Williams v. State

ALPERT, Judge. One fundamental exception to the duress defense lies at the center of this appeal. Marvin Larvae Williams, appellant, was charged with attempted robbery with a deadly weapon, daytime housebreaking, and the use of a handgun in the commission of a crime of violence. Williams waived his right to a jury trial and a court trial commenced in the Circuit Court for Baltimore County (Kahl, J.) on February 23, 1993, at the close of which, the trial judge requested memoranda concerning the defense of duress.

The case was resumed on May 4, 1993, at which time Williams was convicted of the charged offenses. He was sentenced to eight years imprisonment for attempted robbery with a deadly weapon, eight years for daytime house ⁴¹¹ breaking, and five years imprisonment, without possibility of parole, for the use of a handgun in the commission of a crime of violence. All sentences were to run concurrently. Appellant noted a timely appeal and asks two questions: 1.

Was the trial court clearly erroneous in convicting Appellant of the offenses with which he was charged? 2. Should the docket entries be amended to correctly reflect Appellant’s convictions? 1 FACTS The victim, the Reverend Chris Glenn Hale, lived at 8601 Gray Fox Road, Apartment 102 in Randallstown, Maryland at the time of the incident. On March 1, 1990 at or about 4:45 p.m., Hale heard a knock on his apartment door. He went to the door, looked through the keyhole, and saw Williams standing at the door.

Hale asked who was there and Williams answered by mumbling, asking if a certain person resided at Hale’s residence. Hale could not understand Williams so he partially opened the door, whereupon four men, including Williams, rushed through. One of the men, not Williams, proceeded to hold a gun to Hale’s face. Hale noticed that three of the men were armed, but did not see if Williams was armed.

After the men entered Hale’s apartment, they spread out around the apartment to search for other persons, and the apparent leader demanded that Hale divulge the location of “the money” and “the dope.” Williams, in the meantime, kept telling the men that the “dope” was in Hale’s apartment, that he and Hale were friends, and that he had been in the apartment the previous day where he had used the “dope” with Hale. After searching unsuccessfully for the “dope,” Williams was forced to kneel next to Hale, and the three men made more demands of the both of them as to where the money and the dope were located. The men then allowed Williams to get up from the floor to make a telephone call. ⁴¹² Williams spoke on the phone for about ten minutes, and when he got off the phone, he walked out of the bedroom with two of the men (including the leader), where they talked for about five minutes. Hale was then tied up and the men, including Williams, left shortly.

Nothing was taken from Hale’s apartment. At the trial, Williams testified that he was abducted by the three men because they believed that he knew the whereabouts of the drug stash of one Chuckie Eubanks, a reputed drug dealer. Williams had borrowed money from Chuckie’s brother, Rodney, and had been induced to make a drug run to New York in order to help repay his debt. The Eubanks organization required Williams to make a second trip to New York,, during which Williams cooperated with the police and obtained the names, phone numbers, addresses, and license tag numbers of the parties involved in the drug deal.

Apparently, the three abductors, who were former members of Eubanks’s drug organization, knew of Williams’s relationship with Eubanks and believed that he would know the location of the stash house. When Williams was abducted by the men, he told them that he did not know the location of the stash house. The men did not believe Williams and threatened to kill him if he did not disclose its location. Williams led the men to Hale’s apartment, told them it was the stash house, and knocked on the door.

Once inside Hale’s apartment, Williams testified that he pretended to participate in the search of the premises. Williams also said that the phone call he made was to his mother and was done at the request of one of the abductors who instructed him to say that “everything was all right,” the abductors being concerned because Williams’s sister had witnessed the abduction. Duress Williams asserts that the trial court erred because its decision was “predicated upon Appellant having engaged in criminal conduct in which he was not specifically directed to engage. Because of this, the trial court never even focused upon the question it actually had to resolve: whether any legal alternative existed for Appellant to the conduct in which he ⁴¹³ engaged.” In the instant case, the trial court heard the testimony of all the witnesses and concluded that [t]he [Appellant] wants you to believe that he was victimized, that he was taken off the street, and by point of gun, forced to commit an armed robbery.

