Appeal from the United States District Court for the Eastern District of Illinois, East St. Louis Division. No. 76 CR 59-E - James L. Foreman, Judge.
Before Fairchild, Chief Judge, Wood, Circuit Judge, and Reynolds, Chief District Judge.*fn*
The defendant-appellant, Gregory Micklus, was convicted in a jury trial of attempting to escape from the Marion Federal Penitentiary on July 22, 1976, in violation of 18 U.S.C. §§ 2 and 751(a). On appeal the defendant asserts that the trial court committed reversible error in a number of respects:
1) The defendant was deprived of the effective assistance of counsel when his trial attorney failed to request, and the judge failed to give, an instruction on the defense of "necessity" as well as the defense of "duress."
2) The court improperly denied the defendant's request that a subpoena be issued at government expense to a psychologist formerly employed at Marion who had examined the defendant at various times prior to the escape attempt.
3) The trial judge unreasonably restricted defendant's trial counsel's examination of certain witnesses.
4) The defendant was deprived of a fair trial by prejudicial comments by the prosecutor in cross-examination and in closing argument.
Taken in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942), the facts of the escape attempt were as follows. On July 22, 1976, around 1 p.m., Micklus and a fellow inmate named William Newman left a nonrestricted recreation area in the Marion Prison and by crawling over a corridor connecting two cell blocks dropped into a restricted area. After removing some clothing, the two inmates began to run toward the south perimeter fences. They were seen by a guard in tower number six who told them to halt. Instead, they began to climb the fence. They failed to respond to a warning shot, but stopped after being fired on. The inmates had prepared for the escape on the morning of the 22nd. Each wrapped his knees in Ace bandages and wore padded handball gloves in order to scale the barbed wire fence. Micklus also wore long underwear and had concealed a dime in an envelope along with numerous names and addresses.
The above facts were not contested by the defendant at trial. Instead, he pursued a two-pronged defense on the theory that his actions were the result of inexorable external pressures. Firstly, he argued that his initial decision to escape was motivated by fear of a homosexual assault by an inmate named Beckley, now deceased. Secondly, he argued that at the last minute he decided to withdraw from the escape attempt but was coerced into continuing by Newman, who put a knife to his throat and threatened to kill him if he didn't come along. Most of the defendant's assertions of error relate to constraints on his ability to develop the first of these two theories at trial.
In his opening and closing statements and by the questioning of witnesses, the defendant's trial counsel developed his theory that Micklus was "coerced" into attempting to escape by the fear of sexual attack, and at the last minute, by Newman's threats. In the opening and closing statements he argued that this element of coercion or compulsion negated the existence of the requisite Mens rea for the crime charged, i. e., voluntariness or wilfulness. A jury instruction on the theory of "coercion or duress" was demanded and granted.*fn1 Defendant's counsel on appeal now argues that the facts called for the development of the defense theory of "necessity" as well as "coercion," particularly with regard to the fear of sexual assault. It is further asserted that the failure of defendant's trial attorney to develop such a defense and to seek an appropriate jury instruction denied defendant of the effective assistance of counsel and that the judge's resulting failure to give such an instruction was plain error. We cannot agree.
The defendant has not been able to cite any cases in a federal jurisdiction in which "necessity" has been permitted as a theory of defense in an escape prosecution. However, defendant has pointed to developing case law in certain other jurisdictions concerning the differences between the concepts of "necessity" and "duress" as applied in this area. See, e.g., People v. Unger, 66 Ill.2d 333, 5 Ill.Dec. 848, 362 N.E.2d 319 (1977); Gardiner, The Defense of Necessity and the Right to Escape from Prison A Step Towards Incarceration Free From Sexual Assault, 49 S.Cal.L.Rev. 110 (1975); LaFave and Scott, Handbook on Criminal Law 374-88 (1972). It has been suggested that on a theoretical plane, the major difference between "duress" and "necessity" is that the former negates the existence of the requisite Mens rea for the crime in question, whereas under the latter theory there is no Actus reus. See Gardiner, Supra, at 115-23. Under the necessity approach, the defendant is faced with committing the act which normally constitutes a crime or an alternative act which represents a greater evil. In such a situation, he is encouraged to choose the lesser evil. The theory is not that his free will was overcome by an outside force as with duress, but rather that it was properly exercised to achieve the greater good.*fn2 Traditionally, in order for the necessity defense to be applicable, the choice of evils dilemma must have been staged by the physical forces of nature rather than by other human beings. See LaFave and Scott, Supra, at 381-83. The use of a fear of homosexual assault to justify a prison escape does not fit easily into either the "duress" or "necessity" mold. However, in the case at bar we need not decide whether it would constitute error for a trial judge to refuse to give a necessity instruction if requested, since none was requested here. We deal only with the more limited questions of whether the defendant's trial counsel's failure to attempt to develop the necessity approach in addition to a coercion defense deprived the defendant of the effective assistance of counsel or whether the trial judge's failure to give a necessity instruction Sua sponte constituted plain error.
We do not believe that the defendant was deprived of the effective assistance of counsel in this case. Since federal law has not recognized "necessity" as a defense in prison escape cases, to hold otherwise would mean that a defendant would have been deprived of the effective assistance of counsel merely because his attorney failed to attempt to pioneer new law in the jurisdiction and where the change in question had been accepted in only a handful of other jurisdictions. Here, defendant's trial counsel was able to extensively develop the facts concerning the sexual pressures exerted on the defendant. He also requested and was granted a "coercion" instruction. Even under a necessity theory the defendant would have had to show that there was no other way of avoiding the sexual assault short of escape from prison. We conclude that the trial counsel's failure to develop the necessity theory ...