               IN THE SUPREME COURT, STATE OF WYOMING

                                       2015 WY 83A

                                                         APRIL TERM, A.D. 2015

                                                                   July 16, 2015


TERENCE JAMES,

Appellant
(Defendant),

v.                                                   S-14-0234

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                      Appeal from the District Court of Albany County
                         The Honorable Jeffrey A. Donnell, Judge

Representing Appellant:
      Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N.
      Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.
      Argument by Mr. Alden.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney
      General; Jenny L. Craig, Senior Assistant Attorney General; Blake A. Klinkner,
      Assistant Attorney General. Argument by Mr. Klinkner.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.



NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Justice*.

[¶1] Terence James appeals his conviction for aiding and abetting aggravated robbery,
claiming the district court denied him the right to due process when it refused to instruct
the jury on his defense of duress. We conclude Mr. James was denied his right to a fair
trial when the district court ruled the duress defense instruction would not be given to the
jury after Mr. James testified and admitted the elements of the crime, leaving him with no
defense whatsoever. We reverse and remand for a new trial.

                                          ISSUE

[¶2] Mr. James asserts he was denied his right to due process when the district court
refused to instruct the jury on his defense of duress. The State contends the district court
properly ruled Mr. James was not entitled to the instruction because he did not present
competent evidence establishing a prima facie case of duress.

                                         FACTS

[¶3] On January 1, 2013, Mr. James and Kevin Lewis entered the Fairfield Inn in
Laramie, Wyoming wearing bandanas over their faces. Mr. Lewis told the front desk
clerk this was a robbery and brandished a gun. The desk clerk opened the side door to
allow Mr. Lewis behind the desk and Mr. Lewis asked him to open the drawer and show
him the money. Mr. Lewis removed the money and asked whether there was a safe. The
desk clerk said there was but he did not have the combination. Mr. Lewis asked the clerk
for his wallet. Mr. Lewis and Mr. James then left the hotel.

[¶4] On January 11, 2013, a business was robbed in Cheyenne. Police stopped a vehicle
matching the description of the car used in the robbery. Mr. Lewis and Mr. James were
in the vehicle. During questioning, Mr. James told police he was not with Mr. Lewis
when he committed the Cheyenne robbery earlier that evening. He said Mr. Lewis had
attempted to contact him that day but he had refused to talk to him. Mr. James admitted
his involvement in the Laramie robbery. He also told police he had been with Mr. Lewis
when he committed a robbery in Colorado and attempted a robbery in Casper, Wyoming
the week before. Mr. James was arrested and charged with accessory before the fact to
aggravated robbery, in violation of Wyo. Stat. Ann. § 6-1-201(a) and § 6-2-401(a)(c)(ii)
(LexisNexis 2011) for his involvement in the Laramie robbery.

[¶5] Prior to trial, Mr. James submitted the following jury instruction:

*The opinion published in James v. State, 2015 WY 83, published on June 11, 2015, WL
3623601 (Wyo.), is amended by this opinion. The earlier opinion has no further force or
effect.


                                             1
                DEFENDANT’S PROPOSED JURY INSTRUCTION
                                NO. J

                                Duress Defense Instruction


              [C]onduct which would otherwise constitute an offense is
              justified if a reasonable person would believe that he was
              compelled to engage in the proscribed conduct by the threat
              or [use] of immediate physical force against his person or the
              person of another which resulted or could result in serious
              physical injury which a reasonable person in the situation
              would not have resisted.

              The State has the burden of proving beyond a reasonable
              doubt that the defendant did not act with such justification. If
              the State fails to carry this burden, then you must find the
              defendant not guilty of the charge.

[¶6] In her opening statement, defense counsel told the jury that Mr. James’ presence
during the motel robbery was compelled by Mr. Lewis’ intimidating behavior and threats
to harm Mr. James or his family. She told the jury that Mr. Lewis had easy access to Mr.
James, his mother and his family because he lived with them. She told the jury that Mr.
James did not want to participate in Mr. Lewis’ criminal acts but feared that if he refused,
Mr. Lewis would harm his family.

