*1 Missouri, Respondent, STATE of GREEN, Appellant.
John Charles
No. 55031.
Supreme Missouri, Court of
En Banc.
Sept. 13, 1971. Gen., Danforth, Atty. E. Gene C. John Gen., Atty.
Voigts, First Asst. Jefferson City, respondent. for Columbia, C. M. Krauskopf, M. Joan Hulen, Moberly, appellant. Jr., HENLEY, Judge. de (hereinafter Green Charles John charged by information
fendant) was institu from state confined, a lawfully tion in he was He waived felony. 557.351.2 Section court, found jury, was tried before guilty, imprisonment and was sentenced appeals. years. three He for a term affirm. We Statutory Men, to RSMo 1969 references 1. The Missouri Moberly, the con and V.A.M.S. an institution under trol of of Correc tions. *2 “go Briefly, problems that to his and to the evidence is resolve own November, Approximately fight it burglary was convicted of back and out.” later, January, imprisonment and to two weeks near the middle sentenced homosexually years custody again assaulted term of three in the of the he was cell, by Corrections; April in his this time three inmates. that on m., 14, 1967, serving feigned attempt at again He suicide and p. at about 6 Center, Training requested hospital. that he be to the at the taken sentence disappeared placed disciplinary Instead was in a cell from that institution and was apprehended day by High- morning x-rayed a State until the next he was next when immediately way and taken before Patrolman some distance from the thereafter tacitly Disciplinary charged Defendant Board and Training Center. con- that, attempted informed cedes that these are facts and self-destruction. He alone, assaults, requested standing they pro- this Board are sufficient to sus- However, tection, wing to tain and was moved another his conviction. he contends Training says of the He justified that his Center. that that by was told legal a member of the Board that constituted a out, “fight to submit to charge to the would have assaults, go or De- over fence.” At pretrial conference the defendant fendant declined to disclose the names informed the court that his defense would Training his to assailants Center au- prior be that homosexual assaults Approximately thorities. three months threats noon his near on the later, April 1967, during on the noon assault him that homosexual hour, group of four or five inmates told night by other inmates the condi- caused they at that his cell intolerable; tions of his confinement to night that and he would submit tO' their and, conditions, together that these with the they homosexual desires or would kill or courts, state’s to the denial to of access seriously harm did not him. He necessary made it that he order anyone. escaped this threat to He at about protect himself from submission p.6 evening. m. that threatened assault or the alternative of prove Defendant further offered to that great bodily death or harm. As result indigent; legal he was that services for agreed of this conference it was indigent persons provided were not at the day, trial and before a would be im- Training by lawyers Center stu- paneled, law the court would hear evidence dents, “jail lawyers” so-called house support offered clandestinely “practiced” only; defense, proof, consider it as an offer of library books in the Center’s law its sufficiency rule on as a were a set the Missouri Revised Stat- fense. utes. is, offered on this evidence issue substance, near end Decem- ruled court that the evidence did not ber, 1966, shortly after became Immediately constitute a defense. af- Center, an inmate at the he was ruling, ter this a jury, defendant waived night attacked in cell at two inmates his by the state evidence was offered sodomy and submitted to acts of under noted, and, charged, previously harm; bodily great threat of death guilty. court found him feigned immediately thereafter an at- tempt asserts the described con- suicide was taken Defendant hospital his constituted he told authorities of ditions of confinement punishment cruel and unusual assaults asked to be removed from Amendment; ; meaning Eighth further institution avoid assault those conditions subjecting that he told him to Center authorities such able inmates at protection providing reasonable without argues pre- it is denial. Defendant according him person his denied cisely for that he was these reasons determining propriety means of However, courts. access equal protection confinement denied him *3 period during no the between that process of in violation evidence law and due law the and the the of his confinement beginning rights Amend- of his under Fourteenth sought hour escape his desired of the of ment to the Constitution United no access courts. There can be to the States. in denial unless exists that points his in brief Two seeking of to the desire and access excluding in trial court erred “[t]he The mere fact that assistance courts. due to do so violated proof offer because directly immediately available not be to appellant process permitted in it that therefore, and, to inmates would general in escape even for punished convicted not he had have been available to him if only his means escape was though [1] sought access to courts does not afford for review obtaining to the courts access ground to base upon substantial which treatment, allegedly unconstitutional [and a claim of denial there is of access where necessary for the state had made 2] he, fact, showing no that desired access impend- appellant protect himself from to hold, to the To re- courts. as defendant grave physical harm.” ing quests, to that