People v. Martin

• Decision Date: 06 October 1980
• Docket Number: Docket No. 43993
• Citation: 100 Mich.App. 447,298 N.W.2d 900
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ricky MARTIN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 900

298 N.W.2d 900

100 Mich.App. 447

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ricky MARTIN, Defendant-Appellant.

Docket No. 43993.

Court of Appeals of Michigan.

Oct. 6, 1980.

Released for Publication Dec. 9, 1980.

James R. Neuhard, State Appellate Defender, Susan J. Smith, Asst. Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward J. Grant, Pros. Atty., John L. Wildeboer, Asst. Pros. Atty., for plaintiff-appellee.

Before KELLY, P. J., and WALSH and BEASLEY, JJ.

WALSH, Judge.

Defendant, Ricky Martin, was convicted, in a nonjury trial, of prison escape. M.C.L. § 750.193; M.S.A. § 28.390. He was also found guilty of being a second felony offender. M.C.L. § 769.10; M.S.A. § 28.1082. He was sentenced to a prison term of one year and four months to seven years and six months, to be served consecutively to the sentence which was being served by him on the day of his escape.

Prior to trial the prosecution filed a motion in limine to exclude evidence of the anticipated defense of medical necessity. Defendant, another inmate, and the prison's medical records administrator testified at the hearing on the motion. At the close of proofs, the trial court ruled that defendant would not be allowed to present the defense of medical necessity to a jury. The court's ruling was based on its evaluation of the evidence in light of the requirements set forth in People v. Hocquard, 64 Mich.App. 331, 337-338, 236 N.W.2d 72 (1975), lv. den. 397 Mich. 833 (1976). Because of the court's ruling, defendant waived trial by jury. The defense presented no opening statement, no witnesses and no closing argument. The court found defendant guilty of prison escape.

The Supreme Court has recently reiterated the right of a criminal defendant, in a jury trial, to have the trier of fact instructed on a defense theory when there is a request for the instruction and evidence to support it. People v. Frederick Lester, 406 Mich. 252, 277 N.W.2d 633 (1979). Once the defendant has presented some supporting evidence, it is for the jury to determine, under proper instructions, its sufficiency. People v. Hoskins, 403 Mich. 95, 267 N.W.2d 417 (1978).

In our judgment, the trial court in the instant case impermissibly invaded the province of a jury in prohibiting introduction of evidence of the defense of medical necessity. While we express no opinion as to the sufficiency of the evidence to justify an acquittal based thereon, our examination of the record convinces us that defendant presented some evidence on each of the following requisite elements.

I. There must be present, imminent and impending compulsion of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. Threat of future injury is not sufficient. People v. Hocquard, supra, 337, 236 N.W.2d 72.

Defendant testified that he had had problems with his feet and eyes. With particular reference to the latter, he testified that on the day he left the prison farm he had blacked out and had almost been run over by a hi-lo. According to defendant he had "a great fear of losing (his) eyesight".

II. There is no time to complain to the authorities or there is a history of futile complaints making any result from such complaints illusory. Id., 337, 236 N.W.2d 72.

Defendant testified that he had complained several times about his eyes and the troublesome bunions on his feet. He had also complained of migraine headaches. According to defendant, an examination at the infirmary had revealed his need for glasses. He did not receive the glasses until after the alleged escape. The two days preceding his leaving the prison farm, he had gone to the infirmary about his feet but had not been able to see a doctor. On the day he left, he complained to the foreman of migraine headaches and his feet.

III. There is no time or opportunity to resort to the courts. Id., 337, 236 N.W.2d 72.

Defendant testified that he had not attempted to go to court for a writ of mandamus or other legal action to force the prison to give him medical treatment. He further testified, however, that he had a tenth grade education, he had never before been in legal trouble, there was no legal counselor at the prison farm, and he did not know what a writ of mandamus was. According to defendant, he was not aware of any legal action which may have been available to him.

IV. There is no evidence of force of violence used towards prison personnel or other innocent persons in the escape. Id., 337-338, 236 N.W.2d 72.

That this element was established is beyond dispute.

V. The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat. Id., 338, 236 N.W.2d 72.

Defendant left the prison farm around 10 p. m. and was picked up by the police, on the road near another prison farm, at 10 a. m. the next day. According to defendant, his intention had been to seek medical help inside the main prison where he would have priority access to the infirmary. The sole prison hospital was also there.

