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McMillan v. State – Duress

McMillan v. State, 428 Md. 333 (2012)

Felony Murder

Duress as a Defense to the Underlying Felony

Elements of a Duress Defense

In McMillan v. State, 428 Md. 33, 338 (2012), the Defendant was on trial for murder and he presented a defense that his participation in the crime was coerced.  The trial court refused to instruct the jury on the defense of duress because the judge did not “find that this case has any evidence that rises to the point of duress as an element, and I’m not going to instruct the jury to that extent.”  Id. at 347.  The Defendant was eventually convicted of first-degree felony murder with robbery as the underlying felony.  The Court of Special Appeals affirmed the Circuit Court, but found that duress was available as a defense to felony-murder.  The Defendant filed for certiorari and the State filed a cross-petition.  Id. at 339.  The Court of Appeals granted certiorari on both petitions to address the question of whether duress was a defense to felony-murder where it would serve as a defense to the underlying felony, but reversed the judgment of the Court of Special Appeals and remanded for a new trial.  Id. at 339-40.

The victim was the former neighbor of the Defendant and was found at home, bludgeoned to death with a baseball bat, with several firearms missing from his home.  Id. at 340.  The Defendant was questioned and arrested by the police and after giving conflicting versions of his activities on the night of the crime and was eventually tried for the murder.  Id.  The Defendant maintained that he did not actively participate in the robbery of the victim’s home, but only knocked on the door allowing his two accomplices to gain entry.  Id.  He alleged that his two accomplices picked him up from work on the day in question, told him that they were going to the victim’s house and that he was going to knock on the door or he would be killed along with the victim.  Id. at 341.  As noted by the Court, however, “[t]here was, to be sure, evidence that contradicted the notion that the petitioner was coerced or acted under duress.”  Id. at 342.

The Court of Appeals began by noting that although duress is not available as a defense to murder, it is available as a defense to robbery.  Id. at 349-51 (citing Wentworth v. State, 29 Md. App. 110 (1975); Frasher v. State, 8 Md. App. 439 (1970)).  The Court the surveyed other jurisdictions for decisions involving the applicability of duress as a defense to the underlying felony in a felony-murder case and found that those jurisdictions that disallow the defense do so because of statute.  Id. at 353 (comparing People v. Sims, 374 N.E.2d 1115, 1145 (Ill. App. 2007) (allowing duress as a defense); Arnold v. Virginia, 560 S.E.2d 915, 918 (Va. App. 2002) (same); MacKool v. State, 213 S.W.3d 618, 623 (Ark. 2005) (same), with, State v. Ellison, 140 P.3d 899, 914 (Ariz. 2006) (duress not allowed as a defense by statute); Moore v. State, 697 N.E.2d 1268, 1273 (Ind. Ct. App. 1998) (same); State v. Ng, 750 P.2d 632, 636 (Wash. 1988) (same)).

Thus, the Court of Appeals concluded:

Disallowing the duress defense in the case of felony murder, absent a statutory imperative, would be unwarranted, in our view: a defendant could have a complete defense to the felony that forms the basis of a murder charge, yet, because unable to present it as a defense to the murder charge, still be convicted of felony murder.  Although [the Defendant] was not charged separately with robbery, in this case, as in other cases, the State’s argument would create unacceptable results.

Id. at 353-54.

The Court the turned to the question of whether the Defendant had produced “some evidence” that he was acting under duress during the underlying robbery, which in turn required the resolution of the question of whether said defense required a Defendant to “’in effect’” show that someone “’was holding a gun to his head at the time that he commits the crime . . . .’”  Id. at 356 (quoting the Court of Special Appeals’ opinion).  The Court of Appeals, while agreeing that a “gun to the head” certainly represents duress, noted that other situations, such as threats by gang members (like those allegedly leveled at the Defendant in this case), could constitute duress.  Id.

Moreover, the Court held that “affirmative obstructionist actions, such as attempting to thwart the crime or contacting the police, are not elements of the defense and not required to be shown.  Id. at 357.  The Court also held that in order to show duress, a Defendant need not show that he was under duress throughout the entire crime, but only “during the time the defendant acted.”  Id. at 360 (emphasis original).  Lastly, the Court, relying on the Maryland Pattern Jury Instruction on duress, Wentworth, 29 Md. App. at 118, and Frasher, 8 Md. App. at 449,  rejected the State’s argument that the Defendant was required to attempt to withdraw from the crime or seek aid for the defense of duress to be available.  Id. at 361.

In sum, the Court concluded the Defendant had presented some evidence that “he believed reasonably that he was in danger of immediate or impending death or bodily harm if he did not participate in the crime,” and that “he had no reasonable opportunity to escape before knocking on the victim’s door.”  Id. at 362.  In other words, the Defendant was entitled to a jury instruction on duress.  Id.