Opinion
No. 77-482
Decided May 11, 1978. Rehearing denied June 15, 1978.
Convicted of possession of contraband, penitentiary inmate appealed on basis that trial court erred in refusing to instruct jury on statutory defense of duress.
Reversed
1. CRIMINAL LAW — Defenses — Duress — Prerequisite — Threat — Present, Impending, Imminent — Possible Future Injury — Insufficient — Question — One of Fact. Where the threat of unlawful use of force is alleged as a means of asserting the defense of duress to a criminal charge, that defense is available only if the threat is one of present, impending, and imminent use of force, and a threat of future injury is not enough; however, the question of whether a threat is imminent is, in all but the clearest of cases, to be decided by the trier of fact after considering all of the surrounding circumstances, including the defendant's opportunity and ability to avoid the harm.
2. Defense — Duress — Testimony — By Defendant — Threats — Other Inmates — Not Identified — Affected Credibility — Not — Submissibility of Defense — Jury. Where, in attempting to establish the defense of duress to charge of possession of contraband, defendant, a penitentiary inmate, testified as to threats by other inmates against himself and members of his family, but failed to identify the inmates making the threats, that omission in his testimony went to the credibility of his explanation, but did not affect the submissibility of the defense to the jury.
3. Defenses — Duress — Penitentiary Inmate — Testified — Threats — Self and Family — Entitled — Jury Instruction — On Defense — Error — Not Cured — Theory of Case Instruction. Where, in prosecution for possession of contraband, defendant, a penitentiary inmate testified that he and members of his family were specifically threatened with harm if he did not cooperate in retaining possession of heroin for other inmates, the defendant was entitled to have the jury instructed on the defense of duress, and the trial court's error in not so instructing the jury was not cured by the fact that the jury was instructed on defendant's theory of the case since that instruction did not inform the jury that defendant's theory was a defense to the charge.
Appeal from the District Court of Fremont County, Honorable Max C. Wilson, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, David Schwartz, Assistant Attorney General, for plaintiff-appellee.
Larry Dean Allen, for defendant-appellant.
Defendant, Eddie Silviano Maes, a prisoner in the state penitentiary, was convicted by a jury of possession of contraband in violation of § 18-8-204.1(1) and (2), C.R.S. 1973 (1976 Cum. Supp.). He appeals, contending that the trial court committed reversible error when it refused to submit to the jury instructions tendered by him on the affirmative defense of duress as defined by § 18-1-708, C.R.S. 1973. We reverse.
The undisputed evidence established that during a shakedown search at the medium security unit, a balloon which was determined to contain heroin was found on defendant. Defendant testified that two days earlier three inmates, not otherwise identified, had asked him "to hold their stuff . . . until payday" and that he took it and did not report the incident because the men told him that if he didn't take it they would "hit" him and if he reported them they would "have somebody from the outside do something to [his] wife and son." Defendant further testified that after the confrontation with the unidentified inmates he contacted his wife, informed her of the problems he was having, and told her to move.
Section 18-1-708, C.R.S. 1973, provides, insofar as is pertinent here, that:
"A person may not be convicted of an offense . . . based upon conduct in which he engaged because of the use or threatened use of unlawful force upon him or upon another person which force or threatened use thereof a reasonable person in his situation would have been unable to resist . . . ."
[1] It has generally been held that where the threat of unlawful use of force is alleged, the defense is available only if the threat is one of present, impending, and imminent use of force, and that a threat of future injury is not enough. People v. Harmon, 53 Mich. App. 482, 220 N.W.2d 12, aff'd 394 Mich. 625, 232 N.W.2d 187 (1975); see generally, Annot. 60 A.L.R.3d 678; Annot. 40 A.L.R. 2d 908; 1 Wharton's Criminal Law and Procedure, § 123 (R. Anderson ed. 1957). However, the question whether a threat is imminent is, in all but the clearest of cases, to be decided by the trier of fact after considering all of the surrounding circumstances, including the defendant's opportunity and ability to avoid the harm. People v. Harmon, supra.
[2] Unlike a generalized fear of retaliation, which did not warrant a choice of evils instruction in People v. Robertson, 36 Colo. App. 367, 543 P.2d 533 (1975), the defendant here testified that he was specifically threatened with injury to himself and to his family if he refused to hold the heroin or if he reported the incident to the authorities. Defendant's failure to identify the inmates who threatened him goes to the credibility of the explanation, rather than to the submissibility of the defense to the jury. See Pittman v. Commonwealth, 512 S.W.2d 488 (Ky.App. 1974).
Although the trial court ruled that the defendant's evidence was insufficient to warrant an instruction on the defense of duress, the jury was instructed on the defendant's theory of the case. This instruction was to the effect that the defendant acted out of fear for himself or for his wife and child, that the fear was caused by the use or threatened use of unlawful force, that it was a reasonable and rational fear, and that if the defendant had not acted as he did, his wife and/or his child would have been injured.
The jury was not told that the defendant's theory, if believed, was a defense. Cf. People v. Martin, 192 Colo. 491, 561 P.2d 776 (1977). The People contend that the theory of the case instruction "implicitly" directs the jury to acquit the defendant of the charge and thus the failure to instruct on the defense of duress was not error. We cannot assume that the jury inferred that they could acquit the defendant if they believed his theory of the case. See People v. Hill, 182 Colo. 253, 512 P.2d 257 (1973) (failure to instruct on the presumption of innocence requires a new trial).
[3] Under the circumstances, the trial court erred in ruling that the evidence was insufficient to raise the defense of duress. On retrial, the jury should be instructed on the burden of proof with respect to affirmative defenses pursuant to Colo. J.I. — (Crim.) 7:1, and should be given the following modified version of Colo. J.I. — (Crim.) 7:9:
"It is an affirmative defense to the crime of possession of contraband that the defendant engaged in such conduct because of the use or threatened use of imminent unlawful force upon him or upon another person, which force or threatened use thereof a reasonable person in his situation would have been unable to resist. This defense is not available when a person intentionally or recklessly places himself in a situation in which it is foreseeable that he will be subjected to such force or threatened use thereof."
The judgment is reversed.
JUDGE PIERCE and JUDGE SMITH concur.