the state denied him access require the courts would that we assume printed argument, In his fact, a necessary existence of one which alleged un- quite candidly that states neglected declined or to furnish. We conditions, wholesome unconstitutional decline so assume. to alone, his justify would not themselves discipline in the corrections held under unconstitutional such that it would escape; system some one or both his fense for factors are conditions conditions.” His because any prisoner * * * “ * * * “[t]he two “ * * * be other factors thought needs ” folly and that [1] position is for to create a combined denial or unwhole- security and escaped the system are do by justify other with his vising in this case. regulation by for other inmates. Johnson contention that 21 L.Ed.2d “jail courts, primarily house Avery, 393 is preparing petitions Johnson involved an attack prohibited lawyer” applicable relies (1969), upon U.S. him from denied access to support for the facts 89 S.Ct. which writs ad- those unconstitutional conditions [and] unconstitutional * * * access to [2] conditions courts for necessity under redress * * mails were available to defendant to Moreover, the courts. this means the record shows We know access from is now, our records for access and has protecting himself means long January, as used been since before * * argument, numbers, his he stated oral increasing inmates process position succinctly readily as a denial of due through that method inmates se- necessity.” “defense of lawyer exclusion of his appointment to assist cure
them. no evidence the state There is deny did not defendant access state courts, access to the unless denied him to the courts. rule may be that the said says been unable giv he has “jail lawyers” from Defendant forbidding house any supporting find Missouri cases preparing pleadings ing legal advice to and in this “necessity” a defense denial, theory of fail inmates was such or that refers us The state find none. avail- case. We lawyers ure to or law students Richards, to People Cal.App.2d apparent As is majority opinion, from the (1969), defi- question concise before us is whether the evi- nition necessity. of the defense of dence offered amounted California Appeal Therefore, Court of “The said: to a defense. unlike the principle by necessity, if usual appeal, do not we commence applicable, involves a determination that with the situation where the factual issues ‘the harm sought or evil to be avoided being applied which the law have been greater such conduct is than sought defendant, against resolved in which prevented by defining law ignore case we can his version of the facts. * * * charged.’ The compulsion Here the defendant is entitled to a review from the harm or evil which the actor seeks proposed that all basis avoid, should be impending appears in the record favorable to him *4 * * at 604.3 Looking is to at the rec- be taken true. light, ord this could have found This is not a case where defendant the facts as follows: escaped being closely pursued those sought by threat of death or white, old, years Defendant was nineteen bodily harm to have him submit to feet, weighed nine inches about five tall Moreover, consequences threatened fifty pounds. one-hundred and At the Mo- his refusal to submit could have been Men, berly Training Center for avoided reporting the threats composed six-hun- population of about and the names of making those the threats inmates, mostly dred offenders second to the authorities in charge of the Center. old, twenty-five years least least and at Defendant had several hours in which to twenty-five serving sen- inmates were life consider these threats. sin- tences. The inmates confined in were The gle building. cells within residential The defense “necessity” was not physical structure of residential build- available to defendant and the court did not ing rotunda with formed central err in excluding proof. his offer of De wings outward. radiating the four inmate fendant’s defense resolves itself into the wing, each sev- Within inmate were simple proposition that the conditions of enty-nine day, the in- During cells. justified his confinement Gen freely mates could resi- wander erally, conditions of confinement do not building. dential inmates The were locked justify escape and a defense. State night. in the cells at Mo., King, v. [6]; S.W.2d 857 State Pace, Mo., 351; 402 S.W.2d guards assigned to each There were two Hart, Mo., 143; 411 S.W.2d State v. building period residential Mo., Rentschler, 444 S.W.2d [4]. stayed in guards night shift. One separated The rotunda was the rotunda. judgment is affirmed. heavy The sec- wing by a door. from each SEILER, All except J., who dis- concur among the a circuit four guard ond walked in separate dissenting opinion sents filed. periods of wings. There were substantial wing would be without during which a time SEILER, supervision. Judge (dissenting). injury Clair, done. Threat is not if the act also: State v. St. 262 S.W. See enough. injury Nor can [2], 27-28, is not of future 2d this court 1. e. opportunity “But, reasonable who has a defense to one said: to constitute a doing without undue charge, the act be to avoid the coercion must bodily injury impending exposure imminent, or serious present, to death ground as an excuse.” the doctrine nature as to induce a well invoke such a bodily apprehension of death or serious ed However, would be each tion. such inmate the outside of was a lock “hole”, the area with a confined to the which was be The door could unlocked
