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Lacey v. State (9/6/2002) ap-1825
Lacey v. State (9/6/2002) ap-1825
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LYNN E. LACEY, )
) Court of Appeals No.
A-7883
Appellant, )
Trial Court No. 3PA-98-2039 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. ) [No.
1825 September 6, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Palmer, Eric Smith, Judge.
Appearances: Kathleen A. Murphy, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Kim S.
Stone, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Bruce M. Botelho, Attorney General,
Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
COATS, Chief Judge, dissenting.
Lynn E. Lacey absconded from the Palmer Correctional
Center on September 15, 1998, shortly before he was to have been
transferred to a private prison in Arizona. Lacey lived as a
fugitive for the next thirteen months. Using the alias Allen
Mitchell, he obtained a new drivers license and forged a new life
in the Trapper Creek area. He obtained employment, attended
church, purchased three vehicles, and was preparing to buy
property in a new subdivision when he was arrested in October
1999.
Following Laceys arrest, he was indicted for second-
degree escape.1 His proposed defense was necessity. Laceys
attorney asserted that, on the day before Lacey absconded, a
fellow inmate told Lacey that he would be killed as soon as he
was transferred to the Arizona prison thus prompting Lacey to
escape from prison to preserve his life.
Superior Court Judge Eric Smith considered Laceys offer
of proof and concluded that it was deficient in two respects.
First, Lacey never informed the prison authorities of the alleged
threat and never tried to obtain their help and protection.
Judge Smith therefore ruled that Lacey had failed to present a
prima facie case that he had no reasonable alternative to
absconding from prison. Second, escape from prison is a
continuing offense. Even assuming that Laceys initial escape
from prison might have been justified, Lacey remained a fugitive
for more than a year. During this time, he concededly did not
contact the authorities or ask a lawyer (or any other person) to
assist him in negotiating with the authorities. Judge Smith
therefore ruled that Lacey had failed to present a prima facie
case that he had no reasonable alternative to remaining a
fugitive. For these two reasons, Judge Smith concluded that
Lacey was not entitled to present a necessity defense to the
jury.
The main question presented in this appeal is whether
Laceys offer of proof was sufficient to establish a prima facie
case of necessity whether it constituted the some evidence of
necessity that is required under AS 11.81.320(b) and AS 11.81.
900(b)(2)(A) before a defendant is entitled to a jury instruction
on this issue. We agree with Judge Smiths analysis of Laceys
offer of proof, and we therefore uphold his ruling.
Before we discuss this issue, we will address a
separate point that Lacey raises in this appeal: Judge Smiths
purported failure to grant Laceys request for a continuance of
trial.
Judge Smiths purported failure to grant a continuance
of trial
Just before jury selection was scheduled to begin and
before Judge Smith ruled that Laceys proposed necessity defense
was not available Laceys attorney asked Judge Smith to delay the
trial so that the defense could track down a witness: the inmate
who allegedly had threatened Lacey. Laceys attorney admitted
that they did not know where this man was, but she told Judge
Smith that they were trying to locate him through Department of
Corrections records.
In response, Judge Smith noted that Laceys trial was
going to be interrupted for a week anyway (because of other
matters already scheduled). Thus, even if the court denied the
requested continuance, Laceys attorney would still have two weeks
to find her witness before the State rested its case. Judge
Smith declared that, given this scheduling situation, we can sort
of have our cake and eat it, too. In other words, jury selection
could commence as scheduled, but the defense attorney would
effectively receive the benefit of a continuance.
Laceys attorney did not argue that two weeks was
insufficient, nor did she otherwise object to Judge Smiths
suggested solution of the witness problem. Her only response
was, So wed start [jury selection] tomorrow?
Later, Lacey waived his right to a jury trial and
consented to a bench trial. As a result, the States case ended
earlier than anticipated. At this point, Laceys attorney
expressed reluctance to begin her case; she implied that she was
not ready to proceed because we were [not] supposed to [begin]
our defense [until] next week. Judge Smith conceded that he
[had] thought [that the States] case would take longer. He told
Laceys attorney that, if need be, we will continue [this trial]
until a week from Monday, so you can find this [witness]
regarding the threat.
