Summary
holding that a sentence of from three to five years for violating Mich. Comp. Laws § 800.283 is too severe; case remanded for resentencing
Summary of this case from U.S. v. GibsonOpinion
Docket No. 81079.
Decided May 5, 1986. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and Larry L. Burgess, Assistant Prosecuting Attorney, for the people.
Elizabeth L. Lutton, for defendant on appeal.
Before: D.E. HOLBROOK, JR., P.J., and T.M. BURNS and HOOD, JJ.
Defendant was convicted following a jury trial of possession of a weapon by a prison inmate, MCL 800.283; MSA 28.1623. He was sentenced to a term of from three to five years imprisonment to be served consecutively to his existing sentence. Defendant now appeals as of right. The sole issue on appeal is whether the defense of duress is available to defendant.
This is an issue of first impression in Michigan. Defendant presented testimony at trial to show that he was only carrying the weapon (a sharpened metal rod) as self-protection. Apparently defendant was being threatened and sexually harassed. The prison officials could only offer protection by locking defendant up for his own protection. Defendant felt that those who were threatening him should be the ones locked up and he refused to go into protective custody. Once defendant had talked to authorities, his life was then in danger. Defendant then wished to utilize the defense of duress at trial. The trial court denied defendant's request to use this defense and refused to give jury instructions on duress.
We are aware that duress is a defense to the crime of prison escape. See MCL 768.21b(4); MSA 28.1044(2)(4) and People v Mendoza, 108 Mich. App. 733; 310 N.W.2d 860 (1981). Defendant asks us to extend this defense to inmates carrying a concealed weapon. While we empathize with defendant's predicament, we cannot permit this defense to be used.
To grant judicial sanction to the otherwise unlawful possession of a deadly weapon by prisoners, whatever the reason would undoubtedly result in murder, mayhem and utter chaos throughout our entire penal institutions, with which authorities would be unable to cope. [ Mungin v State, 458 So.2d 293, 297 (Fla App, 1984). Emphasis in Mungin.]
We are aware that there are exceptional circumstances under which this defense could be raised; however no exceptional circumstances are present in the instant case.
In Mungin v State, 458 So.2d 293 (Fla App, 1984), the defendant inmate wrestled a weapon from his attacker and then utilized it for self-protection. This defendant inmate was then permitted to use duress as his defense for "the temporary possession of a weapon taken from the possession of a would-be aggressor when it is used to defend the attacked inmate against the imminent peril of death or serious bodily injury." Id., p 297.
Furthermore, defendant was offered protective custody. While defendant may not have desired protective custody, it was a reasonable and safe option for defendant. This is not a situation where the authorities did not try to help. Rather, the authorities expressed willingness to aid defendant and defendant refused their offer of help.
However, we find the sentence of from three to five years to be served consecutively to be shocking to our judicial conscience. People v Coles, 417 Mich. 523; 339 N.W.2d 440 (1983). We find this sentence to far exceed what a reasonable person would perceive to be an appropriate response to the crime committed and the criminal who committed it. People v Ross, 145 Mich. App. 483; 378 N.W.2d 517 (1985). Under the facts of this case the sentence imposed is far too severe and we remand for resentencing.
Accordingly, we find no error in the trial court's refusal to allow the defense of duress. Defendant's conviction is affirmed, although we remand for resentencing.
Affirmed in part and remanded.
HOOD, J., concurs in result only.