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MacDonald v. State (01/16/2004) ap-1913
MacDonald v. State (01/16/2004) ap-1913
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MATTHEW D. MACDONALD, )
) Court of Appeals No.
A-8357
Appellant, )
Trial Court No. 4FA-01-1726 Civ
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1913 January 16, 2004]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Richard D. Savell,
Judge.
Appearances: J. John Franich, Assistant
Public Advocate, Fairbanks, and Brant McGee,
Public Advocate, Anchorage, for the
Appellant. Kenneth J. Diemer, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In the summer of 1997, Matthew D. MacDonald was serving
a sentence for a felony. On July 7th, the Alaska Parole Board
granted MacDonald a temporary release from custody; he was
supposed to return two days later. When MacDonald failed to
return, the Parole Board issued a warrant for his arrest. Two
months later, on September 3rd, the Fairbanks police received a
tip that MacDonald could be found at a local apartment, so two
officers went to the apartment to arrest him. But when the
officers laid hands on MacDonald, he slipped from their grasp and
ran away. (MacDonald was apprehended the following day.)
Based on his conduct, MacDonald was ultimately
convicted of second-degree escape.1 We affirmed MacDonalds
conviction in MacDonald v. State, Alaska App. Memorandum Opinion
No. 4178 (February 2, 2000).
The following year, MacDonald filed a petition for post-
conviction relief in which he asserted that his trial attorney
had been ineffective. Specifically, MacDonald argued that his
attorney was incompetent for failing to realize that, even when
the facts of MacDonalds case were construed in the light most
favorable to the State, MacDonalds conduct did not constitute the
crime of second-degree escape.
The superior court granted summary judgement to the
State, and MacDonald now appeals the dismissal of his petition
for post-conviction relief. We agree with the superior court
that MacDonald failed to show any reason to believe that his
trial attorney was incompetent.
MacDonald was convicted of violating paragraph
(a)(1)(B) of the second-degree escape statute, AS 11.56.310.
Under this part of the statute, the crime of second-degree escape
consists of remov[ing] oneself from official detention for a
felony. Official detention, in turn, is defined as custody,
arrest, surrender in lieu of arrest, or actual or constructive
restraint under an order of a court in a criminal or juvenile
proceeding, other than an order of conditional bail release. AS
11.81.900(b)(39).
MacDonald argues that he was not in official detention
when he ran from the police on September 3, 1997. He notes that,
even though the police touched him, they failed to hold him.
From this, MacDonald concludes that he was only constructively
restrained. And, because this constructive restraint was
pursuant to an order of the Parole Board rather than an order of
a court, MacDonald argues that this restraint did not qualify as
official detention. MacDonald relies on the clause of AS 11.81.
900(b)(39) which speaks of constructive restraint under an order
of a court in a criminal or juvenile proceeding.
But AS 11.81.900(b)(39) defines official detention in
the disjunctive; that is, official detention is defined as
custody or arrest or surrender in lieu of arrest or actual or
constructive restraint under an order of a court. Thus, if the
State proved that MacDonald was arrested when the officers came
to the apartment on September 3, 1997, the issue of constructive
restraint would be moot. And, under the common-law definition of
arrest, MacDonald was indeed arrested by the officers on
September 3, 1997, even though the officers did not succeed in
apprehending him.
As this Court noted in Maynard v. State, 652 P.2d 489,
492 n. 6 (Alaska App. 1982), the common law deemed a person to be
arrested [i]f an officer having authority to make an arrest
actually touches [the] arrestee, for the manifested purpose of
apprehending him. If so, then the arrest is complete although
[the officer] does not succeed in stopping or holding [the
arrestee] even for an instant.2
In Maynard, we approved this common-law definition of
arrest. The jury at MacDonalds trial was instructed in
accordance with this definition, and the jurors (by finding
MacDonald guilty of escape) necessarily found that MacDonald had
been arrested i.e., the jurors found that the officers had
touched MacDonald for the manifested purpose of taking him into
custody.
MacDonald argues, however, that this Court repudiated
the common-law definition of arrest in Hubbard v. State, 800 P.2d
952 (Alaska App. 1990), and that it was therefore plain error for
the trial judge to instruct the jury on the common-law definition
of arrest and incompetence for MacDonalds trial attorney to fail
to object to that jury instruction.