That simply is not true. No one forced him to commit an armed robbery. No one forced him to go to the Reverend’s house and demand money. The only thing these three persons wanted was to have the debt repaid, and they didn’t care how it was done.

The [Appellant] said, I don’t care how I repay the debt, I just want to save my own soul, and I will commit an armed robbery to do it, and I will assist in the commission of an armed robbery if that satisfies the debt, if that appeases you and I am safe. The court went on to find that the testimony taken as a whole did “lend [ ] some corroboration to [Appellant’s] suggestion that, at least to some degree, [Appellant] was under duress.” The court however, did qualify its finding by noting that the duress was not “to go to the stash house” but rather “duress to pay the debt.” 2 Accordingly, the court aptly focused on a very narrow issue: “whether the fact that [appellant] was under duress to repay the debt, and thereby created the scenario for this offense, operates as a complete defense to the offense.” The court requested additional memoranda on this issue and concluded that facts of this case did not support a ⁴¹⁴ finding of duress. Accordingly, we are faced with the question of whether a defendant’s contributory actions can act as a bar to the availability of the defense of duress, ie., whether the appellant’s conduct presents an exception to the applicability of the duress defense. We conclude that it does and explain.

Chief Judge Orth, speaking for this court nearly a quarter of a century ago, explained that [i]n order to constitute a defense, the duress by another person on the defendant must be present, imminent, and impending, and of such a nature as to induce well grounded apprehension of death or serious bodily injury if the act is not done. It must be of such a character as to leave no opportunity to the accused for escape. Mere fear or threat by another is not sufficient nor is a threat of violence at some prior time. The defense cannot be raised if the apprehended harm is only that of property damage or future but not present personal injury.

Frasher v. State, 8 Md.App. 439, 449 , 260 A.2d 656 (1970) (citing 1 Wharton’s Criminal Law and Procedure (Anderson) § 123, pp. 262-264). See also Wentworth v. State, 29 Md.App. 110, 118 , 349 A.2d 421 (1975), cert. denied, 278 Md. 735 (1976). Additionally, we noted that the defense of duress is not successful if the “compulsion arose by the defendant’s own fault, negligence, or misconduct.” Frasher, 8 Md.App. at 449 (citing 1 Wharton’s Criminal Law, supra, § 123, p. 264; 16 C.J., Criminal Law, § 59, p. 91; 22 C.J.S., Criminal Law, § 44, p. 136; Ross v. State, 169 Ind. 388 , 82 N.E. 781 (1907); State v. Clay, 220 Iowa 1191 , 264 N.W. 77 (1935); State v. Patterson, 117 Or. 153 , 241 P. 977 (1925); People v. Merhige, 212 Mich. 601 , 180 N.W. 418 (1920)). See also Darby v. State, 3 Md.App. 407, 415-22 , 239 A.2d 584 (1968).

Our research has not disclosed any controlling Maryland cases on this issue. Accordingly, we examine the legal reasoning and analysis from other state and federal jurisdictions. A. State Cases—Recent Cases In Commonwealth v. Knight, 416 Pa.Super. 586 , 611 A.2d 1199 (1992), the appellant, Terrence Knight, attempted to rob ⁴¹⁵ a bar at gunpoint. When the owner of the bar pulled a gun, Knight said that there were other men outside, and ran out the door.

Knight was later picked up by police and identified by the bar owner as the man who tried to rob the bar. Id. 611 A.2d at 1201 . At trial, Knight relied upon the defense of duress. He asserted that he was forced to rob the bar by two men from whom he bought $60 worth of drugs earlier that day.

Knight claimed that the drug dealers, armed with a knife and a baseball bat, found him at his girlfriend’s house, and forced him under the threat of death to go to the bar and rob it. Id. 611 A.2d at 1201 . The court, citing 18 Pa.Cons.Stat.Ann. § 309(b), 3 which was adopted from the Model Penal Code, stated that the duress defense is unavailable if the actor “recklessly placed himself in a situation in which it was probable that he would be subjected to duress,” or if the actor was “negligent in placing himself in such a situation, whenever negligence suffices to establish culpability to the offense charged.” Id. 611 A.2d at 1203 . Knight argued that the term “recklessly” in subsection (b) could not be easily comprehended by a lay person without legal assistance.

