Juvenile Appeal (Docket No. 9268), In re, Docket No. 9268

• Decision Date: 12 May 1981
• Docket Number: Docket No. 9268
• Court: Connecticut Supreme Court
• Parties: In re JUVENILE APPEAL ().

Page 958

439 A.2d 958

184 Conn. 157

In re JUVENILE APPEAL (Docket No. 9268).

Supreme Court of Connecticut.

Argued Jan. 8, 1981.

Decided May 12, 1981.

George R. Oleyer, Asst. Public Defender, for appellant (defendant).

Andrew Chulick, Sp. Court Advocate, Bridgeport, for appellee (plaintiff).

Before BOGDANSKI, PETERS, HEALEY, ARMENTANO and WRIGHT, JJ.

ARTHUR H. HEALEY, Associate Justice.

By an amended six count petition, dated April 17, 1978, the defendant was charged with being a delinquent by reason of allegedly having committed certain acts in violation of our General Statutes. After a hearing on four of those counts, ¹ the court found the defendant responsible for the acts committed in two of them: physical injury to Samuel Coney, in violation of General Statutes § 53a-61, and physical injury to Thomas Dagata, in violation of the same section. The defendant was adjudicated a delinquent with respect to these two counts, ² and from that adjudication he has appealed. ³

From the evidence presented at the hearing, the court could have reasonably found the following: The defendant was born on May 21, 1963. At all times relevant to the charges in the petition, he was under sixteen years of age. On June 24, 1975, the defendant had been committed to the commissioner of children and youth services, as a result of an adjudication of delinquency, for an indefinite period not to exceed two years. On June 14, 1977, the defendant's commitment was extended for an indefinite period not to exceed two years. ⁴

On August 6, 1977, the defendant was in residence at Allyn Cottage at Long Lake School. ⁵ On that date, Samuel Coney, Jr., a youth service officer (YSO) at Long Lane, was on duty at Allyn Cottage. Part of Coney's duties included the control and supervision of the inmates of Allyn Cottage.

At about 11:30 a. m., the defendant, along with other boys, was outside the cottage cleaning the yard. A dispute and altercation arose between the defendant and another youth. Coney, informed of this incident, directed the defendant to return to the isolation room.

On the way back to the isolation room, a discussion ensued between Coney and the defendant. Upon arriving at the isolation room, the defendant refused to go in, and commenced to direct obscenities at Coney. Thereupon, Coney decided to telephone for a security officer.

As Coney proceeded to telephone the security officer, the defendant ran past him to the outside of the building. Coney did not pursue him, but called the security officer. About twenty to thirty minutes later, the defendant voluntarily returned to the cottage, and was found by Coney in the isolation room.

Coney requested the defendant, who was smoking a cigarette, to give him the cigarette and directed him to remove his clothes, with the exception of his underwear. ⁶ The defendant refused to do either.

Coney told the defendant that he was going to call the security officer, and directed one of the other inmates to make the call. The defendant threatened to burn down the cottage if Coney called the security officer, and deliberately put his cigarette to a sheet on the mattress in the room. Coney grabbed the arm of the hand holding the cigarette. The defendant, using one of his elbows, struck Coney in the mouth, and split the inside of his lip.

In his right hand, the defendant had a metal-like pipe object, similar to the leg of a chair or table. Coney succeeded in taking the object from the defendant and threw it out of the room into the hallway. Coney and the defendant struggled until other members of the staff came and assisted in subduing the defendant.

On October 25, 1977, the defendant was an inmate of Long Lane's diagnostic and security unit, a maximum security facility operated by the department of children and youth services. On that date, Thomas Dagata, a YSO, was assigned to, and on duty at, that unit. That morning, Dagata was giving instructions to another inmate about the inmate's job assignment. Without request, solicitation or provocation, the defendant injected himself into the discussion and questioned the authority of Dagata to give the inmate instructions. The defendant became belligerent towards Dagata, refused to go to his room to cool off, as requested by Dagata, and threatened Dagata, calling him an obscene name.

