Amin v. State

GOLDEN, Justice.

Appellants, Abdullah Kru Amin and Donald Brian Calkins, appeal from their jury convictions for kidnapping and aggravated assault and battery in which their sentencing was enhanced by the effect of Wyoming’s habitual criminal statute.

We affirm.

ISSUES

Appellants raise these issues:

1.The trial court erred and abused its discretion when it failed to grant defendants’ motion for change of venue.
2. The trial court erred in excluding the testimony of Raymond Leidig, M.D. and refusing appellants’ jury instructions.
3. Appellants should be granted a new trial on the basis that they received ineffective assistance of counsel.
A. Should counsel have called the witnesses requested by appellants, and should counsel have issued a subpoena earlier?
B. Should defendant, Donald Calkins, be evaluated?
C. Should counsel have permitted defendants to be present for motion hearings?

The State of Wyoming poses its statement of the issues as follows:

I. Did the trial court abuse its discretion in denying the motion to change venue?
II. Should the trial court have instructed the jury on the defense of “necessity”?
III. Were the appellants denied effective assistance of counsel?

FACTS

Shortly after 7:00 a.m. on December 2, 1988, at the Wyoming State Penitentiary in Rawlins, Amin, an inmate, entered the office of counselor Barbara France, grabbed her around the neck and held a half pair of scissors to her throat. At that same time, Calkins, also an inmate, entered the office of counselor Betty Lewis and confined her there, holding a homemade razor-knife (a plastic pen with utility razor blades inserted on two sides and reinforced with masking tape) to her neck. Lewis screamed for help, thus alerting a guard to the situation. The guard activated an alarm and set in motion standard prison procedures. The guard approached both Amin and Calkins, but both threatened to kill the counselors if anyone interfered with them. Amin and Calkins demanded to talk to the press and, in addition, Amin demanded to talk to his mother. Prison administrators negotiated with Amin and Calkins for the release of the counselors and, approximately eleven hours later, France and Lewis were released physically unharmed to prison au*257thorities. Amin and Calkins were charged with, and convicted by a jury of, kidnapping1 and aggravated assault.2 For purposes of enhanced penalty, both were charged under Wyoming’s habitual criminal statute.3 Both were found to be habitual criminals pursuant to W.S. 6-10-201(b)(ii) (June 1988 Repl). Amin was sentenced to two concurrent life sentences, the sentences to be served consecutively to the sentences he is already serving. Calkins was sentenced to two concurrent terms of forty to fifty years, the sentences to be served consecutively to the sentences he is currently serving.

DISCUSSION

Change of Venue

Amin and Calkins filed motions for change of venue on May 5, 1989, asserting they could not receive a fair trial, nor could an impartial jury be impaneled, in Rawlins. The motions were based on the volume of publicity the case received in the local press, as well as upon the economic and social role the Wyoming State Penitentiary plays in Carbon County and Rawlins.

This court has dealt with the subject of change of venue on many and varied occasions, and the law of this jurisdiction is well within the mainstream of other jurisdictions, taking account of United States Supreme Court decisions, as well as other relevant federal precedent. See Annotation, Pretrial Publicity in Criminal Case as Ground for Change of Venue, 33 A.L.R.3d 17 (1970); and Annotation, Pretrial Publicity as Affecting Defendant's Right to Fair Trial, 10 L.Ed.2d 1243 (1964).

Change of venue was, perhaps, most eloquently discussed by Justice Blume in State v. Hambrick, 65 Wyo. 1, 196 P.2d 661 (1948), reh’g denied, 65 Wyo. 1, 198 P.2d 969. In Hambrick, a defendant was found guilty on forty-six counts of embezzling funds from Memorial Hospital of Carbon County. A vituperative editorial appeared in the local paper only two days before trial. A motion for change of venue was denied when the trial court was able to impanel an impartial jury. This court held that it is insufficient to merely show that great prejudice exists against an accused, rather, it must appear that the prejudice existing will have the effect of denying the accused a fair trial. Moreover, the decision to grant a change of venue is within the sound discretion of the trial court and, unless there has been an abuse of that discre*258tion, the supreme court cannot intervene. Id., 65 Wyo. at 13-20, 196 P.2d at 663-67.