However, Judge Smith also noted that the missing
witnesss testimony was probably not necessary because the judge
had already accepted the defense offer of proof that Lacey had
been threatened. He told the defense attorney, [There is no]
need [for] you to confirm evidence that youve presented through
your offer of proof. (This issue of Laceys proposed defense of
necessity and his accompanying offer of proof is explained more
fully later in this opinion.)
Judge Smith offered to recess Laceys trial for a day so
that the defense attorney could confer with Lacey, both about
this matter and the related issue of whether Lacey should take
the stand. The defense attorney responded, [T]hat would be a
good idea. The next day, when court reconvened, the defense
attorney told Judge Smith that she intended to rest her case
without presenting any more evidence.
Given this record, we conclude that Lacey failed to
preserve his claim of a denied continuance.
Moreover, any error would be harmless. Even if this
missing witness had been located, and even if he had waived his
Fifth Amendment privilege and testified that he had threatened
Lacey, this would only corroborate the assertions of fact
contained in Laceys offer of proof. And, as we discuss in the
next section, this offer of proof was insufficient to establish a
prima facie case of necessity.
The law of necessity as it applies to escapes from
prison
Under AS 11.81.320(a), Alaska law recognizes the
defense of necessity to the extent permitted by common law. As
used in this statute, the term common law refers to the evolution
of [the] law through court decisions.2 Thus, the definition of
the necessity defense is not limited to the state of the law at
any particular time in the past. Rather, the legislature
intended to give the courts the power to define the specifics of
the defense of necessity in Alaska.3
The necessity defense is premised on the concept that
it is sometimes necessary to break the law in order to prevent a
worse evil.4 As defined in our case law, the necessity defense
comprises three basic elements: (1) the defendant must have
violated the law to prevent a significant evil, (2) there must
have been no adequate alternative method to prevent this evil,
and (3) the harm caused by the defendants violation of the law
must not have been disproportionate to the foreseeable harm that
the defendant was trying to avoid.5 In Wells v. State, 687 P.2d
346 (Alaska App. 1984), we elaborated this definition, explaining
how these three basic elements should be interpreted when
necessity is raised as a defense to an escape from prison.
First, we held that escape is a continuing offense.
That is, offenders who abscond from custody continue to commit
escape for as long as they remain away from custody.6 Second,
because escape is a continuing offense, we held that [a]
defendant relying on necessity to justify an escape must present
some evidence justifying his continued absence from custody as
well as his initial departure.7
Next, we explained how the second basic element of
necessity the lack of an adequate alternative to breaking the
law should be interpreted in escape cases.
The defendant in Wells claimed that his initial escape
from prison was justified because prison officials failed to give
him adequate medical attention and also neglected his need for
psychological counseling.8 We flatly held that such evidence,
even if believed, was insufficient as a matter of law to raise a
necessity defense.9
The Wells opinion does not directly explain this legal
conclusion, but the holding appears to be based on the
interpretation of the necessity defense announced by the
California Court of Appeal in People v. Lovercamp, 118 Cal.Rptr.
110 (Cal. App. 1974). The California courts analysis is quoted
in footnote 2 of Wells. Under this interpretation of the
necessity defense, prisoners relying on necessity to justify an
escape from custody must offer evidence that either (1) there was
no time to seek a remedy through the prison administration or the
courts, or (2) the prisoner had made similar requests or
complaints in the past, and these had proved futile.10
In Wells, the defendant offered no evidence to show
that he had sought administrative or judicial remedies for the
alleged lack of medical care. Thus, the fact that he may have
actually needed better medical care was, as a matter of law, not
sufficient to establish a prima facie case for a necessity
defense.
The defendant in Wells also offered evidence that he
had been threatened by fellow prisoners after he revealed their
plan to steal some marijuana.11 We held that this evidence was
likewise insufficient, as a matter of law, to raise the issue of
necessity. We reached this conclusion because (1) Wells failed
to offer evidence that he had tried unsuccessfully to obtain
protection within the institution and, additionally, because
(2) Wells failed to offer evidence that he turned himself in
after obtaining his freedom or that he could justify his
continuing absence from custody.12
Employing the rules of law announced in Wells, we now
analyze Laceys case.
