APPEAL from the Circuit Court of Johnson County; the Hon. PAUL
D. REESE, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendants, Ronald Pelate and William Bauer, were indicted for the offense of escape. (Ill. Rev. Stat. 1973, ch. 38, par. 31-6(a).) Following a jury trial conducted in the circuit court of Johnson County they were found guilty. The trial court sentenced each defendant to a term of imprisonment of not less than one year nor more than three years, such term to run consecutively with sentences of imprisonment already imposed upon defendants. From these convictions defendants appeal.
The record reveals that when the escape occurred defendant Pelate was serving several concurrent terms of imprisonment which were the results of convictions for armed robbery and robbery. At the same time, defendant Bauer was serving several concurrent terms of imprisonment imposed upon convictions of armed robbery and felony theft. Both defendants were transferred from Menard Correctional Center to the minimum security Vienna Correctional Center on February 28, 1974. The defendants were roommates with three others in one of the facility's dormitories. On March 22, 1974, defendants were accounted for at 5:30 and 7:30 p.m. resident checks but were not present or accounted for at the 9:30 p.m. check or anytime thereafter. After a thorough search of the center, prison and local law enforcement officers conducted a search for several days which failed to locate defendants.
The State, in its opening statement, revealed that it would present evidence in its case in chief to relate the precise circumstances under which defendants were apprehended in Utah, including defendant Pelate's "second effort" attempt to elude capture by abducting a 17-year-old boy. In chambers, at the close of the opening statement, both defendants moved for a mistrial. Defendant Pelate claimed that evidence of another offense would be inadmissible because it was not probative of any issue involved in the case and that the prejudice created by the opening statement itself required a mistrial. Defendant Bauer joined in the motion and additionally asserted that a mistrial was required since testimony pertaining to Pelate's involvement in an abduction was immaterial and highly prejudicial to him since he was not in any way involved in such action, and that the prejudice could not be cured by an instruction to consider that evidence only in connection with Pelate. The court denied the motion. Vigorous objections to the evidence were asserted throughout its presentation. Defendants' renewed motion for mistrial at the close of the State's case was denied.
Two troopers of the Utah Highway Patrol testified at length to the details of a high-speed interstate chase involving several of their cars and a 1973 Chevrolet which was occupied by defendants. The chase, which occurred on April 9, 1974, began when a trooper on Interstate 15, near Salt Lake City, attempted to pull over the Chevrolet because it matched the description of a car reported as stolen. The troopers testified, inter alia, that during the chase the vehicles reached speeds in excess of 110 miles per hour, that traffic was rather heavy at this time, that defendants' vehicle switched lanes constantly and that defendants' car eventually crashed when it failed to negotiate an exit ramp and collided with a guard rail. After the car crashed, defendants exited from different doors and ran in opposite directions. Trooper James Turner testified that he gained custody of defendant Bauer only after he threatened to shoot him if he did not halt. Defendant Bauer told him that his name was Donald Peterson. The other trooper, Dwain Loveless, stated he pursued defendant Pelate in a footrace which took them into an industrial park area. He further related that Pelate got into a pickup truck occupied by a young boy and forced him to drive away although Loveless had identified himself as a police officer and commanded them to stay where they were. Defendant Pelate was only apprehended after another chase through Salt Lake City in which the police were aided by the efforts of Trooper Loveless, who had jumped into the bed of the pickup truck. Trooper Loveless testified that defendant Pelate gave his name as Eric Welsch when he was finally under police control.
The State also called Robert Heinz, the abduction victim, to testify. He further related the details of the chase involving defendant Pelate and himself. He testified that Pelate placed his hand under his jacket as if he had a gun and told him to drive or be shot. The threat was repeated at critical junctures of the chase.
At the close of its case, the State asked for an in camera offer of proof by the defendants of the evidence they wished to introduce on the defenses of compulsion or necessity. The State represented to the court that such an offer was required to determine if there was any admissible evidence on such a defense because the California courts> which recognized the availability of a limited defense of necessity to the crime of escape required such offer. (Presumably relying upon People v. Lovercamp (1974), 43 Cal.App.3d 823, 118 Cal.Rptr. 110.) The court did require a full offer of proof in evidentiary form.
The defendants' offer of proof was basically presented by their own testimony and the testimony of two other prison inmates, Leroy Stickler and Malcolm Little, Jr. We shall summarize the testimony.
Defendant Bauer's testimony revealed a history of persecution by the Black Disciples, a black Chicago street gang which also exists within the penitentiary system. Bauer, who is caucasian, testified that a pattern of hostilities began in 1971 after his support of the actions taken by the warden of Pontiac Correctional Center in the wake of a disturbance there in October received television and newspaper coverage. Apparently as a consequence of his resultant unpopularity with this gang, Bauer's life was threatened several times and he was attacked in December of 1971 by a black inmate armed with a knife. Between August 28, 1973 and February 28, 1974, while incarcerated at Menard Correctional Center, Bauer was allegedly threatened several times and involved in several physical confrontations with black gang members.
Bauer related that approximately 50 to 70 persons who had been in Pontiac in 1971 were in the minimum security Vienna Correctional Center when he was transferred there February 28, 1974. A group of Black Disciples threatened him on March 12, 1974. On March 20, 1974, two days before the escape, three Black Disciples who were roommates with Bauer threatened to harm him when they got an opportunity to because they felt he was a "stool pigeon." Bauer testified he was afraid to complain about the threats because of the possibility of more reprisals, and he became convinced that he must escape to avoid the danger. He further testified that after he was apprehended and returned to Menard several other attacks were made upon him.
Malcolm Little, Jr., and Leroy Stickler testified concerning their observations of attacks upon the defendants that were perpetrated by black gang members. These attacks were subsequent to their return to the penitentiary. Malcolm Little also explained that inmates in the Vienna facility sometimes are afraid to report threats or attacks because information concerning such reports often is relayed to the inmates by other prisoners with access to such complaints. The end result of a complaint if this occurs is more abuse. Leroy Stickler also testified concerning his knowledge of sexual advances and threats made toward defendant Pelate since his return to the penitentiary.
Ronald Pelate's testimony in the offer of proof contained a detailed explanation of three gang assaults made upon him while he was at Menard Correctional Center prior to his transfer to Vienna and his subsequent escape. These attacks resulted in substantial injuries. He believed the attacks were made by members of the Black Disciples or another gang, Metro East, in retaliation for his refusal to join offshoots of either gang which were open to caucasians. Pelate related further that he had been involved in fights while at the Menard facility to repel homosexual assaults, and that on March 22, 1974, the night of the escape, he had again been forced to take evasive action to elude three blacks who had made known their intention to commit a homosexual assault upon him.
The trial court denied the offers of proof stating that no imminent danger appeared to be shown and that matters which occurred at institutions other than Vienna were incompetent and irrelevant. In addition, the court noted that defendants made no effort to turn themselves back in to prison officials after reaching safety. Since the exclusion of the offered testimony left defendants with nothing to assert in their defense, no evidence was put before the jury by defendants.
Defendants' first contention in this appeal is that they were denied their right to a fair trial because the trial court required them to make an offer of proof of their defense prior to their presentation of any evidence and then ruled that none of the evidence, which related to the affirmative defenses of compulsion and necessity, could be put before the jury. This contention was advanced in defendants' briefs at a time prior to the filing of ...