People v. Berquist

• Court: Appellate Court of Illinois
• Writing for the Court: McLAREN
• Citation: People v. Berquist, 608 N.E.2d 1212, 239 Ill.App.3d 906, 181 Ill.Dec. 738 (Ill. App. 1993)
• Decision Date: 28 January 1993
• Docket Number: Nos. 2-91-0970,s. 2-91-0970
• Parties: , 181 Ill.Dec. 738 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard BERQUIST et al., Defendants-Appellants. to 2-91-0989.

Page 1212

608 N.E.2d 1212

239 Ill.App.3d 906, 181 Ill.Dec. 738

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard BERQUIST et al., Defendants-Appellants.

Nos. 2-91-0970 to 2-91-0989.

Appellate Court of Illinois Second District.

Jan. 28, 1993.

Carl F. Schroeder (argued), Carl F. Schroeder, Ltd., Wheaton, Darrell Dunham, Murphysboro, Duane D. Young, Heckenkamp, Simhauser & LaBarre, P.C., Springfield, for Richard Berquist.

James E. Ryan, DuPage County State's Atty., William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, John X. Breslin, Deputy Director, State's Atty. Appellate Prosecutor, J. Paul Hoffmann (argued), Staff Atty. State's Attys. Appellate Prosecutor, Ottawa, for the People.

Justice McLAREN delivered the opinion of the court:

Richard Berquist, defendant, and 19 other individuals, were arrested for criminal trespass to real property at the Concord West Medical Center (Concord West) in Westmont, Illinois. (Ill.Rev.Stat.1991, ch. 38, par. 21-3(a).) The arrested persons were divided into two groups for trial, and in both instances the jury found defendants guilty of criminal trespass to real property. Defendants appeal from the juries' verdicts and the court's judgments thereon. Berquist's case was consolidated with the 19 other similar cases for appeal. The sole issue concerns the defense of necessity. For the following reasons, we affirm.

Concord West Medical Center is a privately run health-care facility which performs reproductive-related services and surgeries, including abortion up to 12 weeks gestation. In the morning hours of January 18, 1991, defendants arrived at Concord West carrying picket signs. Approximately 10 people entered the facility, went past the reception desk, and sat on the floor of a hallway leading to the operating rooms while reading Bibles and reciting prayers. Those that remained outside the building sat on the front steps and blocked the entrance.

Officer Larry Harrison, a police officer for the Village of Westmont and security guard for Concord West, advised the 10 persons sitting inside the clinic that they were trespassing and would be placed under arrest if they did not vacate the premises. Since the protesters refused to leave the facility, Officer Harrison and Sergeant Randall Sticha, also of the Westmont police, placed each of the 10 persons under arrest and carried them to a squad car to be transported to the police station.

During this time, Sergeant Robert B. Smith, also of the Westmont police, was patrolling the area and observed several persons blocking the entrance to Concord West. Sergeant Smith advised these persons to leave the premises because they were trespassing on private property. Since they refused to leave the premises, Smith placed them under arrest and assisted in physically placing them into the squad cars.

On January 23, 1991, defendants were charged with the offense of criminal trespass to real property for protesting at Concord West. Prior to trial, defendants notified the State of their intent to plead necessity as an affirmative defense. The State responded by filing a motion in limine to preclude defendants from presenting any evidence offered in support of their affirmative defense. The motion was granted. On appeal, defendants contend that the court erred in granting the State's motion in limine which barred them from presenting any evidence in support of the defense of necessity.

Motions in limine are encouraged in criminal cases to exclude collateral or extraneous matters. (People v. Watkins (1991), 220 Ill.App.3d 201, 211, 163 Ill.Dec. 194, 581 N.E.2d 145.) However, this type of motion should be used with caution so that it does not unduly restrict the opposing party's case or deprive a defendant of a legally viable defense. (People v. Henderson (1991), 223 Ill.App.3d 131, 135, 164 Ill.Dec. 865, 583 N.E.2d 1187.) When an affirmative defense is raised, which is unavailable as a matter of law, the trial court may properly grant a motion in limine prohibiting the defendant from introducing evidence in support of that defense. (People v. Downey (1987), 162 Ill.App.3d 322, 334, 113 Ill.Dec. 553, 515 N.E.2d 362.) A reviewing court will not reverse the trial court's decision to grant a motion in limine absent an abuse of discretion. People v. Salazar (1991), 211 Ill.App.3d 899, 910, 156 Ill.Dec. 326, 570 N.E.2d 802; Downey, 162 Ill.App.3d at 334, 113 Ill.Dec. 553, 515 N.E.2d 362. The defense of necessity is valid, as a matter of law, if the defendant is without blame in occasioning or developing the situation. Additionally, the defendant must reasonably believe that his conduct, which would otherwise be an offense, was necessary to avoid a public or private injury greater than the injury which might have reasonably resulted from his own conduct. (Ill.Rev.Stat.1991, ch. 38, par. 7-13; People v. Janik (1989), 127 Ill.2d 390, 399, 130 Ill.Dec. 427, 537 N.E.2d 756.) Necessity involves a "choice between two admitted evils where other optional courses of action are unavailable [citations], and the conduct chosen * * * promote[s] some higher value than the value of literal compliance with the law." Janik, 127 Ill.2d at 399, 130 Ill.Dec. 427, 537 N.E.2d 756.

