ATTEMPTED ESCAPE FROM A PEACE OFFICER - ELEMENTS
No person may be convicted of attempted escape from a peace officer unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
First, attempting to escape;
Second, from a peace officer;
Third, after being lawfully arrested/detained by such peace officer.
Statutory Authority: 21 O.S. 1991, § 444.
Section 444 of Title 21 was enacted by the Legislature in 1981, and became effective on October 1, 1981. One of the apparent purposes of the statute was to fill gaps in the law of escape.
A problem with this statute occurs in relation to 21 O.S. 1991, § 701.7(B). One of the grounds for charging a defendant with murder in the first degree is for a killing occurring during an "escape from lawful custody." Escapes from lawful arrest or lawful detention did not fall within the "escape from lawful custody provision" of 21 O.S. 1991, § 701.7(B), prior to the effective date of section 444 on October 1, 1981.
The penalties specified under 21 O.S. 1991, § 444, vary depending upon the basis for the arrest. A defendant, who is arrested for a misdemeanor and escapes, may be guilty of a misdemeanor, and a defendant, who is arrested for a felony and escapes, may be guilty of a felony. Nevertheless, proof of a felony or misdemeanor charge is not necessary for a conviction under section 444. Tyler v. State, 1989 OK CR 31, ¶¶ 3-5, 777 P.2d 1352, 1353.
The variation in punishment under section 444 is important in reference to a charge of murder in the first degree under section 701.7(B). If a defendant kills another while escaping from a misdemeanor arrest, the Commission has concluded that a murder-in-the-first-degree charge would be improper. Section 701.7(B) has as its common law background the felony-murder rule. It is submitted that the felony-murder rule as it existed by statute in Oklahoma prior to 1973, 21 O.S. 1971, § 701.3, has been divided into two statutory provisions under the current law. Section 701.7(B) includes specifically enumerated dangerous felonies, and section 701.8(2) includes all other felonies. This section stipulates that homicide is murder in the second degree "[w]hen perpetrated by a person engaged in the commission of any felony other than the unlawful acts set out in section 1, subsection B, [21 O.S. 1991, § 701.7(B)] of this act." (Emphasis added.)
The Commission has reached its conclusion that a misdemeanor escape under section 444 cannot be the basis for a murder in the first degree charge even though section 701.7(B) does not use the term "felony." This is because all other crimes therein listed are felonies and because section 701.8(2) stipulates that it applies "to any felony other than the unlawful acts set out in section 1, subsection B." (21 O.S. 1991, § 701.7(B)).
To conclude that a person could be convicted of murder in the first degree for a killing occurring in the commission of a misdemeanor escape would create a misdemeanor-murder rule. This would clearly be against prior Oklahoma law and the common law. (This same argument is present in reference to the misdemeanor escape crimes which may still exist under 57 O.S. 1991, § 56.)
Section 444 also includes a specific attempt crime. Since a specific attempt statute for these escapes exists, it would be improper to charge a defendant with attempted escape under the general attempt statutes. See Ex parte Smith, 95 Okl. Cr. 370, 246 P.2d 389 (1952). Since section 701.7(B) applies only to completed crimes, it would not be proper to charge someone with murder in the first degree for a killing he committed while attempting to escape under the Provisions of section 444.