Craddock v. State

• Decision Date: 09 January 1981
• Docket Number: No. 581,581
• Parties: Donald CRADDOCK v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 513

47 Md.App. 513

424 A.2d 168

Donald CRADDOCK v. STATE of Maryland.

No. 581.

Court of Special Appeals of Maryland.

Jan. 9, 1981.

Patricia A. Logan, Asst. Public Defender with whom was Alan H. Murrell, Public Defender of Maryland, on brief, for appellant.

Ann E. Singleton, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Warren B. Duckett, Jr., State's Atty. and R. David Fordham, Asst. State's Atty., for Anne Arundel County, on brief, for appellee.

Submitted before GILBERT, C. J., and MORTON and THOMPSON, JJ.

GILBERT, Chief Judge.

The appellant, Donald E. Craddock, was convicted by a jury in the Circuit Court for Anne Arundel County (Childs, J.) of the crime of escape. Md.Ann.Code art. 27, § 139. On appeal to this Court, the appellant asks:

"1. Did the trial court err in ruling that Appellant could not call witnesses to testify concerning the coercive circumstances which compelled his escape?

2. Did the trial court err in refusing to allow Appellant to testify concerning threats he received immediately prior to his escape?

3. Did the trial court commit plain error in instructing the jury that the defendant has the burden of persuasion in establishing the defense of necessity?

4. Did the trial judge err in permitting the State to comment on Appellant's prior convictions in argument?"

The issues can be reduced to one question, namely: According to the Supreme Court decision of United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 564 (1980), did the trial judge properly exclude testimony which would have supported the appellant's defenses of necessity and duress to the escape charge? We hold that the trial judge did not err, and we affirm the appellant's conviction.

This Court, in Robinson v. State, 42 Md.App. 617, 402 A.2d 115 (1979), articulated the elements necessary to establish a successful defense of necessity and duress. ¹ We said:

" '(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;

(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which makes any result from such complaints illusory;

(3) There is no time or opportunity to resort to the courts;

(4) There is no evidence of force or violence used towards prison personnel or other "innocent" persons in the escape; and

(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.' " Id. at 621, 402 A.2d at 117, quoting People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110, 115 (1975).

The Supreme Court, in United States v. Bailey, supra, addressed the element of necessity as a defense to an indictment charging escape. See 18 U.S.C. § 751(a). The defendants in Bailey escaped from a District of Columbia jail and were recaptured a few months later. Relying on the defense of necessity, each defendant averred that the escape was motivated by intolerable conditions existent in the jail, but during the course of the trial, they were unable to offer evidence of whether they had surrendered or had attempted to surrender to the authorities. The defendants did, however, give the reasons why they did not surrender. Primarily the defendants claimed to have heard reports from unidentified sources that the authorities would shoot them upon surrender.

At the close of the evidence, the trial judge refused to instruct the jury on the defense of necessity inasmuch as one element of the defense, that of surrender to the authorities once the conditions which prompted the escape were removed, had not been adequately shown. In affirming the District Court's decision, the Supreme Court held that a defendant accused of escape is not entitled to a jury instruction on the defense of necessity unless he proffered "testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force." 444 U.S. at 413, 100 S.Ct. at 635.

In the instant case, Judge Childs excluded evidence of the defense of necessity and duress because the appellant was unable to show to the court's satisfaction that he surrendered to the authorities once the "coercive force" was removed. The record indicates that the appellant escaped from the Maryland House of Correction and was apprehended by the authorities approximately one month later in Savannah, Georgia. During the trial, Judge Childs requested that the appellant show that he had "turned himself in as soon as the danger to which he subscribe(d) (was) eliminated." The appellant's proffer, however, fell short...