
    Rodney CRAWFORD v. STATE.
    CR-93-2055.
    Court of Criminal Appeals of Alabama.
    March 24, 1995.
    Rehearing Denied June 16, 1995.
    Julian Stephens III, Anniston, for appellant.
    Jeff Sessions, Atty. Gen., and Kim Oliver, Deputy Atty. Gen., for appellee.
   McMillan, judge.

The appellant was found guilty of escape in the third degree and was sentenced as a habitual offender to 13 years’ imprisonment. The trial court ordered that sentence be served concurrently with his sentence on another conviction. He argues that the trial court erred in denying his motion for a judgment of acquittal because, he says, at the time of the offense he was not in “custody” within the meaning of the escape statute (§ 13A-10-33(a), Code of Alabama 1975) and, therefore, he was guilty only of the uncharged offense of resisting arrest.

Evidence at trial tended to show that while Officer Debra Howell was on foot patrol in the Cooper Homes housing project, she saw the appellant leaning against a building. Howell testified that she asked if he lived in Cooper Homes and he responded that he did not and that he was waiting for his brother. Howell said she then informed him that a city ordinance required him to leave if he was not visiting someone who lived at Cooper Homes. Howell said that the appellant appeared to be irritated but that he walked away as if he was leaving the project. Several minutes later, Howell again saw the appellant leaning against one of the buildings. She asked him his name and told him to come to her, but he refused and began to act upset. Howell said she then told him that if he did not stop cursing, she would arrest him for disorderly conduct. She radioed for backup and, as she completed the call, the appellant started to walk away. Howell testified that she reached out and gripped him with her left hand while she retrieved her handcuffs with her right hand. She informed the appellant that he was under arrest for criminal trespass, but he jerked away and she fell to the ground. The last thing she remembered was the appellant’s foot coming toward her face. Two witnesses testified that they saw the appellant hit Howell in the face and then saw him kick her several times in the face and groin while she was down. The officers who arrived as backup found Officer Howell unconscious, suffering from a concussion and numerous bruises on her face and body.

A person commits the crime of escape in the third degree if he escapes or attempts to escape from custody, § 13A-10-33(a), Code of Alabama 1975; “custody” is defined, in pertinent part, as a “restraint or detention by a public servant pursuant to a lawful arrest.” § 13A-10-30(b)(1), Code of Alabama 1975. The State contends that the appellant’s motion for a judgment of acquittal was properly denied because, according to Sanders v. State, 512 So.2d 809, 811 (Ala.Cr.App.1987), a person is in custody even when “he is lawfully physically restrained for the briefest period of time.”

However, in Ex parte McReynolds, 662 So.2d 886 (Ala.1994), the Alabama Supreme Court overruled Sanders “[t]o any degree ... [that it] intimates that the arrest need not be completed for the crime of escape to be committed.” The Court stated that the distinction between “escape from custody” and “resisting arrest” is that one cannot escape from custody until one is in custody and that one is not in custody until he has been arrested. Without reaching the issue of when custody begins, the Court “seriously questioned]” the holding of this Court in Scott v. State, 624 So.2d 230 (Ala.Cr.App. 1993), wherein a motorist was found to be in custody upon an officer’s telling him that he was under arrest, grabbing his arm, and forcing him over the trunk of the patrol car. As the officer reached for his handcuffs, the motorist pushed and kicked him and then fled.

Officer Howell testified that she grabbed the appellant with one hand, retrieved her handcuffs with the other, and then told the appellant that he was under arrest. Before she could handcuff him, he jerked away and she fell, and he then kicked her and fled. Based upon the testimony, Officer Howell had not physically restrained the appellant before he fled even to the extent that the subject in Scott was restrained. The appellant was still in the process of being arrested when he fled, and, therefore, he was not in custody within the meaning of § 13A-10-33(a).

The appellant’s conviction for escape in the first degree must be reversed and judgment rendered for the appellant because an essential element of the offense was not proved.

REVERSED AND JUDGMENT RENDERED.

PATTERSON and COBB, JJ., concur.

TAYLOR, P.J., and LONG, J., dissent with opinion by TAYLOR, P.J.

