State v. Green

HENLEY, Judge.

John Charles Green (hereinafter defendant) was charged by information with the offense of escape from a state institution ¹ in which he was lawfully confined, a felony. Section 557.351.² He waived a jury, was tried before the court, found guilty, and was sentenced to imprisonment for a term of three years. He appeals. We affirm.

Briefly, the evidence is that defendant was convicted of burglary in November, 1966, and sentenced to imprisonment for a term of three years in the custody of the Department of Corrections; that on April 14, 1967, at about 6 p. m., while serving this sentence at the Training Center, he disappeared from that institution and was apprehended the next day by a State Highway Patrolman some distance from the Training Center. Defendant tacitly concedes that these are the facts and that, standing alone, they are sufficient to sustain his conviction. However, he contends that his escape was justified and that the justification constituted a legal defense to the charge of escape.

At a pretrial conference the defendant informed the court that his defense would be that prior homosexual assaults and threats near noon on the day of his escape of a homosexual assault upon him that night by other inmates caused the conditions of his confinement to be intolerable; and, that these conditions, together with the state’s denial to him of access to the courts, made it necessary that he escape in order to protect himself from submission to the threatened assault or the alternative of death or great bodily harm. As a result of this conference it was agreed that on trial day, and before a jury would be impaneled, the court would hear evidence offered by defendant in support of his defense, consider it as an offer of proof, and rule on its sufficiency as a legal defense.

The evidence offered on this issue is, in substance, that near the end of December, 1966, shortly after defendant became an inmate at the Training Center, he was attacked in his cell at night by two inmates and submitted to acts of sodomy under threat of death or great bodily harm; that immediately thereafter he feigned an attempt at suicide and was taken to the prison hospital where he told the authorities of the assaults and asked to be removed from the institution to avoid further assault ; that he was told by the Center authorities to resolve his own problems and to “go back and fight it out.” Approximately two weeks later, near the middle of January, 1967, he was again homosexually assaulted in his cell, this time by three inmates. He again feigned an attempt at suicide and requested that he be taken to the hospital. Instead he was placed in a disciplinary cell until the next morning when he was x-rayed and immediately thereafter taken before the Disciplinary Board and charged with attempted self-destruction. He informed this Board of the assaults, requested protection, and was moved to another wing of the Training Center. He says that he was told by a member of the Board that he would have to “fight it out, submit to the assaults, or go over the fence.” Defendant declined to disclose the names of his assailants to the Training Center authorities. Approximately three months later, on April 14, 1967, during the noon hour, a group of four or five inmates told defendant that they would be at his cell that night and he would submit tO' their homosexual desires or they would kill or seriously harm him. He did not report this threat to anyone. He escaped at about 6 p. m. that evening.

Defendant further offered to prove that he was indigent; that legal services for indigent persons were not provided at the Training Center by lawyers or law students, or by so-called “jail house lawyers” who “practiced” clandestinely only; that the only law books in the Center’s library were a set of the Missouri Revised Statutes.

The court ruled that the evidence did not constitute a legal defense. Immediately after this ruling, defendant waived a jury, evidence was offered by the state on the offense charged, and, as previously noted, the court found him guilty.

Defendant asserts that the described conditions of his confinement constituted cruel and unusual punishment within the meaning of the Eighth Amendment; and that subjecting him to those conditions without providing reasonable protection for his person and without according him a means of determining the propriety of his confinement denied him equal protection of the law and due process of law in violation of his rights under the Fourteenth Amendment to the Constitution of the United States.

Two of the points in his brief are that “[t]he trial court erred in excluding the offer of proof because to do so violated due process in that it permitted appellant to be convicted and punished for escape even though [1] escape was his only means of obtaining access to the courts for review of allegedly unconstitutional treatment, [and 2] the state had made escape necessary for appellant to protect himself from impending grave physical harm.”