[¶7] During cross-examination of the State’s witnesses, defense counsel made it clear
that although Mr. James was present during the robbery, Mr. Lewis had the gun, did all
the talking and took the money. Defense counsel also made it clear that Mr. James told
police Mr. Lewis had threatened him and his mother and he was scared of Mr. Lewis.

[¶8] On the morning of the second day of trial, the district court held a jury instruction
conference outside the presence of the jury. After hearing argument from counsel, the
court decided any duress defense instruction given to the jury would state:

              Duress may be a defense to criminal charges. Thus conduct
              that would otherwise constitute a criminal offense may be
              justified if a reasonable person would believe that he was
              compelled to engage in that conduct by the threat or use of
              immediate physical force against his person or the person of
              another which results or could result in serious physical injury
              which a reasonable person in the situation would not have
              resisted.

                                             2
                      If there was a reasonable legal alternative to violating
              the law, a chance both to refuse to do the criminal act and
              also to avoid the threatened harm, the defense must fail.

                      The duress must be present, imminent or impending,
              and it must be of such a nature so as to induce a reasonable
              fear of death or serious bodily harm if the otherwise criminal
              act is not done.

                    The defendant carries the burden of proving the
              defense of duress.

The district court advised counsel:

                     Now, I will say this as well: I don’t know what the
              evidence is going to be today, obviously. We’re having this
              whole discussion based on the supposition that the evidence
              presented will support this instruction. That may or may not
              be the case.
                     And under Campbell, the Supreme Court requires a
              very narrow set of facts before this instruction becomes
              appropriate. A history of being a bad guy doesn’t do it.
                     So we’ll see whether or not we’ll actually give this
              instruction at all. That will be based on what the evidence is
              this morning, okay?

[¶9] After the instruction conference, the defense presented its case. Mr. James was the
only witness. He testified that he met Mr. Lewis in November of 2012 when Mr. Lewis,
who was dating Mr. James’ mother, began living with him and his mother in their home
in Cheyenne, Wyoming. One day in December, Mr. James accompanied Mr. Lewis to
take his mother to work. Mr. James had left his son with his sister and told her that he
would be right back. After they dropped Mr. James’ mother off at work, however, rather
than returning home, Mr. Lewis drove to a club. Mr. James objected but Mr. Lewis
ignored him. Inside the club, Mr. Lewis began arguing with other customers. They left
the club, and outside in the parking lot Mr. Lewis pulled a gun and threatened to shoot
people. Mr. James testified that Mr. Lewis then drove to a gas station. In the parking lot
outside the gas station, Mr. Lewis made derogatory remarks to a female customer. Mr.
James testified that the woman’s boyfriend told Mr. Lewis to stop disrespecting his
girlfriend and Mr. Lewis “got in his face.” The woman came over to stop him and Mr.
Lewis knocked a coffee cup out of her hand and punched her. Mr. James also testified
that his mother and Mr. Lewis had an altercation in December of 2012 in which Mr.
Lewis threatened to kill her if she ever left him and said that if Mr. James and his brother

                                             3
found out he had killed her, he would “deal with” them. Mr. James understood this to
mean that Mr. Lewis would hurt them in some way. Mr. James testified that because of
Mr. Lewis’s aggressive and violent behavior, he was afraid of him.

[¶10] Mr. James testified that he and Mr. Lewis went to Chicago just before Christmas,
2012. Mr. Lewis told him he had friends there who were robbers and killers who would
come to Mr. Lewis’ assistance whenever he needed them. On their way back from
Chicago on December 23, 2012, Mr. Lewis stopped at a motel in York, Nebraska. He
told Mr. James they were getting a room for the night. They went inside and Mr. Lewis
asked the front desk clerk whether the manager was there. She said, no, and, according to
Mr. James, Mr. Lewis pulled out a gun and said “this [is] a robbery.” Mr. James testified
he was terrified. He said Mr. Lewis made the desk clerk lie down on the floor, took her
purse, took money from behind the desk, and walked out of the motel. Mr. James
testified that back in the car, he told Mr. Lewis he did not want to have anything to do
with him and wanted to go home to his son. He testified that Mr. Lewis held the gun to
his head and told him he would do whatever Mr. Lewis wanted him to do, or Mr. Lewis
would do something to his family.