In Collins v. State, 589 P.2d 1283, 1287-90 (Wyo.1979), this court repeated the conclusions reached in Hambrick and recognized that the fairness of a trial must be tested against the imperatives of Art. 1, § 10, Wyo. Const. and the sixth amendment, U.S. Constitution. In Collins there was substantial publicity which had come to the attention of most of the venire of Gillette. That case involved the murder of two well-known citizens of Campbell County. In addition to the volume of publicity, a bombing occurred at the site of the murders shortly before trial, although no connection was established between the bombing and the murder trial. This court examined both the nature and the extent of the publicity and determined that it was factual, not inflammatory and not excessively extensive. Moreover, the district court was able to seat an impartial jury. Under those circumstances, this court held that the district court did not abuse its discretion in denying a motion for change of venue.

In Murray v. State, 671 P.2d 320 (Wyo.1983), these time-honored and constitutionally sound principles were again employed. Id., 325-27. Murray was charged with attempted sexual assault and felony murder of an 82-year-old woman who resided in a small Wyoming town. In the assault, the victim suffered broken teeth, multiple bruises, and fractures of ten ribs. The pretrial publicity consisted of seven factual newspaper stories over a period of two months between the time of the crime and Murray’s trial. Seven jurors were excused for cause because they stated they could not be impartial; however, a jury was seated in just over one day without significant difficulty. Again, this court concluded that the district court had not abused its discretion in denying a motion for change of venue.

Turning to our present case, we note that the news reports in the record reflect factual reporting of the circumstances of the crime, and none contain inflammatory language. Almost all were published within five months after the crimes, although the trial did not take place until almost fifteen months after the crimes were committed. A second round of factual reports appeared in December 1989. One item was a story about what life was then like for the two counselors who had been taken hostage a year before. Another dealt with a hunger strike that Amin and Calkins had undertaken in December 1989. Two other stories related that the trial had been delayed again, several continuances having been previously granted. This court concludes, in harmony with previous decisions in this regard, that neither the nature nor the extent of news coverage in this case provide justification for questioning the district court’s decision to deny the motions for change of venue. State v. Wagner, 410 N.W.2d 207, 210-11 (Iowa 1987).

It was evident from voir dire that most of the persons called for jury duty had read or heard news reports about the crimes, but that was not universally true. The district court properly called to the attention of the jury pool the language of W.S. 7-11-106 (June 1987 Repl.)4, which provides that juror exposure to publicity about a criminal case is to be anticipated and, indeed, jurors may even have formed an opinion as to the guilt of the accused, which by itself, is not a ground for requiring a change of venue. The test is whether a juror can lay aside his opinion and render a verdict based on the evidence. See Smethurst v. State, 756 P.2d 196, 198-99 (Wyo.1988).

*259Amin and Calkins point to incidents which occurred in the presence of the jury pool to demonstrate abuse of discretion in refusal of the motion for change of venue. These “incidents” inform us that potential jurors who held firm opinions about the case were removed from the pool, that queries into possibly prejudicial biases or knowledge of individual potential jurors were conducted out of the hearing of the rest of the pool, and that several potential jurors knew someone employed at the penitentiary. This illustrates a carefully controlled and thorough voir dire. This evidence is well short of that required to compel a change of venue. Most tellingly, we are able to review voir dire of those ultimately selected for the jury. There is nothing in their responses to suggest that any of the actual jurors would be unable to render a verdict in conformity with all standards relevant to a fair trial.

The record is thorough on this point, which made it possible to review the voir dire procedure for each juror. None of the incidents5 referred to is significant nor any cause for the motion to be granted. Further, our study of the voir dire jury, those who actually served, revealed there was no evidence that any one juror would be unable to render a verdict in absolute conformity with all standards relevant to a fair trial.

Counsel for appellants refused at all stages to pass the jury for cause. However, they could not at the time enunciate a basis for this, nor can we find one in the record. We conclude refusal to pass the jury was simply a matter of strategy, because passing a jury for cause has been a factor weighed in determining whether denial of a motion for change of venue is an abuse of discretion.

