People v. Unger

• Decision Date: 05 April 1977
• Docket Number: No. 48218,48218
• Citation: 362 N.E.2d 319,5 Ill.Dec. 848,66 Ill.2d 333
• Parties: , 5 Ill.Dec. 848 The PEOPLE of the State of Illinois, Appellant, v. Francis UNGER, Appellee.
• Court: Illinois Supreme Court

Page 319

362 N.E.2d 319

66 Ill.2d 333, 5 Ill.Dec. 848

The PEOPLE of the State of Illinois, Appellant, v. Francis UNGER, Appellee.

No. 48218.

Supreme Court of Illinois.

April 5, 1977.

William J. Scott, Atty. Gen., Springfield (James B. Zagel, Jayne A Carr, Steven J. Rosenberg, Asst. Attys. Gen., Martin Rudman, State's Atty., of counsel), for the People.

Robert J. Agostinelli, Deputy State Appellate Defender, and G. Joseph Weller, Asst. State Appellate Defender, for appellee.

RYAN, Justice.

Defendant, Francis Unger, was charged with the crime of escape (Ill.Rev.Stat.1971, ch. 108, par. 121), and was convicted following a jury trial before the circuit court of Will County. Defendant was sentenced to a term of three to nine years to be served consecutively to the remainder of the sentence for which he was imprisoned at the time of the escape. The conviction was reversed upon appeal and the cause was remanded for a new trial over the dissent of one justice (33 Ill.App.3d 770, 338 N.E.2d 442.) We granted leave to appeal and now affirm the judgment of the appellate court.

At the time of the present offense, the defendant was confined at the Illinois State Penitentiary in Joliet, Illinois. Defendant was serving a one- to three-year term as a consequence of a conviction for auto theft in Ogle County. Defendant began serving this sentence in December of 1971. On February 23, 1972, the defendant was transferred to the prison's minimum security, honor farm. It is undisputed that on March 7, 1972, the defendant walked off the honor farm. Defendant was apprehended two days later in a motel room in St. Charles, Illinois.

At trial, defendant testified that prior to his transfer to the honor farm he had been threatened by a fellow inmate. This inmate allegedly brandished a six-inch knife in an attempt to force defendant to engage in homosexual activities. Defendant was 22 years old and weighed approximately 155 pounds. He testified that he did not report the incident to the proper authorities due to fear of retaliation. Defendant also testified that he is not a particularly good fighter.

Defendant stated that after his transfer to the honor farm he was assaulted and sexually molested by three inmates, and he named the assailants at trial. The attack allegedly occurred on March 2, 1972, and from that date until his escape defendant received additional threats from inmates he did not know. On March 7, 1972, the date of the escape, defendant testified that he received a call on an institution telephone. Defendant testified that the caller, whose voice he did not recognize, threatened him with death because the caller had heard that defendant had reported the assault to prison authorities. Defendant said that he left the honor farm to save his life and that he planned to return once he found someone who could help him. None of these incidents were reported to the prison officials. As mentioned, defendant was apprehended two days later still dressed in his prison clothes.

The State introduced prior statements made by the defendant which cast some doubt on his true reasons for leaving the prison farm. In these statements, defendant indicated that he was motivated by a desire for publicity concerning the sentence on his original conviction, which he deemed to be unfair, as well as fear of physical abuse and death.

Defendant's first trial for escape resulted in a hung jury. The jury in the second trial returned its verdict after a five-hour deliberation. The following instruction (People's Instruction No. 9) was given by the trial court over defendant's objection.

'The reasons, if any, given for the alleged escape are immaterial and not to be considered by you as in any way justifying or excusing, if there were in fact such reasons.'

The appellate court majority found that the giving of People's Instruction No. 9 was reversible error. (33 Ill.App.3d 770, 772, 338 N.E.2d 442, 444.) Two instructions which were tendered by defendant but refused by the trial court are also germane to this appeal. Defendant's instructions Nos. 1 and 3 were predicated upon the affirmative defenses of compulsion and necessity. (Ill.Rev.Stat.1971, ch. 38, pars. 7--11 (compulsion), 7--13 (necessity).) Defendant's instructions Nos. 1 and 3 read as follows:

'It is a defense to the charge made against the Defendant that he left the Honor Farm of the Illinois State Penitentiary by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct and necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.'

'It is a defense to the charge made against the Defendant that he acted under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he reasonably believed death or great bodily harm would be inflicted upon him if he did not perform the conduct with which he is charged.'