Hubbard involved a defendant who appeared in court for
a bail revocation hearing. At the close of the hearing, the
court found that Hubbard had violated the conditions of his
release, and the court therefore revoked Hubbards release. The
court directed Hubbard to take a seat in the jury box (so that
the judicial services officers could take him to jail along with
the other waiting prisoners), but Hubbard instead walked out of
the courtroom and did not return. Hubbard was later convicted of
escape for this conduct.
This Court reversed Hubbards conviction because we held
that, under the facts described in the preceding paragraph,
Hubbard had not been in official detention when he left the
courtroom. MacDonald asserts that our decision in Hubbard stands
as a rejection of the common-law definition of arrest that we
adopted in Maynard. But a careful reading of Hubbard shows that
we did not reject the common-law definition of arrest. Rather,
we applied that common-law definition to the facts of Hubbards
case:
Normally, before a defendant could be
convicted of escape, we have required the
state to show that the defendant was under
arrest. In Maynard v. State, ... we quoted
with approval what appears to be the majority
rule[:] ... [I]f an officer approaches an
offender for the purpose of making an arrest,
which he is unable to do because the
[offender] eludes him by running away, there
has been no escape ... . It is necessary,
however, to bear in mind that [an] arrest [is
complete if] an officer having authority to
make an arrest actually touches [the]
arrestee, for the manifested purpose of
apprehending him[.]
Hubbard, 800 P.2d at 954. We further
concluded that, for purposes of construing
Alaskas definition of official detention
(and, thus, defining the crime of escape),
the term custody should be interpreted as
essentially synonymous with the term arrest.
Id. at 954.3
After reaffirming these definitions
of arrest and custody, we rejected the States
argument that Hubbard should be considered to
have been in constructive custody or
constructive restraint after the court
revoked his bail and ordered him to sit in
the jury box. Even though the bail-revoking
court had clearly manifested its intention to
place Hubbard in custody, we concluded that
this was not enough to make Hubbards
departure from the courtroom an escape.
Rather, we continued to apply the common-law
definitions of arrest and custody
definitions that required an act of touching
before a person could be deemed to have been
arrested or to have been placed in custody.
Hubbard, 800 P.2d at 955. Applying these
common-law definitions, we concluded that
since Hubbard was never placed under arrest
before he left the courtroom, he was never in
custody never in official detention and
thus he could not lawfully be convicted of
escape for leaving the courtroom. Id.
In other words, MacDonald is wrong
when he claims that Hubbard disavowed the
common-law definition of arrest. Rather, the
result in Hubbard stemmed directly from an
application of that common-law definition.
The Hubbard court concluded that, because the
defendant was never touched, the defendant
was never in custody.
In response to our decision in
Hubbard, the legislature amended the
definition of official detention in 1991 by
adding the clause that speaks of actual or
constructive restraint. See SLA 1991, ch.
91, 3. The purpose of this amendment, the
legislature declared, was to reverse the
effect of ... Hubbard v. State. See SLA
1991, ch. 91, 1 (printed in 1991 Temporary
and Special Acts and Resolves).
By adding the language about
constructive restraint to supplement the
existing language about arrest and custody,
the legislature expanded the definition of
escape so that, in the future, defendants who
absconded from a courtroom could be
prosecuted for escape even though no one ever
touched the defendant for the manifested
purpose of apprehending them or placing them
in custody. In other words, the issue of
constructive restraint arises only when the
State can not prove that the defendant was
arrested under the common-law definition of
that term approved in Maynard, and reaffirmed
and applied in Hubbard.
For these reasons, it was not error
for MacDonalds trial judge to instruct the
jury on the elements of arrest as that term
was defined and applied in Maynard and
Hubbard. And it was not a sign of
incompetence for MacDonalds trial attorney to
acquiesce in the giving of this instruction.
Indeed, such an instruction was necessary,
because the States theory of the case was
that MacDonald was arrested i.e., placed in
official detention when the officers touched
him for the manifested purpose of
apprehending him. The jurors needed to be
instructed on this point of law.
(And, because the jury found that
the officers had indeed touched MacDonald for
the purpose of apprehending him, MacDonalds
case does not raise an issue of constructive
restraint. Instead, MacDonalds escape
conviction rests on a finding that he was
arrested.)
The judgement of the superior court
i.e., the superior courts decision to dismiss
MacDonalds petition for post-conviction
relief is AFFIRMED.
_______________________________
1 AS 11.56.310(a).
2 Quoting R. Perkins, Criminal Law (2nd ed. 1969), p.500
(internal citations omitted).
3 Citing Beckman v. State, 689 P.2d 500, 502 n. 3 (Alaska
App. 1984).
