People v. Branham

JUSTICE CHAPMAN

delivered the opinion of the court:

Terry Wayne Branham was charged with escaping from the custody of an employee of the Fayette County jail while at the Fayette County Hospital. (Ill. Rev. Stat. 1987, ch. 38, par. 31 — 6.) Defendant claimed that it was legally necessary for him to escape for two reasons. First, during a prior imprisonment, defendant had been attacked by five men at Shawnee Correctional Center for refusing to perform homosexual acts. Second, he was afraid he would be harmed if convicted and sent to either Menard or Shawnee Correctional Center.

The State moved in limine to prohibit defendant from presenting this evidence, arguing that in escape cases necessity is restricted to situations where a prisoner is under threat of immediate harm, and the defense was therefore unavailable to defendant because he had not been under an immediate threat of harm when he escaped since he was not incarcerated in either Menard or Shawnee Correctional Center at the time. The circuit court granted the State’s motion and held that defendant’s offer of proof was insufficient to raise the defense of necessity.

The jury convicted defendant of escape, and he appeals. We affirm.

The affirmative defense of necessity is defined as follows:

“Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.” (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 13.)

Necessity involves a choice that can only be made between two admitted evils, other options being unavailable. (People v. Krizka (1980), 92 Ill. App. 3d 288, 290, 416 N.E.2d 36, 37.) Slight evidence of the forcing of this choice is sufficient to make the defense an issue for the jury. People v. Blake (1988), 168 Ill. App. 3d 581, 587, 522 N.E.2d 822, 826.

Factors to be considered in assessing claims of necessity in escape cases are:

“(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.” (People v. Unger (1977), 66 Ill. 2d 333, 342, 362 N.E.2d 319, 323.)

All of these factors, however, need not be present to establish necessity, and the absence of one or more does not necessarily prohibit the assertion of the defense. Unger, 66 Ill. 2d at 342, 363 N.E.2d at 323.

It is talismanic that both the accused and the prosecution have the right to present their theory of the case and their version of the facts, so that a jury can decide wherein the truth lies. (Washington v. Texas (1967), 388 U.S. 14, 19, 18 L. Ed. 2d 1019, 1023, 87 S. Ct. 1920, 1923.) Motions in limine, therefore, should be used with caution, and this is particularly so in criminal cases. (People v. Brumfield (1979), 72 Ill. App. 3d 107, 113, 390 N.E.2d 589, 593-94.) However, we do not believe the trial judge abused his discretion in granting the motion in limine in this case.

Defendant made no contention that there was no time for a complaint to the authorities or that there was no time or opportunity to resort to the courts. While there was no evidence of force or violence used towards prison personnel or other “innocent” persons in the escape, it is also true that defendant did not immediately report to the proper authorities when he had attained a position of safety from the immediate threat. The hearing on the motion in limine made clear that defendant was only arguing the first factor set forth in Unger.

Defense counsel argued that, if permitted to present testimony at trial, he would prove that the defendant was faced with specific threats of sexual attack or substantial bodily injury in the immediate future. The record reveals that the threats made at Menard were made after defendant’s escape. The defendant could have been concerned about the possibility of further attacks if he returned to Shawnee, but the trial court specifically found that the threats made to him at Menard could not have played any part in his decision to escape.

The record shows that at the time of escape the defendant was being held in custody on a charge for which he had failed to post bond. He had not yet been tried, convicted, or sentenced, and he was still cloaked with the presumption of innocence. Under these circumstances we find that the circuit court did not abuse its discretion in granting the State’s motion in limine.

The judgment of the circuit court of Fayette County is affirmed.

Affirmed.

WELCH, J., concurs.