APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
509 N.E.2d 640, 156 Ill. App. 3d 222, 108 Ill. Dec. 944 1987.IL.716
Appeal from the Circuit Court of Cook County; the Hon. Vincent Bentivenga, Judge, presiding.
PRESIDING JUSTICE SULLIVAN delivered the opinion of the court. LORENZ and MURRAY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN
Following a jury trial, defendant was convicted of one count of escape (Ill. Rev. Stat. 1985, ch. 38, par. 31-6(a)), one count of possession of a stolen vehicle (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 4-103(a)(1)), 10 counts of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2(a)), and five counts of unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10-3(a)). He was sentenced to maximum extended terms of 14 years for escape, 10 years for possession of the stolen vehicle, and 50 years on each of the 10 counts of armed robbery, all to run concurrently to each other but consecutively to the natural-life and 60-year sentences he was then serving on previous convictions of murder and armed robbery. No sentences were imposed on the unlawful restraint convictions, the trial court having determined that they merged with those for armed robbery. On appeal, he contends that (a) the trial court erred in refusing to instruct the jury on the defense of necessity, (b) his conviction for possession of a stolen vehicle was not supported by the evidence, and (c) the trial court abused its discretion in sentencing him to maximum extended terms of imprisonment.
The incident out of which the charges arose was the escape on March 23, 1984, by defendant and five other inmates from the maximum security division of the Cook County jail, where defendant was being held while awaiting trial on another armed robbery charge. He was apprehended in an apartment on the south side of Chicago on March 27, 1984, and charged with the offenses enumerated above. The evidence reconstructing the facts of this case was presented at a week-long trial through the testimony of 34 witnesses, which we have reviewed in its entirety but will discuss only to the extent that it directly relates to the issues raised.
Defendant first contends that the trial court improperly refused to instruct the jury on the statutory defense of necessity, arguing that where "some evidence" is presented in support thereof, it is error to refuse a tendered instruction thereon. People v. Unger (1977), 66 Ill. 2d 333, 362 N.E.2d 319.
In defense of the charges, defendant affirmatively asserted both (1) that he was initially compelled to participate in the preliminary escape activities by the other inmates because he was familiar with the tunnel system in the jail through which they planned to exit the complex, having once been assigned to a work detail transporting supplies between divisions by way of the tunnels, and (2) that his continued participation, ultimate escape and failure to thereafter surrender were necessitated by fear of physical retaliation against him by the guards. The trial court instructed the jury on the definition of compulsion, but refused the instruction tendered by defendant on the legal concept of necessity.
"Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct."
"A person is not guilty of an offense, other than an offense punishable by death, by reason of conduct which he performs under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he reasonably believes death or great bodily harm will be inflicted upon him if he does not perform such conduct."
Defendant is correct in his assertion that while the terms are sometimes used interchangeably, compulsion and necessity are theoretically distinct defenses. Compulsion implies a complete deprivation of free will, i.e., an absence of choice, whereas necessity involves a choice between two or more admitted evils (People v. Unger (1977), 66 Ill. 2d 333, 362 N.E.2d 319; People v. Whitson (1984), 127 Ill. App. 3d 999, 470 N.E.2d 1054; People v. White (1979), 78 Ill. App. 3d 979, 397 N.E.2d 1246). We are also cognizant of the well-settled proposition that a defendant is entitled to appropriate instructions on any legally recognized affirmative defense on which he has presented "some evidence." (Ill. Rev. Stat. 1985, ch. 38, par. 3-2; People v. Unger (1977), 66 Ill. 2d 333, 362 N.E.2d 319; People v. Roberts (1985), 136 Ill. App. 3d 863, 483 N.E.2d 1328.) As noted above, the instruction tendered by defendant on compulsion was given but his instruction on necessity was refused; thus, the only question for our review on this issue is whether the evidence introduced by defendant in support of the defense of necessity was sufficient to warrant a jury instruction thereon.
At trial, defendant testified that the maximum security division of the jail, referred to as "ABO," contained 19 one-man cells, a common-area dayroom used primarily for recreation and a control room, enclosed by bars, from which the guards were able to observe the inmates and electronically lock and unlock the individual cells. Between 8 a.m. and 6 p.m., the inmates were allowed in the ...