Lacey failed to offer sufficient evidence to raise the
issue of necessity
Before a defendant is legally entitled to
argue the defense of necessity (or any other defense
defined in the Alaska criminal code) to the trier of
fact, the defendant must present some evidence to put
the matter at issue.13 In this context, some evidence
is a term of art; it means evidence which, if viewed in
the light most favorable to the defendant, is
sufficient to allow a reasonable juror to find in the
defendants favor on each element of the defense.14
As explained above, one of the three basic
elements of the necessity defense is that the defendant
had no adequate alternative to breaking the law. From
the very beginning, Laceys attorney admitted that
Laceys case was weak on this element. The defense
attorney conceded that Lacey could have gone to
[prison] counselors about the death threat, but she
asserted that Lacey had not done this because he
suspected that the counselors would not believe him.
(Lacey had just litigated and lost an
administrative appeal of the decision to transfer him
to Arizona. Lacey had opposed the transfer for
personal reasons unrelated to his safety. Having lost
this appeal, Lacey apparently suspected that prison
officials would not believe him if, on the day
scheduled for his transfer, he told the officials that
he had just been threatened with death if he went to
Arizona.)
In addition to the issue of whether Lacey
availed himself of administrative procedures for
seeking help and protection before he absconded from
prison, Judge Smith noted that Wells requires a
defendant to offer evidence to justify his continued
absence from custody. When the judge asked Laceys
attorney to state her offer of proof on this issue, she
replied:
Defense Attorney: He stayed away
because he ... didnt know what else to do.
He was always looking for a way to ... deal
with the situation. He was trying to get a
lawyer. He was trying to find a way to make
some money to get a lawyer, to go in with a
lawyer and explain what had happened and ask
what to do then. ... There is some support
for everything that Mr. Lacey says ... . And
we can bring out what little bit there is
through cross-examination. Mr. Lacey also is
prepared to take the stand and describe his
feelings.
After hearing this offer of proof,
Judge Smith told the defense attorney that he
would proceed under the assumption that Lacey
was willing to take the stand and that Laceys
testimony would corroborate every assertion
of fact in the offer of proof. Judge Smith
also assured the defense attorney that he
understood that his role was to assess the
offer of proof in the light most favorable to
Lacey, and that the credibility of Laceys
explanation was not at issue. Rather, the
issue was whether Laceys offer of proof was
sufficient to establish a prima facie case of
necessity whether the assertions of fact
contained in the offer of proof, if believed
and viewed in the light most favorable to
Lacey, were sufficient to support a finding
in Laceys favor on each element of the
necessity defense.
Judge Smith then ruled that, based
on our decision in Wells, Laceys offer of
proof was insufficient for two reasons.
First, even assuming that Lacey was
threatened and that he had good reason to
suspect that he would suffer injury or death
if he went to Arizona, Lacey was nevertheless
obliged to seek the help and protection of
prison officials. Judge Smith accepted
Laceys assertion that he believed it would be
futile to ask prison officials for help, but
the judge ruled that Laceys subjective belief
did not excuse him from pursuing this lawful
alternative to escape.
On this point, Judge Smith relied
on this Courts decision in Gerlach v. State,
699 P.2d 358 (Alaska App. 1985). The
defendant in Gerlach was a non-custodial
parent who absconded with her child because
of her fear that the child was being
mistreated or neglected. Gerlach hid with
the child for more than a year before she was
found and arrested.15
After Gerlach was indicted for
custodial interference, she raised the
defense of necessity. She contended that she
had stolen the child rather than seeking
court intervention because she feared that
she did not have enough money to adequately
finance litigation and because she suspected
that the judge assigned to the custody case
was prejudiced against her.16 We held that,
as a matter of law, Gerlachs subjective
belief about the futility of litigation was
insufficient to raise a necessity defense.
We stated, [A] person cannot be permitted to
ignore [available remedial] procedures and
rely on self-help simply because he or she
distrusts lawyers, judges, and social
workers.17
Judge Smith applied this same rule
to Laceys case. He concluded that even if
Lacey was threatened as he asserted in his
offer of proof, Lacey was still obliged to
pursue the remedial procedures available to
him, even if he suspected that prison
officials might view his claim with
skepticism.
