What must a defendant show before the affirmative defense of duress can be submitted to a jury in a trial for prison escape? Defendant raises this issue of first impression after the trial court refused to submit the duress defense to a jury and defendant was convicted on May 7, 1980, of prison escape. MCL 750.193; MSA 28.390. Defen *737 dant was sentenced to 18 months to five years in prison and appeals by right.
Defendant filed a notice of intent to assert a defense of duress as required by MCL 768.21b; MSA 28.1044(2). The prosecution requested that the trial court order defendant to submit more specific information and that defendant be required to name those persons whom he intended to call as witnesses. The court ruled that, if defendant failed to name any witnesses, only he would be allowed to testify at trial and the jury would be able to assess his credibility. The court also ruled that, unless defendant filed more specific information, he would be restricted at trial to the information supplied in the notice. Finally, the court adjourned trial to give defendant an opportunity to amend his notice and to give the prosecution time to investigate defendant’s claim.
Defendant filed an amended notice which asserted that while at the State Prison of Southern Michigan at Jackson, Michigan, and at the Michigan Training Unit at Ionia, defendant was threatened with homosexual attacks by certain unnamed inmates and was told that some unspecified harm would come to him if he failed to comply. The prosecution again asked the trial court to strike defendant’s notice for failing to provide the names of defendant’s alleged attackers and for failing to provide specific dates of the alleged incidents. The trial court ruled that any evidence concerning events not occurring at the Michigan Training Unit would be striken but that defendant would be allowed to introduce competent evidence concerning the incidents at the Michigan Training Unit.
Approximately two months later, the prosecution sought to have the defense excluded on a different ground. The trial court ruled that the *738 defendant was required to include in his notice competent evidence on each of several factors enumerated in the notice statute and that, for his failure to do so, defendant would be precluded from asserting the defense at trial. This Court holds that the trial court erred in requiring evidence of each factor and finds that defendant’s conviction must be reversed and a new trial held.
The common law has recognized that duress or necessity may be a defense to the crime of prison escape in certain limited circumstances. Anno:
Duress, Necessity, or Conditions of Conñnement As Justiñcation for Escape From Prisons,
69 ALR3d 678. Michigan was among the first states to recognize that a prison escape would be justified by the immediate threat of a homosexual attack.
People v Harmon,
After the Harmon decision, the California Court of Appeals recognized the duress defense but held that it was available only when five 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 *739 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.” People v Lovercamp, 43 Cal App 3d 823, 831-832; 118 Cal Rptr 110; 69 ALR3d 668 (1974). (Footnote omitted.)
After the
Lovercamp
decision, some states required that a defendant produce some evidence on each of the five criteria.
Iowa v Reese,
In
People v Luther,
"A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;
"B) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant;
"C) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and
"D) The defendant committed the act to avoid the threatened harm.” People v Luther, supra, 623.
The Supreme Court rejected the prosecution’s argument that Michigan should require evidence on all five criteria listed in Lovercamp, but held:
*740 "To the extent that competent evidence may be produced as to any of these conditions, it is relevant to the claim of duress. As such, it should be submitted to the jury.” Luther, supra, 623.
After Luther was decided, the Michigan Legislature enacted MCL 768.21b; MSA 28.1044(2), which requires a defendant wishing to assert a duress defense to file with the court a notice of such intent within 15 days of arraignment, but not less than 10 days before trial. The notice must contain the names of those persons whom defendant intends to call as witnesses and must contain specific information concerning the defense.
Nowhere in the statute is "duress” defined, but § 4 of the statute provides:
"In determining whether or not the defendant broke prison while under duress the jury or court may consider the following conditions if supported by competent evidence:
"(a) Whether the defendant was faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future.
"(b) Whether there was insufficient time for a complaint to the authorities.
"(c) Whether there was a history of complaints by the defendant which failed to provide relief.
"(d) Whether there was insufficient time or opportunity to resort to the courts.
"(e) Whether force or violence was not used towards innocent persons in the prison break.
"(f) Whether the defendant immediately reported to the proper authorities upon reaching a position of safety from the immediate threat.” MCL 768.21b(4); MSA 28.1044(2)(4). (Emphasis added.)
The six factors provide objective criteria that may be helpful in determining whether the four elements listed in Luther are, in fact, present. By *741 using the language "may consider * * * if supported by competent evidence”, the Legislature suggests that not all of these factors must be present in order to find a defendant’s escape was excused by duress.
