OUJI-CR 9-8

EVIDENCE - FLIGHT

Evidence has been introduced of the defendant's departure/concealment/(escape or attempt to escape from custody) shortly after the alleged crime was committed. You must first determine whether this action by the defendant constituted flight.

The term "flight," as it is used in this instruction, means more than departure or concealment. To be in flight, a defendant must have departed/(concealed himself/ herself)/(escaped or attempted to escape from custody) with a consciousness of guilt in order to avoid arrest.

The defendant has offered evidence explaining his/her acts. You must consider the claim of the defendant in determining if flight occurred.

To find that the defendant was in flight you must find beyond a reasonable doubt that:

First, the defendant departed/(concealed himself/herself)/(escaped or attempted to escape from custody),

Second, with a consciousness of guilt,

Third, in order to avoid arrest for the crime with which he/she is charged.

If after a consideration of all the evidence on this issue, you find beyond a reasonable doubt that the defendant was in flight, then this flight is a circumstance which you may consider with all the other evidence in this case in determining the question of the defendant's guilt. However, if you have a reasonable doubt that defendant was in flight, then the fact of any departure/concealment/(escape or attempt to escape from custody) is not a circumstance for you to consider.

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Notes on Use

This instruction is appropriate only if the defendant denies flight or offers evidence to explain the conduct that appears to constitute flight. Mitchell v. State, 876 P.2d 682, 685 (Okl. Cr. 1994). If it is given, the third paragraph must be included. Hill v. State, 898 P.2d 155, 163 (Okl. Cr. 1995) (omission of third paragraph was error). These restrictions may be waived by the defendant, however.

Committee Comments

The Court of Criminal Appeals has stated in numerous cases that evidence that the defendant merely departed from the scene of the crime or changed his appearance, etc., is insufficient to raise an inference of guilt. Rather, the court requires that the act of flight be accomplished by the defendant with a guilty mental state for purposes of avoiding apprehension before this evidence can be considered at all on the primary issue of guilt or innocence. As stated in Compton v. State, 74 Okl. Cr. 48, 53, 122 P.2d 819, 821 (1942):

The term [flight] signifies, in legal parlance, not merely a leaving, but a leaving or concealment under a consciousness of guilt and for the purpose of evading arrest. Such consciousness and purpose is that which gives to the act of leaving its real incriminating character.

Whether the defendant was "in flight" as defined in "legal parlance" in performing particular conduct is a question of fact for the jury. Voran v. State, 536 P.2d 1322 (Okl. Cr. 1975); Potter v. State, 511 P.2d 1120 (Okl. Cr. 1973); Ward v. State, 444 P.2d 255 (Okl. Cr. 1968); Denney v. State, 346 P.2d 359 (Okl. Cr. 1959); Smith v. State, 291 P.2d 378 (Okl. Cr. 1955); Wilson v. State, 96 Okl. Cr. 137, 250 P.2d 72 (1952); Lunsford v. State, 53 Okl. Cr. 305, 11 P.2d 539 (1932); Bruner v. State, 31 Okl. Cr. 351, 238 P. 1000 (1925). The jury must make the initial determination that the defendant's conduct satisfies the legal definition of "flight" before it can consider the evidence for any purpose.

The instruction follows the guidelines articulated in Wilson v. State, supra, the most definitive case on the subject of flight. The court emphasized in Wilson that "flight" must first be defined for the jury in legal terms. The instruction sets forth the three requirements that must be present before a jury is permitted to find that the defendant's conduct constitutes flight: a departure or analogous conduct; a consciousness of guilt; and a purpose to avoid apprehension.

Although the jury is somewhat restricted in the use it may make of evidence of departure or concealment, the court has held that this instruction is warranted whenever evidence pertaining to conduct associated with flight is introduced, regardless of its low probative value on the question of consciousness of guilt, on the ground that whether the defendant's conduct actually constitutes flight in its legal sense is a question for the trier of fact. Alberty v. State, 561 P.2d 519 (Okl. Cr. 1977); Padillow v. State, 501 P.2d 837 (Okl. Cr. 1972); Graham v. State, 80 Okl. Cr. 159, 157 P.2d 758 (1945).

The court has found the instruction of particular importance when the defendant offers alternative explanations for his acts. In the words of the court:

[T]he standard governing jury instructions relative to flight is not whether other explanations may be explicable of the circumstances surrounding apprehension, but whether, viewed in the context of other evidence, it tends to establish guilt or innocence.

Farrar v. State, 505 P.2d 1355, 1361 (Okl. Cr. 1973). See also Ward v. State, 444 P.2d 255 (Okl. Cr. 1968); Sprouse v. State, 52 Okl. Cr. 184, 3 P.2d 918 (1931).

Obviously, since the question is one of fact, the defendant must be permitted an opportunity to introduce evidence that explains his conduct. The cases require that the jury be specifically instructed that the defendant's evidence, if such is adduced, can be considered along with other evidence in determining whether flight occurred. Wilson v. State, supra; Compton v. State, 74 Okl. Cr. 48, 122 P.2d 819 (1942); Sprouse v. State, supra. Once the jurors determine that the defendant's conduct is tantamount to a flight in legal terms, this flight is a circumstance to be considered with all other facts and circumstances in the case in determining the question of guilt or innocence. Smith v. State, 291 P.2d 378 (Okl. Cr. 1955); Rushing v. State, 86 Okl. Cr. 24, 190 P.2d 828 (1948); Broyles v. State, 83 Okl. Cr. 83, 173 P.2d 235 (1946); Colglazier v. State, 23 Okl. Cr. 23, 212 P. 332 (1923).

Generally, evidence of flight will be in the form of proving that the defendant departed from the scene of the crime. However, the concept of flight is very broad, encompassing any conduct that tends to raise an inference that the defendant was impelled by a guilty conscience and sought to avoid arrest. A variety of acts have been held to constitute flight in Oklahoma, such as escape from jail and subsequent flight, Peoples v. State, 270 P.2d 380 (Okl. Cr. 1954); Hudson v. State, 78 Okl. Cr. 160, 145 P.2d 774 (1944); concealment, Wettengle v. State, 30 Okl. Cr. 388, 236 P. 626 (1925); and resisting the arresting officer, Luttrell v. State, 21 Okl. Cr. 466, 208 P. 1048 (1922). In Almerigi v. State, 17 Okl. Cr. 458, 188 P. 1094 (1920), the court referred to the defendant's altered appearance in growing a moustache in the context of flight, but since the defendant had also departed the scene of the crime, it is unclear whether an attempt to change identity, without more, constitutes evidence of flight.

The Oklahoma courts have not extended the concept of flight beyond these circumstances. However, conduct such as assuming a false name, People v. Waller, 14 Cal. 2d 693, 96 P.2d 344 (1939), as well as an attempt by the accused to take his own life has been held to constitute evidence of flight in other jurisdictions. See, e.g., People v. Duncan, 261 Ill. 339, 103 N.E. 1043 (1914); Commonwealth v. Goldenberg, 315 Mass. 26, 51 N.E.2d 762 (1943); State v. Painter, 329 Mo. 314, 44 S.W.2d 79 (1931); State v. Lawrence, 196 N.C. 562, 146 S.E. 395 (1929); Commonwealth v. Giacobbe, 341 Pa. 187, 19 A.2d 71 (1941).