In his printed argument, defendant states quite candidly that the alleged unwholesome and unconstitutional conditions, in themselves alone, would not justify his escape; that “[t]he needs for security and discipline in the corrections system are such that it would be folly to create a defense for any prisoner who escaped the system because he thought he was being held under unconstitutional or unwholesome conditions.” His position is that these conditions “ * * * combined with one or both of two other factors do justify his escape * * * ” and that the other factors are “ * * * [1] denial by the State of access to the courts for redress of the unconstitutional conditions * * * [and] * * * [2] the necessity under those unconstitutional conditions to escape as the only means of protecting himself * * In oral argument, he stated his position succinctly as a denial of due process by exclusion of his “defense of necessity.”

There is no evidence that the state denied him access to the courts, unless it may be said that the Training Center rule forbidding “jail house lawyers” from giving legal advice to and preparing pleadings for inmates was such denial, or that failure to have lawyers or law students available to inmates at the Center was such denial. Defendant argues that it is precisely for these reasons that he was denied access to the courts. However, there is no evidence that during the period between the beginning of his confinement and the hour of his escape he desired or sought access to the courts. There can be no denial unless there exists in the defendant a desire and a seeking of access to the courts. The mere fact that legal assistance was not directly or immediately available to inmates in general and, therefore, would not have been available to him if he had sought access to the courts does not afford him substantial ground upon which to base a claim of denial of access where there is no showing that he, in fact, desired access to the courts. To hold, as defendant requests, that the state denied him access to the courts would require that we assume the existence of a necessary fact, one which he declined or neglected to furnish. We decline so to assume.

Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), upon which defendant primarily relies in support of his contention that he was denied access to the courts, is not applicable to the facts in this case. Johnson involved an attack by a “jail house lawyer” upon a prison regulation which prohibited him from advising with or preparing petitions for writs for other inmates.

Moreover, the record shows that the mails were available to defendant for access to the courts. We know from our records that this means of access is now, and has been since long before January, 1967, used by inmates in increasing numbers, and through that method inmates readily secure the appointment of a lawyer to assist them.

The state did not deny defendant access to the courts.

Defendant says he has been unable to find any Missouri cases supporting his theory of “necessity” as a defense in this case. We find none. The state refers us to People v. Richards, 269 Cal.App.2d 768, 75 Cal.Rptr. 597 (1969), for a concise definition of the defense of necessity. The California Court of Appeal said: “The principle of justification by necessity, if applicable, involves a determination that ‘the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.’ * * * The compulsion from the harm or evil which the actor seeks to avoid, should be present and impending * * 75 Cal.Rptr. at 604.³

This is not a case where defendant escaped while being closely pursued by those who sought by threat of death or bodily harm to have him submit to sodomy. Moreover, the threatened consequences of his refusal to submit could have been avoided that day by reporting the threats and the names of those making the threats to the authorities in charge of the Center. Defendant had several hours in which to consider and report these threats.

The defense of “necessity” was not available to defendant and the court did not err in excluding his offer of proof. Defendant’s defense resolves itself into the simple proposition that the conditions of his confinement justified his escape. Generally, conditions of confinement do not justify escape and are not a defense. State v. King, Mo., 372 S.W.2d 857 [6]; State v. Pace, Mo., 402 S.W.2d 351; State v. Hart, Mo., 411 S.W.2d 143; State v. Rentschler, Mo., 444 S.W.2d 453 [4].

The judgment is affirmed.

All concur except SEILER, J., who dissents in separate dissenting opinion filed.

1 . The Missouri Training Center for Men, at Moberly, an institution under the control of the State Department of Corrections.

2 . Statutory references are to RSMo 1969 and V.A.M.S.

3 . See also: State v. St. Clair, 262 S.W.2d 25 [2], 1. e. 27-28, where this court said: “But, to constitute a defense to a criminal charge, the coercion must be present, imminent, and impending and of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act is not done. Threat of future injury is not enough. Nor can one who has a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily injury invoke the doctrine as an excuse.”