cell. discipline prisoners. used appears that master key. It several master protec- provided the in- no facilities for the illicitly other keys were in the hands easily picked custody tive of a threatened inmate. locks mates. These could no any sharp object. There were December, early January, In late of the cell doors. locks inside inmates, one night, during the two complaints could Inmate be sent white, black, picked the lock defend- one by the of “snitch- prison administration use knifepoint, At ant’s door. cell A “snitch-kite” consisted kites”. ravaged by inmates. homosexually both through the complaint written transmitted inmates, later, Two three black weeks intra-prison required days mail. several cell, white, knocked invaded defendant’s response any to a “snitch-kite”. obtain flee, as he tried unconscious directly to a complain An could inmate including raped acts him. Homosexual guard. Because of the structure sexual assaults matters common were buildings, residential knowledge among the inmates.1 complain guard difficult other inmates aware the de- Following each sexual *5 policy action. feigned injury Administrative to him- injured fendant or investigate complaint of abuse self, prison admin- to contact the order unless the assailant But identified. first hospitalized .was after the istration. While if an in some- attack, inmate “snitched” —turned the Assistant informed body’s name —his life wouldn’t be worth the assault Superintendent of Treatment of plugged nickel”; (the snitch) “a “was prison offi- protection. and This requested good right as as dead then”. Unless to defend cial the defendant admonished alleged guard witnessed an himself, hospital, upon release from the assailant would be allowed to remain with- the same cell. was returned to general population in the during attack, inves- After the second tigation. could The victim of an Disciplinary assault taken Board before prison popula- ‘the general removed from the assaults. he informed the Board about During proof, they obviously 1. offer in several are im few so frail protec up imprisoned mediately dividuals who had been for their own locked prob- Moberly Training rape”. tion, for Men homosexual system accuracy prison testified limited to the this statement. blem is not 1968, Philadelphia Philadelphia. in a District Attor A recent article ney’s report newspaper metropolitan Office and the Police Missouri sexually investigated as had assault incidence sexual ed that two inmates youth prison system year in the within the old St. saults of Phila ed a seventeen delphia. investiga County jail. St. Post-Dis of this Louis Louis 13, 1971, Davis, patch, August In re tion at 10A. was summarized As Sexual acknowledged Philadelphia System years, saults in courts have Prison cent g. situation, Vans, 8, e. Holt 6 Sheriff’s Transaction the existence of P.Supp. 362; (Dec. 1968). page Sarver, (E.D.Ark.), This article noted at “ n * n scholarly in the been discussed 9: in the and it has sexual assaults 847, journals. Comment, system Philadelphia prison epidemic 865- 48 L.Rev. are * n Note, [Virtually every slightly-built 53 Ia.L.Rev. 697- prisoner’s young homo comment on For a man committed 700. Griswold, sexuality prison, sexually approached see within a or two Tromanhauser, Misenheimer, Powers, prison. Many after his admission to (1970). Eye, Eye men, young raped repeatedly For 161-172 An gangs in Others, number Tt been estimated the inmates. has because activity engage gang rape, protection by in homosexual threat mates seek en Ia.L.Rev., 80%, tering ranges high relationship as into a homosexual Only tough supra. an individual tormentor. young men, er more hardened and those Superintendent Custody,
The Assistant tion of this principle right is the Board, a member of the told defendant that self-defense, the defense of only protection defendant would Robinson, receive State v. (Mo.Sup.) 328 S.W.2d was a cell change. This official where defendant was resisting attempt- told defendant the alternatives were ed The affirmative defenses of himself, to defend submit, “go over necessity coercion are based fence”. principle.2 same person “If a commits an act under' compulsion, responsibility for the April On defendant returned to act cannot be ascribed to him in ef- since during his cell the lunch break. Four or fect, desire, it was not his own or motiva- gathered five black inmates around his cell. tion, will, which led to the act.” New- They informed defendant of their knowl- Weitzer, Duress, man and Free Will edge previous sodomy. They acts of Law, the Criminal So.Cal.L.Rev. told him that they would return eve- appear to be no Missouri cases con- ning to “punk” make him a (a person who sidering necessity, the defense of but it is plays a female role homosexual inci- well established that coercion is a defense for the time in dents) remainder of his except to all crimes murder. State v. St. prison. These inmates threatened to “beat Clair, 25, 27. 262 S.W.2d (Mo.Sup.) his head in” or kill if he would not submit. Defendant believed it would interpret majority opinion to decide good do no to ask the authorities for proposed defense is not available help, in view of been told in what had (1) delay his because defendant did not response previous attempts get to his escape until his would-be assailants had help, in- so to avoid what he believed was pursuit him in (2) close because evitable, quietly 6:00 escaped about predicament had could have avoided his evening. o’clock that *6 He was found in in earlier turned their names county high- next morning, the side of day.