[¶11] Mr. James testified he was at a party at his mother’s house eight days later when
Mr. Lewis said he was going out to get more alcohol. Mr. James’ mother told him to go
with Mr. Lewis. Rather than going to a liquor store, however, Mr. Lewis drove onto the
highway and headed in the direction of Laramie, Wyoming. Mr. James asked where they
were going and Mr. Lewis said he would let Mr. James know when they got there. They
drove to Laramie and stopped at the Fairfield Inn. Mr. Lewis parked the car, pulled
bandanas out of the backseat, retrieved a gun from the glove compartment and told Mr.
James to follow his lead. Mr. Lewis entered the motel and asked if the manager was
there. The desk clerk said, no, and Mr. Lewis pulled out the gun and robbed him and the
motel. Mr. James testified that he went into the motel with Mr. Lewis because of Mr.
Lewis’ threat to hurt his family if he did not do what Mr. Lewis told him to do. Mr.
James testified he did not go to the police about Mr. Lewis’ behavior because of Mr.
Lewis’ statement that his friends, whom Mr. Lewis described as “killers,” would protect
him and Mr. James did not know if they were watching him. He also said he had gone to
the police before and they had not helped him.

[¶12] Mr. James testified that after his arrest he remained fearful of Mr. Lewis even
though Mr. Lewis was also in custody. He related that during one interview with police,
he could hear Mr. Lewis in the next room and was afraid Mr. Lewis was listening to him.
He told the officer he did not want to go into detail about what had happened because he
thought Mr. Lewis was listening. He testified that he was still afraid of Mr. Lewis at the
time of trial even though Mr. Lewis was in jail because he had said that if Mr. James ever
told on him, his friends would do something to Mr. James’ family.



                                            4
[¶13] Mr. James did not deny that he was with Mr. Lewis during the robbery. His entire
defense was that he was there because, based on Mr. Lewis’ violent and intimidating
behavior and threats, he feared Mr. Lewis would harm him or his family if he did not
cooperate. On cross-examination of Mr. James, the prosecutor established that in order to
claim duress as a defense, Mr. James had admitted all of the elements of the crime
charged.

[¶14] After Mr. James’ testimony, the district court held a final jury instruction
conference outside the presence of the jury. The court informed counsel that it had not
heard testimony supporting the duress defense instruction. Defense counsel argued that
Mr. James’ testimony that he was compelled to engage in criminal conduct by the threat
of immediate physical force against his person or his family supported the instruction.
The district court responded that there was no immediate or imminent threat; rather, there
was one threat a week before the robbery. Defense counsel argued that Mr. James had a
reasonable and genuine belief that Mr. Lewis had friends who would kill or harm him or
his family. The district court responded:

                     And what steps did he take, which he had the
              opportunity to take, in order to avoid committing the crime
              and in order to avoid the risk of harm? Does he tell anybody
              about any of this? No. Did he go to the police? No. When
              they got to Laramie, did he get out of the car and try to walk
              away? No. Did he do anything at all to try to avoid this so-
              called threat?

Defense counsel stated that Mr. James believed there was no alternative and did not
believe the police would be able to protect his family. He believed if he did not
participate either he or his family would be killed or harmed. Defense counsel argued
that although in reality there may have been alternatives to cooperating with Mr. Lewis,
Mr. James’ fear of him and his easy access to Mr. James, his mother and his family, and
his fear of Mr. Lewis’ friends, reasonably led him to believe he had no alternative.
Ruling the evidence did not support a finding that there was a present, imminent or
impending threat and Mr. James had reasonable alternatives to violating the law, the
district court declined to give the duress defense instruction. Additionally, the court ruled
that counsel would not be allowed to argue duress in closing argument.

