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Defenses – Coercion – § 939.46(1)

State v. Jeffrey A. Keeran, 2004 WI App 4, PFR filed 1/5/04
For Keeran: Joseph L. Sommers

Issue/Holding:

¶5 … The coercion defense is limited to the “most severe form of inducement.” State v. Amundson, 69 Wis. 2d 554, 568, 230 N.W.2d 775 (1975). It requires a finding “under the objective-reasonable man test, with regard to the reasonableness of the actor’s beliefs that he is threatened with immediate death or great bodily harm with no possible escape other than the commission of a criminal act.” Id.¶6. A defendant seeking a coercion defense instruction must meet the initial burden of producing evidence to support such an instruction. …

¶7. Keeran argues that he was entitled to a coercion defense instruction because a reasonable construction of the evidence supports a finding that threats made by Barreau reasonably caused Keeran to believe that participating in the crimes (including striking Robert Hansen with a bat as Hansen lay on the floor) was “the only means of preventing imminent death or great bodily harm” to Keeran. The trial court gave several reasons why Keeran was not entitled to a coercion defense instruction. We need not address all of these reasons because we agree with the trial court, and the State, that Keeran has failed to meet his initial burden of producing sufficient evidence to support a finding that he had no “means of preventing imminent death or great bodily harm” to himself, except by participating in the crimes. See Wis. Stat. § 939.46(1). In the words of the Amundson court, Keeran failed to present evidence showing that he reasonably believed there was “no possible escape other than the commission of a criminal act.” Amundson, 69 Wis. 2d at 568.

Keeran did not, in particular, explain why he didn’t call the police or run away despite opportunity to do either or both, ¶12, nor why he could not have used his weapon – a bat – “to fend off Barreau,” ¶13. Nor did Keeran “take the most obvious step to avoid hitting Hansen: he did not tell Barreau that he did not want to hit Hansen …,” but instead “simply complied with Barreau’s directive,” ¶14.

Although there was evidence that Keeran was threatened with harm, more is required:

¶15. Keeran testified that he was afraid of Barreau and, viewing the evidence in a light most favorable to Keeran, the evidence supports a finding that Keeran reasonably believed that Barreau would attempt to harm Keeran if Keeran did not comply with Barreau’s orders. But that only suggests that Keeran’s safest course was to comply with Barreau’s orders; it does not mean that Keeran’s only course was to comply with Barreau’s orders. The coercion defense is not a license to take the safest course. Further, viewing the evidence in a light most favorable to Keeran, the evidence supports a finding that Keeran reasonably believed that if he successfully managed to separate himself from Barreau, Barreau would attempt to hunt Keeran down and harm him later. But such a finding would not support a coercion defense because the defense requires the prevention of “imminent” death or great bodily harm.

 

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