State v. O'Brien
| Decision Date | 28 November 1989 |
| Docket Number | No. 55582,55582 |
| Citation | 784 S.W.2d 187 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Ann L. O'BRIEN, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Mark Belz, Belz & Belz, Clayton, for defendant-appellant.
William Nelson, Dreama Joyce-Hayes, Government Counsel, St. Louis, for plaintiff-respondent.
This is an appeal by defendant-appellant, Ann L. O'Brien, from a judgment entered by an Associate Circuit Judge of the City of St. Louis on September 16, 1988, sentencing defendant-appellant to 75 days in a medium security institution, without probation, for the offense of trespassing in the first degree, a class B misdemeanor. Sections 569.140, 569.010(8), R.S.Mo.1986. We affirm.
The primary issue which must be determined in this proceeding is whether the defense of "necessity" is available to appellant charged with criminal trespass arising out of an attempt to halt the carrying out of abortions performed at an abortion clinic. The issue requires an analysis of the "necessity" defense, and, in light of Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), an interpretation of Missouri law declaring that life begins at conception and imposing restrictions on abortions.
After a thorough examination of the record and the law, we conclude that the defense of necessity is not legally available to appellant and affirm the judgment.
Appellant, Ann L. O'Brien, was charged by information with the offense of trespass in the first degree for trespassing on the premises of the Reproductive Health Services located in the City of St. Louis. On May 19, 1988, the appellant appeared before the court and agreed to submit the case upon a stipulation and agreement entered into between the prosecution and defense that the police reports on file attached to the information would constitute the facts in evidence in lieu of the testimony of witnesses and that the appellant would offer no evidence disputing the facts contained therein. At that hearing, appellant filed an amended plea of not guilty and moved the court for leave "to offer evidence based upon the defense of justification," that life begins at conception. At that time also, the court continued the matter to rule on the cause.
On August 5, 1988, appellant again appeared before the court in order for the court to rule on the motion to offer evidence based on justification, and to enter its judgment. During the interim appellant filed affidavits and briefs in support of her motion. At that hearing appellant moved to dismiss the charges or to direct a verdict in her favor because the facts as stipulated do not show ownership of the property or that appellant was requested to leave by a person authorized to do so. After a lengthy colloquy between the parties' counsel and the court, the court overruled the motion to dismiss and also overruled the motion to offer evidence in justification, relying on City of St. Louis v. Klocker, 637 S.W.2d 174 (Mo.App.1982). The court found the appellant guilty of trespass in the first degree and sentenced her. On August 17, 1988, appellant filed a motion contending the evidence was insufficient to establish trespass, and contending the court erred in overruling her motion to offer evidence in justification.
On September 16, 1988, the court, sua sponte, set aside the sentence of August 5, and, after overruling appellant's motion for new trial, resentenced appellant to 75 days without probation from which she appeals.
The police reports containing the stipulated facts upon which the cause was submitted show that on July 3, 1987, appellant, together with several other persons, came into the waiting room of Reproductive Health Services and were "asked" by Delores Wrzesniewski "if they had an appointment." Witness Wrzesniewski stated to the officers that the "subjects refused to answer her and that they also refused to leave the waiting room." The witness advised the individuals that "if they did not leave she would call the police." The police reports show that officers received a radio call to proceed to the premises "in regards to a disturbance," and proceeded to the scene. "An investigation revealed eight subjects were creating a disturbance at that location." Witness Wrzesniewski stated that the individuals "disrupted the business activities" and "also disturbed several of their customers." Another witness at the premises corroborated the statements of witness Wrzesniewski. The officers reported that they observed appellant, and others, "standing inside the waiting room of Reproductive Health Services making several verbal comments against abortion." They observed several persons inside the waiting room with their legs interlocked and their hands handcuffed together. The officers took appellant and others into custody. These proceedings followed.
