People v. Mendoza

• Decision Date: 18 August 1981
• Docket Number: Docket No. 52583
• Citation: 310 N.W.2d 860,108 Mich.App. 733
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William MENDOZA, Defendant-Appellant. 108 Mich.App. 733, 310 N.W.2d 860
• Court: Court of Appeal of Michigan — District of US

Page 860

310 N.W.2d 860

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William MENDOZA, Defendant-Appellant.

Docket No. 52583.

108 Mich.App. 733, 310 N.W.2d 860

Court of Appeals of Michigan.

Aug. 18, 1981.

Released for Publication Oct. 20, 1981.

[108 MICHAPP 736] Randy H. Smith, Pros. Atty., Ionia, for plaintiff-appellee.

George R. Frye, Greenville, for defendant-appellant.

Before R. B. BURNS, P. J., and ALLEN and GILLESPIE, ^* JJ.

ALLEN, Judge.

What must a defendant show before the affirmative defense of duress can be submitted to a jury in a trial for prison escape? Defendant raises this issue of first impression after the trial court refused to submit the duress defense to a jury and defendant was convicted on May 7, 1980, of prison escape. M.C.L. § 750.193; M.S.A. § 28.390. Defendant[108 MICHAPP 737] was sentenced to 18 months to five years in prison and appeals by right.

Defendant filed a notice of intent to assert a defense of duress as required by M.C.L. § 768.21b; M.S.A. § 28.1044(2). The prosecution requested that the trial court order defendant to submit more specific information and that defendant be required to name those persons whom he intended to call as witnesses. The court ruled that, if defendant failed to name any witnesses, only he would be allowed to testify at trial and the jury would be able to assess his credibility. The court also ruled that unless defendant filed more specific information, he would be restricted at trial to the information supplied in the notice. Finally, the court adjourned trial to give defendant an opportunity to amend his notice and to give the prosecution time to investigate defendant's claim.

Defendant filed an amended notice which asserted that while at the State Prison for Southern Michigan at Jackson, Michigan, and at the Michigan Training Unit at Ionia, defendant was threatened with homosexual attacks by certain unnamed inmates and was told that some unspecified harm would come to him if he failed to comply. The prosecution again asked the trial court to strike defendant's notice for failing to provide the names of defendant's alleged attackers and for failing to provide specific dates of the alleged incidents. The trial court ruled that any evidence concerning events not occurring at the Michigan Training Unit would be striken but that defendant would be allowed to introduce competent evidence concerning the incidents at the Michigan Training Unit.

Approximately two months later, the prosecution sought to have the defense excluded on a different ground. The trial court ruled that the [108 MICHAPP 738] defendant was required to include in his notice competent evidence on each of several factors enumerated in the notice statute and that, for his failure to do so, defendant would be precluded from asserting the defense at trial. This Court holds that the trial court erred in requiring evidence of each factor and finds that defendant's conviction must be reversed and a new trial held.

The common law has recognized that duress or necessity may be a defense to the crime of prison escape in certain limited circumstances. Anno: Duress, Necessity, or Conditions of Confinement As Justification for Escape From Prison, 69 A.L.R.3d 678. Michigan was among the first states to recognize that a prison escape could be justified by the immediate threat of a homosexual attack. 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). In recognizing this defense, this Court found that the determination of the credibility of a prisoner's explanation lies "solely within the province of the fact-finder and is to be determined within the facts of each case as it arises". People v. Harmon, supra, 487, 220 N.W.2d 212.

After the Harmon decision, the California Court of Appeal recognized the duress defense but held that it was available only when five conditions exist:

"(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;

"(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;

"(3) There is no time or opportunity to resort to the courts;

"(4) There is no evidence of force or violence used [108 MICHAPP 739] 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." People v. Lovercamp, 43 Cal.App.3d 823, 831-832, 118 Cal.Rptr. 110, 69 A.L.R.3d 668 (1974) (Footnote omitted.).