[¶15] The district court re-convened the jury and read them the instructions. Almost
immediately in his closing argument, the prosecutor stated:

              I would like you to notice what’s missing from this
              instruction packet. There is nothing about a duress defense.
              There is no duress defense in this case. You are not


                                             5
              instructed on it. It doesn’t apply to this case. Your duty is to
              apply the law as you’re instructed.
                     So there’s no duress defense. What does that leave
              you with? Forget all the evidence I put in before in my case
              in chief. You’ve got Terence James’ admission on the stand
              that he participated in the robbery on January 1, 2013, here in
              Laramie. You’ve got his admission that he was present
              during the robbery; that a gun was used, and they robbed that
              clerk at gunpoint.

The prosecutor concluded his remarks by saying:

              [Mr. James] participated in that robbery. That’s what he told
              you. That’s why he should be convicted. Duress is not a
              defense in this case. . . .

[¶16] After deliberating for almost an hour, the jury submitted the following question to
the court: “Does the law allow us to consider duress?” Over defense counsel’s
continuing objection, the district court answered the question, “No.” Eighteen minutes
later, the jury returned a verdict finding Mr. James guilty of the crime of accessory before
the fact to the crime of aggravated robbery. The district court sentenced Mr. James to
serve five to ten years in prison with credit for 362 days served in pre-adjudication
confinement. Mr. James timely appealed from the judgment and sentence.

                               STANDARD OF REVIEW

[¶17] The failure to give an instruction on the law related to a theory of defense is a due
process issue, which this Court reviews de novo. Nelson v. State, 2010 WY 159, ¶ 13,
245 P.3d 282, 285 (Wyo. 2010).

                                      DISCUSSION

[¶18] This Court has said:

                      Due process requires the trial court to give a correct
              instruction to the jury that details the defendant’s theory of
              the case. Blakely v. State, 474 P.2d 127, 129 (Wyo.1970).
              The instruction must sufficiently inform the court of the
              defendant’s theory and must be supported by competent
              evidence.       Bouwkamp v. State, 833 P.2d 486, 490
              (Wyo.1992). A theory of the case is more than a comment on
              the evidence that tells the jury how to consider the evidence.
              Ellifritz v. State, 704 P.2d 1300 (Wyo.1985). Fundamentally,

                                             6
              the instruction must in the first instance be a proper theory of
              the case, or theory of defense, instruction. That is, the offered
              instruction must present a defense recognized by statute or
              case law in this jurisdiction. Bouwkamp, 833 P.2d at 490.
              ....
              Any competent evidence is sufficient to establish a defense
              theory even if it consists only of testimony of the defendant.
              Best v. State, 736 P.2d 739, 745 (Wyo.1987). We view the
              evidence in a light favorable to the accused and the accused’s
              testimony must be taken as entirely true to determine if the
              evidence is competent. Duckett v. State, 966 P.2d 941, 944
              (Wyo.1998). Even if the court deems the evidence to be
              weak, or unworthy of belief, the instruction must be given if a
              jury could reasonably conclude the evidence supports the
              defendant's position. Id.

Nelson, ¶ 14, 245 P.3d at 285-286, citing Iseli v. State, 2007 WY 102, ¶ 10, 160 P.3d
1133, 1136 (Wyo. 2007). Instructions not based on the evidence, however, can be
properly refused. Id.

[¶19] In Wyoming, duress has been recognized as a defense to criminal charges, other
than a charge of taking the life of an innocent person. Campbell v. State, 999 P.2d 649,
659 (Wyo. 2000), citing Amin v. State, 811 P.2d 255, 260 (Wyo. 1991). Duress must be
present, imminent or impending, and of such a nature so as to induce a well-grounded
fear of death or serious bodily harm if the otherwise criminal act is not done. Id. The
defendant has the burden of demonstrating the elements of the defense. Id.

[¶20] In Amin, 811 P.2d at 256, two prison inmates were convicted of aggravated assault
and kidnapping after they forcibly seized two prison employees and held them captive.
They claimed prison conditions were such that they were under duress and coerced into
acting as they did and had no other recourse. This Court upheld the district court’s
refusal to give a duress defense instruction because the instruction misstated the law and
the defendants presented no evidence they (a) were faced with a specific threat of death
or substantial bodily injury in the immediate future; (b) did not have time to complain to
the authorities, or any such complaint would have been futile; and (c) had no opportunity
to resort to the courts to redress their grievances. Id.

