
64 Mich. App. 331 (1975)
236 N.W.2d 72
PEOPLE
v.
HOCQUARD
PEOPLE
v.
MITCHELL
Docket Nos. 16400, 16401.
Michigan Court of Appeals.
Decided September 22, 1975.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and James M. Justin, Assistant Prosecuting Attorney, for the people.
Roger L. Wotila, Assistant State Appellate Defender, for defendants.
Before: BASHARA, P.J., and J.H. GILLIS and M.F. CAVANAGH, JJ.
Leave to appeal applied for.
BASHARA, J.
Defendants, Earl E. Hocquard and Gene E. Mitchell, were convicted by a jury of attempted prison escape. MCLA 750.193; MSA 28.390. Our Court affirmed the conviction in an order issued on January 25, 1974. The Michigan Supreme Court vacated the order and remanded for rehearing.[1] Later the Michigan Supreme Court amended their order to limit reconsideration to the issues of the scope of cross-examination of defendant Hocquard, the excluded defense of duress, *334 and the denial of separate trials.[2] The facts are set out in a discussion of the issues.
The first issue presented is whether the trial judge erred in requiring Hocquard to remain on the witness stand for cross-examination after denying Hocquard's offer of proof on the defense of duress. Hocquard took the witness stand in his own defense and testified to his name and address. Defense counsel then inquired into Hocquard's medical history prior to the attempted prison escape. The prosecutor objected to the question on the ground that such inquiry was immaterial. The trial court ruled that the defense of duress was available in limited circumstances as a defense to prison escape and agreed to hear an offer of proof. Accordingly, the jury was excused and Hocquard made an offer of proof on the defense of duress. After the offer of proof the trial judge ruled that Hocquard's allegations did not satisfy the elements of the defense of duress. At this point defense counsel stated, "I'm wondering if he'd be on the stand, excused or remain here." The court ruled that Hocquard was still subject to cross-examination and brought back the jury. On cross-examination, without objection, Hocquard admitted all the elements of the crime.
Hocquard contends that he took the stand for the limited purpose of making an offer of proof on the defense of duress. Once the court ruled that the defense of duress was not available there was no reason for Hocquard to testify. Therefore, requiring Hocquard to submit to cross-examination violated his privilege against self-incrimination.
The record discloses nothing to indicate that Hocquard initially took the stand for the limited purpose of making an offer of proof on the defense *335 of duress. Defense counsel should have announced that he was proposing his witness for the sole purpose of a limited evidentiary hearing on the question of the defense of duress. Once the defendant assumed the stand he waived his constitutional right to refuse to answer any question that may be material to the case and which would, in the case of any other witness, be legitimate cross-examination. People v Roger Johnson, 382 Mich 632; 172 NW2d 369 (1969), cert den 397 US 1079, 90 S Ct 1533; 25 L Ed 2d 816 (1970).
We must determine whether the procedure of defense counsel allowing the defendant to take the stand without attempting to limit the scope of examination was so injurious that, but for this action, the defendant might not have been convicted. People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969). The evidence, excluding the confession on the witness stand, shows that Hocquard did attempt to escape from prison. Two guards identified the defendant as the individual who came to the main gate dressed as a guard and attempted to leave the prison. Three other guards testified to seeing the defendant dressed in a guard uniform at the control center. The evidence tended to show that the defendant attempted to obtain a pass at the control center to leave the prison. When the defendant could not produce identification he was taken into custody. The evidence is overwhelming that the defendant would have been convicted even if defense counsel had not proceeded as he did.
The next issue presented is whether the trial court erred in refusing to allow the jury to consider Hocquard's offer of proof on the defense of duress. He attempted to show that he had a medical history of back problems and that he was *336 periodically treated by Dr. Frank Walker. Hocquard re-injured his back a month before the prison escape while working in the prison tin shop. He described the pain as so excruciating that he had difficulty sleeping at night. Hocquard testified that he requested help in obtaining medical attention from his shop supervisor and the security officer in the tin shop. A letter was obtained from Dr. Walker documenting Hocquard's back problems and copies of the letter were sent to the Prison Hospital Administrator and the Director of the Department of Corrections. Still Hocquard received no medical treatment. At the time of his attempted escape Hocquard testified that the pain was so severe that he could not bend at the waist. At the close of the offer of proof the trial court ruled that Hocquard's physical condition did not satisfy the elements of the defense of duress. Apparently, the trial judge did not believe that Hocquard's physical injury was of such a nature to induce a well founded apprehension of death or serious bodily harm, which is an element of the defense of duress.
In the past courts have refused to recognize defenses to prison escape based upon unsanitary and unhealthy conditions, State v Davis, 14 Nev 439 (1880), or intolerable living conditions and brutal and inhuman treatment by guards, People v Whipple, 100 Cal App 261; 279 P 1008 (1929), or inadequate medical attention. State v Palmer, 45 Del 308; 72 A2d 442 (1950). The rationale has been founded on public policy. See State v Palmer, supra at 310, 72 A2d at 444. We reject public policy considerations that condone and sanction inhuman treatment of prisoners incarcerated in penitentiaries.