We find that defendant presented some evidence in support of each of the elements of the defense of necessity. Except in "all but the clearest cases", People v. Harmon, 53 Mich.App. 482, 486, 220 N.W.2d 212 (1974), aff'd 394 Mich. 625, 232 N.W.2d 187 (1975), the defense of necessity, like the analogous defense of duress, is a question for the jury. See People v. Luther, 394 Mich. 619, 622-623, 232 N.W.2d 184 (1975). Because defendant presented some competent evidence in support of his anticipated defense, the court erred in ruling that the defense could not be submitted to a jury. We reverse, therefore, and remand for a new trial.

Defendant also challenges his habitual offender conviction in several respects. His argument that it is impermissible to charge a prison escapee as an habitual offender has been rejected by the Supreme Court, People v. Shotwell, 352 Mich. 42, 88 N.W.2d 313 (1958), cert. den. 356 U.S. 976, 78 S.Ct. 1141, 2 L.Ed.2d 1149 (1958). Defendant's constitutional challenges have also been rejected. People v. Shastal, 26 Mich.App. 347, 182 N.W.2d 638 (1970), People v. Potts, 55 Mich.App. 622, 634-638, 223 N.W.2d 96 (1974), lv. den. 396 Mich. 826 (1976).

Defendant's final claim is that delay in filing the supplemental information precludes conviction on that charge. The original information charging defendant with prison escape was filed on June 23, 1978. The supplemental information charging him as an habitual offender was not filed until October 4, 1978. Defendant was tried and convicted on the escape charge on October 12, 1978. It is not disputed that the supplemental information was filed as a direct result of defendant's refusal to plead guilty to the escape charge.

In People v. Fountain, 407 Mich. 96, 282 N.W.2d 168 (1979), reh. den. 407 Mich. 1152 (1979), the Supreme Court ruled that a prosecutor who has knowledge of a defendant's prior felonies must file habitual offender charges "promptly" if at all. Fountain, supra, 98, 282 N.W.2d 168. The Supreme Court cited two purposes for the rule: the first was to provide fair notice to the accused; and the second was to avoid even the appearance of prosecutorial impropriety. Fountain, supra, 99, 282 N.W.2d 168.

With respect to the fair notice aspect of the Fountain decision, Fountain probably merely restates prior law. In People v. Stratton, 13 Mich.App. 350, 164 N.W.2d 555 (1968), the proper procedure for the timing of the filing of the supplemental information was clearly described.

"Thus, as we now read sections 10, 11, 12 and 13, they contemplate 2 separate situations and procedures to be followed when the prosecutor desires to make possible the meting out of an increased penalty pursuant to the habitual criminal sections of the code of criminal procedure. The procedure set forth in section 13 is to be followed whenever it appears to the prosecutor 'after conviction' of the current charge that the felon has a prior felony record. However, where it appears to the prosecutor before conviction of the current charge that the accused person is a prior felon, the accused person is to be informed against as a prior offender prior to conviction on the current charge; the procedure set forth in section 13 need not be followed." Stratton, supra, 356, 164 N.W.2d 555. (Footnote omitted.)

This procedure was approved by the Supreme Court in People v. Hatt, 384 Mich. 302, 181 N.W.2d 912 (1970). In People v. Marshall, 41 Mich.App. 66, 199 N.W.2d 521 (1972), however, this Court ruled that the Stratton/Hatt procedure was not mandatory at least in the sense that failure to follow it would not preclude a prosecutor from proceeding on a supplemental information when there was some legitimate reason for not following the procedure and there was no showing that any substantial prejudice resulted to the defendant from the delay. The prosecutor would be precluded from proceeding on the supplemental information if delay for which there was no good reason substantially prejudiced the defendant.

"Clearly, the prosecutor has discretion to file a supplemental information under the habitual criminal act after conviction, and is not limited to filing such supplemental information prior to conviction of a current charge, where he has knowledge of the previous conviction." Marshall, supra, 72-73, 199 N.W.2d 521.

However,

" * * * where no good reason exists for the delay in filing a supplemental information charging the defendant as a subsequent offender, and the delay on the part of the prosecutor substantially prejudices defendant's rights, the filing of that supplemental information clearly denies defendant his right to due process of law." Marshall, supra, 74, 199 N.W.2d 521.

In People v. Hendrick, 398 Mich. 410, 247 N.W.2d 840 (1976), the Supreme Court cited Marshall without disapproval and ruled that ...