On this appeal, appellant contends that the trial court erred in (1) denying her motion to admit evidence of the defense of justification because her acts were within the meaning of "acts of necessity" as defined by § 563.026, R.S.Mo.1986, since such evidence would have demonstrated that her actions were reasonably calculated to save human lives which were in immediate danger of being destroyed, and (2) denying her motion for new trial because the facts failed to establish the elements of trespass in the first degree, inasmuch as the record does not show that appellant was requested to leave the property by a person with legal authority to do so.
As to her first point, appellant argues that she is entitled to the defense of "necessity" because her presence upon the property was solely to rescue and protect unborn children from an abortion. Although appellant concedes that the facts are materially indistinguishable from the facts in City of St. Louis v. Klocker, supra, she contends that we should reexamine Klocker and that she should have been permitted to introduce evidence in support of her defense because (a) enlightened medical evidence would have shed light upon the question of when human life begins, (b) a presidential proclamation dated January 14, 1988 states that "all medical and scientific evidence increasingly affirms that children before birth share all the basic attributes of human personality--that they in fact are persons ..." and the President has proclaimed the "unalienable personhood of every American, from the moment of conception until natural death, ..." 1 and (c) the Missouri General Assembly, by amending § 188.010, R.S.Mo. and in adopting § 1.205.1(1) R.S.Mo., in 1986, which provides that life begins at conception, Missouri has declared that an "unborn child is a human being at all stages of development."
In her second point, she contends that there was no evidence to indicate that witness Wrzesniewski asked defendant to leave the premises or that she was given authority by the owner or other persons to request that appellant leave the premises as required by § 569.010(8), R.S.Mo.1986.
We first examine the defense of necessity. The defense of necessity has its roots deep in the common law. It is an affirmative defense which is expressed in terms of choice of evils. It has been said that when the "pressure of circumstances presents one with a choice of evils, the law prefers that a person avoid the greater evil by bringing about the lesser evil." City of St. Louis v. Klocker, supra, quoting W. LaFave and A. Scott, Criminal Law, § 50 at 382. Thus, conduct which would otherwise be a crime is, under unusual and imminent circumstances, the lesser of two evils and no offense. Klocker, supra, 637 S.W.2d at 175; Arnold and Garland, The Defense of Necessity in Criminal Law; The Right to Choose The Lesser Evil, 65 J. Crim. L. & Criminology, 289 (1974).
Traditionally, the harm to be avoided had to be caused by physical forces of nature, rather than from human beings, but this requirement apparently has been somewhat relaxed so that the defense may encompass harms caused by human beings. Klocker, supra, 637 S.W.2d at 176. The defense is based on social policy which recognizes that individuals should at times be free from legal restraints in order to avoid certain imminent harms. United States v. Bailey, 444 U.S. 394, 409, 100 S.Ct. 624, 634-5, 62 L.Ed.2d 575 (1980). But the defense has very narrow limits. Under the common law, the defense must be one of absolute and uncontrollable necessity and this must be established beyond a reasonable doubt. Nothing less than an uncontrollable necessity, which admits of no compromise and cannot be resisted will be held a justification of the offense. Any rule less stringent than this would open the door to all sorts of fraud. United States v. The Diana, 74 U.S. (7 Wall.) 354, 19 L.Ed. 165, 166 (1869).
There are certain essential requirements for the defense of necessity. In Klocker, supra, the requirements were stated as follows: (1) the act charged must have been done to prevent a significant imminent harm; (2) there must have been no other adequate alternative 2; and (3) the harm caused must not have been disproportionate to the harm avoided. Klocker, supra, 637 S.W.2d at 175. In State v. Diener, 706 S.W.2d 582, 585 (Mo.App.1986) we stated:
[T]he application of the defense is limited to the following circumstances: (1) the defendant is faced with a clear and imminent danger, not one which is debatable or speculative; (2) the defendant can reasonably expect that his action will be effective as the direct cause of abating the danger; (3) 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. 3
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