Opinion
14-P-295
03-13-2015
COMMONWEALTH v. ERICA MCCLURE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Although the defendant does not dispute she operated a motor vehicle on a public way while intoxicated, she challenges her conviction under G. L. c. 90, § 24(1)(a)(1) (second offense), on the ground that the Commonwealth failed to disprove her defense of necessity. We affirm.
The defendant's claim of necessity is based on her testimony that she felt compelled to drive away from an acquaintance's house after two women there attacked her. The defense did not extend to the period when the defendant drove from the parking lot in which she was initially observed by the police officer to another parking lot where she was stopped. In other words, the defendant's conviction can independently rest on this second episode of operation, which is unaffected by her argument on appeal.
Moreover, with respect to the first leg of the defendant's journey, it was for the jury to decide whether to credit the defendant's testimony as to why she was compelled to drive although intoxicated. There was evidence that the defendant did not give the same explanation on the evening in question, and the jury could rely on it to discredit the defendant's self-serving explanation at trial. It was for the jury both to determine the credibility of the defendant's claim of imminent danger and to weigh it against the competing harms. "The fact finder . . . remains free to disbelieve (or credit) any evidence offered by either party relating to the availability of such defenses in a particular case." Commonwealth v. Haddock, 46 Mass. App. Ct. 246, 249 (1999). It was also a question of fact whether the defendant had sufficiently exhausted legal alternatives before driving and whether the potential harm to her was greater than the potential harm to the public, including herself, that driving while intoxicated presented. See Commonwealth v. Hood, 389 Mass. 581, 590 (1983), quoting from Commonwealth v. Brugmann, 13 Mass. App. Ct. 373, 376-377 (1982) (defense of necessity "exonerates one who commits a crime under the 'pressure of circumstances' if the harm that would have resulted from compliance with the law . . . exceeds the harm actually resulting from the defendant's violation of the law").
The judge properly gave the jury an instruction on the defense of necessity, informing them that it was the Commonwealth's burden to disprove the necessity beyond a reasonable doubt. See Commonwealth v. Iglesia, 403 Mass. 132, 134-136 (1988). Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979), we are satisfied that the Commonwealth met its burden here.
Judgment affirmed.
By the Court (Fecteau, Wolohojian & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 13, 2015.