On appeal from the Superior Court, Law Division, Mercer County.
Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
[196 NJSuper Page 139] A Mercer County grand jury on May 13, 1980 returned a one-count indictment against defendant charging him with escape in that without lawful authority he removed himself from official detention at the Trenton Psychiatric Hospital on January
23, 1980. See N.J.S.A. 2C:29-5(a). Defendant had been confined at that institution as a result of other offenses. When the indictment was handed down defendant was still a fugitive but he was subsequently arrested in Arizona and returned to New Jersey. He pleaded not guilty to the indictment and a jury trial ensued.
At the outset of the trial, before a jury was empaneled, defendant made known to the court that he intended to raise the defenses of necessity or duress. See N.J.S.A. 2C:3-2(a); N.J.S.A. 2C:2-9(a). His factual contentions underlying these defenses were that he was justified in escaping because during his confinement his life had been threatened by other inmates and guards and he was subjected to unreasonable conditions. The State asserted that the defenses were insufficient as a matter of law because defendant, even if justified in fleeing, had an obligation immediately to surrender to "proper authorities" when he had reached safety. The State requested a pretrial hearing on the issues as it resisted their presentation to the jury. The trial judge denied the motion for the hearing and pretrial ruling. Instead the judge determined that when the defenses were offered he would excuse the jury and take evidence on the point to ascertain whether defendant had presented facts sufficient to raise them. Inasmuch as the defenses remained in the case, the judge permitted defendant to mention them in his opening. The State sought leave to appeal from the order but we denied its application.
After the State opened to the jury defendant, though represented by an attorney, with permission of the trial court, personally opened. In his opening defendant asserted he was not guilty of the offense but had lawfully escaped to save his life and to avoid the chaos of the conditions of confinement.
Subsequently the State presented its evidence. It showed that defendant on January 23, 1980 while in custody was taken to the Mercer County Court House to plead to an indictment. Following the court appearance he fled and eluded his guards.
While out of custody he frequently telephoned employees of the New Jersey prison system and told them of the good time he was having with women, drugs and partying. He claimed to be living from the earnings of prostitutes. In addition to calling the officials, defendant sent them postcards claiming he was in Mexico. He also indicated he was going to Tokyo. In his conversations and correspondence defendant did not attempt to arrange a surrender. Indeed he said he would never be captured. Eventually defendant was arrested in Arizona on July 18, 1980. At that time police officers were looking for him for reasons apparently unrelated to his New Jersey escape. After a search involving the use of helicopters defendant, who was armed with a pistol, was apprehended.
Not surprisingly, there was no real question concerning the accuracy of the State's proofs. Indeed during the State's case defendant stipulated he was lawfully in custody when he escaped, was absent from custody and was arrested in Arizona.
After the State rested defendant stated he wanted to testify. Consequently the trial judge in accordance with his pretrial ruling heard defendant's testimony regarding his defenses outside of the presence of the jury. Defendant described the conditions of his confinement. Further he detailed his activities after his escape. He said he went to Baltimore and then Washington, D.C. At the Lincoln Memorial while defendant was drunk he told a police officer who came along he was a fugitive running away. The officer regarded him as a drunk and told defendant to get out of the area. Defendant said he attempted while still in Washington to get another local officer to arrange for his surrender to the FBI but the officer declined as no federal matter was involved. Defendant said that after he left Washington he went to Atlanta, New Orleans, Augusta, Georgia, Houston, El Paso, Dallas and various cities in the southwest and on the west coast. He also went to Mexico, returned to the United States and eventually was arrested in Phoenix.
On April 28, 1982 following the presentation of this evidence, the trial judge ruled that defendant could present his defense that he escaped because of duress. The State immediately sought leave to appeal from that order. On April 29, 1982 a three-judge panel of this court summarily reversed. R. 2:11-2. We entered an order precluding defendant from ...