State v. Reese

• Citation: 272 N.W.2d 863
• Decision Date: 20 December 1978
• Docket Number: No. 61071,61071
• Parties: STATE of Iowa, Appellee, v. Michael W. REESE, Appellant.
• Court: United States State Supreme Court of Iowa

Page 863

272 N.W.2d 863

STATE of Iowa, Appellee, v. Michael W. REESE, Appellant.

No. 61071.

Supreme Court of Iowa.

Dec. 20, 1978.

Gordon M. Liles and Kent Hutcheson, Fort Madison, for appellant.

Richard C. Turner, Atty. Gen., J. E. Tobey, III, and Ray Sullins, Asst. Attys. Gen., for appellee.

Considered en banc.

McGIVERIN, Justice.

We granted further review of a decision of the Court of Appeals reversing the trial court conviction of defendant Michael W. Reese for escape in violation of Section 745.1, The Code, 1975. The case presents issues involving the claimed defense of necessity and the burden of proof thereon. We vacate the Court of Appeals decision and affirm the trial court conviction.

Defendant was charged by county attorney's information with escape from the Iowa State Penitentiary, Ft. Madison. He organized the escape and departed with other inmates from inside the penitentiary without permission on March 29, 1977.

At trial defendant testified in his own behalf and admitted leaving the penitentiary without authorization, but claimed his departure was due to a fear of further homosexual attack and possible death. Defendant described difficulties he experienced with another inmate who defendant would identify only as "the lifer". According to defendant, the lifer had established a scheme whereby he offered new inmates protection from homosexual attack by others in exchange for voluntary homosexual liaisons with the lifer. When defendant attempted to disrupt the lifer's scheme, the lifer threatened to kill Reese. Defendant is five feet, nine inches tall and weighs 150 pounds. The lifer was six feet, two inches and weighed 225 pounds.

Defendant further testified that after the lifer's initial threats, defendant twice contacted his counselor by note, but received no response. He also informed the penitentiary psychiatrist of the problem. This too failed to obtain any results. On March 26 the lifer renewed his threats against defendant and carried out a homosexual attack. Defendant made no further attempts to contact prison officials but accomplished an escape on March 29.

Defendant was apprehended over 24 hours later hiding in a shed on a private farm about eight miles from the penitentiary. Then he was unarmed and offered no resistance to the arresting officers. He testified he had considered contacting an attorney after his escape but had no opportunity to do so. He had not turned himself in to police authorities after his departure from the prison.

At the time in question the penitentiary was being operated with eighteen employees less than its full complement. The approximately 300 prisoners in defendant's cellhouse were supervised by five guards.

Defendant requested the court to instruct the jury on defenses of necessity and compulsion to the escape charge and to place the burden of disproving those defenses on the State. Defendant also objected to the failure of the court to so instruct the jury. The request and objection were overruled by the trial court. Defendant was convicted and sentenced.

On appeal the Court of Appeals by a three to two majority opinion reversed the trial court and held the court should have instructed the jury on the defense of necessity and should have placed the burden of disproving that defense on the State.

The Court of Appeals further held a defense of compulsion could not apply to an escape charge under Section 745.1 because intent is not an essential element under that statute. State v. Leckenby, 260 Iowa 973, 976, 151 N.W.2d 567, 569 (Iowa 1967); State v. Wharff, 257 Iowa 871, 875, 134 N.W.2d 922, 925 (1954).

In our order granting further review, we stated "the issues presented for review" will be submitted to this court.

The issues presented for our further review by the parties in the application, resistance and briefs thereon are in substance:

1. Whether the defense of necessity exists to an escape charge under Section 745.1 and, if so, the criteria for that defense.

2. Which party should bear the burden of proving or disproving any such defense.

3. Whether defendant was entitled to submission of that defense to the jury.

I. The defense of necessity. Defendant contends that this court should recognize the defense of necessity in an escape prosecution under Section 745.1. He relies primarily upon People v. Unger, 66 Ill.2d 333, 5 Ill.Dec. 848, 362 N.E.2d 319 (1977), which he characterizes as representative of a trend, initiated by People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110, 69 A.L.R.3d 668 (1974), to recognize either necessity or compulsion (duress) as such defenses.

However, the parties have only presented the issue of the defense of necessity for our review.

