# State v. Green

> Supreme Court of Missouri · September 13, 1971 · 470 S.W.2d 565

URL: https://www.frixlaw.com/law-library/cases/9761178

## Case

- **Full name:** STATE of Missouri, Respondent, v. John Charles GREEN, Appellant
- **Court:** Supreme Court of Missouri
- **Decided:** September 13, 1971
- **Citations:** 470 S.W.2d 565; 1971 Mo. LEXIS 928
- **Precedential status:** Published
- **Opinion:** Dissent by Seiler
- **Judges:** Henley, Seiler
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9761178

## Opinion text

SEILER, Judge
(dissenting).
As is apparent from the majority opinion, the question before us is whether the evidence offered by the defendant amounted to a legal defense. Therefore, unlike the usual criminal appeal, we do not commence with the situation where the factual issues to which the law is being applied have been resolved against the defendant, in which case we can ignore his version of the facts. Here the defendant is entitled to a review of his proposed defense on the basis that all that appears in the record favorable to him is to be taken as true. Looking at the record in this light, a jury could have found the facts as follows:
Defendant was white, nineteen years old, five feet, nine inches tall and weighed about one-hundred and fifty pounds. At the Mo-berly Training Center for Men, the prison population was composed of about six-hundred inmates, mostly second offenders at least twenty-five years old, and at least twenty-five inmates were serving life sentences. The inmates were confined in single cells within a residential building. The physical structure of the residential building was formed by a central rotunda with the four inmate wings radiating outward. Within each inmate wing, there were seventy-nine cells. During the day, the inmates could wander freely within the residential building. The inmates were locked in the cells at night.
There were two guards assigned to each residential building for the period of the night shift. One of these guards stayed in the rotunda. The rotunda was separated from each wing by a heavy door. The second guard walked a circuit among the four wings. There were substantial periods of time during which a wing would be without supervision.
*569 There was a lock on the outside of each cell. The door could be unlocked with a master key. It appears that several master keys were illicitly in the hands of the inmates. These locks could easily be picked with any sharp object. There were no locks on the inside of the cell doors.
Inmate complaints could be sent to the prison administration by the use of “snitch-kites”. A “snitch-kite” consisted of a written complaint transmitted through the intra-prison mail. It required several days to obtain any response to a “snitch-kite”. An inmate could complain directly to a guard. Because of the physical structure of the residential buildings, it would be difficult to complain to a guard without the other inmates being aware of this action. Administrative policy was not to investigate a complaint of physical abuse unless the assailant .was identified. But if an inmate “snitched” — turned in somebody’s name — his life wouldn’t be worth “a plugged nickel”; he (the snitch) “was as good as dead right then”. Unless a guard witnessed an assault, the alleged assailant would be allowed to remain within the general population during the investigation. The victim of an assault could be removed from ‘the general prison population. However, such an inmate would be confined to the “hole”, which was the area used to discipline prisoners. The prison provided no other facilities for the protective custody of a threatened inmate.
In late December, 1966, or early January, 1967, during the night, two inmates, one white, one black, picked the lock of defendant’s cell door. At knifepoint, defendant was homosexually ravaged by both inmates. Two weeks later, three inmates, black and white, invaded defendant’s cell, knocked him unconscious as he tried to flee, and raped him. Homosexual acts including sexual assaults were matters of common knowledge among the inmates. 1
Following each sexual assault, the defendant injured or feigned injury to himself, in order to contact the prison administration. While hospitalized after the first attack, defendant informed the Assistant Superintendent of Treatment of the assault and requested protection. This prison official admonished the defendant to defend himself, and upon release from the hospital, defendant was returned to the same cell. After the second attack, defendant was taken before the Disciplinary Board where he informed the Board about the assaults. *570 The Assistant Superintendent of Custody, a member of the Board, told defendant that the only protection defendant would receive was a cell change. This prison official told defendant that the alternatives were to defend himself, submit, or “go over the fence”.
On April 14, 1967, defendant returned to his cell during the lunch break. Four or five black inmates gathered around his cell. They informed defendant of their knowledge of the previous acts of sodomy. They told him that they would return that evening to make him a “punk” (a person who plays a female role in homosexual incidents) for the remainder of his time in prison. These inmates threatened to “beat his head in” or kill defendant if he would not submit. Defendant believed it would do no good to ask the prison authorities for help, in view of what he had been told in response to his previous attempts to get help, so to avoid what he believed was inevitable, he quietly escaped about 6:00 o’clock that evening. He was found the next morning, on the side of a county highway, only a few miles from the prison and surrendered without resistance.
It is a fundamental legal principle that criminal punishment should not be visited upon the blameless. See Holmes, The Common Law, 1948, p. 50; “It is not intended to deny that criminal liability * * * is founded on blameworthiness * * * [A] law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear * * Juries in criminal cases are instinctively aware of this. One illustration of this principle is the right to present to the jury the defense of self-defense, State v. Robinson, (Mo.Sup.) 328 S.W.2d 667 , where defendant was resisting attempted sodomy. The affirmative defenses of coercion and necessity are based upon the same principle. 2 “If a person commits an act under' compulsion, responsibility for the act cannot be ascribed to him since in effect, it was not his own desire, or motivation, or will, which led to the act.” Newman and Weitzer, Duress, Free Will and the Criminal Law, 30 So.Cal.L.Rev. 313. There appear to be no Missouri cases considering the defense of necessity, but it is well established that coercion is a defense to all crimes except murder. State v. St. Clair, (Mo.Sup.) 262 S.W.2d 25, 27 .