CJI 7:5:04 and its use note support this analysis, for the six factors are listed with the instruction "Only those conditions which are supported by competent evidence should be mentioned” in a jury instruction.
We believe the statute and court rule are consistent with the Supreme Court’s holding in Luther. All permit a trier of fact to consider the six criteria as they bear on a defendant’s credibility. Nowhere, however, does the Legislature require a showing that each of these factors must be established before a trier of fact can consider the defense.
The recent United States Supreme Court opinion in
United States v Bailey,
"The Anglo-Saxon tradition of criminal justice, embodied in the United States Constitution and in federal statutes, makes jurors the judges of the credibility of testimony offered by witnesses. It is for them, generally, and not for appellate courts, to say that a particular witness spoke the truth or fabricated a cock-and-bull story. An escapee who flees from a jail that is in the process of burning to the ground may well be entitled to an instruction on duress or necessity, ' "for he is not to be hanged because he would not stay to be burnt.” ’ United States v Kirby, 7 Wall 482, 487 [19 L Ed 278 ] (1869) [sic]." United States v Bailey, supra, 414-415.
The Court held, however, that the defense of
*742
duress could not be submitted to a jury unless the defendant proffered evidence of a bona fide effort to surrender or return to custody as soon as the duress lost its coercive force.
Our holding today is based on our interpretation of a Michigan statute that has no counterpart in federal law, while the
Bailey
opinion was based on the common-law defense of duress as it applied to the federal crime of prison escape, 18 USC 751(a). The federal escape law has been held to be a continuing offense,
United States v Bailey,
We hold that the duress defense is available in Michigan whenever a defendant offers evidence that his escape was necessitated by an immediate threat of death or serious bodily injury, including a threat of homosexual attack. Once a defendant has shown this, he or the prosecution may offer evidence relating to the factors listed in the Michigan notice statute and the jury may consider these as bearing on a defendant’s credibility.
The trial court erred in refusing to allow the jury to consider defendant’s proffered duress de *743 fense. Since a defendant need not offer evidence at trial on each of the statutory factors, he need not offer specific information relating to each factor in his notice of duress defense. Here, defendant’s amended notice established a history of threats at Jackson prison, where defendant was incarcerated for approximately three weeks before he was transferred to the Michigan Training Unit. Defendant states that, within hours of being moved into the MTU, he began being asked for sex in exchange for money or protection. He was transferred to another unit within MTU and he claims that he was accosted there in the shower by three inmates who asked him if he was a homosexual and told him they would "make him one” if he was not. Defendant was then transferred to a third unit, where he claims he was asked for sexual favors every day. He asserts that on the night he escaped his cell door was pushed open every 15 minutes and he was asked for sex favors and threatened "of what would happen to me if I did not give in to what was in store for me” that night.
This notice was adequate to apprise the prosecution of what defendant would have presented at trial had he been allowed to introduce the defense. Although defendant did not name the alleged attackers, he did state that the only witness he planned to call was himself. This was sufficient to permit the prosecution to prepare to rebut this defense.
We observe that the similar notice requirement for the defense of alibi has been recognized as a safeguard against the wrongful use of the defense by providing maximum possible discovery and giving time for the prosecutor to investigate.
People v Merritt,
Here, where defendant’s notice was sufficiently specific to inform the prosecution of the circumstances that defendant believed constituted duress, the trial court erred reversibly in precluding defendant from presenting that defense.
Defendant also argues that the trial court erred in excluding evidence of sexual assaults that were made at Jackson prison approximately two months before defendant was transferred to the Ionia facility. Generally, a determination of whether proffered evidence is material and relevant rests with the trial court.
People v Strickland,
Defendant also argues that the trial court erred in denying his motion to dismiss for the prosecution’s failure to bring this charge to trial within 180 days of his arrest. MCL 780.131; MSA 28.969(1). The trial court denied defendant’s motion to dismiss, finding that the 180-day rule did not apply to crimes committed during the period of incarceration. In making that ruling, the trial court relied upon this Court’s decision in
People v
*745
Loney,
On April 21, 1980,
Loney
was rejected by a panel of this Court.
People v Moore,
On October 23, 1980, another panel of this Court rejected
Moore
and reaffirmed
Loney. People v Ewing,
We observe that an incarcerated defendant remains protected by his constitutional right to a speedy trial.
Barker v Wingo,
Defendant’s remaining claims of error are without merit.
Reversed and remanded for a new trial.