Wells v. State

• Decision Date: 07 September 1984
• Docket Number: 7663,Nos. 7479,s. 7479
• Citation: 687 P.2d 346
• Parties: Jeffery WELLS, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 346

687 P.2d 346

Jeffery WELLS, Appellant, v. STATE of Alaska, Appellee.

Nos. 7479, 7663.

Court of Appeals of Alaska.

Sept. 7, 1984.

Susan Orlansky, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant.

John A. Scukanec, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

SINGLETON, Judge.

After a trial in Anchorage, Jeffery Wells was convicted of escape in the second degree. AS 11.56.310(a)(1)(A). He had been serving a two-year presumptive sentence at the Palmer Correctional Center following a Juneau conviction for fraudulent use of a credit card. AS 11.46.285. In 1979 Wells had been convicted of burglary in Oregon. Judge Pegues treated Wells' burglary as a prior felony and therefore imposed a presumptive sentence for the fraudulent use of a credit card conviction. Judge Moore agreed with Judge Pegues' decision and consequently treated Wells as a third felony offender for purposes of his escape sentence. Wells raises three contentions on appeal. First, Wells argues that the trial court erred in rejecting his "necessity defense" to the escape charge. Second, Wells contends that the sentencing courts erred in treating his Oregon conviction as a prior felony conviction and sentencing him, respectively, as a second felony offender for the fraudulent use of a credit card conviction and a third felony offender for the escape conviction. Finally, Wells contends that his sentence for escape is excessive. We affirm.

FACTS

Prior to trial Wells gave notice of his intent to rely on a necessity defense and submitted proposed jury instructions. He contended that he escaped because his life had been threatened by some fellow inmates who were angry with him because he disclosed their plan to steal marijuana from another inmate. In addition, he stated that he was not receiving adequate medical care and had been unable to obtain psychological counseling to help him deal with a drug problem that had resulted from complications following surgery on his ankle. ¹

In response, the state asked the trial court to apply the test set forth in People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110 (1974), which restricts the necessity defense in cases of prison escape. ² Judge Moore ruled that the Lovercamp conditions reflected the common law and should be followed in Alaska. After hearing Wells' offer of proof, the trial court ruled as a matter of law that it was insufficient to meet the fifth Lovercamp condition. Consequently, the trial court did not instruct the jury on necessity as a defense. ³ As a result of this ruling, Wells stipulated to a nonjury trial and was found guilty.

At sentencing, Judge Moore treated Wells as a third felony offender based on his 1982 Juneau credit card conviction and his 1979 Oregon burglary conviction. Wells argued that his Oregon conviction was not "a prior felony conviction" because it had been treated by the Oregon court as a misdemeanor for sentencing purposes pursuant to an Oregon statute which allows a sentencing judge to treat any class C felony offense as a misdemeanor at sentencing. See ORS 161.705. Judge Moore ruled that the Oregon conviction would be considered a prior felony conviction under AS 12.55.145(a)(2) because the elements of burglary in the second degree in Oregon are virtually identical to the elements of burglary in the second degree in Alaska. Compare ORS 164.215 with AS 11.46.310. After finding that two of three alleged mitigating factors had been established, the trial court imposed a sentence of five years, one year less than the presumptive term.

DISCUSSION

NECESSITY AS A DEFENSE TO ESCAPE IN ALASKA

Alaska Statute 11.81.320 provides:

Justification: Necessity. (a) Conduct which would otherwise be an offense is justified by reason of necessity to the extent permitted by common law when

(1) neither this title nor any other statute defining the offense provides exemptions or defenses dealing with the justification of necessity in the specific situation involved; and

(2) a legislative intent to exclude the justification of necessity does not otherwise plainly appear.

(b) The justification specified in (a) of this section is an affirmative defense.

The reference in AS 11.81.320 to the "common law" makes it in pari materia to AS 01.10.010 which provides:

So much of the common law not inconsistent with the Constitution of the State of Alaska or the Constitution of the United States or with any law passed by the legislature of the State of Alaska is the rule of decision in this state.

Wells argues that the term "common law" is restricted to traditional law as it developed at some time in the past. Thus, he contends the common law did not require a defendant who relies on a necessity defense to an escape charge to prove that he terminated his escape at the earliest time at which he could safely do so. We reject Wells' attempt to restrict the term "common law." In Howarth v. Pfeifer, 443 P.2d 39, 44 (Alaska 1968), the supreme court rejected a restrictive definition of the phrase "common law." The court explained that the common law is dynamic, not static; it is not limited to the state of the law at any particular time in the past but rather it reflects the evolution of law through court decisions. See also Surina v. Buckalew, 629 P.2d 969, 973 (Alaska 1981) (in the absence of statute, it is the appellate court's duty to explicate the common law which will apply unless and until the Alaska legislature acts to modify it).