TAYLOR, Presiding Judge

(dissenting).

I dissent from the majority’s rendering a judgment for the defendant in this case and I disagree with the majority’s conclusion that the appellant was not in “custody” when he assaulted the police officer.

The majority, in reaching its decision, relies totally on Ex parte McReynolds, 662 So.2d 886 (Ala.1994). I believe that McRey-nolds is distinguishable from the present ease for several reasons. First, in McRey-nolds, the defendant was convicted of escape in the first degree. In this case, the defendant was convicted of escape in the third degree. The drafters of the Commentary to § 13A-10-33, Code of Alabama 1975, which defines escape in the third degree, stated the following:

“[Section § 13A-10-33] is addressed to any person who escapes from custody. ‘Escape’ is used in its ordinary accepted meaning and connotes an unauthorized voluntary departure from, or substantial severance of ‘custody.’ ‘Custody1 includes any detention pursuant to a lawful arrest or court order. Section 13A-10-33 is applicable to all escapes.”

It is clear from the commentary to § 13A-10-33 that custody has a different meaning when applied to escape in the third degree than when applied to escape in the first degree.

Second, the facts in this case are distinguishable from those in McReynolds. In McReynolds, the defendant was never told that he was under arrest and no overt act was done to further any arrest. That is not the situation in this case.

In this ease, Officer Debra Howell testified that she had approached the appellant twice about his leaning against a building in a housing project in Calhoun County. The second time she approached the appellant he started cursing at her and she told him that she would arrest him for disorderly conduct if he did not leave. He refused to leave and continued to curse at her. Officer Howell then called for back-up. She told the appellant he was under arrest for criminal trespass, grabbed the appellant with her left hand, and retrieved her handcuffs with her other hand. The appellant then jerked away and she fell to the ground. Officer Howell stated that the appellant then beat her about the face and kicked her in the groin.

In determining whether an individual is in custody the court must consider the “totality of the circumstances.” Bradley v. State, 494 So.2d 750, 758 (Ala.Cr.App.1985), aff'd, 494 So.2d 772 (Ala.1986), cert. denied, 480 U.S. 923, 107 S.Ct. 1385, 94 L.Ed.2d 699 (1987). Woods v. State, 641 So.2d 316, 320 (Ala.Cr.App.1993).

“ ‘The United States Supreme Court in California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) articulated “the standard by which ‘custody' is to be judged.” Davis [v. Allsbrooks, 778 F.2d 168, 171 (4th Cir.1985) ]. In its opinion, the Supreme Court stated that “although the circumstances of each case must certainly influence a determination of whether a suspect is ‘in custody' for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, supra, 463 U.S. at 1125, 103 S.Ct. at 3519-20 (quoting [Oregon v.] Mathiason, supra, 429 U.S. [492] at 495, 97 S.Ct. [711] at 714 [50 L.Ed.2d 714 (1977) ]). See also Primm [v. State, 473 So.2d 1149, 1158 (Ala.Cr.App.), cert. denied, 473 SO.2d 1149 (Ala.1985)].
“‘A determination of “custody” is not based on “the subjective evaluation of the situation by the defendant or the police officers.” Davis, supra at 171. Where there has not been a formal arrest (as here), an objective test is used to determine whether the suspect’s freedom of action has been restricted by the police in any significant manner. Davis, supra at 171; [United States v.] Miller, [587 F.Supp. 1296, 1299 (W.D.Pa.1984) ]; Warrick [v. State, 460 So.2d 320, 322 (Ala.Cr.App.1984) ]; Hall [v. State, 399 So.2d 348, 351 (Ala.Cr.App.1981) ]. “The only relevant inquiry is how a reasonable man in the suspect’s position would have understood his position.” United States v. Jonas, 786 F.2d 1019, 1022 (11th Cir.1986) (quoting Berkemer v. McCarty, 468 U.S. 420, [441], 104 S.Ct. 3138, 3152, 82 L.Ed.2d 317 (1984)).’ ”

Woods, 641 So.2d at 320.

The evidence shows that the appellant was in “custody” as that term is defined in the statute making escape in the third degree an offense. § 13A-10-33, Code of Alabama 1975.  