Judge Smith also ruled that Laceys
offer of proof was deficient because, even if
Laceys initial decision to escape was
arguably justified, Lacey failed to offer a
justification for his ensuing thirteen-month
absence from custody. Judge Smith noted that
Lacey had not contacted prison authorities or
any other government official during these
thirteen months to explain his problem and
seek a resolution of his situation. The
judge further noted that Lacey had not
contacted any attorney to help him in
approaching the authorities. Although Lacey
claimed that he always intended to contact an
attorney as soon as he had accumulated
sufficient money to retain one, Judge Smith
pointed out that Lacey did not need a large
amount of money to initiate this process,
since most attorneys are willing to hold an
initial consultation with a prospective
client for a nominal fee. In other words,
Lacey had not even taken the first step of
contacting an attorney to ascertain how much
the legal representation would cost.
After outlining these deficiencies
in Laceys offer of proof, Judge Smith
clarified that he accepted (for purposes of
the offer of proof) Laceys assertion that he
subjectively believed that these approaches
would be a waste of time. But based on Wells
and Gerlach, Judge Smith concluded that the
question did not turn on Laceys subjective
belief concerning the efficacy of these
alternatives. Rather, the question turned on
whether these alternatives were legally
adequate and reasonably available.
Accordingly, Judge Smith ruled that Laceys
offer of proof was insufficient to raise the
defense of necessity.
On appeal, Lacey contends that his
offer of proof was sufficient to raise the
defense. In his brief, Lacey claims that he
did in fact present some evidence to justify
a reasonable conclusion that it would have
been futile for Lacey to seek the help or
protection of prison officials as an
alternative to running away from prison.
Lacey asserts that, prior to the death threat
he received on the eve of his transfer to
Arizona, he had been harassed several times
in prison, and prison officials did not
always act to protect him.
But Lacey never presented this
assertion to Judge Smith. In his brief to
this Court, Lacey cites page 29 of the
transcript for his assertion that prison
officials had been indifferent to the prior
harassment. But this page of the transcript
reveals that Laceys attorney told Judge Smith
only the following: For a period of time,
[Lacey had] been harassed and baited and had
suffered a lot of that kind of behavior from
other inmates, but he was coping with that.
In other words, the attorney did not tell
Judge Smith that Lacey had asked prison
officials to intervene or that prison
officials had been indifferent to Laceys
safety or well-being. We must evaluate Judge
Smiths ruling based on the offer of proof
that Lacey made in the superior court.
Lacey also argues that he
subjectively believed that a conspiracy was
afoot i.e., that prison officials actively
wished to see him harmed and that this was
their motivation for sending him to Arizona.
But, as we held in Gerlach, a defendants
subjective distrust of government officials
is not a valid reason for failing to pursue
legal avenues of relief. Moreover, even if
Lacey had had objective reasons for
concluding that prison officials were
conspiring to harm him, this would not
justify his decision to remain a fugitive for
thirteen months without contacting the Alaska
State Troopers, the Alaska Department of Law,
or some other government official.
Finally, Lacey reiterates his claim
that he was trying to save enough money to
hire a lawyer to help him negotiate with the
authorities. But, as Judge Smith noted,
Lacey never took even the first step of
contacting a lawyer for an initial
consultation (or of contacting the Public
Defender Agency, which he could have done for
free).
We therefore agree with Judge Smith
that Lacey failed to present sufficient
evidence to raise a jury issue on two
elements of his proposed necessity defense.
Lacey failed to offer a legitimate reason for
failing to pursue available administrative
remedies before absconding from prison, and
he failed to offer a legitimate justification
for his decision to remain a fugitive for
thirteen months.
We emphasize that, had Lacey
offered some evidence on these two elements
i.e., evidence sufficient to support a
finding in Laceys favor on these elements
then it would have been up to the jury to
decide the credibility of that evidence. We
affirm Judge Smiths ruling because we agree
with him that even if we accept as true all
the assertions of fact contained in Laceys
offer of proof, those assertions are not
sufficient to support a finding in Laceys
favor on these two elements of the necessity
defense.