[¶21] In Campbell, the defendant was charged with child endangerment after she failed
to take her three year old daughter to the doctor for treatment of second and third degree
burns the child sustained over eighteen percent of her body while left alone with the
defendant’s boyfriend. Id. at 654. When the defendant arrived home and observed the
burns, she left the child with a babysitter and went out with her boyfriend to play darts at
a bar. Id. At trial, the boyfriend testified that he had been physically abusive to the

                                             7
defendant for years, and although she wanted to take the child to the hospital, he believed
she went to the bar to avoid angering him. Id. at 655. The defendant testified that she
had a long history of abuse by her brother, stepfather and her boyfriend and, at the time
of her daughter’s injuries, she feared for herself and her daughter if she refused to go with
her boyfriend. Id.

[¶22] Defense counsel requested a jury instruction on the defense of duress and coercion
and the district court denied the request, finding no evidence of imminent bodily harm.
Id. at 659. On appeal, the defendant claimed she should have been allowed to present the
defense because the abuse she had suffered caused her to believe she was in imminent
danger of harm if she did not leave her daughter and go with her boyfriend. Id. at 660.
She likened her situation to that of a battered woman raising self defense as an
affirmative defense, which is specifically allowed by Wyo. Stat. Ann. § 6-1-203(b). This
Court concluded the battered woman statute applies only when a person is charged with a
crime involving the use of force against another and asserts she acted in self-defense, and
the statute did not apply in the context of a child endangerment charge. Id.

[¶23] This Court then considered whether the defendant had established the elements of
the common law defense of coercion and duress; that is, whether she presented evidence
that she faced present, imminent or impending death or serious bodily injury if she stayed
and cared for the child. We said:

              The evidence established that others were present in the house
              at the time Campbell made her decision and did not witness
              Campbell’s refusing to play darts or witness Boyer’s [sic]
              threatening Campbell if she cared for her child. Campbell
              made no attempt to seek medical advice, take her daughter to
              the hospital, dress her in loose clothing, or give her
              medications either for pain or to prevent infection. Campbell
              testified that she recognized that the burns were extensive and
              serious and required medical care, and she decided not to seek
              medical care because her past abuse caused her to realize that
              she would provoke Boyer. We agree with the district court
              that this record does not establish that she faced present,
              imminent or impending death or serious bodily harm, and the
              district court did not err in refusing to give her defense
              instruction.

Id.

[¶24] Amin and Campbell are distinguishable from Mr. James’ case. In neither case did
the defendants present evidence of an actual direct threat of physical harm before they
committed the criminal act. In contrast, Mr. James testified that a week before the

                                             8
Laramie robbery, after he told Mr. Lewis he wanted nothing to do with him, Mr. Lewis
held a gun to his head and told Mr. James that he would do what Mr. Lewis wanted him
to do or Mr. Lewis would harm his family. Then, after driving to an unknown location in
Laramie rather than to the liquor store as he had said, Mr. Lewis retrieved a gun from the
glove compartment and told Mr. James to follow his lead. Viewing this evidence in the
light most favorable to Mr. James and accepting his testimony as true as we are required
to do, we conclude a jury could reasonably have concluded that on the night of the
robbery Mr. James faced a present, imminent or impending threat of such a nature as to
induce a well-grounded fear of death or serious bodily harm if he did not do what Mr.
Lewis said.

[¶25] In concluding otherwise, the district court found there was no threat on the night of
the Laramie robbery; rather, the only threat occurred a week earlier. We disagree. Mr.
James was unarmed and alone in a different town with a man whom he had seen behave
violently, who was armed with a gun and who a week earlier had held the gun to his head
and threatened to harm his family if he did not do what he was told. These facts were
sufficient to establish a jury question as to Mr. James’ duress defense.

