Opinion
(9151)
Argued March 28, 1991
Decision released May 7, 1991
Substitute information charging the defendant with the crimes of criminal trespass in the first degree, criminal trespass in the second degree, interfering with an officer and conspiracy to cause criminal mischief in the first degree, and with simple trespass and creating a public disturbance, brought to the Superior Court in the judicial district of Hartford-New Britain, geographical area number sixteen, where the first, second and third counts were tried to the jury before Kocay, J., and the fifth and six counts were tried to the court; verdict and judgment of guilty of criminal trespass in the second degree and creating a public disturbance, from which the defendant appealed to this court. Affirmed.
Elizabeth A. Gallagher, with whom, on the brief, was William F. Gallagher, for the appellant (defendant).
Mary H. Lesser, assistant state's attorney, with whom, on the brief, were John M. Bailey, state's attorney, and John O'Reilly, assistant state's attorney, for the appellee (state).
The defendant appeals from the judgment of conviction following a jury trial of criminal trespass in the second degree in violation of General Statutes 53a-108 (a), and following a court trial of creating a public disturbance in violation of General Statutes 53a-181a. These charges arose out of her actions during a demonstration at an abortion clinic.
The essence of the defendant's claims is that the trial court improperly prevented her from presenting evidence relating to the defense of necessity and the defense of justification.
The defendant claims due process and equal protection of the law violations under both the Connecticut and federal constitutions.
The defendant's first claim is controlled by our recent case of State v. Anthony, 24 Conn. App. 195, 588 A.2d 214 (1991). Because the harm sought to be prevented is not recognized as an injury under the law, the defense of necessity is insufficient as a matter of law and the court properly refused to allow the defendant to raise it. See id., 209.
In Anthony, we also determined that justification is not a defense to an infraction. Because creating a public disturbance is an infraction, the defendant had no right to claim justification as a defense to it. Id., 210.
What remains in the present case is the defendant's claim that the defense of justification can be applied in this case to the charge of criminal trespass in the second degree. The rationale of Anthony relating to the defense of necessity is here pertinent to the defense of justification. The law, as expressed by the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and as expressed by the Connecticut legislature by Public Acts 1990, No. 90-113, does not permit the use of General Statutes 53a-19 as a justification defense under the circumstances of this case.
General Statutes 53a-19 (a) as pertinent provides that "a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose . . . ."