People v. McKnight

Decision Date13 April 1981
Docket NumberNo. 80SA251,80SA251
Citation626 P.2d 678
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Shane McKNIGHT, Defendant-Appellant.
CourtColorado Supreme Court

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Mary E. Ricketson, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, State Public Defender, Ilene P. Buchalter, Deputy State Public Defender, Denver, for defendant-appellant.

HODGES, Chief Justice.

Appellant McKnight was convicted of escape from the Colorado State Penitentiary. On appeal, he urges reversal of that conviction on several grounds. We affirm the judgment of the trial court.

Appellant and eight other inmates escaped from the penitentiary. Appellant was subsequently recaptured and charged with escape in violation of section 18-8-208, C.R.S.1973 (1978 Repl. Vol. 8). Following a jury trial, he was found guilty and sentenced to a term of not less than five nor more than eight years imprisonment, to be served consecutively with the sentence he was serving at the time of escape.


Appellant's first claim of error is that the trial court improperly admitted into evidence a statement made by him in response to questions asked by John Snow, chief investigating officer for the penitentiary. Following his recapture, appellant was advised of his Miranda rights. Thereafter, in response to questions concerning the escape, appellant told Officer Snow:

"Shit, I won't tell a fucking thing. I'm doing a bunch now. If I get a chance I'll do it again. I won't tell you a fucking thing."

The district attorney sought to introduce appellant's statement to Officer Snow to rebut the defense theory of choice of evils. Defense counsel sought to have the statement excluded, however, because the district attorney had failed to disclose it pursuant to the defense's Crim.P. 16 I(a)(1) discovery motion. Specifically, the defense had sought to discover,

"(a)ny statement, whether oral, written, recorded or otherwise transcribed or summarized in writing, made by the Defendant (appellant) to any person, witness or law enforcement officer before, at the time of or after his arrest."

Defense counsel also sent a letter to the district attorney requesting discovery. Despite these inquiries, the district attorney never advised defense counsel of the existence or contents of appellant's statement to Officer Snow.

Crim.P. 16 I(a)(1)(II) provides in pertinent part:

"(T)he prosecuting attorney upon request of the defense counsel shall disclose to the defense counsel the following material and information which is within the possession or control of the prosecuting attorney:

(II) Any written or recorded statements and the substance of any oral statements made by the accused...."

The record indicates that the district attorney had actual notice of appellant's statement at least two days prior to the commencement of the trial. 1 In overruling appellant's objection to the introduction of appellant's statement, the district court ruled that Crim.P. 16 I(a)(1)(II) did not entitle the defense to discover every statement made by the appellant in the possession or control of the district attorney, but only to discover those statements directly relating to the particular case.

The provisions of Part I(a)(1) of Crim.P. 16 differentiate between discovery of statements made by "witnesses," Crim.P. 16 I(a)(1)(I), and statements made by the accused, Crim.P. 16 I(a)(1)(II). 2 With regard to statements by witnesses, the district attorney must disclose those statements in his possession or control which are relevant. Crim.P. 16 I(a)(1)(I). See People v. Smith, 185 Colo. 369, 524 P.2d 607 (1974). But as to statements made by the accused in the possession or control of the district attorney, the statute sets forth no such qualifying factor. Crim.P. 16 I(a)(1)(II).

The trial court, in effect, ruled that the district attorney was required to disclose only those statements of an accused which are directly relevant to the charges pending against the accused. Because appellant's statement to Officer Snow was not relevant until appellant presented his choice of evils theory of defense, the trial court stated that discovery of this statement was not required by Crim.P. 16. The trial court misinterpreted the meaning and import of Crim.P. 16 and improperly admitted the statement into evidence.

When a statement sought to be discovered is that of the accused, the district attorney has a greater duty to disclose than in any other circumstances. See Crim.P. 16 I(a)(1)(II). We wish to make it clear and emphasize that Crim.P. 16 requires that every statement made by the accused which is in the possession or control of the district attorney and which relates in any way to the series of events from which the charges pending against the accused arose must be disclosed to the defense upon an appropriate motion.

