This is an excerpt from a petition for writ of certiorari.  It was drafted by Paul J. Notarianni in 2016.

ISSUE PRESENTED

Did the Trial Court commit reversible error when it made a finding that necessity was a valid defense, yet refused to pose a duress or necessity instruction to the jury?

ARGUMENT IN SUPPORT FOR GRANTING THE WRIT

The Trial Court committed reversible error when it denied [defendant’s] request for a jury instruction on either duress or necessity.  Maryland law requires for a trial court to give a jury instruction at the conclusion of all evidence of the applicable law. (Maryland Rule 4-325 (a) (c)).  An “appellate court, on its own initiative or on suggestions of a party, may … take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object.” (Maryland Rule 4-325 (e)).

The trial court is mandatorily required to instruct the jury on every essential question or point of law supported by the evidence. (Dishman v. State, 118 Md. App. 360, (1997) certiorari granted, affirmed in part, reversed in part 352 Md. 279, Ellison v. State, 104 Md. App. 655 (1995)). The Maryland Court of Appeals has held that Maryland Rule 4-325(c)”requires the trial court to give a requested jury instruction under the following circumstances: 1) the requested instruction is a correct statement of the law; 2) the requested instruction is applicable under the facts of the case; and 3)  the content of the requested instruction was not fairly covered elsewhere in the jury instructions actually given.” (McMillan v. State, 428 Md. 333 at 356 (2012), citing Thompson v. State, 393 Md. 291, 302-03 (2006) quoting Ware v. State, 348 Md. 19, 58 (1997)).

A defendant has a minimal threshold burden to “show ‘some evidence’ [that a defense is applicable] and then the burden shifts to the State to show, beyond a reasonable doubt, that the defense does not apply.”  (McMillan at 356 citing Dykes v. State, 319 Md. 206, 216 (1990)).

Under Maryland Law, to establish duress, it must be shown that the duress is   “present, imminent, and impending, and of such a nature as to induce well grounded apprehension of death or serious bodily injury if the act is not done.  It must be of such character as to leave no opportunity to the accused to escape. Mere fear or threat by another is not sufficient nor is a threat of violence at some prior time.”  (McMillan at 355 quoting Frasher v. State, 8 Md. App. at 449). The elements of necessity are that a defendant: 1) must have “been in present imminent risk of death or bodily harm, 2) not have placed himself in the situation intentionally or recklessly, 3) not have a reasonable or legal alternative to the criminal action, and 4) stop the criminal activity when the necessity ends.” (McMillan at 361).

Necessity is similar to duress, except that the compulsion to act comes from “the physical forces of nature rather than from human beings.” (Sigma Reproductive Health Ctr. V. State, 297 Md. 660, 675 (1983).  There is no separate pattern jury instruction on necessity because of the inter relationship between necessity and duress. (MPJI CR 5.03 CMT.)