People v. Hocquard

Decision Date22 September 1975
Docket NumberDocket No. 16400--1
Citation236 N.W.2d 72,64 Mich.App. 331
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Earl E. HOCQUARD and Gene E. Mitchell, Defendants-Appellants. 64 Mich.App. 331, 236 N.W.2d 72
CourtCourt of Appeal of Michigan — District of US

James R. Neuhard, State Appellate Defender, Detroit, for defendants-appellants.

[64 MICHAPP 333] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty., for plaintiff-appellee.

Before BASHARA, P.J., and GILLIS and CAVANAGH, JJ.

BASHARA, Judge.

Defendants, Earl E. Hocquard and Gene E. Mitchell, were convicted by a jury of attempted prison escape. M.C.L.A. § 750.193; M.S.A. § 28.390. Our Court affirmed the conviction in an order issued on January 25, 1974. The Michigan Supreme Court vacated the order and remanded for rehearing. 1 Later the Michigan Supreme Court amended their order to limit reconsideration to the issues of the scope of cross-examination of defendant Hocquard, the excluded defense of duress,[64 MICHAPP 334] and the denial of separate trials. 2 The facts are set out in a discussion of the issues.

The first issue presented is whether the trial judge erred in requiring Hocquard to remain on the witness stand for cross-examination after denying Hocquard's offer of proof on the defense of duress. Hocquard took the witness stand in his own defense and testified to his name and address. Defense counsel then inquired into Hocquard's medical history prior to the attempted prison escape. The prosecutor objected to the question on the ground that such inquiry was immaterial. The trial court ruled that the defense of duress was available in limited circumstances as a defense to prison escape and agreed to hear an offer of proof. Accordingly, the jury was excused and Hocquard made an offer of proof on the defense of duress. After the offer of proof the trial judge ruled that Hocquard's allegations did not satisfy the elements of the defense of duress. At this point defense counsel stated, 'I'm wondering if he'd be on the stand, excused or remain here.' The court ruled that Hocquard was still subject to cross-examination and brought back the jury. On cross-examination, without objection, Hocquard admitted all the elements of the crime.

Hocquard contends that he took the stand for the limited purpose of making an offer of proof on the defense of duress. Once the court ruled that the defense of duress was not available there was no reason for Hocquard to testify. Therefore, requiring Hocquard to submit to cross-examination violated his privilege against self-incrimination.

The record discloses nothing to indicate that Hocquard initially took the stand for the limited purpose of making an offer of proof on the defense [64 MICHAPP 335] of duress. Defense counsel should have announced that he was proposing his witness for the sole purpose of a limited evidentiary hearing on the question of the defense of duress. Once the defendant assumed the stand he waived his constitutional right to refuse to answer any question that may be material to the case and which would, in the case of any other witness, be legitimate cross-examination. People v. Johnson, 382 Mich. 632, 172 N.W.2d 369 (1969), Cert. den. 397 U.S. 1079, 90 S.Ct. 1533, 25 L.Ed.2d 816 (1970).

We must determine whether the procedure of defense counsel allowing the defendant to take the stand without attempting to limit the scope of examination was so injurious that, but for this action, the defendant might not have been convicted. People v. Degraffenreid, 19 Mich.App. 702, 173 N.W.2d 317 (1969). The evidence, excluding the confession on the witness stand, shows that Hocquard did attempt to escape from prison. Two guards identified the defendant as the individual who came to the main gate dressed as a guard and attempted to leave the prison. Three other guards testified to seeing the defendant dressed in a guard uniform at the control center. The evidence tended to show that the defendant attempted to obtain a pass at the control center to leave the prison. When the defendant could not produce identification he was taken tnto custody. The evidence is overwhelming that the defendant would have been convicted even if defense counsel had not proceeded as he did.

The next issue presented is whether the trial court erred in refusing to allow the jury to consider Hocquard's offer of proof on the defense of duress. He attempted to show that he had a medical history of back problems and that he was [64 MICHAPP 336] periodically treated by Dr. Frank Walker. Hocquard re-injured his back a month before the prison escape while working in the prison tin shop. He described the pain as so excruciating that he had difficulty sleeping at night. Hocquard testified that he requested help in obtaining medical attention from his shop supervisor and the security officer in the tin shop. A letter was obtained from Dr. Walker documenting Hocquard's back problems and copies of the letter were sent to the Prison Hospital Administrator and the Director of the Department of Corrections. Still Hocquard received no medical treatment. At the time of his attempted escape Hocquard testified that the pain was so severe that he could not bend at the waist. At the close of the offer of proof the trial court ruled that Hocquard's physical condition did not satisfy the elements of the defense of duress. Apparently, the trial judge did not believe that Hocquard's physical injury was of such a nature to induce a well founded apprehension of death or serious bodily harm, which is an element of the defense of duress.

In the past courts have refused to recognize defenses to prison escape based upon unsanitary and unhealthy conditions, State v. Davis, 14 Nev. 439 (1880), or intolerable living conditions and brutal and inhuman treatment by guards, People v. Whipple, 100 Cal.App. 261, 279 P. 1008 (1929), or inadequate medical attention. State v. Palmer, 6 Terry 308, 45 Del. 308, 72 A.2d 442 (1950). The rationale has been founded on public policy. See State v. Palmer, supra at 310, 72 A.2d at 444. We reject public policy considerations that condone and sanction inhuman treatment of prisoners incarcerated in penitentiaries.

The cases of People v. Harmon, 53 Mich.App. 482, [64 MICHAPP 337] 220 N.W.2d 212 (1974), Lv. granted 392 Mich. 817 (1974), and People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110 (1974), have respectively allowed the defenses of duress and necessity 3 to prison escape arising out of threats of homosexual attack. We believe that the defense of necessity is applicable to those situations where a prisoner had been denied requested medical care. However, we hold that the defense of necessity is a very limited defense to the crime of prison escape or attempted prison escape. It may only be considered by the trier of fact where there is a prima facie showing of evidence to support each and every one of the following elements:

1. 'The compulsion must be present, imminent and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. A threat of future injury is not enough.' 4

2. 'There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory; 5

3. 'There is no time or opportunity to resort to the courts;

4. 'There is no evidence of force or violence used [64 MICHAPP 338] 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.' 6 (Footnote omitted.)

The facts presented in the offer of proof show that there existed a history of complaints seeking medical treatment and that no force or violence was used in the prison escape. The element of whether Hocquard was forced with a well grounded apprehension of death or serious bodily harm is 'in all but the clearest cases, to be decided by the trier of fact...

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