State v. Haddix

• Decision Date: 01 May 1978
• Docket Number: No. KCD,KCD
• Citation: State v. Haddix, 566 S.W.2d 266 (Mo. App. 1978)
• Parties: STATE of Missouri, Respondent, v. Bryan Scott HADDIX, Appellant. 29586.
• Court: Missouri Court of Appeals

Page 266

566 S.W.2d 266

STATE of Missouri, Respondent, v.Bryan Scott HADDIX, Appellant.

No. KCD 29586.

Missouri Court of Appeals,Kansas City District.

May 1, 1978.

Jerry W. Venters, Asst. Public Defender, Jefferson City, for appellant.

John D. Ashcroft, Atty. Gen., Carson Elliff, Asst. Atty. Gen., Jefferson City, for respondent.

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

SOMERVILLE, Presiding Judge.

An information was filed on March 16, 1977, charging defendant, under the second offender act, with escape on February 12, 1975, from an auxiliary prison (Church Farm) under the control of the Missouri Department of Corrections in which he was lawfully confined.Defendant's incarceration at the Church Farm auxiliary prison stemmed from a six year sentence for first degree robbery out of Greene County, Missouri.A jury found defendant guilty of the escape charge and the trial court sentenced him to two years imprisonment, said sentence to run consecutively with the prior six year robbery sentence.Defendant timely appealed.

Defendant filed three pre-trial motions and made an extended offer of proof which merit mention because they are inextricably involved with three of the five points raised by defendant on appeal.A motion for "dismissal of counsel and appointment of new counsel", and a motion and a "renewed" motion "to quash information" comprise the referred to pre-trial motions.The latter two motions were filed, respectively, the day before trial and the morning of trial, and were directed primarily to defendant's claim that the state's delay in charging him with the escape offense until approximately one year after he was captured and returned to custody under the original sentence worked a "denial of due process of law and his right to a speedy trial".Conjunctively, it should be borne in mind that defendant's escape occurred on February 22, 1975, the Missouri Department of Corrections reobtained physical custody of him on January 22, 1976, from county authorities in Marion County, Indiana, thereafter approximately one year expired before a complaint was filed on January 6, 1977, charging defendant with the escape offense, and defendant stood trial on the charge on April 14, 1977.The offer of proof heretofore referred to arose in a somewhat unorthodox fashion.On the morning of the trial, outside the hearing of the jury and prior to the presentment of any evidence, defense counsel advised the trial court that defendant was going to rely upon "necessity" as a defense to the escape charge in view of threatened homosexual attacks directed towards him by fellow inmates and, accordingly, he intended to present evidence to that effect.The state objected thereto and the trial court, in view of its familiarity with State v. Green, 470 S.W.2d 565(Mo.banc 1971), advised defense counsel that under Missouri law "necessity" was not recognized as a viable defense to an escape charge and any effort to introduce evidence appertaining thereto would not be countenanced during the trial.The trial court's admonishment was scrupulously adhered to by defendant throughout the trial while in the presence of the jury.Defendant was, however, permitted to make the following offer of proof outside the presence of the jury.On February 22, 1975, defendant had been lawfully confined at Church Farm for approximately three weeks.Shortly after his transfer there "he was solicited by other inmates for homosexual favors, which he declined".On February 22, 1975, these other inmates, "whom he is even now fearful of identifying", threatened "that if he did not submit by that night they would kill him".The name of a fellow inmate was offered as a proposed witness who would confirm the homosexual advances and threats made upon defendant.It was reputed that Church Farm bore the "general reputation" of being an institution where an informant became a "marked man" if disciplinary action was taken against an inmate who was informed on and the only means of protection was to "lock up the informant for the balance of his sentence".Computationwise, the balance of defendant's robbery sentence did not expire until June of 1978.It was a "matter of generally accepted understanding" among personnel of the Missouri Department of Corrections and the community at large in Cole County, Missouri, that the Missouri Department of Corrections was "incapable of fully protecting the inmates and indeed the personnel from the depravations of aggressive inmates, which proof would be corroborated by Warden Donald Wyrick himself, who had so stated in public and stated in the newspaper, in effect".At the time of the offense defendant was twenty-one years of age, five feet two inches tall, and weighed one hundred and ten pounds.Finally, by reason of the foregoing, "defendant had reason to believe and did believe that he was in immediate danger of death or serious bodily harm, and had reasonable cause to believe and did believe that it was necessary for him to act as he did by leaving the premises of the Auxiliary Prison in order to protect himself from such danger and that had he not been under such threat he would not have left the premises".

