Opinion
19-P-740
05-11-2020
COMMONWEALTH v. JAMES F. CATANZARO.
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
After a jury trial, the defendant, James F. Catanzaro, was found guilty of operating a motor vehicle while his license was suspended due to a conviction of operating under the influence of alcohol. See G. L. c. 90, § 23. On appeal, he contends that jury instructions regarding the necessity defense were erroneous. We affirm.
Discussion. The defendant contends that the instructions on the necessity defense were erroneous because they included an instruction to consider the defendant's subjective state of mind as well as the reasonableness of his conduct. The defendant also asserts that the judge's use of examples misled the jury because the examples suggested that the defense was available only in matters of life and death. We review these claims of instructional error for an abuse of discretion or error of law. See Commonwealth v. Rogers, 96 Mass. App. Ct. 781, 784 (2019). "Because the defendant did not object to the instruction at trial, and did not request a specific instruction, we review any error for a substantial risk of a miscarriage of justice." Id.
The defendant's sole objection was to the judge's use of examples not found in the model jury instructions, and this objection was made only after the jury retired to deliberate. "The defendant should have brought the [error] to the judge's attention by objecting at the end of the charge. [He] did not; therefore, the objection was not preserved, and our review is for a substantial risk of a miscarriage of justice." Commonwealth v. White, 452 Mass. 133, 139 (2008). See Mass. R. Crim. P. 24 (b), 378 Mass. 895 (1979) ("No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict").
An instruction on the necessity defense is warranted where the defendant has presented some evidence "'(1) [of] a clear and imminent danger, not one which is debatable or speculative'; (2) [a reasonable expectation that his or her action] will be effective as the direct cause of abating the danger; (3) [that] there is [no] legal alternative which will be effective in abating the danger; and (4) the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue." Commonwealth v. Magadini, 474 Mass. 593, 597 (2016), quoting Commonwealth v. Kendall, 451 Mass. 10, 13-14 (2008). "In considering whether a defendant is entitled to a jury instruction on the defense of necessity, we have stated that a judge shall so instruct the jury only after the defendant has presented some evidence on each of the four underlying conditions of the defense." Kendall, supra at 14, citing Commonwealth v. Pike, 428 Mass. 393, 400 (1998). Here, the defendant testified that his daughter and her friend called him for a ride home, telling him that they were in a public park with boys they did not know well, and that the boys were smoking marijuana. The defendant sensed they were in danger, and drove to get them. He offered no evidence that lawful alternatives were unavailable.
The trial judge gave the instruction out of an abundance of caution and "in the interest of justice." However, we agree with the judge's initial assessment that the instruction was not warranted in this case. The defendant was not entitled to the instruction because he had not presented evidence that he had no effective legal alternatives to driving with a suspended license. The defendant's burden to produce some evidence "does not require a showing that the defendant has exhausted or shown to be futile all conceivable alternatives, only that a jury could reasonably find that no alternatives were available." Magadini, 474 Mass. at 599, citing Kendall, 451 Mass. at 19 (Cowin, J., dissenting). Yet no evidence was offered on this point. On the evidence before the jury, the defendant could have called his sister, who had driven him home from work earlier that day; the police, if he believed there was a dangerous situation; or a ride hailing or taxi service. The defendant could not have been prejudiced by an instruction on a defense to which he was not entitled and that gave him "more protection than the law afforded." Commonwealth v. Simpson, 434 Mass. 570, 589-590 (2001).
However, even if the defendant was entitled to an instruction on the necessity defense, the defendant's challenges to the substance of the instructions are unavailing. Viewing the charge as a whole, see Commonwealth v. Waite, 422 Mass. 792, 804 (1996), the judge correctly instructed the jury on the offenses charged, and the Commonwealth's burden to disprove the affirmative defense of necessity. As to the judge's instruction regarding the defendant's subjective belief in the dangerousness of his daughter's situation, the model jury instructions do not contain an explicit reference to a defendant's subjective state of mind. The instructions do require that the jury be instructed that the Commonwealth must prove that the defendant "did not reasonably expect his actions would be effective." See Instruction 9.240, Criminal Model Jury Instructions for Use in the District Court (2017). The judge so instructed, and added an explanation regarding the defendant's subjective state of mind. Pike indicates that there is a subjective component to the necessity defense in some circumstances. See Pike, 428 Mass. at 400 ("Finally, the punishable action must be done with the intent to avoid the harm; it is not enough that the action was intended for another purpose and also happened to remove the defendant from danger"). See also Commonwealth v. Weaver, 400 Mass. 612, 615 (1987) ("In order to raise the issue of necessity as a defense, there must also be evidence that the defendant was motivated by a desire to avoid the greater evil"). However, even if there were no subjective component to the necessity defense, the judge's instruction merely heightened the burden on the Commonwealth "to prove the absence of necessity beyond a reasonable doubt," see Kendall, 451 Mass. at 14, and therefore did not create a substantial risk of a miscarriage of justice.
The judge stated in part: "So when you do analyze the story, the testimony of the case, look at it from a subjective point of view. You can consider that, but you're not bound by that. Also look at it from an objective point of view."
The judge's use of three life-or-death examples in the context of explaining the necessity defense likely overstated the level of danger required to establish the defense. See Magadini,474 Mass. at 597 ("The common-law 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" [quotations and citations omitted]). Viewing the charge as a whole, however, these examples did not create a substantial risk of a miscarriage of justice because the judge did give the more general balancing of harms instruction, and the defendant did not, in any event, present any evidence of a lack of lawful alternatives.
Judgment affirmed.
By the Court (Sullivan, Desmond & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 11, 2020.