State v. Lane

834 S.W.2d 242, 1992 Mo. App. LEXIS 1246, 1992 WL 166190
CourtMissouri Court of Appeals
DecidedJuly 21, 1992
DocketNos. WD 43962, WD 45303
StatusPublished
Cited by5 cases

This text of 834 S.W.2d 242 (State v. Lane) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lane, 834 S.W.2d 242, 1992 Mo. App. LEXIS 1246, 1992 WL 166190 (Mo. Ct. App. 1992).

Opinion

ULRICH, Judge.

Gregory Lane appeals his conviction for possession of a controlled substance, marijuana, about the premises of a correctional institution, § 217.360, RSMo 1986 (repealed 1989). Mr. Lane was sentenced to two years imprisonment to be served consecutively to two five-year consecutive sentences he is currently serving. Additionally, Mr. Lane appeals the denial of his post-conviction Rule 29.15 motion to vacate judgment and sentence. The appeals are consolidated. Mr. Lane waived his right to a trial by jury and was tried in a bench trial. Mr. Lane contends that the trial court erred in rejecting his defense of duress. Mr. Lane also contends that the court erred in denying his Rule 29.15 motion because, he avers, his trial counsel failed to investigate, timely subpoena and call a witness essential to his defense. The judgment of conviction is affirmed. The judgment denying appellant’s Rule 29.15 motion is affirmed.

Gregory Lane does not challenge the sufficiency of the state’s evidence. On July 23, 1989, Mr. Lane was serving sentences at the Moberly Correctional Center. On the same date, a correctional officer of the institution was conducting a “pat down” search of several prison inmates. Mr. Lane was among those inmates. While searching Mr. Lane, the correctional officer felt an object in one of Mr. Lane’s socks. Mr. Lane began to retrieve the object as directed, but when he removed the object from his sock, he ran from the correctional [244]*244officer. The correctional officer pursued Mr. Lane. When the correctional officer caught up with Mr. Lane, Mr. Lane was attempting to ingest the item that he had removed from his sock. The officer observed Mr. Lane place a blue balloon into his mouth and swallow it. Mr. Lane was taken to the institution hospital, and the blue balloon was eventually obtained naturally from Mr. Lane’s body. The contents of the balloon were analyzed by a forensic chemist who determined the contents of the balloon to be marijuana.

Mr. Lane admitted during trial on direct examination that he possessed marijuana as alleged by the state. Mr. Lane stated that two fellow inmates at the Moberly Correctional Institution pressured him to transport marijuana within the institution. He testified that shortly after he arrived at Moberly, he was approached by two inmates who told him to “carry stuff” from one location to another within the institution. He refused, and the two inmates continued to pressure him to transport contraband for them within the institution. Mr. Lane stated that other inmates began to pressure him in behalf of the two who had approached him stating, “You need to look out for Arizona,” the name used by one of the two inmates who had originally approached him.

Mr. Lane testified that his girlfriend’s name was Debra Jackson. Approximately six days after he was approached by the two inmates to transport contraband, Mr. Lane was visited by his girlfriend, he said. He testified that his girlfriend told him she had received a threatening letter that had not been mailed, but which had been placed in her mailbox. According to Mr. Lane’s testimony, following receipt of the first letter, his girlfriend received two other letters, all three threatening her with explicit violent acts. One of the letters stated, according to Mr. Lane, that if Mr. Lane asked for protective custody, Ms. Jackson would be harmed.

Mr. Lane stated that, after his girlfriend’s visit, he was again approached by the two inmates at the institution to move contraband for them. He testified that they gave him “stuff” to move into the “house” in which he resided within the institution, and he said he did it.

Referring to the incident for which he was charged, Mr. Lane testified that he received the balloon and its contents at the prison handball court, and he was directed to take it to another inmate within the institution housing unit. Mr. Lane testified that he possessed the blue balloon and believed at the time that it contained a controlled substance.

At the conclusion of all the evidence, Mr. Lane’s motion for acquittal was denied, and the court found Mr. Lane guilty of the offense charged. The court found that Mr. Lane failed to prove the defense of duress. The trial court said, assuming Mr. Lane’s testimony is true, he had a duty to refuse the request of the two inmates to transport controlled substances within the institution.

On February 13, 1991, Mr. Lane filed a pro se motion for postconviction relief pursuant to Rule 29.15. Counsel was appointed, and an amended motion was filed claiming that Mr. Lane’s trial attorney failed to investigate, timely subpoena or call as a witness Mr. Lane’s girlfriend, Debra Jackson. After an evidentiary hearing on the postconviction motion, the hearing court issued its findings of fact and conclusions of law and denied Mr. Lane’s postconviction motion.

Mr. Lane claims that the trial court erred in rejecting his defense of duress and in finding him guilty of possession of a controlled substance on the premises of a correctional institution, § 562.071, RSMo 1986. In support, he maintains that the evidence established that he violated the law because he was in fear of imminent serious bodily injury to his girlfriend and to himself if he failed to comply with the demands of two inmates to transport controlled substances within the correctional institution.

Duress is “an affirmative defense that the defendant engaged in the conduct charged to constitute an offense because he was coerced to do so, by the use of, or threatened imminent use of, unlawful physical force upon him or a third person, which [245]*245force or threatened force a person of reasonable firmness in his situation would have been unable to resist.” Section 562-071. The coercion, to constitute a defense, must be present, imminent and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily injury. State v. Kelly, 747 S.W.2d 639, 640 (Mo.App.1988). The threat cannot be of future action, nor can a person who has a reasonable opportunity to avoid the act claim duress as a defense. Id.

Mr. Lane possessed a balloon containing marijuana within the Moberly Correctional Institution on July 23, 1989. Mr. Lane testified that he knew he could obtain protective custody from individuals within the institution who attempted to pressure him to violate the law. He had been moved to Moberly Correctional Center because of a request he had made for protection while in the correctional facility in Cameron. Threats against his girlfriend could have been referred to law enforcement officers. Any threat of harm was a threat of future harm, not present, imminent and impending. The trial court did not err in rejecting Mr. Lane’s defense of duress under § 562.-071.1 and in finding Mr. Lane guilty. The judgment of conviction is affirmed.

Mr. Lane contends that the hearing court erred in denying his Rule 29.15 motion for postconviction relief because his trial counsel failed to render constitutionally effective assistance by failing to investigate, timely subpoena and call as a witness, Debra Jackson. Mr. Lane claims that had Ms. Jackson been called to testify she would have stated that she received letters threatening her unless Mr. Lane complied with demands of two inmates to transfer contraband within the Moberly penal institution.

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Bluebook (online)
834 S.W.2d 242, 1992 Mo. App. LEXIS 1246, 1992 WL 166190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lane-moctapp-1992.