Appellants also asserted that Rawlins and Carbon County are so aligned with the state penitentiary, because of economic and social reasons, that a fair and impartial jury could not be found there in a case such as this. Appellants cite no authority, and we find no supporting authority. We find no error here.

Defense of Necessity

Appellants contended that prison conditions were such that they feared for their lives and, thus, found it necessary to commit the acts charged in order to preserve their lives. As a part of their case on this issue, they offered the testimony of a physician/psychiatrist, Raymond Leidig. Dr. Leidig’s proposed testimony was heard by the trial court in chambers as an offer of proof. Dr. Leidig would have testified that, given Amin's life-long struggle against discrimination and his tendency toward paranoia, he was convinced that Amin felt compelled to act as he did in taking a counselor as a hostage. Dr. Leidig theorized that Amin felt the system would respond to his grievances in no other way. This testimony was refused. Amin and Calkins also requested that the district court instruct on their “duress, compulsion, and necessity” theory of the case, and the court refused.

This issue is, in many ways, one of first impression in this state. Keser v. State, 706 P.2d 263, 269 (Wyo.1985), contains a *260useful listing of recognized common law and statutory defenses. We have not adopted all of those defenses in Wyoming, but the ones at issue here are included in that list. In discussing the law of self-defense, we have recognized that the theory of self-defense arises out of “necessity.” Garcia v. State, 667 P.2d 1148, 1152-53 (Wyo.1983) (quoting Durham v. State, 29 Wyo. 85, 96, 210 P. 934, 938 (1922)).

Coercion or duress has been recognized as a defense to criminal charges, other than a charge of taking the life of an innocent person. Coercion or duress must be present, imminent or impending, and of such a nature so as to induce a well-grounded fear of death or serious bodily harm if the otherwise criminal act is not done. State v. Little, 67 N.C.App. 128, 312 S.E.2d 695, 697-98 (1984), review denied 311 N.C. 307, 317 S.E.2d 905. The burden of demonstrating the elements of such a defense is upon the defendant. In Little, prison inmates had escaped from confinement and kidnapped prison officials. In holding that the evidence presented at trial was insufficient to constitute the defense of duress or coercion, the court repeated a list of evidentiary requisites that must all be met in order for an inmate to raise such a defense:

(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;
(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any relief from such complaints illusory;
(3) There is no time or opportunity to resort to courts;
(4) There is no evidence of force or violence towards prison personnel or other “innocent” persons in the escape; and
(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.

Id., 312 S.E.2d at 698. The North Carolina court noted that the charges of kidnapping and taking prison officials hostage were incompatible with the last two criteria. Additionally, it held that the defendants failed to satisfy the first three criteria.

Refusal of Testimony

With the foregoing in mind, we hold that Dr. Leidig’s testimony was not relevant to the defense that Amin and Calkins sought to raise, as it did nothing to establish any element of the proposed defense. In Scheikofsky v. State, 636 P.2d 1107, 1110 (Wyo.1981), we repeated our rule that a defendant’s subjective belief about danger will not suffice; the apprehension must also be reasonable. Dr. Leidig’s testimony only went to Amin’s subjective belief. Here, the decision regarding admissibility was within the sound discretion of the trial court and, therefore, the trial court did not abuse its discretion in refusing to permit the irrelevant testimony to go before the jury. W.R.E. 402; see also L.U. Sheep Company v. Board of County Commissioners of the County of Hot Springs, 790 P.2d 663, 673 (Wyo.1990).