Judge Smith did not clearly err when he concluded that
Lacey had failed to prove mitigator (d)(3) by
clear and convincing evidence
Laceys offense, second-degree escape, is a
class B felony.18 Because Lacey was a third felony
offender, he was subject to a 6-year presumptive
term.19 At sentencing, Lacey contended that his
presumptive term should be mitigated under AS 12.55.
155(d)(3) i.e., that his offense [was] committed ...
under some degree of duress, coercion, threat, or
compulsion insufficient to constitute a complete
defense, but which significantly affected the
defendants conduct.
The litigation of this issue actually began
five months earlier, at Laceys trial, when Lacey
proposed his necessity defense. Even though Judge
Smith concluded that Lacey had failed to make a
sufficient offer of proof to justify a necessity
defense, the judge told Lacey that the assertions of
fact contained in his offer of proof were conceivably
relevant to mitigating Laceys sentence but only if
Lacey presented evidence to support these assertions,
either at trial or at sentencing.
In fact, after Lacey elected to proceed with
a bench trial, Judge Smith invited the defense attorney
to use the trial as a vehicle for presenting her
witnesses concerning any threats made to Lacey and
Laceys perception of how he should deal with those
threats. Judge Smith told the defense attorney that
this was a matter of administrative convenience: the
judge could mentally separate this evidence from the
evidence bearing on Laceys guilt or innocence, and
presentation of this evidence at trial would simplify
or shorten the sentencing hearing. Despite this
invitation, Lacey chose not to testify at trial and his
attorney presented no other witnesses on these issues.
Nor did Lacey take the stand or present other
evidence at his sentencing hearing. In fact, when
Laceys attorney presented her argument in favor of the
proposed mitigating factor of duress, threat, or
compulsion, she did not rely on any purported threat to
Laceys life. Instead, she relied on lesser acts of
harassment that Lacey had suffered at the hands of
fellow inmates:
Defense Attorney: [E]ven if the court
didnt find that Mr. Laceys life was
threatened, there certainly was evidence that
he had been harassed ... . [T]here was an
incident where Mr. Lacey was squirted in the
face with some cleanser [by an inmate named]
McNaulty. He [also] was antagonized by a man
named Sweeney ... . [And] Corrections
Officer Bowers said that [Lacey] was harassed
that he didnt think it was anything out of
the ordinary, but he did confirm that he was
harassed. Also, ... Lynn Davids [testified
that] she would be on the telephone with him,
and she would hear shouting and catcalls
while she was on the telephone.
So, whether or not that amounted to a
defense [to the crime of escape], it
certainly did show some degree of duress or
coercion.
Judge Smith found that Lacey had failed to prove this
mitigator. He declared that he was rejecting the
proposed mitigator for the same reason that he rejected
Laceys offer of proof regarding necessity: Lacey had
done nothing to pursue available administrative
remedies to alleviate the problems he faced in prison.
On appeal, Lacey challenges Judge Smiths rejection of
this proposed mitigator. But Laceys primary argument
is that he received a death threat, that this threat
motivated his escape, and that therefore his offense
was mitigated under AS 12.55.155(d)(3). As explained
above, Lacey presented no evidence that he had been
subjected to death threats, nor did his attorney rely
on this theory when she argued the proposed mitigator
at the sentencing hearing.
There was evidence that Lacey was subjected to lesser
acts of harassment by his fellow inmates, but the question is
whether this lesser harassment mitigated Laceys culpability for
absconding from prison under AS 12.55.155(d)(3). As we noted in
Bynum v. State, mitigator (d)(3) requires proof of duress,
threat, or compulsion sufficiently extraordinary in nature that
it approaches being a defense to the crime.20 We conclude that
Judge Smith did not clearly err when he found that Laceys
evidence did not establish mitigator (d)(3) by clear and
convincing evidence.21
Conclusion
The judgement of the superior court is
AFFIRMED.
COATS, Chief Judge, dissenting.