Id. The court held that the term “recklessly” should be defined for a jury and that a definition of the term is “efficacious when considering the language and purpose behind the exception to the duress defense.” Id. The ⁴¹⁶ court referred to the definitional section of the Pennsylvania Criminal Code, 18 Pa.Cons.Stat.Ann. § 103, which in turn referred to § 302 of the Code. Section 302 defined “recklessly” as follows: A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustified risk that the material element exists or will result from his conduct.

The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. Id. 611 A.2d at 1204 . (quoting 18 Pa.Cons.Stat.Ann. § 302(b)(3)). The court, therefore, concluded that § 302 provides the normal meaning of “recklessly” throughout the statute encompassing both the defense of duress as well as the elements of an offense.

Id. 611 A.2dvat 1204. In so doing, the court agreed with Knight’s argument that “recklessly” and “negligence” did not have the same meaning within the context of the Criminal Code. Id. 611 A.2d at 1205 . The court then went on to state that “recklessly” denotes more culpability than negligence: there should be no exculpation if the actor recklessly placed himself in the situation in which it was probable that he would be subjected to duress.

Though this provision may have the effect of sanctioning conviction of a crime of purpose when the actor’s culpability was limited to recklessness, we think the substitution is permissible in view of the exceptional nature of the offense. The provision will have its main room for operation in the case of persons who connect themselves with criminal activities, in which case too fine a line need not be drawn. When there is no more than negligence, however, on the actor’s part in placing himself in a situation where duress was probable ... [tjhe defense is excluded only on a charge which negligence suffices to establish culpability ... [t]he difference between ⁴¹⁷ inadvertence and conscious risk creation involved in recklessness appears to justify discriminating in this way. Id. 611 A.2d at 1205 (emphasis in the original) (quoting Model Penal Code, Comments, Tentative Draft 10, at 8).

The court held that the defendant, however, was not prejudiced by the trial court’s failure to define the term “recklessly,” and affirmed his conviction. The Court of Appeals of Alaska in Walker v. State, 674 P.2d 825 (Alaska Ct.App.1983), held that the trial court’s failure to define the term “recklessly” was not plain error. Id. at 830 . Walker, the defendant, and his cohorts knocked on the door of a residence they planned to burglarize to make sure no one was home.

Id. at 827 . When the owner’s son opened the door, the three men claimed they had car trouble and were in need of a telephone. Id. at 827 . The men entered the dwelling, robbed it and later kidnapped and killed the owner and her son.

Id. at 827 . At trial, Walker claimed that he agreed to participate in the burglary, but from the moment his companions drew a gun, he had to go along with the other greater crimes out of fear for his well-being. Walker was tried for two counts of first-degree murder, two counts of kidnapping, one count of robbery, one count of burglary, and two counts of theft. Walker was convicted on all counts except the murder counts.

Id. at 827 . On appeal, the court concluded that under Alaska Stat. § 11.81.440 (b), 4 duress is an affirmative defense and therefore the burden was on Walker to establish this defense. As he never objected to the instructions, the Court held that the trial court’s failure to define the term “recklessly” did not constitute plain error. Id. at 827-29 . ⁴¹⁸ In Meador v. State, 10 Ark.App. 325 , 664 S.W.2d 878 (1984), Meador was charged with attempted robbery.

Testimony at trial revealed that Meador tried to rob a nursing home after some men to whom he owed money picked him up at his apartment and said they were going to use him to rob an establishment to collect their money. Id. 664 S.W.2d at 880 . Meador therefore objected to the trial court’s instructions that duress is not a defense if he “recklessly placed himself in a situation in which it was reasonably forseeable that he would be subjected to the force or threatened force.” Id. 664 S.W.2d at 881 . The Arkansas Court of Appeals found no error in the trial court’s jury instruction, concluding that from the evidence adduced at trial, particularly the testimony of the appellant concerning why he owed the debt to the men who allegedly forced him to rob the nursing home, it could be inferred that the appellant’s drug dependence placed him in the position to be forced by these men to do something he might otherwise not do.

