State v. Baker

• Decision Date: 07 April 1980
• Docket Number: No. KCD,KCD
• Citation: State v. Baker, 598 S.W.2d 540 (Mo. App. 1980)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Gary Lynn BAKER, Defendant-Appellant. 30110.
• Court: Missouri Court of Appeals

Page 540

598 S.W.2d 540

STATE of Missouri, Plaintiff-Respondent, v.Gary Lynn BAKER, Defendant-Appellant.

No. KCD 30110.

Missouri Court of Appeals, Western District.

April 7, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 5, 1980.

Application to Transfer Denied June 10, 1980.

Clyde E. Rogers, Public Defender, Fourteenth Judicial Circuit, Moberly, for defendant-appellant.

John Ashcroft, Atty. Gen., Steven Scott Clark, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.

DIXON, Judge.

Defendant appeals his conviction for escape from a state institution.Defendant was sentenced to serve a five-year term for the offense of felonious stealing.Defendant was received at the Missouri State Penitentiary at Jefferson City and later transferred to the Missouri Training Center for Men at Moberly, Missouri.

The single and dispositive issue in the case is the defendant's claim that the trial court erred in refusing his offer of proof and refusing to give an instruction on the defense of necessity to the charge of escape.

On October 3, 1976, the defendant-prisoner and another inmate removed bricks from a wall in a building at the training center where they were assigned to work, crawled into a dining room and then through a window to the outside of the institution.They caught a ride to Kansas City, and on October 5, 1976, at 9:30 a. m., they were arrested in a hotel in North Kansas City.There was no violence connected either with the escape nor with the subsequent arrest.

Defendant was charged with escape from custody pursuant to § 557.351RSMoSupp.1975(now §§ 575.200,575.210, and575.230 RSMo 1978), tried by a jury in Boone County on change of venue, found guilty of escape, and sentenced to a term of two years.

During the course of the trial, defendant attempted to present evidence of an affirmative defense of "necessity" to the escape charge.The trial court sustained the State's objection when defendant first attempted to offer this evidence, and defense counsel then made an extensive offer of proof.Some of the offer consisted of testimony out of the hearing of the jury.A portion of the offer was by a narrative statement by counsel of the evidence that would be forthcoming.Prior to these narrative offers, the court and counsel engaged in a colloquy concerning the proposed offer.The State does not question the validity of the offer.The manner and content of the offer of proof have been examined, and the offer conforms to the requirements necessary to preserve for review the evidence offered.Stipp v. Tsutomi Karasawa, 318 S.W.2d 172, 175(Mo.1958);Merk v. St. Louis Public Service Company, 299 S.W.2d 446, 449(Mo.1957).Thus, for the purpose of review of the defendant's contention, the proffered evidence is taken as true and credible, and the issue of its admission becomes one of whether such evidence taken as true is admissible under the theory offered and the further question of whether the evidence would have supported a submission to the jury of the defense of necessity.

The offers of proof summarized and shorn of evidentiary detail would have established the following facts:

Defendant had, on numerous occasions, been threatened with physical violence by a group of inmates in an attempt by them to get him to submit to homosexual relationships with members of this group.One such threat came in the form of a death threat note delivered to defendant shortly prior to his escape.Actual violence was inflicted upon the defendant by this group on two or more occasions, resulting in at least one instance of a laceration sufficient to require five stitches.Defendant had made several unsuccessful requests to the administration to be placed in protective custody due to these specific problems.At least one of these requests for assistance was in writing.When asked to provide the names of his attackers he could only say he had heard one called "Red Dog."No force or violence was used in the defendant's escape nor when he was recaptured.While he was at large, defendant called Superintendent White of the Center and offered to surrender himself if defendant was given some protection.The defendant returned to the area of his home, contacted his parents, and had no intent by his departure to avoid service of his prison term.

The threshold question in this case is the availability of the defense of necessity in the law of Missouri.The issue is of only transient importance since the Legislature has, by the enactment of §§ 562.071and563.026 RSMo 1978, recognized the affirmative defenses of coercion and necessity.The posture of the instant case requires that the availability of necessity as a defense under the common law of Missouri, as it existed on the date of defendant's trial, be determined.