As defendant has not challenged the sufficiency of the evidence to sustain his conviction, a short, perfunctory statement of facts is deemed sufficient.Adverting to the state's evidence, the jury could have found beyond a reasonable doubt that on February 22, 1975, defendant was lawfully confined at the Church Farm auxiliary prison of the Missouri Department of Corrections by reason of having been convicted and sentenced in Greene County for violation of a felony statute, to-wit, first degree robbery.Further, defendant escaped and absconded from the Church Farm auxiliary prison on February 22, 1975, and remained at large and was not recaptured until January 22, 1976.

The points relied on by defendant on appeal, five in number, are as follows: (1)the trial court erred in summarily precluding defendant's proffered defense of "necessity" in light of his offer of proof; (2)the trial court erred in sua sponte eliciting production of an exhibit from one of the state's witnesses to bolster an essential element of the state's case as doing so deprived defendant of a "fair and impartial trial"; (3)the trial court erred in failing to make a "specific determination" as required by Sec. 556.280, RSMo 1969, that defendant had been convicted of a prior felony, and further erred in failing to hold a hearing outside the presence of the jury to determine the applicability vel non of Sec. 556.280, supra, the second offender act; (4)the trial court erred in not sustaining defendant's "renewed" motion "to quash information" because the state's delay in initiating the escape charge against him for almost a year following his apprehension constituted a "denial of due process" and "deprivation of a speedy trial"; and (5)the trial court erred in not sustaining defendant's motion for "dismissal of counsel and appointment of new counsel" as not doing so "forced . . . (defendant) to go to trial with counsel not of his choosing in violation of his Sixth Amendment right to assistance of counsel".

In refusing to entertain the defense of "necessity", notwithstanding defendant's offer of proof, the trial court obviously relied on State v. Green, 470 S.W.2d 565(Mo.banc 1971).The facts in Green, as gleaned from an offer of proof made therein, while similar in many respects to those represented by the offer of proof in the present case, were even more repugnant in other respects than those in the present case.The accused in Green had been attacked and sodomized under threats of death or great bodily harm at least twice before he escaped from the Missouri Department of Corrections.On two occasions the accused in Green feigned suicide and was removed to the hospital where he reported the homosexual assaults and asked to be relocated.Upon being moved to another wing, the accused was told by one authority that he would have to fight it out, submit to the homosexual assaults, or "go over the fence".On the day of his escape, the accused in Green was approached by a group of inmates and told that they would be at his cell that night and if he refused to submit to their homosexual desires they would either kill or inflict great bodily harm upon him.

In holding that the defense of necessity was unavailable in an escape case, the Supreme Court of Missouri, en banc, in State v. Green, supra, at p. 568, cited and relied onPeople v. Richards, 269 Cal.App.2d 768, 75 Cal.Rptr. 597, 604(1969), for a concise definition of the defense of necessity: " 'The principle of justification by necessity, if applicable, involves a determination that "that harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged. "* * * The compulsion from the harm or evil which the actor seeks to avoid, should be present and impending * * *.' "The Supreme Court of Missouri concluded in Green that under the accused's offer of proof the threats of homosexual abuse and bodily harm directed towards him were neither present, imminent, or impending as he"had several hours in which to consider and report these threats".470 S.W.2d at 568.The Supreme Court of Missouri further elaborated on the unavailability of "necessity" as a defense by advancing the following as an additional reason for precluding its recognition: "Defendant's defense resolves itself into the simple proposition that the conditions of his confinement justified his escape.Generally, conditions of confinement do not justify escape and are not a defense."470 S.W.2d at 568.This court is quick to acknowledge that it is bound to follow State v. Green, supra.Mo.Const., Art. V, § 2;andValentine v. State, 541 S.W.2d 558(Mo.banc 1976).Accordingly, defendant's first point is ruled adversely to him.In the event the...