It is clear from the legislative history of AS 11.81.320 that the legislature used the phrase "common law" to give the courts the power to define the specifics of the defense of necessity in Alaska. As the authors of the tentative draft pointed out:

The most important issues regarding the necessity defense are whether it should be codified, and, if so, with what degree of detail. See [Tiffany and Anderson, Legislating the Necessity Defense in Criminal Law, 52 Den.L.J. 839, 874 (1975) ].

While most revised codes have codified the defense [see, ORS 161.200, N.Y.Penal Law § 35.05(2) ] the Subcommission followed the New Jersey approach by declining to adopt a detailed statutory formulation. Instead, the necessity defense was incorporated into the Revised Code "to the extent permitted by common law" with the qualifications described in subsections (1) and (2).

The Subcommission concluded, as did the Commentary to the New Jersey code, that "it is more appropriate to leave this issue to the judiciary ... the rarity of the defense and the imponderables of the particulars of specific cases convinces us that the courts can better define and apply this defense than can be done through legislation." [Quoting 52 Den.L.J. at 874-75, quoting in turn New Jersey Criminal Law Revision Comm'n, Vol. 2: Commentary, § 2C:3-2 (Final Report 1971) ].

Alaska Criminal Code Revision Part II, at 48-49 (Tent.Draft 1977).

The trial court sought to carry out this legislative direction by adopting the Lovercamp criteria.

There is a split of authority among those jurisdictions considering the question whether a defendant must present some evidence that he sought to surrender to the authorities after escaping before he may present a necessity defense to the jury. A majority of the courts require such a showing. See United States v. Bailey, 444 U.S. 394, 412-13, 100 S.Ct. 624, 635-36, 62 L.Ed.2d 575, 591-92 (1980); People v. McKnight, 626 P.2d 678, 681 (Colo.1981); Johnson v. State, 379 A.2d 1129, 1131-32 (Del.1977); Holdren v. State, 415 So.2d 39, 41 (Fla.App.1982); State v. Horn, 58 Hawaii 252, 566 P.2d 1378, 1381 (1977); State v. Urquhart, 105 Idaho 92, 665 P.2d 1102, 1106 (App.1983); State v. Reese, 272 N.W.2d 863, 867 (Iowa 1978); State v. Boleyn, 328 So.2d 95, 97 (La.1976); Robinson v. State, 42 Md.App. 617, 402 A.2d 115, 117 (1979); State v. Watts, 60 N.C.App. 191, 298 S.E.2d 436, 437 (1982); State v. Cross, 58 Ohio St.2d 482, 391 N.E.2d 319, 322 (1979); Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583, 589 (1982); State v. Worley, 265 S.C. 551, 220 S.E.2d 242, 243 (1975); State v. Niemczyk, 31 Wash.App. 803, 644 P.2d 759, 762 (1982). See generally Annot., 69 A.L.R.3d 678, 688-89 (1976 & Supp.1983).

A minority rule treats the Lovercamp conditions as relevant for jury consideration regarding the credibility of the defendant's claim that he escaped out of necessity, but not as essential conditions which must be satisfied in order to assert the defense. See People v. Unger, 66 Ill.2d 333, 5 Ill.Dec. 848, 852, 362 N.E.2d 319, 323 (Ill.1977); Commonwealth v. O'Malley, 14 Mass.App. 314, 439 N.E.2d 832, 836, review denied, 440 N.E.2d 1177 (Mass.1982); People v. Luther, 394 Mich. 619, 232 N.W.2d 184, 187 (1975); Esquibel v. State, 91 N.M. 498, 576 P.2d 1129, 1132 (1978). See also State v. Baker, 598 S.W.2d 540, 546 (Mo.App.1980). But see State v. Daniels, 641 S.W.2d 488 (Mo.App.1982).

We have carefully reviewed the parties' arguments and the reasoning of the various decisions which have addressed the significance of evidence of the defendant's voluntary return to custody following an escape. It appears that the various approaches depend upon differing interpretations of the local escape statutes rather than disagreements about the necessity defense. Those courts that consider escape a continuing offense require a defendant asserting necessity to offer some evidence that he sought to turn himself in or avail himself of legal remedies once he was free of the institution and the immediate threat upon which his defense of necessity is based. In contrast, those courts which consider the crime of escape to be complete at the time the defendant removed himself from custody, view his subsequent actions as a reflection on his credibility in initially asserting the necessity defense. Compare United States v. Bailey, 444 U.S. 394, 412-14, 100 S.Ct. 624,...