State v. Dorsey, 78-154

• Decision Date: 06 December 1978
• Docket Number: No. 78-154,78-154
• Parties: . Supreme Court of New Hampshire
• Court: New Hampshire Supreme Court

Page 855

395 A.2d 855

118 N.H. 844

The STATE of New Hampshire v. Court DORSEY.

No. 78-154.

Supreme Court of New Hampshire.

Dec. 6, 1978.

Thomas D. Rath, Atty. Gen., and John C. Boeckeler, Richard B. McNamara, Richard B. Michaud and Peter W. Heed, Asst. Attys. Gen., and Peter W. Mosseau, Concord, by brief for the State.

Court Dorsey, by brief and orally pro se.

Harry Jonathan Meyer, Concord, by brief and orally as amicus curiae for Civil Liberties Union.

GRIMES, Justice.

The issue we decide in this criminal trespass case is whether the trial court erred in ruling that the statutory defense of competing harms, RSA 627:3, is not available to one charged with criminal trespass for occupying the construction site of a nuclear power plant. We hold that no error was committed.

Defendant was arrested during a mass occupation of the construction site of the Seabrook Nuclear Power Plant. He was charged with criminal trespass, RSA 635:2, elected to represent himself, and was tried before a jury, and convicted. His exceptions were transferred by Mullavey, J.

Prior to trial the defendant gave notice pursuant to Superior Court Rule 102 that he intended to rely upon the competing harms statute, RSA 627:3, as a defense. At trial the court ruled that the competing harms statute would not be permitted as a defense and noted defendant's exception. The court also ruled, however, that defendant could introduce evidence to show that he did not knowingly violate the trespass statute; that, said the court, "(is) the sole issue upon which that (the competing harms) statute may be used." The defendant sought to introduce evidence bearing on this defense and on the danger of nuclear power, but it was excluded by the court. Defendant read the statute to the jury during his final argument, and stated that he relied on it when he entered the site and therefore did not know he was breaking the law.

The trial court was correct in ruling that the competing harms defense did not apply to this case. RSA 627:3 I reads in part as follows:

Conduct which the actor believes to be necessary to avoid harm to himself or another is justifiable if the desirability and urgency of avoiding such harm outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the statute defining the offense charged. . . .

It establishes a statutory defense akin to the common-law defense of necessity. See Aldrich v. Wright, 53 N.H. 398 (1873); State v. Jackson, 71 N.H. 552, 53 A. 1021 (1902). These and other early cases elsewhere deal with simple situations, such as killing mink out of season to protect valuable geese, and keeping a child from school without permission because of serious illness. They, like the classic situations contained in the comments to RSA 627:3, relate to factual matters that laymen sitting as a jury have the competence to decide. They deal with dangers that the average person can recognize and about which there can be no dispute.

RSA 627:3 "is based largely on N.Y. § 35.05(a) and states what the Model Penal Code calls the 'choice of evils' doctrine." Report of the Commission to Recommend Codification of Criminal Laws § 572:3 at 19 (1969).

The pertinent comment to the Model Penal Code states that for the defense to be available, the issue of competing values must not have been foreclosed by a deliberate legislative choice. Model Penal Code § 3.-2, Comment No. 1 (Tent. Draft Nos. 8, 19). In the context of the present dispute, however, both the legislature of the State and the Congress of the United States have made deliberate choices regarding nuclear power. See e. g., RSA ch. 162-B; 42 U.S.C. § 2011 (1970). RSA ch. 162-H established an Energy Facility Evaluation Committee to determine, among other things, whether any proposed site and facility will "unduly interfere with . . . the public health and safety." RSA 162-H:9 I(a). Section 1 of RSA ch. 162-H mandates that "undue delay in construction of any needed facilities be avoided." Having spoken so forcefully in support of nuclear power, it is inconceivable that the legislature would intend that nuclear power be considered such a harm as to justify individuals in breaking the law. We are confident that it was not intended that such matters be included within the scope of RSA 627:3.

Nor were matters of this sort contemplated under the common-law defense of necessity. The common-law defense dealt with imminent dangers from obvious and generally recognized harms. It did not deal with nonimminent or debatable harms; nor did it deal with activities that the legislative branch of government had expressly sanctioned and found not to be harms. See G. Williams, Criminal Law: The General Part § 232, at 729 (2d ed. 1961) and cases cited therein. To allow nuclear power plants to be considered a danger or harm within the meaning of that defense either at common law or under the statute would require lay jurors to determine in individual cases matters of State and national policy in a very technical field. Competing factions...