HSC agreed that there had been insufficient evidence to convict Paris of escape. The judgment of conviction was reversed.


The Chief Justice’s Concurrence and Dissent. The CJ agreed that there had been errors at trial, but disagreed with the majority over the sufficiency of the evidence. There had been evidence that Paris was required to check in to the furlough center when ordered by his case manager or when his furlough pass expired, which usually expired at the end of the week and a new one was issued. The CJ noted that there had been evidence that the furlough center was part of the Oahu Community Correctional Center and was therefore a correctional facility and that he escaped from “custody” under the terms of the statute. For the CJ, the case should have been remanded for new trial. Justice Nakayama joined.

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