State v. Rogers
| Decision Date | 22 December 1995 |
| Docket Number | No. 20040,20040 |
| Citation | 912 S.W.2d 670 |
| Parties | STATE of Missouri, Respondent, v. Rickie James ROGERS, Appellant. |
| Court | Missouri Court of Appeals |
Jarrett Aiken Johnson, Asst. Appellate Defender, Kansas City, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Mary Moulton Bryan, Asst. Atty. Gen., Jefferson City, for respondent.
A jury found Appellant, Rickie James Rogers, guilty of failure to appear. § 544.665.1(1), RSMo1986. The trial court sentenced Appellant as a prior offender and a persistent offender to seven years' imprisonment. 1
Appellant brings this appeal. His sole point relied on avers the trial court erred in refusing instructions tendered by Appellant hypothesizing an affirmative defense that he failed to appear because he was under duress.
Appellant does not challenge the sufficiency of the evidence to support the verdict. Viewed favorably to the verdict, State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993), the evidence establishes that on March 4, 1994, Appellant pled guilty in the Circuit Court of Greene County ("the plea court") to possession of a controlled substance. There was a plea agreement whereby Appellant was to receive a five-year sentence; probation was to be denied. The plea court, with Appellant "standing in front of [it]," announced the sentence would be imposed at 9:00 a.m., April 15, 1994.
Appellant, who was free on bond, failed to appear for sentencing on the appointed date. An arrest warrant was issued, and Appellant was subsequently arrested on a date unrevealed by the record. 2 He was brought before the plea court July 8, 1994, and sentenced per the agreement.
Evidence pertinent to Appellant's assignment of error appears in the testimony of two witnesses: Appellant and the lawyer who represented him in the plea court, Don W. Crank.
Crank testified the reason for the six-week interval between Appellant's plea of guilty and the designated sentencing date was that there were two individuals in custody whom Appellant feared: Timothy Crosby and Scott Hope. They were charged with murder, and Appellant's name "appeared in police reports as an informant" against them.
According to Crank, Appellant was fearful of testifying against Crosby and Hope, as he would be "labeled a snitch at the penitentiary." Crank explained that when Appellant was incarcerated in 1986, he saw a sexual assault on an inmate who had been labeled a snitch. Crank added that Appellant believed prison officials could not protect him.
Consistent with Crank's testimony, Appellant recounted that the reason for the interval between the date he pled guilty and the designated sentencing date was to provide time for Crosby and Hope "to get out of [the] Fulton [Reception and Diagnostic Center]."
Appellant asseverated that on the designated sentencing date, April 15, 1994, Crosby was at Fulton. Hope "was coming back for trial," consequently Hope would be in the Greene County jail. Appellant realized that once he was sentenced, he would be jailed and then taken to Fulton. Appellant avowed he was worried about his personal safety at both places.
Appellant revealed that a few days before the designated sentencing date, he and a friend, Greg Bill, drove to Mesquite, Texas, in Bill's car to "see some friends." There was a "falling out" and Bill "took off," leaving Appellant "stranded in Texas" with only 25 or 30 dollars. Faced with that dilemma, said Appellant, he phoned his girl friend, Heather, to come and get him. She did, and they arrived back in Springfield a few days later.
Appellant testified he talked to Crank after returning to Springfield. Crank advised Appellant there was probably a warrant for his arrest and he should appear at the plea court immediately. Appellant's testimony:
"Q Did you do that?
A No.
Q Why not?
A Because I had been giving my situation a lot of thought and had talked to my family about it and I didn't think it was ... too wise to ... go get sentenced at that time.
Q What fears or reservations did you have about being sentenced at that time?
A I didn't want to go to Fulton at that time.
A Because Tim Crosby was there.... I believe Scott Hope was back down here in the Greene County Jail."
According to Appellant, Crosby had phoned Appellant while Crosby was in jail and Appellant was "out on bond." Appellant avowed Crosby told him to keep his mouth shut. Appellant's testimony continued:
Appellant told the jury he remained in Springfield after returning from Texas, and was eventually arrested while "taking Heather to work."