[¶26] The district court also found that Mr. James was not entitled to the duress defense
instruction because he failed to show that he had no reasonable legal alternative to
committing the robbery. In Campbell, we did not consider whether the defendant had a
reasonable legal alternative to endangering her child because we concluded there was no
immediate, imminent or impending threat. In Amin, 811 P.2d at 261, the Court
concluded that in addition to failing to present evidence of a threat, the defendants failed
to present evidence showing they had no reasonable alternative to seizing and holding the
prison employees. To the contrary, the evidence showed they had access to the state and
federal courts and had previously availed themselves of the prison grievance system with
favorable results. Id.

[¶27] In the present case, the district court concluded Mr. James had several
opportunities to avoid involvement in the Laramie robbery.

              He could have gone to the police. He could have told his
              mother about it. He could have simply refused and walked
              away.
              …
              [T]here was plenty of reasonable legal alternatives to
              violating the law. He had every opportunity to refuse to do
              so. And he had every opportunity to avoid the harm that was
              allegedly threatened a week earlier.

[¶28] We do not agree that a reasonable alternative on the night of the Laramie robbery
was to walk away. Again, Mr. James was not armed and Mr. Lewis was armed with a

                                             9
gun and had threatened harm previously if Mr. James did not do as he said. Viewing this
evidence in a light favorable to Mr. James and taking it as entirely true, we conclude that
a jury reasonably could have believed that when Mr. Lewis and Mr. James arrived in
Laramie on the night of the robbery Mr. James had no reasonable alternative but to
accompany Mr. Lewis into the motel where he committed the robbery.

[¶29] In the week leading up to the Laramie robbery, Mr. James was not in Mr. Lewis’
presence for significant periods of time. He testified that he spent some nights with his
girlfriend rather than at his own home with Mr. Lewis and his mother. The district court
concluded that if he had gone to the police during that time, he could have avoided
involvement in the Laramie robbery. Mr. James testified that he did not go to the police
because he did not know if he was being watched by Mr. Lewis and his friends and
because he had gone to police for help before to no avail.

[¶30] An overwhelming majority of courts have held that, as a matter of law, a defendant
who has the opportunity to avoid committing a crime, either by contacting police or
otherwise removing himself from a threatening situation, cannot seek to excuse his
criminal conduct by claiming to have acted under duress. 2 Robinson, Criminal Law
Defenses § 177, 2014 Supp., 162. See also 2 Lafave, Substantive Criminal Law, 2d Ed.,
§ 9.7(b), 78 (A defendant may lose his defense of duress if he does not take advantage of
a reasonable opportunity to escape, where that can be done without exposing himself
unduly to death or serious bodily injury); 1 A.L.R. 4th 481 Criminal Law – Defense –
Coercion § 2(a) 465 (2013) (Duress cannot be invoked as a defense by one who has a
reasonable opportunity to avoid doing the act without exposure to death or serious bodily
harm). See also 40 A.L.R.2d 908 (2014) Coercion, compulsion, or duress as a defense to
criminal prosecution and cases cited therein. Thus, in U.S. v. Alicea, 837 F.2d 103 (2d
Cir. 1988), the court held the duress defense was properly stricken where the defendants,
who claimed they had been kidnapped at gun point, raped or threatened with rape and
forced to act as drug couriers, did not take steps to extricate themselves from the situation
when they were separated from their captors. Similarly, in People v. Speer, 255 P.3d
1115 (Colo. 2011), the court concluded the duress defense was not available where the
defendant was at various times completely out of the presence of the person who had
threatened him. Finally, in U.S. v. Castro-Gomez, 360 F.3d 216 (1st Cir. 2004) the court
held the defendant did not have a duress defense where two days after being coerced to
participate in an attempted drug importation, he met his coercers at the same place as
before and was again coerced into participating in illegal activity. The court stated that a
reasonable person would have foreseen the likelihood that the invitation to meet the
coercers pertained to drug transportation, would not have gone to the meeting and would
have summoned law enforcement.

[¶31] Applying the rationale from these other jurisdictions, it could be concluded that a
reasonable person in Mr. James’ position would either have gone to the police or taken
other steps to extricate himself from Mr. Lewis after being threatened at gunpoint. Mr.

