Com. v. Lora

• Decision Date: 10 July 1997
• Docket Number: No. 96-P-623,96-P-623
• Citation: 43 Mass.App.Ct. 136,681 N.E.2d 876
• Parties: COMMONWEALTH v. Orestes LORA.
• Court: Appeals Court of Massachusetts

Page 876

681 N.E.2d 876

43 Mass.App.Ct. 136

COMMONWEALTH v. Orestes LORA.

No. 96-P-623.

Appeals Court of Massachusetts Suffolk.

Argued Jan. 6, 1997.

Decided July 10, 1997.

Douglas J. Beaton, North Andover, for defendant.

Nancy L. Hathaway, Assistant District Attorney, for the Commonwealth.

Before SMITH, GREENBERG and FLANNERY, JJ.

GREENBERG, Justice.

A complaint charged the defendant, Orestes Lora, with a violation of G.L. c. 90, § 23. The second paragraph of the statute reads in pertinent part:

"Any person convicted of operating a motor vehicle after his license to operate has been suspended or revoked, ... or after notice of the suspension or revocation of his right to operate a motor vehicle without a license has been issued by the registrar and received by such person or by his agent or employer, and prior to the restoration of such license ... shall be punished...." ¹

At trial by a jury of six in the Roxbury District Court, the Commonwealth established the following. On October 7, 1994, Officer Jack Marotta of the Boston police department observed the defendant driving a black 1989 Ford Probe automobile on Melnea Cass Boulevard in the city of Boston. The officer stopped the defendant for making an illegal left hand turn onto Washington Street. The defendant was unable to produce his driver's license. A computer check revealed that the defendant's license had been suspended for drunk driving. So apprised, the officer placed the defendant under arrest. On the citation, he listed the defendant's address as 20 East Brookline Street in Boston.

The Commonwealth introduced in evidence certified copies of documents from the Registry of Motor Vehicles. One such document, the notice of suspension sent to the defendant, listed his address as Box 312, Line Street, Boston, MA 02118. In contrast, another document containing the defendant's driving history listed two additional addresses: (1) a mailing address as Box 312 Line Street, Boston, MA 02143; and (2) a residential address as 20 E. Brookline Street, Apt. 84, Boston, MA 02118-1988. Contending that he never received notice of the suspension of his license, the defendant moved for a required finding of not guilty at the close of the Commonwealth's case. The judge denied the motion.

For the defense, Juan Santiago, a friend of the defendant, testified that about 4 P.M. on the day of the arrest, the defendant appeared at his home "very ill." He testified that the defendant's complexion was pallid, his hands and feet swollen, and that the defendant had complained of severe pain. Santiago loaned the defendant ten dollars to purchase medicine. Because Santiago refused to go to the pharmacy for him, the defendant drove away himself, presumably to make the purchase.

The defendant took the witness stand. He testified, in effect, that he suffers from rheumatoid arthritis, poor circulation, and high blood pressure. He stated that on the day in question, he felt as if he "wanted to die," and he had exhausted his supply of Motrin, a pain killing medication prescribed by his health care provider. The defendant explained that necessity compelled him to drive himself to the pharmacy; he could not afford a taxi, his housemate, Luiz Colon, did not drive, and Santiago was unwilling to do the errand. After deliberation, the jury rejected this defense and found him guilty.

1. Instructions on the defense of necessity. The judge instructed the jury in the language set out in the margin. ² In so doing, he tracked the language of Model Jury Instruction 6.02 (1988) used in the District Court. Before the charge, defense counsel objected to the fourth factor of the instruction. He asked that the jury be told that the Legislature had not made a determination of values that would rule out his defense in these circumstances. The judge refused the request. The charge was exemplary in all respects except, as the defendant argues, it left the jury to determine whether the Legislature had ruled out the defense in the circumstances of this case. We agree with the defendant that this was error.

The defendant argues that leaving unanswered the question whether the statute permits the defense, requires the jury to engage in an exercise beyond its institutional competence. ³ As such, the defendant claims a violation of his due process rights.