After the Lovercamp decision, some states required that a defendant produce some evidence on each of the five criteria. Iowa v. Reese, 272 N.W.2d 863, 866 (Iowa, 1978). Others, however, have held that, while all five factors are relevant in determining the credibility of the defendant, not all must be present before a jury can consider the defense. State v. Baker, 598 S.W.2d 540, 545-546 (Mo.App., 1980), Esquibel v. New Mexico, 91 N.M. 498, 501, 576 P.2d 1129 (1978), People v. Unger, 66 Ill.2d 333, 342, 5 Ill.Dec. 848, 362 N.E.2d 319 (1977).

In People v. Luther, 394 Mich. 619, 232 N.W.2d 184 (1975), the Michigan Supreme Court held that a defendant successfully raises the duress defense, requiring the prosecution to disprove duress beyond a reasonable doubt, when the defendant presents evidence from which a jury could conclude:

"A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;

"B) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant;

"C) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and

"D) The defendant committed the act to avoid the threatened harm." People v. Luther, supra, 623, 232 N.W.2d 184.

The Supreme Court rejected the prosecution's argument that Michigan should require evidence on all five criteria listed in Lovercamp, but held: [108 MICHAPP 740] "To the extent that competent evidence may be produced as to any of these conditions, it is relevant to the claim of duress. As such, it should be submitted to the jury." Luther, supra, 623, 232 N.W.2d 184.

After Luther was decided, the Michigan Legislature enacted M.C.L. § 768.21b; M.S.A. § 28.1044(2), which requires a defendant wishing to assert a duress defense to file with the court a notice of such intent within 15 days of arraignment, but not less than 10 days before trial. The notice must contain the names of those persons whom defendant intends to call as witnesses and must contain specific information concerning the defense.

Nowhere in the statute is "duress" defined, but § 4 of the statute provides:

"In determining whether or not the defendant broke prison while under duress the jury or court may consider the following conditions if supported by competent evidence :

"(a) Whether the defendant was faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future.

"(b) Whether there was insufficient time for a complaint to the authorities.

"(c) Whether there was a history of complaints by the defendant which failed to provide relief.

"(d) Whether there was insufficient time or opportunity to resort to the courts.

"(e) Whether force or violence was not used towards innocent persons in the prison break.

"(f) Whether the defendant immediately reported to the proper authorities upon reaching a position of safety from the immediate threat." M.C.L. § 768.21b(4); M.S.A. § 28.1044(2)(4). (Emphasis added.)

The six factors provide objective criteria that may be helpful in determining whether the four elements listed in Luther are, in fact, present. By [108 MICHAPP 741] using the language "may consider * * * if supported by competent evidence", the Legislature suggests that not all of these factors must be present in order to find a defendant's escape was excused by duress.

CJI 7:5:04 and its use note support this analysis, for the six factors are listed with the instruction "Only those conditions which are supported by competent evidence should be mentioned" in a jury instruction.

We believe the statute and court rule are consistent with the Supreme Court's holding in Luther. All permit a trier of fact to consider the six criteria as they bear on a defendant's credibility. Nowhere, however, does the Legislature require a showing that each of these factors must be established before a trier of fact can consider the defense.

The recent United States Supreme Court opinion in United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980), does not alter our analysis. The majority recognized the central role of the jury in determining whether duress has been established:

"The Anglo-Saxon tradition of criminal justice, embodied in the United States Constitution and in federal statutes, makes jurors the judges of the credibility of testimony offered by witnesses. It is for them, generally, and not for appellate courts, to say that a particular witness spoke the truth or fabricated a cock-and-bull story. An escapee who flees from a jail that is in the process of burning to the ground may well be entitled to an instruction on duress or necessity, ' "for he is not to be hanged because he would not stay to be burnt." ' United States v. Kirby, 7 Wall. 482, 487, 19 L.Ed. 278 (1869) (sic)." United States v. Bailey, supra, 414-415, 100 S.Ct. at 636.

The Court held, however, that the defense of [108 MICHAPP 742] duress could not be submitted to a jury unless the defendant proffered evidence of a bona fide effort to surrender or return to custody as soon as the duress lost its coercive force. 444 U.S. 394, 415, 100 S.Ct. 624, 637, 62 L.Ed.2d 575.

Our holding today is based on our interpretation of a Michigan statute that...