State v. Pichon

• Decision Date: 10 May 1991
• Docket Number: No. 65121,65121
• Parties: STATE of Kansas, Appellee, v. Douglas K. PICHON, Appellant.
• Court: Kansas Court of Appeals

Page 517

811 P.2d 517

15 Kan.App.2d 527

STATE of Kansas, Appellee, v. Douglas K. PICHON, Appellant.

No. 65121.

Court of Appeals of Kansas.

May 10, 1991.

Review Denied June 27, 1991.

Syllabus by the Court

1. Under the due process clause of the Fourteenth Amendment, criminal defendants must be afforded a meaningful opportunity to present a complete defense.

2. The Sixth and Fourteenth Amendments also guarantee the right of an accused to have compulsory process for obtaining witnesses in his or her favor and the right to present his or her own witnesses to establish a defense.

3. While these rights protect the accused from the State's arbitrary denial of the right to put witnesses on the stand to testify in his or her behalf, they do not prevent the exclusion of testimony that is irrelevant or immaterial.

4. Admission or exclusion of evidence is within the sound discretion of the trial court, subject to exclusionary rules. Relevant evidence is evidence having any tendency in reason to prove any material fact. All relevant evidence is admissible, except as statutorily excluded. The determination of relevance is a matter of logic and experience, not a matter of law.

5. The defense of compulsion is statutorily defined as follows: "A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct." K.S.A. 21-3209.

6. In order to constitute the defense of compulsion, the coercion or duress must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. The doctrine of coercion or duress cannot be invoked as an excuse by one who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. In addition, the compulsion must be continuous and there must be no reasonable opportunity to escape the compulsion without committing the crime.

7. The compulsion defense is available in escape from lawful custody cases only when the following conditions all exist: (1) the prisoner is faced with a threat of imminent infliction of death or great bodily harm, (2) there is no time for 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 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.

8. Aggravated escape from custody is escaping while held in lawful custody upon a charge or conviction of a felony.

9. Custody contemplates an intent on the part of prison officials to exercise actual or constructive control of the prisoner and that in some manner the prisoner's liberty is restrained. There is no requirement that the prisoner be constantly supervised or watched over by prison officials. The key factor is that prison officials have not evidenced an intent to abandon or give up their prisoner, leaving him free to go on his way.

10. A prisoner remains in custody of the facility where he or she is detained, although he or she may be beyond its confines for various authorized reasons.

Rick Kittel, Asst. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Frank E. Kohl, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before DAVIS, P.J., and REES and BRAZIL, JJ.

BRAZIL, Judge:

Douglas Pichon appeals his conviction on one count of aggravated escape from custody. K.S.A. 21-3810. Pichon contends the district court abused its discretion when it refused to allow him to call certain witnesses who he contends were necessary to prove his defense of compulsion. Pichon also contends there was insufficient evidence to show he was guilty of the crime charged. We affirm.

Pichon, a convicted felon, was serving his sentence at the Kansas Correctional Institution at Lansing (KCIL) at the time of the incident in question. Pichon and a group of other inmates were transported to the Leavenworth Community Center to participate in a men's city league volleyball game. Pichon testified that, when the van arrived at the community center, he was the last person to get out. Just as he was getting ready to go into the building, he heard someone yell, "Hey, Winfrey." Pichon testified that, although he was charged under the name of Douglas Pichon, Pichon is an assumed name, and his real name is William Winfrey. A court services officer verified that, at birth, the defendant's name was William Daniel Winfrey, Jr.; although the defendant began using the name of Douglas Pichon in 1985, his name has never been legally changed.

Pichon testified that, when he looked around, he saw a person he recognized as Tony DeWitt accompanied by another man. When Pichon saw DeWitt, he ran away because he believed DeWitt was there to hurt him. Pichon testified that DeWitt did not say anything else to him, and there was no testimony of any menacing or threatening behavior toward him by DeWitt before he ran away. When he started to run, Pichon said he heard the man with DeWitt say, "Hey, Tony, get in the car and we will get him," and DeWitt did chase Pichon. Pichon testified that he ran about two blocks and then ducked into an alley and hid in a dumpster for a couple of hours.

Based upon a tip from an informant, Pichon was apprehended in Kansas City, Kansas, the following day by agents of the Kansas Bureau of Investigation. When these agents first accosted Pichon, he did not admit he was an escapee but instead told them a story about being from Oregon. At trial, Pichon admitted that, once he had escaped the immediate threat, he did not try to return himself to the authorities, and that his intent was to stay out of custody as long as possible.

Pichon raised the defense of compulsion. He testified at length concerning his belief that, if he had not run away, he risked death or great bodily harm at the hands of DeWitt. Pichon testified that DeWitt had been his partner in an aggravated robbery in Wichita in 1985 and that he had testified against DeWitt at trial. Pichon stated that, in November 1986, he had received two notes signed "San Diego," DeWitt's street name. His testimony did not indicate whether these notes involved some threat. One week after the second note, Pichon said his cell was "firebombed," and Pichon apparently believed DeWitt was responsible for this. After this incident, Pichon was transferred to protective custody for 14 months. During this time, Pichon talked with his brother on the phone, and his brother told him that DeWitt "hasn't forgotten about" him.

Pichon stated that, when he left protective custody, he was transferred to a medium security facility at the Kansas State Penitentiary (KSP) where an inmate, Bobby Berks, threatened him. Pichon says that, although Berks never said so, there was an "insinuation" that he had been paid by DeWitt to threaten him. Pichon reported the incident and was then transferred to an outside dormitory. He said Berks was there also, and Berks again threatened him, this time with a screwdriver. Pichon voluntarily checked into protective custody again, and shortly thereafter he was sent to KCIL. These last episodes with Berks apparently occurred over two months before Pichon's escape.

After giving his own testimony at trial, Pichon sought to call four witnesses who he said would corroborate his testimony concerning the reasonableness of his fear of imminent harm by DeWitt at the community center. The State argued such testimony was irrelevant, its objection was sustained by the court, and the four proposed witnesses were not allowed to testify.

As his first issue, Pichon argues that his rights under the Sixth and Fourteenth Amendments to the United States Constitution and under section 10 of the Kansas Bill of Rights, to have compulsory process of witnesses and to present a complete defense, were violated by the trial court's decision to exclude the testimony of his four proposed witnesses.

Under the due process clause of the Fourteenth Amendment, criminal defendants must be afforded a "meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984). The Sixth and Fourteenth Amendments also guarantee the right of an accused to have compulsory process for obtaining witnesses in his favor and the right to present his own witnesses to establish a defense. Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 1922-23, 18 L.Ed.2d 1019 (1967). While these rights protect the accused from the State's arbitrary denial of his right to put witnesses on the stand to testify in his behalf, they do not prevent the exclusion of testimony that is irrelevant or immaterial. See 388 U.S. at 23, 87 S.Ct. at 1925.

Pichon sought to introduce the testimony of four proposed witnesses and proffered that he believed their testimony would be relevant on the following matters: (1) a department of corrections officer in charge of internal investigations, to be questioned concerning the firebombing of Pichon's cell, the notes which Pichon received and turned in prior to the firebombing, the contents of an affidavit Pichon filed against Bobby Berks, and Pichon's state of mind concerning these events during incarceration; (2) a KSP inmate, as an expert witness concerning the availability of weapons and vulnerability to attack in prison; (3) a department of corrections unit team counselor, to verify that Pichon had been in...