The common law defense of "necessity" is often referred to as the "choice of evils" defense. LeFave & Scott, Handbook on Criminal Law § 5.4, at 442 (2d ed.1986). In essence, it involves a judgment as to whether public policy concerns eclipse those values protected by the law, rendering punishment under the criminal law inappropriate. Commonwealth v. Hutchins, 410 Mass. 726, 730, 575 N.E.2d 741 (1991). The defense exonerates a defendant where the harm resulting from a violation of the law is significantly less than the harm that compliance would have wrought. ⁴ Commonwealth v. Brogan, 415 Mass. 169, 175, 612 N.E.2d 656 (1993). Commonwealth v. Brugmann, 13 Mass.App.Ct. 373, 376-377, 433 N.E.2d 457 (1982). See, e.g., Commonwealth v. Iglesia, 403 Mass. 132, 134, 525 N.E.2d 1332 (1988) (evidence sufficient to raise issue of necessity as defense to unlawful carrying of firearms where, under threat of immediate use, defendant seized weapon and immediately fled to safety). Contrast Commonwealth v. Hood, 389 Mass. 581, 593, 452 N.E.2d 188 (1983) (because threat of nuclear war not an obvious and generally recognized harm defense not recognized); Commonwealth v. Hutchins, 410 Mass. at 732, 575 N.E.2d 741 (alleviation of medical symptoms would not clearly outweigh potential harm to public from not punishing cultivation of marijuana); Commonwealth v. Leno, 415 Mass. 835, 839-841, 616 N.E.2d 453 (1993) (possibility of contracting AIDS in future not imminent harm which would justify operation of needle exchange program in violation of statutes restricting possession and distribution of hypodermic needles).

Neither party has cited any case, nor have we found one, where a jury has found the defense of necessity not available on grounds of legislative intent. That determination has only been made by a judge, as a preliminary ruling. ⁵ See State v. Dorsey, 118 N.H. 844, 395 A.2d 855 (1978) (at trial, judge ruled defense of necessity unavailable where foreclosed by legislative intent); State v. Tate, 102 N.J. 64, 505 A.2d 941 (1986) (legislative intent regarding possession of marijuana for medical reasons was matter for interlocutory review); Bird v. Municipality of Anchorage, 787 P.2d 119, 121-122 (Alaska App.Ct.1990) (judge determined Legislature had already balanced competing values and refused to instruct on necessity); State v. Hanson, 468 N.W.2d 77 (Minn.App.Ct.1991) (where defendant gave notice that he would present defense of medical necessity court held offer of proof hearing and ruled defense unavailable because Legislature excluded it in this situation).

As we have stated in the instant case, nothing appears in the statute demonstrating that the Legislature has acted to preclude or limit the defense by a clear and deliberate choice regarding the values at issue. ^{6 6} In cases such as this, where the statute provides no clear guidance, judges should prevent jurors from engaging in an exercise of legislative interpretation. A judge should either omit the fourth element from the charge, or inform the jury that the Legislature has left the defense available, leaving the jury to decide whether the evidence satisfies the first three elements so as to justify the defendant's violation of the law. ⁷

Our inquiry does not end there. Because the defendant's trial counsel objected to this part of the instruction, we examine whether the instruction as given prejudiced the defendant. See Commonwealth v. Mejia, 407 Mass. 493, 497, 554 N.E.2d 1186 (1990); Mass.R.Crim.P. 24, 378 Mass. 895 (1979).

Because the Commonwealth presented no evidence which would have permitted the jury to conclude that the Legislature had ruled out the necessity defense, the instruction could not have misled the jury. In addition, the judge properly instructed the jury that the Commonwealth had the burden to prove, beyond a reasonable doubt, that the defendant did not act out of necessity. Moreover, by addressing the particular circumstances of the defendant's medical condition, as testified to by the defendant and his witnesses, defense counsel framed the analysis of the defense of necessity for the jury. Defense counsel argued that the defendant had no choice but to drive himself to the pharmacy. In response, the prosecutor argued that the defendant's medical history was an excuse unworthy of belief. ⁸

While future juries will benefit from a closer assessment of the fourth element of the defense of necessity by trial judges, in the case at bar, the jury were apprised of what proof was required. The jury were free to draw from their own common understanding and experiences in deciding whether the defendant's condition amounted to a legitimate medical necessity to drive. The error, therefore, did not prejudice the defendant. Contrast Kunkel v. Alger, 10 Mass.App.Ct. 76, 84-85, 406 N.E.2d 402 (1980) (reversal warranted where portion of charge on negligent entrustment flawed and counsel failed to clarify theory of the case).

2. Exclusion of the defendant's medical records. The Commonwealth objected (by motion in limine) to the admission of the defendant's medical records. Because these records did not relate to treatment on the day of his arrest, the Commonwealth argued that the information was too remote in time to be relevant. ⁹ We disagree.

Evidence is relevant if it renders the desired inference more probable than it would have been without it. Commonwealth v. Fayerweather, 406 Mass. 78, 83, 546 N.E.2d 345 (1989). As long as evidence "tends to establish the issue" or "constitutes a link in the chain of proof," it may be sufficiently relevant. Poirier v. Plymouth, 374 Mass. 206,...