The cases of People v Harmon, 53 Mich App 482; *337 220 NW2d 212 (1974), lv granted 392 Mich 817 (1974), and People v Lovercamp, 43 Cal App 3rd 823; 118 Cal Rptr 110 (1974), have respectively allowed the defenses of duress and necessity[3] to prison escape arising out of threats of homosexual attack. We believe that the defense of necessity is applicable to those situations where a prisoner had been denied requested medical care. However, we hold that the defense of necessity is a very limited defense to the crime of prison escape or attempted prison escape. It may only be considered by the trier of fact where there is a prima facie showing of evidence to support each and every one of the following elements:
1. "The compulsion must be present, imminent and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. A threat of future injury is not enough."[4]
2. "There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory;[5]
3. "There is no time or opportunity to resort to the courts;
4. "There is no evidence of force or violence used *338 towards prison personnel or other `innocent' persons in the escape; and
5. "The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat."[6] (Footnote omitted.)
The facts presented in the offer of proof show that there existed a history of complaints seeking medical treatment and that no force or violence was used in the prison escape. The element of whether Hocquard was faced with a well grounded apprehension of death or serious bodily harm is "in all but the clearest cases, to be decided by the trier of fact taking into consideration all the surrounding circumstances, including the defendant's opportunity and ability to avoid the feared harm". People v Harmon, supra, at 486. While in retrospect the trial judge may have been in error in making the determination himself, People v Harmon, supra, had not been decided and was not available for reference. However, the record discloses no reason why Hocquard would not have had the time or opportunity to resort to the courts for a writ of mandamus[7] ordering prison officials to provide medical treatment. During the thirty-day period prior to the prison escape when Hocquard was sending letters and requesting help, he could have very easily resorted to the courts. Therefore, *339 the trial judge properly excluded the defense of necessity from the jury.
The final issue is whether the trial judge erred in denying both defendants' motion for severance. Defendants were represented by the same counsel. One week before trial defense counsel moved for severance because Mitchell was asserting the defense of alibi which was at variance with Hocquard's defense of necessity. The defenses were inconsistent as shown when Hocquard took the stand. On cross-examination Hocquard was asked a series of questions revolving around the identity of the second man in the prison escape. Hocquard refused to answer these questions. However, the inference was raised that Mitchell was the second man. Defense counsel was then in the precarious position of either attacking the credibility of Hocquard to protect Mitchell's interest or to let Hocquard's testimony go unchallenged at the expense of Mitchell. Defense counsel chose the latter.
It must first be recognized that effective assistance of counsel guaranteed by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment "contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests". Glasser v United States, 315 US 60, 70; 62 S Ct 457; 86 L Ed 680 (1942). Furthermore, where co-defendants' defenses are inconsistent and the trial court is fully advised of the inconsistency before trial, it may be an abuse of discretion not to grant separate trials. People v Markham, 19 Mich App 616; 173 NW2d 307 (1969), lv den 383 Mich 804 (1970).
When defense counsel failed to impeach the credibility of Hocquard, it only amplified the inconsistency of the defenses of the parties. There *340 was no prejudice to Hocquard since counsel pursued his theory of the defense. However, in defense counsel's pursuance of Hocquard's theory of defense he seriously prejudiced Mitchell when he failed to impeach Hocquard's credibility.
Accordingly, defendant Mitchell's conviction is reversed and remanded for a new trial. Defendant Hocquard's conviction is affirmed.
NOTES
[1]  392 Mich 804 (1974).
[2]  393 Mich 762 (1974).
[3]  The difference between the defenses of duress and necessity is that the source of compulsion for duress is the threatened conduct of another human being, while the source of compulsion for necessity is the presence of natural physical forces. 43 U Cinc L Rev 956, 960. Since Hocquard's theory of defense is that the denial of medical attention was the compulsion for his attempted escape, the proper name of the defense is necessity. Several terms have been used by courts to denote defenses based on compulsion, most commonly "duress", "necessity", "coercion", and "compulsion". U Cinc L Rev, supra, p 957, n 2. Michigan recognized the defense of compulsion in People v Merhige, 212 Mich 601; 180 NW 418 (1920). Since compulsion includes necessity this is not a recognition of a new defense in Michigan.
[4]  People v Merhige, 212 Mich 601, 610-611; 180 NW 418 (1920).
[5]  Elements two thru five are taken from People v Lovercamp, 43 Cal App 3rd 832; 118 Cal Rptr 110 (1974).
[6]  The element of return need not be considered since Hocquard failed to escape.
[7]  Parshay v Marquette Prison Warden, 30 Mich App 556, 558; 186 NW2d 859 (1971), recognized that mandamus is proper where there is a "clear, legal right in the plaintiff or a clear, legal duty to act or desist, requiring no exercise of discretion on the part of the defendant". People v Bland, 52 Mich App 649, 656; 218 NW2d 56 (1974), held that a convicted criminal has a right to medical treatment while in prison and that denial of such treatment violates the Eighth Amendment protections against cruel and unusual punishment. Therefore mandamus under GCR 1963, 712 is the proper procedure for a prisoner seeking medical attention.