way, only a few miles from first, knew from As to
surrendered resistance. prior if he until the experience that waited legal principle It is a fundamental hand, be too late. band it would was close at punishment criminal should not be visited him, it to be had were to save If Holmes, upon the blameless. See Five earlier than the last minute. made 1948, in- Law, p. 50; “It is not Common As to the against hopeless one is odds. liability deny tended to criminal second, that to this the evidence overlooks * * * is on blameworthiness founded in the names to the authorities turn ** punished conduct law which risking life [A] meant defendant was blameworthy in the which would not be being a “snitch”. average community would member already by a been told community bear Defendant had be too for that severe ** alter- he had three high prison official that cases are Juries himself, escape. submit, defend
instinctively illustra- natives aware this. One : 1960) Courts 415-448. 2. A few some scholars ed. 235-237 “ne- recognized terms “coercion” often use the a distinction between interchangeably. Note, necessity cessity” 21 Col. of coercion defenses be- scholars 72. Other of the force L.Rev. based nature be- compels merit has no this distinction to do the criminal act. lieve the actor requirement compulsion in each defense exerted a hu cause Coercion is force, necessity compulsion condition remains circumstance man is action, beyond of a course leaves no choice exerted force human (1946), Crime, Burdick, 260- People Richards, Law of v. 269 Cal. control. 601; Hall, App.2d 261. Principles Law, (2d General Criminal majority opinion prisoner does not the condi- recommend determine whether matter, submission, escape. practical imprisonment justify tions of his an and as self impossible. All saying left am is that when facts defense was was What I circumstances, believed, presented, if escape, and under would establish coercion, necessity remote defense of then this defense coercion were not time, charge Es- impending. but should be to a available cape (and or submission do believe not
defendant was unreasonable
willing sodomy) to submit to five-fold literally all
were this had left.3 is a number of cases has coercion been offered
justify escape, A.L.R.2d 1430. These majority cases from the differ Missouri, Appellant, STATE of
cases in which the defense of is coercion v. Usually, charged asserted. very directly crime Respondent. GREEN, John Charles Clair, coerced to (Mo. submit. State St. Appellant, Missouri, STATE of Lee, Sup.), supra; State v. 78 N.M. 265; P.2d 40 A.L.R.2d in- For stance, if the defendant here been had Respondent. COLEMAN, William
prosecuted sodomy as a result of 55044, 55251. Nos. first it would seem clear that defense of coercion would be available. Missouri, Supreme Court sought this case defendant to avoid com- En Banc. mitting act resorting coerced to es- Sept. 13, 1971. cape. prisoner, Because was a action was a The act of crime.
just prior as much coerced as act of principle is consistent with the
underlying the defense to allow it to
asserted here.
This case differs much from the usual
escape case. Defendant should been have
permitted the jury to submit to the defense escape, coercion as for the I, therefore, respectfully dissent.
evidence shows defendant was confronted dilemma, making.
with a horrific not of his one, sure, prison-
No wants to am force I
er to under conditions where he must live “punk”
either and debase him- become
self, life, risk “snitch” at the our
but this is effect of nevertheless improves
decision, and unless until state prisons. am conditions permit
advocating that we should each fantasy had he so even to consider that de- assault was to occur gained fendant could access to sired. during the few hours before