Before Steadman, Ruiz and Washington, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Ellen Segal Huvelle, Trial Judge)
John McClam appeals his convictions of first-degree burglary, see D.C. Code § 22-1801 (a) (1996 Repl.), kidnapping while armed, see D.C. Code §§ 22-2101 (kidnapping), -3202 (committing a crime while armed), armed robbery, see D.C. Code §§ 22- 2901(robbery), -3202 (committing a crime while armed), and assault, see D.C. Code § 22-501. The trial court ruled that because appellant denied committing any crimes, he could not avail himself of the defense of duress. Appellant raises numerous issues on appeal, *fn1 most significantly that the trial court erroneously denied him jury instructions and argument on his theory of duress. We hold that the trial court abused its discretion in refusing to allow appellant to present a duress defense and denying appellant the duress instruction. We thus reverse and remand for a new trial.
Kenneth White testified that appellant called him on April 20, 1997, and told him that he was coming over to return money White had loaned him. White knew appellant, whom he called "Tony," from previous sexual encounters. Appellant arrived at White's home with a third person, later identified as his cousin, Nathaniel Grooms or "Bey Bey," and suggested that the three of them have sex. White declined, but offered drinks to the two men. White testified that appellant then asked him to step into the bedroom to talk and suddenly pulled out a gun, declaring, "[t]his is a robbery. Get on the floor." White attempted to protest, but Bey Bey walked in with a gun and hit him on the head, knocking him down. When White tried to get up, Bey Bey hit him again.
White testified that he handed appellant his money clip with two dollars, his driver's license, a maxed-out credit card and an ATM card before Bey Bey hit him on the head. He was then put on the bed and appellant began to tie his arms and legs while Bey Bey wrapped his head with duct tape. He stated that Bey Bey was instructing appellant to "[t]ie his hands, tie his arms. Tie them tighter. Tie his legs," and appellant complied. Appellant then told White to give him the number so he could use the ATM card and said he was going to an ATM machine and would return. Bey Bey told White in appellant's presence that appellant was going to the ATM machine, and that if White had given him the wrong number, Bey Bey "was going to put [White] to sleep." Bey Bey then guided White to the bathroom, threw him into the bathtub, and turned the water on. White was able to turn the water off and stand, but Bey Bey returned and hit him again. After Bey Bey left, White eventually escaped by loosening the ropes with the water and climbing out the bathroom window.
Appellant did not deny that he was in White's apartment, but claimed that the robbery was Bey Bey's idea and that he was shocked and frightened when Bey Bey pulled out the gun and struck White. Appellant denied having a gun and stated that when he protested Bey Bey's actions, "[Bey Bey] told [appellant] to shut up and pointed the gun at [him]." During pre-trial proceedings appellant testified that he had not participated in the robbery, but only watched while Bey Bey hit White and robbed him. *fn2 During trial, appellant testified that although Bey Bey tried to make him tie up White, appellant only "pretended like I was tying" and "I really didn't tie it, tie no knot in it." Appellant also stated that he put a pillow under White's head in the bath tub and tried to help him. He stated that he was in fear for his life because Bey Bey "looked like he just went crazy." When Bey Bey eventually dropped appellant at home after the robbery in White's house, appellant testified that he was in shock and he told his sister what happened. Appellant's sister testified that appellant told her that Bey Bey had pointed a gun at him and she knew Bey Bey to be "cold and callous, inhuman, evil, wicked . . . [and] criminal minded."
Four days after the event, appellant was called into police headquarters; he cooperated with the police and told them where Bey Bey had stashed the stolen items. *fn3
On September 29, 1997, the government filed a motion to exclude Defendant's claim of duress, seeking to preclude the assertion of the duress defense unless appellant made a factual proffer to allow the government to prepare a rebuttal. The government argued, based on United States v. Jenrette, 240 U.S. App. D.C. 193, 196, 744 F.2d 817, 829 (1984), that "if there was any reasonable, legal alternative to committing the crime, the defense of duress will not obtain." Appellant opposed this motion, asserting that appellant "knew [Bey Bey] to be a violent and dangerous person," and offered the standard duress jury instruction in his list of proposed instructions. The court concluded that a sworn, pre-trial proffer would be necessary.
Appellant testified pretrial that during the incident at White's home, he was in fear of Bey Bey because he pointed a gun at the appellant and was acting "like he [ ] kind of lost his mind." He also stated that he tried to stop Bey Bey from hurting White, but Bey Bey told him to shut up. Appellant testified that he "didn't do nothing," and that his only mistake was inviting Bey Bey over to White's house.
After receiving testimony from appellant and argument from counsel, the trial court ruled that duress was not a permissible defense because appellant denied doing anything during the incident. The trial court stated that, "[d]uress is like entrapment. It's a defense. It says I committed a criminal act because somebody held a gun to my head. [Appellant] is denying any involvement in the criminal act other than being there. He's saying that I was a mere presence. I did nothing. . . . His defense is [a] complete denial." Defense counsel tried to argue that appellant was putting forth different defenses, stating, "[t]he duress is a secondary defense saying, to the extent I did participate, it's duress . . . . whatever minor things I might have done, or whatever affirmative action I didn't take, was duress, and it's a secondary defense." The trial court, however, responded that without an ...