State v. Harding, 16756

• Decision Date: 20 July 1981
• Docket Number: No. 16756,16756
• Citation: 635 P.2d 33
• Parties: STATE of Utah, Plaintiff and Respondent, v. Gary L. HARDING, Defendant and Appellant.
• Court: Utah Supreme Court

Page 33

635 P.2d 33

STATE of Utah, Plaintiff and Respondent, v. Gary L. HARDING, Defendant and Appellant.

No. 16756.

Supreme Court of Utah.

July 20, 1981.

Ginger L. Fletcher, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Arthur A. Allen, Jr., Salt Lake City, for plaintiff and respondent.

HOWE, Justice:

The defendant, Gary L. Harding, appeals his jury conviction and sentence for the crime of escape, a violation of § 76-8-309, U.C.A.1953.

On June 24, 1979, the defendant was in custody at the Utah State Prison. At approximately 10:30 a. m. the officers at the prison conducted a special count of the inmates and discovered that the defendant was missing from his cell. At approximately 1:00 p. m. on the same date he was apprehended by Salt Lake County Sheriff's deputies in Granger, Utah. Also apprehended were Delmont L. Gentry and Selmar R. Purcell who were also missing from their cells at the prison. After a joint trial to a jury, all three defendants were convicted.

The defendant Harding alleges his rights were violated during the trial in that: (1) the jury was not instructed to consider the defense of compulsion, and (2) the courtroom was cleared of all spectators for a short period of time.

In the consideration of the first assignment of error we start with the proposition that the defendant's right to present all competent evidence in his defense is a right guaranteed by the due process clause of our State Constitution, Art. I, Sec. 7, as well as our Federal Constitution, 14th Amendment. It is also axiomatic that where the defendant has asserted a defense to justify or excuse the criminal charge, and where there is reasonable basis in the evidence to support it, the viability of the defense then becomes a question of fact and the jury should be charged regarding it. Where, however, there is no reasonable basis in the evidence to support the defense or its essential components, it is not error for the trial judge to either refuse to instruct the jury as to the defense, or to instruct them to disregard it. State v. Eagle, Utah, 611 P.2d 1211 (1980); State v. Brown, Utah, 607 P.2d 261 (1980).

The question for this Court to determine is whether there was sufficient credible evidence in support of the defense of compulsion to justify instructing the jury thereon. In State v. Castillo, 23 Utah 2d 70, 457 P.2d 618, 619 (1969), this Court stated the following guidelines with regard to when a jury should be instructed as to a defense asserted by a defendant:

If the defendant's evidence, although in material conflict with the State's proof, be such that the jury may entertain a reasonable doubt as to whether or not he acted in self-defense, he is entitled to have the jury instructed fully and clearly on the law of self-defense. Conversely, if all reasonable men must conclude that the evidence is so slight as to be incapable of raising a reasonable doubt in the jury's mind as to whether a defendant accused of a crime acted in self-defense, tendered instructions thereon are properly refused. (457 P.2d at 620.)

Although the court in Castillo was concerned with an instruction on self defense, the principles there enunciated apply equally to the propriety of an instruction on the defense of compulsion. In reviewing the evidence presented at the trial, we are of the opinion that it was incapable of raising a reasonable doubt in the jury's mind as to whether defendant was compelled to escape.

The evidence which the defendant relied upon for his defense of compulsion was his own testimony and the other escapees to the effect that the defendant was in danger of attack from other prisoners because he allegedly helped Purcell after he was attacked and stabbed by those prisoners in a skirmish occurring approximately one month before their escape. Defendant also testified that he had requested to be transferred to the maximum security cellblock in order to avoid the possibility of an assault. The attack on Purcell, however, was never officially reported to the prison authorities.

Section 76-2-302, U.C.A.1953 provides in pertinent part that:

(1) A person is not guilty of an offense when he engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would not have resisted. (Emphasis added.)

To avail himself of the defense of compulsion a defendant must present evidence that he was compelled to escape by threat of imminent violence which he could not have reasonably resisted. The main evidence adduced at trial which defendant urges would support his assertion that he was in imminent danger was his following testimony:

Q. And what were you afraid would happen to you if you didn't leave that day?

A. I really didn't know what was going to happen. It was you know situation where I just didn't know.

This testimony does not support a finding of any threat of imminent use of unlawful force upon the defendant. It lacks the specificity which is necessary to establish the existence of an immediate threat. It indicates nothing more than that the defendant was in doubt about the intentions of the prisoners who he feared. For a threat to be imminent, it would have to appear that it had been communicated to the defendant that he would be subjected to physical force presently. The incident which occurred which gave rise to the alleged threats against this defendant occurred approximately one month before his escape. There is nothing in the record to show that there was any more of a threat against him on the particular day of his escape than there had been during any one of the days which had elapsed since the occurrence of the incident. The testimony of the two co-defendants was likewise indefinite. None of that testimony established any specific detail of the alleged threats. See State v. Milum, 213 Kan. 581, 516 P.2d 984 (1973), where it was held that a threat directed at some indefinite time in the future is not an imminent threat and is not a defense to the charge of escape from prison. See also People v. Richards, 269 Cal.App.2d 768, 75 Cal.Rptr. 597 (1969). All of the testimony presented was general and vague in nature and it...