Thus the trial court’s instructions that the appellant could not claim the defense if he recklessly put himself in that position was proper under the circumstances of the case. Id. 664 S.W.2d at 881 . The Washington State Court of Appeals reached a similar conclusion in State v. McKinney, 19 Wash.App. 23 , 573 P.2d 820 (1978). There the defendant, McKinney, was convicted of robbery in the first degree while armed with a firearm.

Apparently, McKinney and a companion, both of whom were escapees from a prison work release program, robbed a tavern where they had been drinking for several hours. Id. 573 P.2d at 820 . As his companion pointed a gun at the bartender, McKinney emptied out the cash drawer. McKinney testified at trial that he was “coerced into taking the money from the till and that, had he not cooperated with his companion, either [McKinney] or the bartender might have been shot.” Id. 573 P.2d at 821 .

In dismissing the duress defense, the court cited Wash.Rev.Code § 9A.16.060, which defines the elements of the duress defense. Id. Specifically, the court noted subsection (3), which provides that “[t]he defense of duress is not avail ⁴¹⁹ able if the actor intentionally or recklessly places himself in a situation in which it is probable that he will be subject to duress.” Id. Id. 573 P.2d at 821 .

Finding nothing on the record to suggest that McKinney “acted under any personal constraint or that he was threatened,” the court held that the trial court did not err in failing to instruct the jury as to this affirmative defense. Id. In People v. Rodriquez, 30 Ill.App.3d 118 , 332 N.E.2d 194 (1975), the defendant, Rodriquez, was granted a three day furlough from jail and did not return, claiming that he was in fear of retribution from one of the corrections officers. Id. 332 N.E.2d at 196 .

Apparently, the officer had given Rodriquez money to buy a pound of marijuana while out on furlough, which Rodriquez subsequently spent while celebrating. Id. 332 N.E.2d at 196 . The court held that the defense of compulsion, as defined by Ill.Rev.Stat. Ch. 38, sec. 7-ll(a) (1973), 5 was not applicable. Id. 332 N.E.2d at 196 .

The court further noted that, even assuming the presence of the alleged threat, Rodriquez’s assertion of compulsion fails because if [the compulsion] actually existed, [it] arose only from the defendant’s appropriation for his own use of the funds given to him by the prison officer. Had the defendant returned the money instead of squandering it or had he completed the illegal scheme as planned, no compulsion would have arisen. Thus the compulsion resulted from the defendant’s own negligence or fault, and the statutory defense is therefore inapplicable. Id.

A similar result was reached by the Colorado Court of Appeals in People v. Bailey, 41 Colo.App. 385 , 590 P.2d 508 ⁴²⁰ (1978). There the defendants were convicted of the sale of narcotics, dispensing dangerous drugs, and conspiracy to sell narcotic drugs. Id. 590 P.2d at 509 . The defendants claimed that the conduct of undercover CBI (Colorado Bureau of Investigation) agents, who posed as mafia gangsters and talked of eliminating “snitches,” constituted duress.

Id. 590 P.2d at 510 . The court, citing Section 18-1-708 of the Colorado code (C.R.S.1973), 6 held that the facts did not support a finding of duress. The court further noted that, in any case, the duress defense was not available because “defendants intentionally or recklessly placed themselves in a situation in which it was foreseeable that they might be subjected to force or threatened use of force.” Id. 590 P.2d at 510 . See also State v. Kinslow, 165 Ariz. 503 , 799 P.2d 844, 848 (1990) (noting that the duress defense was not available to a prison escapee because under Ariz.Rev.Stat.Ann. § 13-412(B) the duress defense is unavailable “if the person intentionally, knowingly or recklessly placed himself in a situation which it was probable that he would be subjected to duress.” B. Federal Cases In U.S. v. Liu, 960 F.2d 449 (5th Cir.1992), Liu, a government informant on illegal activity in the Houston, Texas, Asian community, was arrested for his involvement in a green card scam during a sting operation.

Id. at 451 . At trial, Liu claimed that he was acting out of fear of suffering injury or death at the hands of one of the police officers who initiated the sting operation. Id. at 452 . The trial court, however, denied the instruction Liu submitted on the affirmative de ⁴²¹ fense of duress.

Id. at 453 . Affirming, the Court of Appeals for the Fifth Circuit held that the requested instruction did not conform to Fifth Circuit requirements for a