State v. Cozzens, s. S-91-494

• Decision Date: 25 September 1992
• Docket Number: Nos. S-91-494,S-91-502,s. S-91-494
• Citation: 490 N.W.2d 184,241 Neb. 565
• Parties: STATE of Nebraska, Appellee, v. Andrew H. COZZENS et al., Appellants. through
• Court: Nebraska Supreme Court

Page 184

490 N.W.2d 184

241 Neb. 565

STATE of Nebraska, Appellee, v. Andrew H. COZZENS et al., Appellants.

Nos. S-91-494 through S-91-502.

Supreme Court of Nebraska.

Sept. 25, 1992.

Syllabus by the Court

1. Constitutional Law: Criminal Law: Jury Trials. There is no constitutional right to trial by jury for petty offenses carrying a maximum sentence of 6 months or less.

2. Constitutional Law: Criminal Law: Jury Trials. The right to a jury trial, protected by the Nebraska Constitution, is the right to a jury trial for a serious offense, that is, an offense punishable by incarceration for more than 6 months.

3. Jury Trials: Ordinances. Under existing law, a court has no discretion to grant a jury trial in a prosecution for violation of a municipal ordinance, notwithstanding a defendant's demand for a jury trial.

4. Criminal Law: Choice of Evils Defense. The justification or "choice of evils" defense, authorized by Neb.Rev.Stat. § 28-1407 (Reissue 1989), operates to legally excuse conduct that would otherwise subject a person to criminal sanctions.

5. Choice of Evils Defense. The justification or "choice of evils" defense requires that a defendant (1) acts to avoid a greater harm; (2) reasonably believes that the particular action is necessary to avoid a specific and immediately imminent harm; and (3) reasonably believes that the selected action is the least harmful alternative to avoid the harm, actual or reasonably believed by the defendant to be certain to occur.

6. Criminal Law: Choice of Evils Defense. Availability and applicability of the justification or "choice of evils" defense require that a defendant's conduct be responsive to a legally recognized harm, and the defense may not be used to justify or excuse criminal activity as an expression of disagreement with decisions by a branch of government.

7. Constitutional Law: Criminal Law: Choice of Evils Defense. The justification or "choice of evils" defense, authorized by Neb.Rev.Stat. § 28-1407 (Reissue 1989), is unavailable in a prosecution for an offense, based on conduct as an expression of a defendant's moral belief or judgment, committed to prevent another's exercising a constitutional right or committed to deny another's constitutionally protected right.

Peter C. Bataillon, of Sodoro, Daly & Sodoro, for appellants.

Herbert M. Fitle, Omaha City Atty., and Gary P. Bucchino, Omaha City Prosecutor, and Richard L. Dunning for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

SHANAHAN, Justice.

The crucial question presented in these appeals is whether a defendant, prosecuted in a state court for an offense committed as an expression of the defendant's moral belief or judgment, can invoke a statutory defense which, if allowed, prevents another's exercising a right recognized under the U.S. Constitution as interpreted by the U.S. Supreme Court.

Mary C. Adam, Patricia A. Beninato, Andrew H. Cozzens, Lawrence J. Donlan, Winifred I. Kaipust, Sharon T. McKee, Gerald V. Rush, Joseph C. Taphorn, and Andrew W. Watson appeal from their convictions for criminal trespass, in violation of Omaha Mun.Code, ch. 20, art. VI, § 20-155 (1990) (OMC § 20-155): "Request to leave. It shall be unlawful for any person to fail or refuse to leave the property of another person after being notified to do so by the owner, occupant or person in control thereof, or by his agent." A copy of the ordinance was introduced in the defendants' consolidated bench trials. Each of the defendants was a member of a group who appeared at the Women's Medical Center in Omaha and attempted to prevent women from entering the clinic, which supplied gynecological services, including termination of pregnancy by abortion. Each defendant, in cases consolidated for disposition in this court, contends that the county court for Douglas County, as the trial court, erred by (1) refusing to grant a jury trial as requested by each defendant and (2) disallowing the justification or

"choice of evils" defense, Neb.Rev.Stat. § 28-1407 (Reissue 1989), to each defendant.

BACKGROUND FOR CONVICTIONS

The Women's Medical Center, located at 4930 L Street in Omaha, is a medical clinic that offers various gynecological services, including abortions. The clinic's boundaries, or property lines, were confirmed by a survey before the defendants' appearance at the clinic and were marked by a white line. A perimeter chain link fence enclosed the clinic on all sides of the building except the front, which faced L Street. A gate in the fence provided access to the clinic's driveway and parking lot. The clinic had two entrances: the front door on L Street and another door for entry from the clinic's parking lot. On the morning of September 19, 1990, when the defendants arrived at the clinic, the clinic's staff shut and secured the driveway gate so that the only entrance into the clinic was through the front door.