The State contents itself on this issue by citing State v. Green, 470 S.W.2d 565(Mo. banc 1971), and State v. Haddix, 566 S.W.2d 266(Mo.App.1978), asserting that these cases categorically deny the availability of the defense of necessity.Superficially, these cases can be so read, but close analysis makes the question much more doubtful.

Looking first to Haddix, an opinion of this court written by Judge Somerville and joined in by this writer, a conviction was reversed and remanded for a new trial because of an incident at trial which was held to have deprived the defendant of a "fair and impartial trial."Haddix, 566 S.W.2d at 274.

The discussion and ruling with respect to Green, supra, contained in Haddix must be considered in the context of that case.The position of the defendant in Haddix was that Green was in error and should be re-examined.An excerpt from the defendant's brief in Haddix unequivocally demonstrates this was the posture of the case:

"Appellant concedes that the Missouri Supreme Court considered this very question in State v. Green, 470 S.W.2d 565(Mo. banc 1971), cert. denied, 405 U.S. 1073, 31 L.Ed.2d 806, 92 S.Ct. 1491(1972), and held that the defense of necessity was not available to the defendant and that the trial court did not err in excluding his offer of proof to that effect. . . .Appellant submits . . . , a re-examination of the Green case is in order."Appellant's brief, pp. 12-13, Haddix, supra.

In view of that concession by counsel, the court in Haddix was not focusing on the limits of the Green case but on the request that it be re-examined.The Haddix opinion initially points out that the facts in Green were much more "repugnant" than those in Haddix, and that the holding in Green was "that the defense of necessity was unavailable in an escape case."Haddix then invited reconsideration of Green and reviewed extensively the more recent comment and authority on the defense of necessity.

Reviewing Green and the authority cited in Haddix in the light of the facts of Haddix, it is clear that the determination in Haddix was upon a factual basis.The thrust of Haddix and of Green is that conditions of servitude do not justify escape.Whatever may have been said in Haddix as to the meaning of Green, the instant case requires, as Haddix did not, that this court determine whether Green holds that the defense of necessity is categorically unavailable.

Turning to Green, the court there was considering a case where several of the classic elements of the defense of necessity were lacking immediate danger and complaint to authority.The defendant's claim was predicated upon extensive proof of general prison conditions.There can be no question that in Green the prisoner sought to bottom the defense on the ground that the conditions of confinement were unconstitutional, and thus, the issue was not purely one of the defense of necessity.The following excerpt from the majority opinion in Green makes this clear:

"In his printed argument, defendant states quite candidly that the alleged unwholesome and unconstitutional conditions, in themselves alone, would not justify his escape; that '(t)he needs for security and discipline in the corrections system are such that it would be folly to create a defense for any prisoner who escaped the system because he thought he was being held under unconstitutional or unwholesome conditions.'His position is that these conditions '. . . combined with one or both of two other factors do justify his escape . . .' and that the other factors are '. . .' (1) denial by the State of the access to the courts for redress of the unconstitutional conditions . . . (and) . . . (2) the necessity under those unconstitutional conditions to escape as the only means of protecting himself . . . .' "State v. Green, supra at 567.

The Green court then analyzed the factual background and concluded the evidence did not support the claim.The opinion gave a definition of the defense drawn from People v. Richards, 269 Cal.App.2d 768, 75 Cal.Rptr. 597(1969), and said:

"This is not a case where defendant escaped while being closely pursued by those who sought by threat of death or bodily harm to have him submit to sodomy.Moreover, the threatened consequences of his refusal to submit could have been avoided that day by reporting the threats and the names of those making the threats to the authorities in charge of the Center.Defendant had several hours in which to consider and report these threats."State v. Green, supra at 568.

Green, thus, is not authority for the proposition that the defense of necessity is unavailable under appropriate proof in a Missouri prison escape case.Green noted that no Missouri authority has established the defense as a part of the common law of Missouri.One commentator has also observed that the Green court did implicitly recognize necessity as a defense to escape because its reason for rejecting the defense was that the danger was not sufficiently close at hand the the consequences of the threats made could have been avoided by other means.(Note...