PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS. (Baldwin Circuit Court, CC-92-796, Court of Criminal Appeals, CR-92-950). Charles C. Partin, TRIAL JUDGE.
Rehearing Denied February 17, 1995. Released For Publication October 30, 1995.
Almon, Shores, Houston, Kennedy, and Ingram, JJ., concur. Maddox, J., concurs in part and Dissents in part.
The opinion of the court was delivered by: Almon
Thomas Eddie McReynolds was convicted of possession of marijuana in the second degree, assault in the third degree, and escape in the first degree. The Circuit Court of Baldwin County, Judge Charles C. Partin presiding, entered a judgment on a jury verdict and sentenced McReynolds to 10 years for the escape conviction, 1 year for the assault conviction, and 6 months for the possession of marijuana conviction. McReynolds appealed to the Court of Criminal Appeals, which affirmed his conviction without opinion. We granted certiorari review primarily to determine whether McReynolds, at the time he supposedly committed the offense of escape, was in "custody" within the meaning of the escape statute, Ala. Code 1975, § 13A-10-31; the petition also raises an issue as to McReynolds's conviction for possession.
The facts are substantially as follows. Around 11:30 p.m. on July 18, 1992, Thomas Eddie McReynolds was pulled over by a City of Bay Minnette police officer and a Baldwin County sheriff's deputy for having a burned out tag light on his automobile. McReynolds did not have a driver's license in his possession, so the police officer obtained from McReynolds certain information "to run in a computer." While the officer was completing his computer check, the sheriff's deputy administered a field sobriety test to determine if McReynolds was capable of operating a motor vehicle. McReynolds passed the field sobriety test. The deputy then asked McReynolds if he had any weapons or drugs in his automobile. McReynolds responded by saying that he did not and that the deputy could search the vehicle. The deputy then, pursuant to his policy, made a "pat down" search of McReynolds.
During this pat down search the deputy felt a bag in McReynolds's front pocket. When the deputy felt the bag, McReynolds grabbed the deputy's hand. The deputy then reached with his other hand into McReynolds's pocket, and when he did so he felt a bag between his fingers. As the deputy tried to pull the bag out of McReynolds's pocket, McReynolds fled.
The deputy pursued McReynolds for a short while but then fell to the ground; as he fell, he saw McReynolds discard something from his pocket. A bag was later found in the vicinity where McReynolds had discarded the item from his pocket. The bag contained two partially burned marijuana cigarettes.
When McReynolds fled, he was also pursued by the police officer in the patrol car and a third law enforcement agent who had arrived on the scene. The officer spotted McReynolds and began to pursue him on foot; he caught up with McReynolds and tackled him. The officer had McReynolds around the neck and told him "he was under arrest, to stop fighting." The struggle continued and at some point the officer's weapon was fired. The officer's finger was injured when it was caught in the slide mechanism of the weapon. The officer testified:
"Q. All right, sir. And what happened then?
"A. He fell on the ground. I just took the weapon, put the safety back on, put it back in the holster and snapped it.
"Q. Did you then try to complete your arrest procedure?
When the officer got close to McReynolds, McReynolds threw the officer six or seven feet and fled again. The officer caught up to McReynolds four more times but ...