On their arrival, the defendants formed a human blockade in front of the clinic to prevent access by the clinic's patients. Responding to the assembly, a lawyer, who represented the clinic and the owner of the clinic site, summoned police. The emergency response unit of the Omaha Police Division arrived and was met by the clinic's lawyer, who asked the police to remove the assemblage from clinic property. An officer of the police unit generally announced to the assembly that the group must disperse and leave the clinic's premises and that on refusal to leave, anyone remaining on the premises would be arrested for violation of OMC § 20-155. Sufficient time was allowed for the defendants to leave the premises. The clinic's lawyer and a police officer contacted each of the defendants and requested each defendant's departure from the premises. When the defendants refused to leave as requested, they were arrested and charged with violating OMC § 20-155, the "request to leave" ordinance.

REQUESTS FOR JURY TRIALS AND TRIALS

At arraignment, the court denied each defendant's request for a jury trial.

During their trials, the defendants offered testimony from several eminent physicians who specialize in gynecology and family practice. These physicians testified that human "life begins at conception" and that an abortion kills a human being. Some physicians described and medically evaluated the various methods of abortion and harmful aftereffects to women who have had abortions. A psychiatrist testified about "post-abortion syndrome" and the psychological harm to a woman who has had an abortion.

Each of the defendants testified about his or her belief, based on information from physicians such as those who had testified, that human life begins at conception and that abortion is a serious moral wrong. The clinic was the site for the largest number of abortions in Omaha, and the defendants were aware that Wednesday, and therefore the day of the blockade, was one of the days on which abortions were scheduled at the clinic. The defendants considered a human blockade to be the only means to prevent entry into the clinic and provide time during which a woman might obtain counseling and reconsider whether to have an abortion. One defendant, Kaipust, testified that on the morning of the blockade, she had encountered several women who were about to enter the clinic for abortions and she had attempted to counsel them and offer information concerning alternatives to abortion. Other defendants recounted their seeing cars with women passengers stop in front of the clinic and, in view of the blockade, drive away.

Each defendant acknowledged that he or she had been requested to leave the clinic's premises, but refused to leave and was arrested for violating the ordinance previously mentioned. When arrested, the defendants were on the clinic's premises. As a result of the blockade or demonstration, the clinic was closed briefly, but reopened in the course of the day. Of the 30 abortions scheduled at the clinic on the morning of September 19, 1990, 16 were performed The trial court disallowed the justification or choice of evils defense, that is, the contention that the harm from abortions is greater than the harm from the defendants' violating OMC § 20-155, and therefore prevention of the greater harm justifies the trespass charged against each defendant. The court found each defendant guilty of violating OMC § 20-155 and sentenced each defendant to 1 day's incarceration in the Douglas County Correctional Center.

and 14 were rescheduled due to the blockaded entry into the clinic.

JURY TRIAL

Each defendant's first assignment of error concerns the trial court's refusal to grant a jury trial on the charge of violating OMC § 20-155, which is punishable by imprisonment not to exceed 6 months, a fine not to exceed $500, or both such imprisonment and fine.

The Nebraska Constitution states: "The right of trial by jury shall remain inviolate," Neb. Const. art. I, § 6, and "[i]n all criminal prosecutions the accused shall have the right to ... a speedy public trial by an impartial jury," Neb. Const. art. I, § 11.

Notwithstanding the preceding constitutional provisions for a jury trial, not every criminal charge is triable to a jury. " 'There is no constitutional right to trial by jury for petty offenses carrying a maximum sentence of 6 months or less.' " State v. Kennedy, 224 Neb. 164, 172, 396 N.W.2d 722, 727 (1986). Accord, State v. Miller, 226 Neb. 576, 412 N.W.2d 849 (1987); State v. Lynch, 223 Neb. 849, 394 N.W.2d 651 (1986). Consequently, the right to a jury trial, protected by the Nebraska Constitution, is the right to a jury trial for a serious offense, that is, an offense punishable by incarceration for more than 6 months. See, State v. Miller, supra; State v. Lynch, supra; State v. Kennedy, supra. Since conviction on the trespass charge against each defendant was not punishable by incarceration for more than 6 months, the defendants were not entitled to jury trials,...