People v. Blair, Docket No. 86019

Decision Date03 June 1987
Docket NumberDocket No. 86019
Citation403 N.W.2d 96,157 Mich.App. 43
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Tracey BLAIR, Defendant-Appellant. 157 Mich.App. 43, 403 N.W.2d 96
CourtCourt of Appeal of Michigan — District of US

[157 MICHAPP 44] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Gary M. Gabry, Pros. Atty., Tonatzin M. Alfaro Garcia, Asst. Atty. Gen., for the People.

William A. Van Eck, Belding, for defendant-appellant on appeal.

Before WALSH, P.J., and HOOD and HANSEN, * JJ.

HOOD, Judge.

Following a jury trial, defendant was convicted of being an inmate in possession of a weapon, namely, a sharpened spoon, M.C.L. Sec. 800.283(4); M.S.A. Sec. 28.1623(4), and was sentenced to from three to five years imprisonment, the term to run consecutive to the sentence defendant was already serving. In this appeal as of right, defendant's sole appellate issue concerns the availability of the defense of duress to a charge of being an inmate in possession of a weapon.

At trial, defendant admitted that he was incarcerated[157 MICHAPP 45] in the Michigan Reformatory in Ionia and that a sharpened spoon had been taken from him by a guard during a "shakedown." The corrections officer testified that he decided to "shakedown" a small group of inmates after he reviewed a log book which showed that a fight had taken place between some inmates the night before. At trial, defendant admitted that he planned to use the sharpened spoon to defend himself because he believed that he was in danger from other inmates. However, defendant was not allowed to further explain why he believed he was in danger because the trial court ruled that the defense of duress was unavailable to him.

Prior to trial, defendant made a motion to hire an investigator or for the authorization of funds so that his attorney could locate and interview inmate witnesses who defendant alleged could help his case. Defendant alleged that six other inmates would testify that a group of inmates were going to do physical harm to him and that his request for help from two corrections officers had been ignored. Three of these inmates had allegedly seen defendant approach a corrections officer about the threats. Defendant also alleged that another corrections officer knew of the threats.

Following the submission of briefs on the question of the availability of the duress defense, the trial court stated that, even if the duress defense was available to defendant, the defendant had failed to make a prima facie showing that he was entitled to the defense by showing: (1) that the threats made against him had placed him in immediate danger, (2) that he had made complaints to the authorities which were ignored, (3) that there was no opportunity to resort to the courts, and (4) that he would not harm anyone by committing the crime. The judge then ruled that duress [157 MICHAPP 46] would be a proper defense to an inmate in possession charge, but because defendant had failed to present a prima facie case of duress, he was not entitled to assert the defense at trial. The court then denied defendant's original motion for money to hire an investigator.

When defendant's first trial ended in a mistrial, he again filed notice of his intention to assert a duress defense and submitted an affidavit in support of his motion. In his affidavit, defendant alleged that he was threatened by several inmates, but when he reported the threats to a floor guard, Bruce Hulander, the guard told defendant that defendant "had a personal problem" and should go to his cell. The guard allegedly ignored his request for permission to report the problem to Inspector Ward.

Defendant further averred that, the same day, each time Officer Gorby made his rounds, defendant informed him that he "needed to discuss this problem," but Officer Gorby kept telling him he was busy, but he would talk to him later. Defendant remained in his cell during both lunch and dinner apparently because the attack was supposed to occur in the mess hall. That night he acquired a spoon and sharpened it on the floor of his cell. He went to breakfast in the morning "with the intent of getting to the control center," but before he could the weapon was discovered.

The court, reasoning that to permit the duress defense would be tantamount to authorizing inmates to arm themselves, ruled that the duress defense was unavailable for public policy reasons. The judge then held that even if a duress defense was available, defendant was not entitled to assert it under the circumstances. Subsequently, the court signed an order precluding defendant from raising the defense.

