People v. Speer: The Conflation of Duress and Necessity in Colorado Jurisprudence

 

William Reed[1]

Tremaine D. Speer confronted another man with a gun in a convenience store parking lot, demanded his money, and then shot the man in the stomach. That much is undisputed. However, Speer’s crime is only the starting point of the arguments in the recent Colorado Supreme Court case People v. Speer.[2] Speer claimed his crime sprung not from his lust to steal money, but from his desire to protect his little brother from the threats of Jamar Dickey. The defendant spun a tale of intimidation and coercion, testifying that he feared Dickey would carry out his threats to kill Speer and his brother unless he went along with Dickey’s plan. Thus, he complied when Dickey allegedly hatched a plot to set up a sham car purchase from the victim, provided Speer a gun and a car, and instructed Speer to lie in wait for the victim so he could take back the money Dickey paid.[3]

At the conclusion of Speer’s trial, his proffered jury instruction on the affirmative defense of duress was rejected by the trial court.[4] A division of the Colorado Court of Appeals held on appeal that the trial court erred in not allowing a jury instruction on the duress defense.[5] In turn, the Colorado Supreme Court reversed the Court of Appeals, upholding the trial court’s decision that no reasonable jury could find that Speer offered credible evidence to satisfy the elements of duress.[6]

Although other issues were raised in People v. Speer, this article will focus on the Court’s construction of the elements of duress, and its conflation of the defenses of duress and necessity.[7] Merging necessity and duress might be questioned in light of the statutory distinction between the two affirmative defenses by the General Assembly,[8] and the more profound theoretical distinction that flows from the typical categorization of necessity as a justification defense and duress as an excuse defense.[9]

A. Majority reasoning

The elements of the affirmative defense of duress are established by statute in Colorado. The statute requires the defendant’s conduct be coerced through 1) the use or threatened use of unlawful force, 2) upon him or another person, 3) sufficient so that a “reasonable person in his situation would have been unable to resist.”[10] The objective standard of reasonableness is the fulcrum on which this case turns. Writing for the majority in Speer, Justice Nathan B. Coats explained that the reasonableness standard further requires a “specific and imminent threat of injury under circumstances leaving the defendant no reasonable alternative other than to violate the law for which he stands charged.”[11] Justice Coats makes clear that the requirements of imminence and lack of reasonable alternatives are imported from the closely related defense of necessity.[12]

Accordingly, the majority found that Speer failed to offer credible evidence that he faced an imminent threat that allowed him no way to avoid committing the crime; Speer was in control of a gun and a car and Dickey left to conduct the   sham car purchase.[13] If one accepts the majority’s explanation of the elements of duress, this conclusion appears to be unavoidable.

B. Dissent reasoning

A vigorous dissent by Justice Monica M. Marquez rejected the majority’s construction of the elements of duress. Specifically, she argued that importing the requirements of imminence and lack of reasonable alternatives into the statutory definition of duress exceeded the court’s role, amounting to inappropriate legislating from the bench.[14]

As Justice Marquez interprets the history, the conflation of necessity and duress can be traced back to the Colorado Court of Appeals decision in People v. Robertson,[15] which explained the requirements of imminence and lack of reasonable alternatives to a necessity defense. This reasoning was then, in her view, erroneously imported into the defense of duress by the Colorado Court of Appeals in People v. Trujillo.[16] The Colorado Supreme Court relied on this confused formulation of the duress defense in Bailey v. People,[17] the most recent Colorado precedent relied upon by the majority in Speer.

Justice Marquez argued that this construction violates the plain language of the statute and the intent of the General Assembly.[18] First, the 1971 statute establishing the elements of the duress defense notably lacked an imminence requirement, even though such a requirement was included in defenses of necessity and self-defense.[19] Second, she construed a 1988 amendment to the statute as meant to further disentangle the defenses of necessity and duress.[20] The majority did not address the amendment to the statute, despite the fact that it relied on precedent that pre-dated this change by the legislature. Speer marked the first time since the 1988 amendment that the Colorado Supreme Court again specifically imported the imminence and lack of reasonable alternatives requirements into the duress defense.[21] The only explanation the majority offered for this importation was analogizing the duress defense to the necessity defense. Even if the decision in Speer can withstand the attack by Justice Marquez declaring it to be legislating from the bench, the logic of the majority fails entirely if the analogy between necessity and duress is not sound.  

C. Justification or excuse?

The Speer decision begs the more fundamental question of whether duress can so easily be likened to choice of evils, an issue barely touched by the majority or the dissent. On their face, the two defenses seem similar. The choice-of-evils defense might be appropriate where a defendant broke into a home and bounded up the stairs to avoid being swept away by flood waters, while the duress defense might be appropriate where a defendant commits a crime because a gun is pointed at her head. The only difference, in a sense, is that necessity is caused by natural forces while duress is caused by a human threat. However, many scholars contend that this logic, and hence the analogy between duress and necessity, falls apart upon closer inspection.[22]

The most basic dichotomy in the law of criminal defenses is between justification defenses and excuse defenses. Justification defenses, such as self-defense, rely on the idea that the defendant took the morally superior action given the situation. Excuse defenses, such as insanity, rely on the idea that the defendant was in the wrong, but should not be held morally culpable. The choice of evils is almost universally recognized as a justification defense–given a choice of evils, the defendant chose the lesser evil and thus made the morally superior decision. Duress, however, can be seen as an excuse defense. And, increasingly, legal scholars and courts view duress as an excuse defense.[23] If a defendant is threatened with a severe beating unless he robs a bank, are we weighing the evils of robbing a bank versus being beaten, or are we merely saying that a reasonable person would suffer enough fear that he would be unable to resist the morally inferior choice? The Colorado statute states “a reasonable person in his situation would have been unable to resist” and this language seems to support the latter view. We are not approving of the moral choice; rather, we are excusing the moral weakness because of difficult circumstances.