As Dagata approached the defendant, the defendant started swinging his arms, attempting to punch Dagata. In an effort to restrain him, Dagata grabbed the defendant, and a struggle ensued. The defendant threw a punch, hitting Dagata in the left eye, resulting in a cut and swelling. Another staff member assisted Dagata in mechanically restraining the defendant and placing him into his room. The defendant shouted obscenities at the staff, kicked the door, and made loud noises. After he calmed down, the mechanical restraints were removed, and the defendant was brought to the kitchen for breakfast with the rest of the inmates. After breakfast, the defendant went to the lounge without further incident.

After considering all of the evidence at the hearing, the court was satisfied beyond a reasonable doubt that the defendant voluntarily, knowingly and intentionally committed the third degree assaults, in violation of General Statutes § 53a-61, against both Coney and Dagata. On several grounds, the defendant appeals his adjudication of delinquency.

I

The heart of the defendant's appeal, as he claims in his brief, is that the conditions and circumstances of his confinement constitute a complete defense to the alleged assault of August 6, 1977, and rebut the element of intent. He specifically claims, first, that duress and/or necessity constitute(s) a defense to the assault of Coney on that date, and, on various grounds, ⁷ he claims that the trial court erred in failing to conclude that the defense(s) of duress and/or necessity had been established.

The United States Supreme Court has recently noted that although "(m)odern cases have tended to blur the distinction between duress and necessity," common law historically distinguished between the two defenses. United States v. Bailey, 444 U.S. 394, 409-10, 100 S.Ct. 624, 634, 62 L.Ed.2d 575 (1980). "Duress was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law. While the defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils." United States v. Bailey, supra, 409-10, 100 S.Ct. at 634.

In Connecticut, the defense of duress has been codified. General Statutes § 53a-14, entitled "Duress as defense," states: "In any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was coerced by the use or threatened imminent use of physical force upon him or a third person, which force a person of reasonable firmness in his situation would have been unable to resist. The defense of duress as defined in this section shall not be available to a person who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress." ⁸ There appears to be no statutory definition in Connecticut for the defense of necessity. ⁹

In his argument, the defendant relies heavily on cases where duress and/or necessity were discussed as defenses against the crime of escape. We initially note that the offenses for which the defendant was found responsible were not offenses involving escape but rather assaults in the third degree. The defendant points to no cases where the defense of necessity or duress was successful against the crime of assault.

More importantly, although it appears as if all parties at the hearing below treated the defenses of duress and necessity as one, neither defense will be successful, as the United States Supreme Court has held, "if there was a reasonable, legal alternative to violating the law, 'a chance both to refuse to do the criminal act and also to avoid the threatened harm.' " United States v. Bailey, supra, 444 U.S. at 410, 100 S.Ct. at 634, citing LaFave & Scott, Handbook on Criminal Law 379 (1972). ¹⁰

Upon a review of all the circumstances of this case, even taking into consideration all of the defendant's requested findings and corrected findings, and his claims of error, relating to the duress/necessity claim, we cannot conclude that the defendant did not have a "chance both to refuse to do the criminal act and also to avoid the threatened harm." United States v. Bailey, supra. There is no indication that the defendant ever attempted to resort to administrative or judicial channels to remedy his allegedly coercive detention conditions; see United States v. Boomer, 571 F.2d 543 (10th Cir.), cert. denied, 436 U.S. 911, 98 S.Ct. 2250, 56 L.Ed.2d 411 (1978); People v. Richards, 269 Cal.App.2d 768, 75 Cal.Rptr. 597 (1969); or that the conditions of his confinement or situation were such so as to excuse such an attempt. Accordingly, we find no error.

II

The defendant next claims that the court erred in failing to conclude that he was the subject of an illegal confinement, which circumstance, the defendant contends, constitutes a defense to the assaults committed. ¹¹

In State v. Kyles, 169 Conn. 438, 363 A.2d 97 (1975), we considered whether, under our statutes, illegal confinement is a defense to the offense of escape or assault on a correctional officer. ¹² We held that it was not. We particularly noted the wording of our present statutes on assault and escape, which eliminated from our prior legislation any prerequisite that a person be "legally" confined. State v. Kyles, supra, 441, 363 A.2d 97. ¹³ In...