[157 MICHAPP 47] At trial, the court ruled that even though defendant could not assert a duress defense by presenting other witnesses, he could testify as to duress himself. Defendant testified that he possessed the sharpened spoon because he feared for his life as the result of an incident that had occurred the previous day. When defense counsel asked him what had happened, the prosecutor's relevancy objection was sustained. Defendant said that he knew he was going to be searched but he did not run and was actually relieved when the spoon was found because he knew that he would be segregated from the rest of the inmates. When he began to testify that he had asked to be voluntarily segregated the previous day, the trial court again sustained the prosecutor's objection to the testimony.

The judge declined to give the duress instruction requested by defendant. The jury then returned with a guilty verdict.

M.C.L. Sec. 800.283(4); M.S.A. Sec. 28.1623(4) provides:

"Unless authorized by the chief administrator of the correctional facility, a prisoner shall not have in his or her possession or under his or her control a weapon or other implement which may be used to injure a prisoner or other person, or to assist a prisoner to escape from imprisonment."

In People v. Perry, 145 Mich.App. 778, 377 N.W.2d 911 (1985), this Court refused to hold that the statute imposed strict liability upon any prisoner found holding a weapon. The Court ruled that the defendant was entitled to have the jury instructed that, if defendant had acquired the weapon purely in self-defense and intended to give the weapon to prison authorities at the first opportunity, he was not guilty of possession of a weapon. In Perry, [157 MICHAPP 48] defendant claimed that he had taken the weapon, a pipe, from another inmate during an affray and he was merely attempting to disarm the aggressor. The Court reasoned that strict liability should not be presumed in a criminal penal statute. 145 Mich.App. at 783-784, 377 N.W.2d 911.

The defense of duress has been recognized by the appellate courts of this state where an inmate is charged with escape. In People v. Luther, 394 Mich. 619, 622, 232 N.W.2d 184 (1975), the Supreme Court stated:

"[D]uress is a well recognized defense. People v. Repke, 103 Mich 459; 61 NW 861 (1895), and People v. Merhige, 212 Mich 601; 180 NW 418 (1920). A successful duress defense excuses the defendant from criminal responsibility for an otherwise criminal act because the defendant was compelled to commit the act; the compulsion or duress overcomes the defendant's free will and his actions lack the required mens rea."

The defendant in Luther testified that he was confronted in a lavatory by six unknown assailants who made homosexual demands of him. When the defendant refused to submit to the acts suggested, he was beaten with a toilet bowl brush, had a knife waved in his face, was knocked down or fell down, hitting his...

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4 cases
  • People v. Rau
    • United States
    • Court of Appeal of Michigan — District of US
    • February 24, 1989
    ...(1985), lv. den. 424 Mich. 857 (1985). However, that decision turned on the issue of what constituted possession. People v. Blair, 157 Mich.App. 43, 403 N.W.2d 96 (1987), also reached a contrary result on facts similar to those in the matter before us. We decline, however, to follow that pa......
  • People v. Travis
    • United States
    • Court of Appeal of Michigan — District of US
    • March 7, 1990
    ...43, 48-50, 403 N.W.2d 96 (1987), lv. den. 428 Mich 902 (1987). In Rau, supra, 174 Mich.App. at p. 342, 436 N.W.2d 409, disagreeing with Blair, supra, our Court We are aware of this Court's decision in People v. Perry, 145 Mich App 778; 377 NW2d 911 (1985), lv den 424 Mich 857 (1985). Howeve......
  • Commonwealth v. Valcarel
    • United States
    • Pennsylvania Superior Court
    • June 12, 2014
    ...evidence of a defense to an inmate not to possess a weapon” charge. Appellant's Brief at 15 (citing, inter alia, People v. Blair, 157 Mich.App. 43, 403 N.W.2d 96 (1987); State v. Vandiver, 757 S.W.2d 308 (Mo.App.1988); Mungin v. State, 458 So.2d 293 (Fla.Dist.Ct.App.1984)). The defense thes......
  • People v. Andrews
    • United States
    • Court of Appeal of Michigan — District of US
    • February 3, 1992
    ...the defense of duress was not allowed with respect to the charge of being a prisoner in possession of a weapon. In People v. Blair, 157 Mich.App. 43, 403 N.W.2d 96 (1987), the Court borrowed the common-law duress analysis from prison escape cases. The Rau panel declined to follow Blair and ......

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