Lacey escaped from prison. He was
apprehended in Alaska approximately a year after his
escape. Lacey defended on the ground that it was
necessary for him to escape from prison because he was
about to be transferred to an Arizona prison and had
received credible threats that he would be killed as
soon as he entered that prison.
A defendant who argues the defense of
necessity to justify an escape from prison
understandably bears a heavy burden to justify his
actions. He must establish that he had no reasonable
alternative but to escape. Part of his burden is to
establish that he was unable to obtain adequate
protection within the institution. Furthermore, a
defendant must present some evidence justifying his
continued absence from custody as well as his initial
departure.1
In my view, Lacey presented some evidence
that could justify a jurys finding that Lacey
established his necessity defense. In his offer of
proof, Lacey represented that the Department of
Corrections was going to transfer him from a facility
in Alaska to a facility in Arizona. Lacey
administratively fought the transfer but lost. Then,
someone within the prison told him that he would be
killed the moment he entered the Arizona prison.
(Laceys attorney represented that she currently was
looking for the person who had threatened Lacey.) The
day following the threat, Lacey was told that he was
going to be transferred. He thought that the person
who threatened him had inside information because he
had threatened him the day before Lacey was going to be
transferred. Lacey was aware that another person had
been beaten into a coma at the Arizona facility. He
was sure that the threat was credible, and he was
afraid for his life. He explained that he felt that it
would be futile to seek help from Department of
Corrections officials because he was sure that they
would assume that he was merely trying to avoid the
transfer. He concluded that his only possible course
of action was to escape.
Lacey explained his prolonged absence from
the institution. He explained that he was sure that if
he turned himself in, he would be transferred to
Arizona and killed. He explained that he believed that
his only chance was to hire a lawyer before he turned
himself in. He claimed that his intention was always
to turn himself in but only after he had obtained a
lawyer who could protect his rights. He claimed that,
at the time he was arrested, he had saved $600 towards
the expense of hiring a lawyer. It was always his
intent to turn himself in when he had a chance to deal
with the threat against his life.
In my view, Laceys offer of proof meets all
of the Wells criteria. He had an explanation for each
prong of the defense. Of course, Laceys defense to his
escape charge was weak. But, in my view, he had the
right to present this defense to a jury. Lacey was
entitled to a jury trial. I see no reason to deprive
him of his right to a jury trial merely because he had
a weak defense. I would therefore reverse Laceys
conviction and remand to allow him to present his case
to a jury.
_______________________________
1 AS 11.56.310(a)(1)(A).
2 Wells v. State, 687 P.2d 346, 348 (Alaska App. 1984).
3 Wells, 687 P.2d at 349.
4 See Wayne R. LaFave and Austin W. Scott, Jr., Substantive
Criminal Law (1986), 5.4, Vol. 1, p. 629.
5 See Cleveland v. Anchorage, 631 P.2d 1073, 1078 (Alaska
1981).
6 See Wells, 687 P.2d at 350.
7 Id.
8 See id.
9 Id. at 351.
10 See id., 687 P.2d at 347 n.2. But compare the
seemingly contradictory statements in footnotes 3 and 4.
11 See id. at 351.
12 Id.
13 See AS 11.81.900(b)(2)(A) (governing affirmative
defenses, i.e., defenses on which the defendant bears the burden
of proof) and AS 11.81.900(b)(18)(A) (governing normal defenses).
14 See Ha v. State, 892 P.2d 184, 190 (Alaska App. 1995)
(the evidence must be sufficient to establish each element of the
proposed defense); Paul v. State, 655 P.2d 772, 775 (Alaska App.
1982) (the evidence, viewed in the light most favorable to the
defendant, must be sufficient to warrant a reasonable jurors
finding in the defendants favor on the proposed defense).
15Id. at 359.
16Id. at 359-360.
17Id. at 363.
18 AS 11.56.310(b).
19 AS 12.55.125(d)(2).
20 708 P.2d 1293, 1294 (Alaska App. 1985).
21 See Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska
App. 1991) (a sentencing judges findings as to the existence of
aggravating and mitigating factors are reviewed under the clearly
erroneous standard).
1 Wells v. State, 687 P.2d 346, 350-51 (Alaska App. 1984).