                                             10
James’ explanation as to why he did not go to the police or take other action between the
first and second robberies may be insufficient to show that he had no opportunity to avoid
the Laramie robbery. On the other hand, Mr. James had no way of knowing that rather
than going to get alcohol, Mr. Lewis would drive to Laramie and rob a motel. The issue
of whether the evidence presented a jury question is a close call; however, we are
persuaded it was sufficient to support giving the theory of defense instruction and
allowing the jury to determine whether Mr. James had a reasonable opportunity to avoid
the crime.

[¶32] Deleted.

[¶33] Deleted.

[¶34] It is worth mentioning for purposes of future cases involving a duress defense that
the federal courts have adopted a pre-trial procedure for cases involving a duress defense.

              When a defendant has indicated that he will seek to present a
              duress defense to the jury and the government seeks to
              preclude such evidence as legally insufficient, “it is
              appropriate for [the] court to hold a pretrial evidentiary
              hearing to determine whether [the] defense fails as a matter of
              law.” United States v. Paul, 110 F.3d 869, 871 (2d Cir. 1997).
              The burden at such a hearing is on the defendant to present
              some evidence on each of the elements of the defense. See,
              e.g., United States v. Jaswal, 47 F.3d 539, 544 (2d Cir. 1995)
              (per curiam). If the court finds that the defendant's evidence is
              insufficient as a matter of law to establish an element of the
              duress defense, the court may preclude the defendant from
              presenting evidence of that defense to the jury. See, e.g.,
              United States v. Bailey, 444 U.S. 394, 416, 62 L. Ed. 2d 575,
              100 S. Ct. 624 (1980); United States v. Villegas, 899 F.2d at
              1343.

U.S. v. Lizalde, 38 Fed. Appx. 657, 659-660 (2nd Cir. 2002). See also U.S. v. Bakhtiarii,
913 F.2d 1053, 1075 (2nd Cir. 1990). Had this or a similar procedure been utilized before
trial in the present case, the defense would have known before trial that the district court
would not give the duress defense instruction and would not have relied on it as its sole
defense at trial. Mr. James and defense counsel then could have considered the other
options available to them. Resolving the matter in this way would have avoided the jury
confusion that obviously occurred as reflected by the jury question.

[¶35] In light of the remand, we also take this opportunity to adopt the duress defense
elements both the State and Mr. James have urged us to apply in resolving this appeal. In

                                             11
Dixon v. United State, 548 U.S. 1, 126 S. Ct. 2437, 165 L. Ed. 2d 299 (2006), the issue
before the Court was whether the defendant had the burden to prove her duress defense
by a preponderance of the evidence or the State had the burden to prove beyond a
reasonable doubt that she did not act under duress. The Court held the burden was on the
defendant to prove the defense by a preponderance of the evidence. In reaching that
result, the Court said:

                     There is no federal statute defining the elements of the
             duress defense. We have not specified the elements of the
             defense, see, e.g., United States v. Bailey, 444 U.S. 394, 409-
             410, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980), and need not do
             so today. Instead, we presume the accuracy of the District
             Court’s description of these elements: (1) The defendant was
             under an unlawful and imminent threat of such a nature as to
             induce a well-grounded apprehension of death or serious
             bodily injury; (2) the defendant had not recklessly or
             negligently placed herself in a situation in which it was
             probable that she would be forced to perform the criminal
             conduct; (3) the defendant had no reasonable, legal alternative
             to violating the law, that is, a chance to refuse to perform the
             criminal act and also to avoid the threatened harm; and (4)
             that a direct causal relationship may be reasonably anticipated
             between the criminal act and the avoidance of the threatened
             harm. … [S]ee generally United States v. Harper, 802 F.2d
             115, 118 (C.A.5 1986).

Dixon, 548 U.S. at 5, n.2, 126 S. Ct. at 2437, 165 L.Ed. 2d at 307. These elements apply
on remand and in all future cases involving a duress defense.

[¶36] Reversed and remanded for a new trial.




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