Refusal of Instructions

Amin and Calkins assert that the district court erred in refusing to give the following offered instructions:

You are instructed that duress or coercion is a defense to the crimes charged in this case. If you find that Mr. Amin reasonably believed that his actions on December 2, 1988, were required to protect his most vital interests, you should find the Defendant Not Guilty.
In order to rely on this defense it must appear from the evidence that lawful alternatives were ineffective or were no longer available to this defendant and the harm caused by their actions was outweighed by the need of the defendant’s actions.
You are instructed that it is Mr. Amin’s position in the case that he was acting as a result of coercion or duress on the 2nd day of December, 1988.
Mr. Amin’s theory of the case is that he had no choice in holding Ms. France. The intolerable penitentiary conditions *261caused Mr. Amin to fear for his life and when he could not make any changes through established channels, he was under duress, compulsion, and necessity to take action.
Duress, compulsion, or necessity are constraints upon the will, whereby a man is urged to do [that] which his judgment disapproves, and which it is presumed, his will, (if left to itself) would reject. As punishments are, therefore, only inflicted for abuse of that free will, which God has given to man, it is highly just and equitable that a man should be excused for those acts which are done through unavoidable force and compulsion.
Mr. Amin must go forward with some evidence to show duress, compulsion, or necessity, but once he has done so, the burden is on the State to prove beyond a reasonable doubt to prove that Mr. Amin did not act under duress, compulsion, or necessity.
Therefore, if Mr. Amin was under duress, compulsion, or necessity to act in regard to these charges, you must find him not guilty.

A defendant has the right to have instructions on his theory of the ease or his theory of defense presented to the jury if the instructions sufficiently inform the jury of the theory or defense and if competent evidence exists which supports the law expressed in the instructions. Thom v. State, 792 P.2d 192, 195 (Wyo.1990). The trial court has a duty to give such instructions even though they might not be entirely correct, so long as they are sufficient to apprise the jury of the theory of the defendant. Ellifritz v. State, 704 P.2d 1300, 1302 (Wyo.1985). The instructions offered misstate the law to a considerable extent, but, more importantly, there is no evidence of record to support giving these, or any other instructions, on the defense of duress/ coercion/necessity.

Like the accused inmates in Little, Amin and Calkins presented no evidence that (a) they were faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future; (b) there was not time for complaint to the authorities, or that such a complaint would have been futile; and (c) there was no opportunity to resort to courts to redress their grievances. To the contrary, appellants’ evidence demonstrated that Amin had received vindication through the prison grievance mechanism on at least two occasions. Further, he had access to both the state and federal courts and, if he lacked success in his forays into the courts, it was only because his complaints lacked legal substance. Moreover, like the inmates in Little, Amin and Calkins committed acts of violence against penitentiary personnel. See, United States v. Kinslow, 860 F.2d 963, 965-66 (9th Cir. 1988) cert. den. — U.S. -, 110 S.Ct. 96, 107 L.Ed.2d 60 (1989); In re Juvenile Appeal, 184 Conn. 157, 439 A.2d 958, 961-62 (1981); Annotation, Coercion, Compulsion, or Duress as Defense to Charge of Kidnapping, 69 A.L.R.4th 1005 (1989); Annotation, Duress, Necessity, or Conditions of Confinement as Justification for Escape from Prison, 69 A.L.R.3d 678 (1976); Annotation, Coercion, Compulsion, or Duress as Defense to Criminal Prosecution, 40 A.L.R.2d 908 (1955); 4 Am.Jur. POF.2d 179 (1975).

We hold the district court did not err in refusing the instructions.

Effective Assistance of Counsel

Finally, appellants assert counsel were ineffective in: 1) failing to call witnesses; 2) failing to have Calkins receive a second psychological evaluation; and 3) failing to ensure their presence at a hearing to determine whether a psychiatrist, who evaluated Amin but failed to file a report, should be held in contempt of court. Our standard for assessing effective assistance of counsel is well delineated. Murray v. State, 776 P.2d 206, 210 (Wyo.1989); Cutbirth v. State, 751 P.2d 1257, 1263-64 (Wyo.1988); Frias v. State, 722 P.2d 135, 145-47 (Wyo.1986).

The assertions that counsel failed to call witnesses who would have served to exonerate the defendants is speculation only. In chambers defense counsel stated that *262the witnesses appellants wanted to subpoena would not have testified as appellants hoped they would.