The principal issue in the present appeal is whether it was error for the court to instruct the jury that it must disregard the reasons given for defendant's escape and to conversely refuse to instruct the jury on the statutory defenses of compulsion and necessity. In the appellate court the defendant successfully asserted that the giving of People's Instruction No. 9 was tantamount to directing a verdict against the defendant. The State contends that, under the facts and circumstances of this case, the defenses of compulsion and necessity are, as a matter of law, unavailable to defendant.

Both the People and the defendant are entitled to appropriate instructions which present their theories of the case to the jury when and if such theories are supported by the evidence. (City of Chicago v. Mayer (1974), 56 Ill.2d 366, 370, 308 N.E.2d 601; People v. Kalpak (1957), 10 Ill.2d 411, 425, 140 N.E.2d 726; People v. Khamis (1951), 411 Ill. 46, 53, 103 N.E.2d 133.) Section 3--2 of the Criminal Code of 1961 (Ill.Rev.Stat.1971, ch. 38, par. 3--2) provides that a defendant, to raise the issue of an affirmative defense, must present 'some evidence' thereon. Therefore, if the defenses asserted were available to the defendant, he was entitled to an instruction on these theories if 'some evidence' was introduced to support them. Conversely, it was error to give People's Instruction No. 9, which required the jury to disregard the reasons for the escape.

Proper resolution of this appeal requires some preliminary remarks concerning the law of compulsion and necessity as applied to prison escape situations. Traditionally, the courts have been reluctant to permit the defenses of compulsion and necessity to be relied upon by escapees. (See 1975 U.Ill.L.F. 271, 274--75 & n. 23, and the cases cited therein.) This reluctance appears to have been primarily grounded upon considerations of public policy. Several recent decisions, however, have recognized the applicability of the compulsion and necessity defenses to prison escapes. In People v. Harmon (1974), 53 Mich.App. 482, 220 N.W.2d 212, the defense of duress was held to apply in a case where the defendant alleged that he escaped in order to avoid repeated homosexual attacks from fellow inmates. In People v. Lovercamp (1974), 43 Cal.App.3d 823, 118 Cal.Rptr. 110, a limited defense of necessity was held to be available to two defendants whose escapes were allegedly motivated by fear of homosexual attacks.

As illustrated by Harmon and Lovercamp, different courts have reached similar results in escape cases involving sexual abuse, though the question was analyzed under different defense theories. A certain degree of confusion has resulted from the recurring practice on the part of the courts to use the terms 'compulsion' (duress) and 'necessity' interchangeably, though the defenses are theoretically distinct. (Gardner, The Defense of Necessity and the Right to Escape from Prison--A Step Towards Incarceration Free From Sexual Assault, 49 S.Cal.L.Rev. 110, 115 (1975); Note, Duress--Defense to Escape, 3 Am.J.Crim.L. 331, 332 (1975).) It has been suggested that the major distinction between the two defenses is that the source of the coercive power in cases of compulsion is from human beings, whereas in situations of necessity the pressure on the defendant arises from the forces of nature. (LaFave and Scott, Handbook on Criminal Law 381 (1972).) Also, as noted in the dissenting opinion in the appellate court, the defense of compulsion generally requires an impending, imminent threat of great bodily harm together with a demand that the person perform the specific criminal act for which he is eventually charged. (33 Ill.App.3d 770, 777, 338 N.E.2d 442 (Stengel, J., dissenting); People v. Terry (1975), 30 Ill.App.3d 713, 332 N.E.2d 765; People v. Davis (1974), 16 Ill.App.3d 846, 306 N.E.2d 897.) Additionally, where the defense of compulsion is successfully asserted the coercing party is guilty of the crime. LaFave and Scott, Handbook on Criminal Law 380 (1972).

It is readily discernible that prison escapes induced by fear of homosexual assaults and accompanying physical reprisals do not conveniently fit within the traditional ambits of either the compulsion or the necessity defense. However, it has been suggested that such cases could best be analyzed in terms of necessity. (LaFave and Scott, Handbook on Criminal Law 381--82 n. 2 (1972).) One commentator has stated that the relevant consideration should be whether the defendant chose the lesser of two evils, in which case the defense of necessity would apply, or whether he was unable to exercise a free choice at all, in which event compulsion would be the appropriate defense. Gardner, The Defense of Necessity and the Right to Escape from Prison--A Step Towards Incarceration Free From Sexual Assault, 49 S.Cal.L.Rev. 110, 133 (1975).

In our view, the defense of necessity, as defined by our statute (Ill.Rev.Stat.1971, ch. 38,...