The State's response to defendant's contention is that recognition of a defense of necessity would require that State v. Cahill, 196 Iowa 486, 194 N.W. 191 (1923) be overruled. The State also argues that such a defense would be disruptive of prison discipline and that the facts of this case do not allow Reese to avail himself of the necessity defense in any event.

We agree that State v. Cahill does not control the disposition of this cause. In Cahill the defendant prisoner in an escape case complained of being placed in solitary confinement with an inadequate amount of food and in unsanitary conditions. The prisoner was on bread and water as punishment for unruly behavior. We held those conditions could not justify an escape. 196 Iowa at 490, 194 N.W. at 193. A specific threat of death, attack, or substantial bodily injury, however, was not involved. Because the evil Reese claimed to avoid was substantially greater than that involved in Cahill, Cahill can be readily distinguished on the facts.

The precise question of existence of a necessity defense to an escape charge based on fear of injury or death from physical attack has never previously been decided by us. Although section 745.1 does not require intent as an element, ¹ necessity is not tied to a mental element. See State v. Ward, 170 Iowa 185, 152 N.W. 501 (1915); see generally 1 Iowa L.Bull. 174 (1915). In Ward, the defendant was permitted to raise, and ultimately prevailed on, a necessity defense to a charge of unlawfully killing a deer. Examination of the statute involved, and of the discussion of the statute in the case, make it apparent that intent was not an element in that prosecution. The defendant in Ward killed the deer because several deer had regularly eaten his crops. He promptly reported the killing to the authorities and turned the carcass over to them to establish a test case of the right to protect his property from the forces of nature. He contended the killing was wholly defensive and preventive. We there said: "The right of defense of person and property is a constitutional right (art. 1, Sec. 1, Constitution of Iowa), and is recognized in the construction of all statutes." 170 Iowa at 189, 152 N.W. at 502. We further said, "We think, therefore, that the defendant was entitled to make an issue of fact on the question of justification, as already indicated." 170 Iowa at 191, 152 N.W. at 503.

Therefore, it appears the defense of necessity exists in Iowa. If it applies against the forces of nature, it equally should apply to human forces directed against the person, as defendant claims in the present case.

The defense does not negate any element of a crime. Rather, the question of necessity arises only after it has been determined that a crime has occurred as an entirely independent inquiry. People v. Condley, 69 Cal.App.3d 999, 1012-1013, 138 Cal.Rptr. 515, 522 (1977).

What should be the conditions attendant to a defense of necessity as it applies to an escape charge under Section 745.1?

Two approaches to the definition of the defense are found in other jurisdictions. The first approach is that of the leading case, People v. Lovercamp, 43 Cal.App.3d 823, 831-832, 118 Cal.Rptr. 110, 115, 69 A.L.R.3d 668, 676 (1974). There the court held that "a limited defense of necessity is available if the following conditions exist:

(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;

(2) There is no time for a 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. " (Footnote omitted.)

The approach of adopting specific and carefully defined limitations has been rejected by other courts. However, those courts have held that the Lovercamp conditions go to the weight and credibility of defendant's testimony. Esquibel v. State, 91 N.M. 498, 576 P.2d 1129, 1132 (1978); People v. Unger, 66 Ill.2d at 342, 362 N.E.2d at 323; People v. Luther, 394 Mich. 619, 623-624, 232 N.W.2d 184, 187 (1975).

Other authorities bearing on the subject are collected at 40 A.L.R.2d 908, 70 A.L.R.2d 1430, 69 A.L.R.3d 678; see also Gardner, "The Defense of Necessity In the Right to Escape from Prison A Step Toward Incarceration Free From Sexual Assault." 49 S.Cal.L.Rev. 110.

We are inclined to follow the first approach and hereby adopt the Lovercamp conditions for any defense of necessity to an escape charge under Section 745.1. Analogous factual authority in Iowa for the fifth condition listed in Lovercamp is State v. Ward, where defendant turned himself in to the authorities immediately after committing the alleged offense. 170 Iowa at 190, 152 N.W. at 503. We also approve this language from Lovercamp, 43 Cal.App.3d at 831, 118 Cal.Rptr. at 115, 69 A.L.R.3d at 675.

We, therefore, conclude that the defense of necessity to an escape charge is a viable defense....