Appellant contended at trial that his escape from the state penitentiary was justified as a choice of evils. Specifically, appellant claimed that he had to leave the tension-filled environment of the prison or lose his sanity. 3

Section 18-1-702(1), C.R.S.1973 (1978 Repl. Vol. 8), provides:

"(C)onduct which would otherwise constitute an offense is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no conduct of the actor, and which is of sufficient gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue."

The choice of evils defense may be available to justify a prison escape if the facts of the case, as a matter of law, satisfy the conditions stated in section 18-1-702, C.R.S.1973. See, e. g., People v. Handy, 198 Colo. 556, 603 P.2d 941 (1979), and cases cited therein. See also People v. Strock, Colo., 623 P.2d 42 (1981) for an excellent discussion of the choice of evils defense and the defense of duress in escape cases.

Ordinarily, for the defense of choice of evils to be available, it must be shown that the defendant's conduct was necessitated by a specific and imminent threat of injury to his person under circumstances which left the defendant no reasonable alternative other than the violation for which he is charged. People v. Handy, supra; People v. Robertson, 36 Colo.App. 367, 543 P.2d 533 (1975). In addition, where the charge is escape, the defendant must also show that the escape was committed without violence, State v. Reese, 272 N.W.2d 863 (Iowa 1978); State v. Worley, 265 S.C. 551, 220 S.E.2d 242 (S.C.1975), and that the defendant voluntarily submitted to authorities as soon as a position of safety was reached. United States v. Michelson, 559 F.2d 567 (9th Cir. 1977); People v. Strock, supra; People v. Handy, supra; State v. Reese, supra; State v. Worley, supra; State v. Baker, 598 S.W.2d 540 (Mo.App.1980); People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110, 69 A.L.R.3d 668 (1975).

In this case, appellant alleges that he was forced to escape or risk losing his sanity as a result of a build up of friction and tension. We now join with many other jurisdictions in holding that normal conditions of confinement, as a matter of law, will not support a defense of choice of evils pursuant to section 18-1-702, C.R.S.1973. State v. Alberigo, 109 Ariz. 294, 508 P.2d 1156 (1973); Coley v. State, 135 Ga.App. 810, 219 S.E.2d 35 (1975); State v. Rentschler, 444 S.W.2d 453 (Mo.1969); State v. King, 372 S.W.2d 857 (Mo.1963); State v. Battles, 585 S.W.2d 213 (Mo.App.1979); People v. Brown, 68 App.Div.2d 503, 417 N.Y.S.2d 966 (1979); State v. Cross, 58 Ohio St.2d 482, 391 N.E.2d 319 (1979); Commonwealth v. Stanley, 401 A.2d 1166 (Pa.Super.1979); see 69 A.L.R.3d 678, 689 et seq. (1976), and cases cited therein. This is particularly so in this case where appellant made no effort to seek help through established, lawful channels. 4

The defense of choice of evils was not available to appellant for the reasons stated above. Consequently, the impropriety of the trial court in admitting the statement by appellant to rebut that asserted defense is not such an error under the facts of this case as would justify reversal of the appellant's conviction. To constitute reversible error, the challenged testimony of the officer must affect the substantial rights of the defendant. Crim.P. 52(a) provides that any error which does not affect the substantial rights of the defendant shall be disregarded. Here, the evidence independent of the defendant's testimony and the challenged statement overwhelmingly established his guilt.

Although it could be argued that failure to disclose the statement impaired the defendant's ability to make an informed choice whether to exercise his constitutional right to testify, we conclude that the error was harmless beyond a reasonable doubt under the guidelines of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1965). The substantial and uncontroverted evidence of guilt here clearly demonstrates that the error was harmless beyond a reasonable doubt.

We therefore conclude that the defendant's substantial rights were not affected by the admission into evidence of the challenged statement, and that no reversible error occurred.


Appellant next contends that the trial court committed error by refusing to instruct the jury on appellant's theory of defense. This argument is without merit.

The defense tendered to the trial court judge the following theory of the case instruction:

"A person who is in a situation where it appears that he is in real danger has the right to act upon appearances, even though such appearances may prove to be...

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