Calkins received a second evaluation, but it was so negative counsel for defense did not want to use it. Calkins claimed that the second evaluator was an employee of the state (although he was not) and, therefore, not a competent evaluator. Thus, what Calkins wanted was a third evaluation because he neither liked the first done at Wyoming State Hospital nor the second done by an independent evaluator. The assertion that defendant Calkins should have been evaluated by a third psychiatric/psychologic evaluator is unsupported by governing law.

Finally, the assertion that Amin’s and Calkins’s presence at a hearing held for the purpose of requiring Dr. Leidig to provide the trial court with a written psychiatric evaluation of Amin was required by Wyo. Const. art. 1, § 10 and the sixth amendment, U.S. Const., cannot serve as a basis for reversal for several reasons. First, the report was provided to the defendants and the court in ample time so that it could serve the very purpose that it was designed to serve. Second, Dr. Leidig appeared in person to verify the premises contained in his written report. Third, even considered in the most favorable light possible, Dr. Leidig’s report, as well as his oral testimony, did not and could not serve as a defense to the crimes that Amin and Calkins were convicted of in this case. We hold that Amin and Calkins were provided with effective assistance of counsel at their trial.

Finding no error in the proceedings below, we affirm the judgment and sentence of the district court.

. W.S. 6-2-201 (June 1988 Repl.) provides:

(a) A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business or from the vicinity where he was at the time of removal, or if he unlawfully confines another person, with the intent to:
(i) Hold for ransom or reward, or as a shield or hostage;
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(b) A removal or confinement is unlawful if it is accomplished:
(i) By force, threat or deception; or
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(c) If the defendant voluntarily releases the victim substantially unharmed and in a safe place prior to trial, kidnapping is a felony punishable by imprisonment for not more than twenty (20) years.
(d) If the defendant does not voluntarily release the victim substantially unharmed and in a safe place prior to trial, kidnapping is a felony punishable by imprisonment for not less than twenty (20) years or for life except as provided in W.S. 6-2-101 [murder in the first degree],

. W.S. 6-2-502 (June 1988 Repl.) provides:

(a) A person is guilty of aggravated assault and battery if he:
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(iii) Threatens to use a drawn deadly weapon on another unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to another; or
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(b) Aggravated assault and battery is a felony punishable by imprisonment for not more than ten (10) years.

.W.S. 6-10-201 (June 1988 Repl.) provides:

(a) A person is an habitual criminal if:
(i) He is convicted of a violent felony; and
(ii) He has been convicted of a felony on two (2) or more previous charges separately brought and tried which arose out of separate occurrences in this state or elsewhere.
(b) An habitual criminal shall be punished by imprisonment for:
(i) Not less than ten (10) years nor more than fifty (50) years, if he has two (2) previous convictions;
(ii) Life, if he has three (3) or more previous convictions.

. W.S. 7-11-106.

(a) It is not cause for challenge that a person called to act as a juror in a criminal case has formed or expressed an opinion as to the guilt or innocence of the accused from news media reports or rumor if:
(i) The prospective juror states that he can lay aside his impression or opinion and render a verdict based on the evidence presented in court; and
(ii) The court is satisfied, from the examination of the prospective juror or from other evidence, that he will render an impartial verdict according to the law and the evidence submitted to the jury at trial.

. In one incident, a potential juror revealed that her husband worked at the penitentiary and a discussion had taken place between them about the case. As a result of that discussion the juror felt she had made up her mind about guilt or innocence. The juror was excused for cause. In another incident a potential juror stated he had worked at the penitentiary as a consultant in counseling and felt he would identify with the counselors who allegedly had been taken hostage. Upon more detailed questioning, it was established that that was an initial, emotional reaction and he stated he could put aside his opinions and decide the case based solely on the evidence. This juror was not excused for cause, but was struck from the jury by a peremptory challenge. Another venire person stated he had made up his mind; thereafter all discussions with him were in the trial court’s chambers, and he was challenged and excused for cause. Yet another revealed she knew one of the counselors and, thereafter, at the bench and not before the other jury panel members, revealed more about this and she was excused for cause. Another knew one of the counselors, had talked to her, revealed nothing about their conversation, was not excused, but was struck by a peremptory challenge. Several revealed they knew people who worked at the penitentiary, including a close family member in one instance.