People v. Boston, 2016 IL App (1st) 133497 (May). Episode 192 (Duration 5:42)

Was it error for trial court to deny defendant the necessity instruction for possessing a shank in jail when he could prove he was stabbed and in danger?

Facts

Defendant was busted with a shank while in the Cook Count jail.

He had witnesses that said he was stabbed and in fights with other inmates.

Nonetheless, the trial court denied the necessity instruction because the threats against him were not immediate.

Necessity Defense

It looks like the jury was asking about a self defense instruction. A defendant is entitled to an instruction on his theory of the case where there is some evidence to support the giving of the instruction.

The defense of necessity involves the following elements: (1) the person claiming the defense was without blame in occasioning or developing the situation; and (2) the person reasonably believed that his conduct was necessary to avoid a greater public or private injury than that which might have reasonably resulted from his own conduct.

720 ILCS 5/7-13.

Difficult To Prove

The defense of necessity applies when the threat of harm was immediate, and defendant’s conduct was the sole option to avoid injury.

This defense usually involves the choice between two admitted evils where other optional courses of action are unavailable, and “the conduct chosen must promote some higher value than the value of literal compliance with the law.”

“[T]he defense of necessity arises when a person reasonably believes his conduct, which would otherwise constitute an offense, was necessary to avoid a public or private injury greater than the injury which might have resulted from his conduct.”

Analysis

Here, because defendant was charged with possessing a weapon in a penal institution, a review of whether he presented some evidence to support a necessity instruction involves additional considerations.

Accordingly, in this context the court looked at whether:

“(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 authority or there exists a history of futile complaints which make any result from such complaint illusory; and (3) there is no time or opportunity to resort to the courts.”

Here the reviewing court found that any threat to defendant was to remote in time.

None of the attacks constituted a specific and immediate threat to defendant.

This was not a situation where he made repeated reports to prison officials that went ignored. He had ample opportunity to alert the authorities from the safety of his own cell. Otherwise, to allow inmates to possess weapons in any but the most desperate situations would defy common sense and exacerbate an already difficult and precarious security situation.

See also Govan, 169 Ill. App. 3d at 338 (considering the applicability of a necessity defense to a charge of unlawful possession of a weapon by a felon in a Department of Corrections facility).