I interpret the majority opinion to decide that the proposed defense is not available because (1) defendant did not delay his escape until his would-be assailants had him in close pursuit and (2) because he could have avoided his predicament had he only turned in their names earlier in the day.
As to the first, defendant knew from prior experience that if he waited until the band was close at hand, it would be too late. If escape were to save him, it had to be made earlier than the last minute. Five against one is hopeless odds. As to the second, this overlooks the evidence that to turn in the names to the prison authorities meant defendant was risking his life by being a “snitch”.
Defendant had already been told by a high prison official that he had three alternatives : submit, defend himself, or escape. *571 The majority opinion does not recommend submission, and as a practical matter, self defense was impossible. All that was left was escape, and under these circumstances, the coercion and necessity were not remote in time, but present and impending. Escape or submission (and I do not believe defendant was unreasonable in not being willing to submit to five-fold sodomy) were literally all this defendant had left. 3
There is a number of cases in which the defense of coercion has been offered to justify an escape, 70 A.L.R.2d 1430 . These escape cases differ from the majority of cases in which the defense of coercion is asserted. Usually, the defendant is charged with the very crime that he was directly coerced to submit. State v. St. Clair, (Mo. Sup.), supra; State v. Lee, 78 N.M. 421 , 432 P.2d 265 ; 40 A.L.R.2d 908 . For instance, if the defendant here had been prosecuted for sodomy as a result of the first assault, it would seem clear that a defense of coercion would be available. In this case defendant sought to avoid committing the coerced act by resorting to escape. Because he was a prisoner, this action was a crime. The act of escape was just as much coerced as the prior act of sodomy. It is consistent with the principle underlying the defense to allow it to be asserted here.
This case differs much from the usual escape case. Defendant should have been permitted to submit to the jury the defense of coercion as justification for the escape, and I, therefore, respectfully dissent. The evidence shows defendant was confronted with a horrific dilemma, not of his making. No one, I am sure, wants to force a prisoner to live under conditions where he must either become a “punk” and debase himself, or a “snitch” at the risk of his life, but nevertheless this is the effect of our decision, until and unless the state improves the conditions in the prisons. I am not advocating that we should permit each prisoner to determine whether the conditions of his imprisonment justify an escape. What I am saying is that when the facts presented, if believed, would establish the defense of coercion, then this defense should be available to a charge of escape.
. During the offer of proof, several individuals who had been imprisoned at the Moberly Training Center for Men testified to the accuracy of this statement. In 1968, the Philadelphia District Attorney’s Office and the Police Department investigated the incidence of sexual assaults within the prison system of Philadelphia. The report of this investigation was summarized in Davis, Sexual Assaults in the Philadelphia Prison System and Sheriff’s Vans, 6 Transaction 8, (Dec. 1968). This article noted at page 9: “⅜ ⅜ * sexual assaults in the Philadelphia prison system are epidemic ⅜ * * [Virtually every slightly-built young man committed by the courts is sexually approached within a day or two after his admission to prison. Many of these young men, are repeatedly raped by gangs of inmates. Others, because of the threat of gang rape, seek protection by entering into a homosexual relationship with an individual tormentor. Only the tougher or more hardened young men, and those few so obviously frail that they are immediately locked up for their own protection, escape homosexual rape”. The prob-blem is not limited to the prison system of Philadelphia. A recent article in a metropolitan Missouri newspaper reported that two inmates had sexually assaulted a seventeen year old youth in the St. Louis County jail. St. Louis Post-Dispatch, August 13, 1971, at 10A. In recent years, the courts have acknowledged the existence of this situation, e. g. Holt v. Sarver, (E.D.Ark.), 309 P.Supp. 362; and it has been discussed in the scholarly journals. Comment, 48 L.Rev. 847, 865-869 and Note, 53 Ia.L.Rev. 671, 697-700. For a prisoner’s comment on homosexuality within the prison, see Griswold, Misenheimer, Powers, and Tromanhauser, An Eye For an Eye, 161-172 (1970). Tt has been estimated the number of inmates who engage in homosexual activity ranges as high as 80%, 53 Ia.L.Rev., supra.
. A few courts and some legal scholars have recognized a distinction between the defenses of coercion and necessity based upon the nature of the force that compels the actor to do the criminal act. Coercion is compulsion exerted by a human force, while necessity is compulsion exerted by a physical force beyond human control. People v. Richards, 269 Cal.App.2d 768 , 75 Cal.Rptr. 597, 601 ; Hall, General Principles of Criminal Law, (2d ed. 1960) 235-237 and 415-448. Courts often use the terms “coercion” and “necessity” interchangeably. Note, 21 Col. L.Rev. 71, 72. Other legal scholars believe that this distinction has no merit because the requirement in each defense remains a circumstance or condition that leaves no choice of a course of action, 1 Burdick, Law of Crime, (1946), 260-261.
. It would be a fantasy to consider that defendant could have gained access to the courts during the few hours before the assault was to occur even had he so desired.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9761178. Public record. Not legal advice.