During the instruction conference, Appellant's lawyer tendered two instructions which are the subject of Appellant's claim of error. The trial court marked them as instructions "A" 3 and "B," 4 respectively, and refused both.
The defense of duress is defined by § 562.071, RSMo1986, which reads, in pertinent part:
Appellant's point relied on reads:
"The trial court erred in refusing Appellant's instructions to the jury that if it could find that Appellant was under duress at the time he failed to appear for sentencing, he could be acquitted of the charge of felony of failure to appear, in that ... there was sufficient evidence adduced at trial to support Appellant's affirmative defense of duress, and to instruct the jury on that affirmative defense."
Appellant cites State v. Kelly, 747 S.W.2d 639 (Mo.App.W.D.1988). So does the State.
In Kelly, the accused was jury-convicted of possessing a weapon about the premises of a correctional institution. On appeal, he maintained the trial court erred in not giving an instruction on duress in that the evidence indicated he was in fear of other inmates who had beaten and threatened him. Id. at 640. Affirming the conviction, the Western District of this Court said:
Appellant endeavors to distinguish Kelly by arguing:
Appellant's argument is meritless. In Kelly, the accused was in the same prison as his enemies and, so he said, had been beaten and scalded by them. Id. at 640. Here, Appellant was not in prison with those he allegedly feared at the time he failed to appear for sentencing, and there was no certainty that he would be in the same institution with them once he was sentenced, except possibly for a brief time in jail awaiting delivery to the Fulton facility and a brief time there awaiting permanent placement. Furthermore, unlike Kelly, there was no evidence that either Crosby or Hope, or someone at their behest, had ever harmed Appellant.
The evidence of the danger of physical harm in Kelly thus showed a danger more immediate than the danger shown by Appellant's evidence. Because it was not error to refuse to instruct on the defense of duress in Kelly, it clearly was not error to refuse Appellant's instructions "A" and "B" in the instant case. As explained in State v. Porter, 755 S.W.2d 3, 4 (Mo.App.W.D.1988), and State v. Horne, 778 S.W.2d 756, 757-58 (Mo.App.W.D.1989), a threat of future injury does not warrant a jury instruction on duress.
Appellant cites two other cases: State v. Lane, 834 S.W.2d 242 (Mo.App.W.D.1992), and State v. Greer, 879 S.W.2d 683 (Mo.App.W.D.1994). Neither aids him.
Lane is a judge-tried case where the accused relied on the defense of duress but was found guilty. The appellate court affirmed, applying the well established rule that a threat of unlawful physical force can be the basis of a duress defense only where the danger is present, imminent and impending. 834 S.W.2d at 244-45. A threat of future action is insufficient to support a duress defense. Id. at 244-45.
Greer is inapposite in that it holds a duress defense is unavailable when the accused recklessly places himself in a situation where it is probable that he will be subjected to force or threatened force. 879 S.W.2d at 685. See: § 562.071.2(2), RSMo 1986. The evidence in Greer arguably showed the threat of unlawful physical force was imminent, hence the accused would have been entitled to an instruction submitting the defense but for the exception discussed in the preceding sentence. In the instant case, as we have seen, the threat of force was not imminent; consequently, the threshold requirement for a duress defense did not exist. That being so, the exception addressed in Greer is immaterial here.
Applying Kelly, Porter and Horne, we reject Appellant's claim of error. That would normally end our task. However, there is an aspect of this appeal that we cannot ignore.
A letter to the court reporter from the lawyer who formerly represented Appellant in this appeal 5 asked the reporter to include in the transcript...
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State v. Hope
...support a defense of duress if the threat is not imminent. See State v. Rumble, 680 S.W.2d 939, 942 (Mo. banc 1984); State v. Rogers, 912 S.W.2d 670, 673 (Mo.App. S.D.1995). Lastly, Hope failed to offer evidence to support a finding he had no opportunity to resist. Section 562.071.1 RSMo 19......