People v. Brandyberry, 88CA1741

• Decision Date: 23 November 1990
• Docket Number: No. 88CA1741,88CA1741
• Citation: 812 P.2d 674
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert BRANDYBERRY and Dennis Whelan, Defendants-Appellees, . IV
• Court: Colorado Court of Appeals

Page 674

812 P.2d 674

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Robert BRANDYBERRY and Dennis Whelan, Defendants-Appellees,

No. 88CA1741.

Colorado Court of Appeals,

Div. IV.

Nov. 23, 1990.

Rehearing Denied Jan. 17, 1991

Certiorari Denied June 24, 1991.

Norman S. Early, Jr., Dist. Atty., Nathan B. Coats, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellant.

Holland, Seelen & Pagliuca, Jeffrey S. Pagliuca, Denver, for defendant-appellee Robert Brandyberry.

No appearance for defendant-appellee Dennis Whelan.

Berenbaum & Weinschienk, P.C., Charles A. Bewley, Denver, Joseph E. Broadus, Arlington Va., for amicus curiae Coalition for Religious Freedom.

Boothby, Ziprick & Yingst, Lee Boothby, Berrien Springs, Me., Cooper & Kelly, P.C., Mick T. Mihm, Denver, Colo., for amicus Curiae National Council of Churches of Christ in the U.S.A. and Council of Religious Freedom.

Opinion by Judge HUME.

Defendants, Robert Brandyberry and Dennis Whelan, were charged by criminal indictment with conspiracy to kidnap and second degree kidnapping. Those charges arose from the forcible seizure and asportation of a 29-year-old member of the Unification Church (church). In a jury trial, defendants were jointly tried and acquitted.

The prosecution appeals, pursuant to § 16-12-102(1), C.R.S. (1986 Repl.Vol. 8A), from a pretrial ruling that allowed defendants to present to the jury evidence in support of an asserted choice of evils defense. The People contend that the court erred in allowing the jury to decide the justification issue without first properly addressing the sufficiency of the evidence offered in support of that defense as required by law. The People also contend that the evidence offered by defendants was legally insufficient to constitute a defense under the Colorado choice of evils statute. We agree with both contentions and disapprove the trial court's ruling.

The evidence supporting the criminal charges was generally undisputed both at the pretrial hearing and at trial. Defendants contracted with the victim's parents to plan and execute her removal from the influence of the church and its members. On May 26, 1987, in furtherance of that plan, defendant Whelan and other members of his "rescue team" forcibly seized the victim from a Denver street and transported her, against her will, to a Douglas County residence, where she was met by her parents, defendant Brandyberry, and other members of the "deprogramming team."

The victim was then held in captivity by defendants and other members of the respective "teams" for several days while "deprogramming" was attempted. During the period of her captivity, the victim was moved to several different locations in Colorado before being transported to Lyons, Kansas, where she escaped from her abductors.

Both defendants testified at a lengthy pretrial in limine hearing, and, in addition, they presented testimony from a former church member who had been "deprogrammed" successfully, the father of that former church member who had arranged his son's "rescue" from the church, a social worker, and a psychologist. A number of letters, transcribed statements, and other documents were also admitted for the purpose of demonstrating the basis for defendants' asserted belief that their conduct was necessary to avoid injury to the victim, her parents, and the public.

Defendants' proffered evidence was designed to show the existence of a pervasive pattern of fraudulent recruitment practices and "coercive persuasion" techniques allegedly used by the church to obtain, keep, and control its members, including the victim. Those practices and techniques, according to defendants, were calculated to so indoctrinate, enmesh, and involve recruited members, including the victim, in church-sponsored ideology and activities as to undermine their abilities to think and act freely or independently in their own best interests. The destruction of the victim's ability to think and act freely and autonomously was claimed by the defendants as the injury they sought to avoid and eliminate by their criminal actions.

