Davis v. State

OPINION

BUSSEY, Judge:

The appellant, Floyd August Davis, Jr., was convicted in the District Court of Cleveland County, Case No. CRF-84-589 of the crime of Escape from a Penal Institution in violation of 21 O.S.Supp.1983, § 443. He was sentenced to a term of six (6) years' imprisonment, and appeals.

At approximately 4:00 a.m., the morning of May 16, 1984, the appellant and two other inmates at the Joseph Harp Correctional Facility were reported missing from their assigned cells. A search was begun immediately and all surrounding law enforcement agencies were notified. Guards discovered that a three-foot hole had been cut in a portion of the outer fence and focused their immediate search to that area. Bloodhounds were called in; the appellant and one other inmate were “treed” approximately four miles away, just after sunrise.

Just prior to trial, the appellant made known his intention to rely on the defense of duress to his Escape charges. Because the duress the appellant referred to was perceived conditions and alleged threats made while he was incarcerated, the trial court sustained a State’s motion in limine, preventing the appellant from raising this as an affirmative defense.¹ The appellant argues, in his first assignment, that it was reversible error for the trial court to prevent him from using duress as a defense to his Escape charge.

This Court has addressed this precise issue many times. We think it is settled law that duress is not a defense to Escape in this jurisdiction. See: Grider v. State, 737 P.2d 1227 (Okl.Cr.1987); Nichols v. State, 564 P.2d 667 (Okl.Cr.1977); Chester v. State, 485 P.2d 1065 (Okl.Cr.1971). The only qualification of this rule was stated in Chester, where we said that given the proper fact situation, an instruction to the jury telling them that duress was a valid defense to escape could be proper, but that “the contemplation of such an eventuality strains the imagination_” Id. at 1067. Here, contemplation of the requested instruction, based on these facts, also strains the imagination. The record is silent as to what other protective measures the appellant may, or may not, have attempted. At the time of his arrest, he was still attempting to avoid detection and complete his escape, rather than surrender to outside authorities.

There is absolutely nothing in this record to suggest that the appellant was under any compulsion other than his desire to escape confinement.² The fact that other inmates had threatened the appellant with violence or that prison conditions are less than pleasant has never been, and is not now, a defense to Escape. See Grider v. State, supra, Nichols v. State, supra; Boone v. State, 642 P.2d 270 (Okl.Cr.1982).

As his next assignment, the appellant argues that the trial court committed reversible error in giving a “presumed intent” instruction to the jury.³ Here, the appellant focuses on a single, out of context, sentence in instruction number 5; while choosing to ignore the next instruction directing the jury to enter a finding of “not guilty” if there exists a reasonable doubt in their minds that all of the elements of the crime charged have been proven. Further, the jury was specifically instructed that the appellant was presumed innocent of the crime charged; that it was the State’s burden to prove otherwise, and that the jury must find him not guilty if the State failed to meet its burden.

We have repeatedly held that the test in reviewing instructions for fundamental error is whether, considering the instruction as a whole, that instruction fairly and accurately states the applicable law. Rowell v. State, 699 P.2d 651 (Okl.Cr.1985). We will then look to see if all of the instructions, in their entirety, fairly and accurately state the applicable law. See e.g., DeVooght v. State, 722 P.2d 705 (Okl.Cr.1986); Melvin v. State, 706 P.2d 163 (Okl.Cr.1985) cert. den. 475 U.S. 1027, 106 S.Ct. 1225, 89 L.Ed.2d 335 (1986). Both tests are satisfied here and the appellant’s second assignment of error is, therefore, without merit.

In the appellant’s third assignment of error, he argues that he received an excessive sentence. In reviewing a claim that a sentence is excessive, we will look to all of the facts and circumstances of the case and make a determination as to whether or not the sentence shocks the conscience of this Court. See e.g., Clark v. State, 678 P.2d 1191 (Okl.Cr.1984); Edwards v. State, 663 P.2d 1233 (Okl.Cr.1983). Otherwise, we will not modify a sentence that is within the limits set by the legislature. See also Watkins v. State, 717 P.2d 1159 (Okl.Cr.1986); Failes v. State, 589 P.2d 1080 (Okl.Cr.1979). The sentence in this case does not shock our conscience and is within the statutory limits. Therefore, we are without the power to modify. This assignment of error must fail.

Accordingly, the judgment and sentence is AFFIRMED.

BRETT, P.J., concurs. PARKS, J., dissents.

1 . The court’s ruling was limited to the use of duress as a defense. The appellant was still allowed, and in fact encouraged, to use duress for the purpose of mitigating punishment, yet he refused to do so. This choice was contrary to both the advice of trial counsel and suggestion of the trial judge.

2 . We note that the absence of any such evidence in the record is plainly due to the defendant’s choice in not presenting any defense once he received an adverse ruling on the issue of his desired theory. See note 1, supra. A criminal defendant who knowingly refuses to put on evidence in mitigation of punishment may not complain on appeal that he was denied a fair trial because that evidence was not presented.

3 . The instruction at issue is contained in the emphasised portion of paragraph 4 in instruction #4 reprinted in its entirety:

The burden is on the State to provide believable evidence justifying an affirmative finding beyond reasonable doubt to each of the following questions:

1. Was the defendant, FLOYD AUGUST DAVIS, JR., LAWFULLY CONFINED AT THE Joseph Harp Correctional Center, on or about the 16th day of May, 1984, in connection with Woods County District Court Case No. 1313 and 1319?

2. Was Joseph Harp Correctional Facility located in Cleveland County, Oklahoma?

3. Did the defendant voluntarily leave that institution on or about the 16th day of May, 1984?

4. Did he leave intentionally, knowing what he was doing and that it was wrong? IN THIS REGARD, YOU SHOULD BEAR IN MIND THE LEGAL PRESUMPTION THAT ONE INTENDS THE OBVIOUS AND NATURAL CONSEQUENCES OF HIS ACTS UNTIL SUCH TIME AS THE CONTRARY IS SHOWN.

If you find and believe beyond a reasonable doubt from your consideration of the evidence, under the instructions, that each question should be answered “yes" then you should find the defendant guilty and fix his punishment and so state by your verdict. (Emphasis added).