In this case, defendants contend that they were entitled to raise the defense of necessity by presenting evidence that their conduct was necessary to prevent a greater injury, that being the termination of fetuses via abortion. As an offer of proof in support of their assertion that life begins at conception and that their trespass was necessary to prevent the "murder of unborn children," defendants refer to the following language of section 1 of the Illinois Abortion Law of 1975:

"Without in any way restricting the right of privacy of a woman or the right of a woman to an abortion under those decisions [of the United States Supreme Court of January 22, 1973], the General Assembly of the State of Illinois do [sic ] solemnly declare and find in reaffirmation of the longstanding policy of this State, that the unborn child is a human being from the time of conception and is, therefore, a legal person for purposes of the unborn child's right to life and is entitled to the right to life from conception under the laws and Constitution of this State. Further, the General Assembly finds and declares that longstanding policy of this State to protect the right to life of the unborn child from conception by prohibiting abortion unless necessary to preserve the life of the mother is impermissible only because of the decisions of the United States Supreme Court and that, therefore, if those decisions of the United States Supreme Court are ever reversed or modified or the United States Constitution is amended to allow protection of the unborn then the former policy of this State to prohibit abortions unless necessary for the preservation of the mother's life shall be reinstated." (Ill.Rev.Stat.1991, ch. 38, par. 81-21.)

The primary witness for defendants at the hearing on the State's motion in limine was Dr. Eugene Diamond. Dr. Diamond's testimony concerned the development of the fetus at various gestational periods and the impact of different methods of abortion on the fetus.

In granting the State's motion in limine, the trial court relied on People v. Krizka (1980), 92 Ill.App.3d 288, 48 Ill.Dec. 141, 416 N.E.2d 36, People v. Stiso (1981), 93 Ill.App.3d 101, 48 Ill.Dec. 687, 416 N.E.2d 1209, and People v. Smith (1987), 161 Ill.App.3d 213, 112 Ill.Dec. 745, 514 N.E.2d 211, in finding, as a matter of law, that necessity is not a valid defense to the criminal trespass of a facility which performs abortions. Defendants agree that the above-cited cases indicate that the State of Illinois did not recognize the defense of necessity as a valid defense to the criminal trespass of an abortion clinic after Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147. The thrust of defendants' contention on appeal is that the decisions of the United States Supreme Court in Webster v. Reproductive Health Services (1989), 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410, and Planned Parenthood v. Casey (1992), 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674, eroded the holding of Roe v. Wade, which did not reach the question of when life begins. Defendants contend that the holdings of Webster and Casey, coupled with the legislature's declaration that the State of Illinois recognizes the unborn fetus as a human being from the time of conception and pronouncement that abortion will be illegal in Illinois if Roe v. Wade is ever reversed or modified, illustrate that their trespass was necessary to prevent the greater evil of "child killing."

In Roe v. Wade, the United States Supreme Court held that the due process clause of the fourteenth amendment (U.S. Const., amend. XIV) protects the right to privacy against State action and encompasses a woman's qualified right to terminate her pregnancy via abortion. (Roe, 410 U.S. at 154, 93 S.Ct. at 727, 35 L.Ed.2d at 177.) This decision struck down as unconstitutional a Texas statute which criminalized abortion unless the procedure was necessary to save the life of the mother. (Roe, 410 U.S. at 164, 93 S.Ct. at 732, 35 L.Ed.2d at 183.) Although Roe determined that a State cannot override the woman's right to privacy concerning her pregnancy, it did not give a woman the right to an abortion on demand. Instead, the Supreme Court determined that the State has a legitimate interest in protecting both the pregnant woman's health and the potentiality of human life. Each interest grows and reaches a compelling point after the first trimester of pregnancy. (Roe, 410 U.S. at 162-63, 93 S.Ct. at 731, 35 L.Ed.2d at 182.) The court further determined that the State has a compelling interest in the mother's health after the first trimester of pregnancy, and a compelling interest in the life of the fetus at the point of viability, or the...