At the conclusion of the in limine hearing, the trial court determined that defendants had presented some credible evidence which, if believed by the jury, was sufficient to establish a justification for the offenses of conspiracy and kidnapping. Thus, the court allowed defendants to present to the jury evidence consistent with that offered at the in limine hearing, after determining that the sufficiency of such evidence was ultimately to be decided by the jury.

In its ruling, the court disallowed the defense to the extent that it was based upon any asserted injury to the public or to the victim's parents. It thus sought to limit the issue to be presented to the jury to a determination whether the victim's then present or prospective condition allegedly resulting from her church membership constituted an imminent, private injury of sufficient gravity to justify defendants' commission of the charged offenses.

However, the effect of the court's ruling was to allow defendants broad latitude in presenting evidence to the jury that focused upon the methods allegedly used by the church to overcome the victim's free will and her ability to exercise her freedom of choice, rather than upon the nature and severity of the alleged injury itself. Thus, the court's ruling permitted broad-ranging inquiry into the church's alleged fraudulent recruiting practices, its methods of securing unquestioning obedience in its members, and its fund-raising and political activities. The court even allowed introduction of evidence as to the character and criminal record of the church's leader, Reverend Moon, to demonstrate that the victim had in fact been deceived by the church. The presentation of such evidence thus extended an invitation to the jury to consider the morality and desirability of church doctrine and practices rather than whether in fact the victim was threatened by the prospect of a grave imminent injury.

The Colorado choice of evils statute is rooted in the common law doctrine of necessity. People v. Strock, 623 P.2d 42 (Colo.1981). Pursuant to that doctrine, conduct which would otherwise constitute a crime is justifiable and not criminal if the actor engages in such conduct, under extraordinary circumstances, out of necessity to prevent a greater harm from occurring. See 1 Wharton's Criminal Law § 88 (C.E. Torcia 14th ed. 1978).

Choice of evils is designated by § 18-1-710, C.R.S. (1986 Repl.Vol. 8B) as an affirmative defense that must be properly raised and placed in issue by a defendant's offer or presentation of "some credible evidence." See § 18-1-407, C.R.S. (1986 Repl.Vol. 8B).

In enacting other statutory justifications for, or exemptions from, criminal responsibility, the General Assembly has used self-limiting language to define either the character of conduct that may be found to be justified, or the surrounding circumstances in which justification may be found, or both. See § 18-1-701 and §§ 18-1-703 through 18-1-709, C.R.S. (1986 Repl.Vol. 8B).

Choice of evils, as defined by § 18-1-702, C.R.S. (1986 Repl.Vol. 8B), is potentially available as a defense to any criminal charge unless it is inconsistent with other enumerated affirmative defenses or other explicit provisions of the law. Because of the breadth of the intended applicability of that defense, it is virtually impossible to specify either the character of conduct or the circumstances to which it might apply.

However, the common law necessity defense is not available as an instrument for juror nullification of unpopular laws or for juror condonation of crimes committed against persons who espouse or adhere to unorthodox or unpopular ideas or causes that pose no threat of immediate injury. Thus, limitations upon the applicability of the defense have traditionally been recognized and applied to safeguard against its misuse or abuse. See W.R. LaFave & A.W. Scott, Jr., Criminal Law § 50 at 385 (1972); 1 Wharton's Criminal Law §§ 87 & 88 at 408 et seq. (C.E. Torcia 14th ed. 1978).

Similarly, in recognition of the broad scope of the defense's applicability and of its potential for misuse and abuse, the General Assembly provided different and more exacting standards as prerequisites for presentation to a jury of the choice of evils defense than those required for other justification defenses. See People v. Strock, supra; see also People v. DeHerrera, 697 P.2d 734 (Colo.1985) (particular statute defining offense is controlling over statute applicable to offenses in general).

Section 18-1-702 provides:

"(1) ... [C]onduct which would otherwise constitute an offense is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no conduct of the actor, and which is of sufficient gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.

"(2) The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. When evidence relating to the defense of justification under this section is offered by the defendant, before it is submitted for the consideration of the jury, the court shall first rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a justification."

Under the plain language of the statute, evidence in support of the defense must first be proffered or presented to the trial court. See ...