In assuming that duress is a justification defense, the Speer majority relied almost solely on the scholarship of Professor Wayne LaFave.[24] However, this reliance is misplaced, as LaFave changed his view nearly a decade ago, and now embraces duress as an excuse defense.[25] Thus, the Speer decision took the minority stance in viewing duress as a justification defense, and did so with very little analysis or support.

Construing duress as a justification defense is especially surprising in Colorado where the legislature has largely adopted the Model Penal Code (MPC) language.[26] The broad view of duress in the MPC is one of the catalysts that changed the perception of the defense in recent decades, and one of the most noteworthy aspects is that the MPC language adopted by Colorado specifically rejected the common law formulation of duress by abandoning the requirement of imminent danger.[27] Professor Joshua Dressler explained that one of the effects of the MPC’s changes to duress is that “the MPC involves the jury (assuming it is not waived) more deeply in the determination of the excuse than is the case at common law.”[28] And yet, the Speer majority imported the common law requirement of imminent danger so pointedly excluded by the statute, with the effect of wresting power away from the jury and reinvesting that power in the bench.  

If one views duress as excusing moral culpability rather than justifying the defendant’s action, then it is wholly inappropriate to import the elements of the necessity defense into the duress defense. The logic of justification defenses relies upon a utilitarian philosophy of punishment, in that we will not punish a decision that caused less societal harm. The foundation of excuse defenses, on the other hand, rests on a retributive philosophy of punishment, in that circumstances mitigate the defendant’s culpability, whether those circumstances are age, insanity, or threats of force. Treating duress and necessity as interchangeable, under this view, is as logically bankrupt as importing the elements of self-defense into the insanity defense.

Conclusion

The statutory framing of the duress defense supports Justice Marquez’ view that imminence and lack of reasonable alternatives should merely be factors for a jury to weigh when deciding whether a defendant’s inability to resist a crime was objectively reasonable, and should not be judicially imported into the statutory elements of duress. Further, the majority’s reasoning in Speer relies on a largely unsupported analogy between choice of evils and duress, an analogy that not only is rejected by most scholars and courts, but is specifically rejected by Colorado statute.

At the very least, the Colorado Supreme Court should offer a more robust analysis supporting its unpopular view that duress is, in fact, a justification defense, and explaining how importing elements of the necessity defense comports with the statutory language and intent underlying the Colorado duress defense. Tremaine Speer was probably unreasonable in driving alone to the scene of his crime rather than to the nearest police station, but that is a fact-specific consideration that lies within the purview of the jury.

 


[1] J.D. Candidate, 2013, University of Denver Sturm College of Law.

[2] 255 P.3d 1115 (Colo. 2011).

[3] Id. at 1118.

[4] Id.

[5] Id.

[6] Id. at 1122.

[7] Id. at 1122 (“I believe this court has erroneously imported elements of the choice of evils defense into the defense of duress, conflating the two[.]”) (Marquez, J., dissenting).

[8] Compare Colo. Rev. Stat. § 18-1-708 (2011) (duress), with Colo. Rev. Stat. § 18-1-702 (2011) (choice of evils).

[9] See Kyron Huigens, Duress Is Not a Justification, 2 Ohio St. J. Crim. L. 303, 303 (2004) (“[T]he majority view that duress is an excuse, one grounded on the notion that it is unjust to punish someone who has violated the criminal law only because he failed to resist a motivation that could not have been resisted by anyone who claims the right to punish him.”). 

[10] § 18-1-708.

[11] Speer, 255 P.3d at 1119.

[12] See id. at 1119–20 (Justice Coats treats the defenses as interchangeable, citing necessity and self-defense precedent to support his formulation of duress).

[13] Id. at 1120.

[14] Id. at 1125 (Marquez, J., dissenting) (“The majority’s approach continues unnecessarily to blur the line between the courts and the legislature by importing elements into the defense of duress that find no basis in the language of the statute.”).

[15] 543 P.2d 533 (Colo. App. 1975).

[16] 586 P.2d 235 (Colo. App. 1978).

[17] 630 P.2d 1062 (Colo. 1981).

[18] Speer, 255 P.3d at 1122–23.

[19] Id. at 1124 n.1.

[20] Id. at 1123 (The amended language in § 18-1-708 is: “The choice of evils defense, provided in section 18-1-702, shall not be available to a defendant in addition to the defense of duress provided under this section unless separate facts exist which warrant its application.”)

[21] Id. at 1125 (“Since that amendment, this court has not held that the statutory affirmative defense of duress requires a defendant to present evidence of ‘imminence’ or the unavailability of any ‘reasonable alternative’ – until today.”)

[22] See Joshua Dressler, Exegesis of the Law Of Duress: Justifying the Excuse and Searching for its Proper Limits, 62 S. Cal. L. Rev. 1331, 1347-49 (1989).

[23] Joshua Dressler, Understanding Criminal Law 306 (5th ed. 2009) (“most scholars, courts, and states’ criminal codes that draw distinctions between justifications and excuses, treat duress as an excuse defense”).

[24] See Speer, 255 P.3d at 1119.

[25] Compare Wayne R. LaFave, Criminal Law 476-77 (3d ed. 2000) (supporting the view of duress as a justification defense), with Wayne R. LaFave, Criminal Law 491 (4th ed. 2003) (treating duress as an excuse defense).

[26] Compare Model Penal Code § 2.09 (“person of reasonable firmness in his situation would have been unable to resist”), with Colo. Rev. Stat. §18-1-708 (“reasonable person in his situation would have been unable to resist”).

[27] Dressler, supra note 22, at 1343–45.

[28] Id. at 1345.