State v. McCormack

• Decision Date: 12 April 1984
• Docket Number: No. 5732,5732
• Citation: 682 P.2d 742,101 N.M. 349,1984 NMCA 42
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Kenneth McCORMACK, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 742

682 P.2d 742

101 N.M. 349

STATE of New Mexico, Plaintiff-Appellee, v. Kenneth McCORMACK, Defendant-Appellant.

No. 5732.

Court of Appeals of New Mexico.

April 12, 1984.

Paul Bardacke, Atty. Gen., Marcia E. White, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee

Dan A. McKinnon, III, Paul A. Phillips, Albuquerque, for defendant-appellant.

OPINION

NEAL, Judge.

This appeal raises issues concerning the intent required to sustain a conviction under our criminal trespass statute, NMSA 1978, Section 30-14-1 (Cum.Supp.1983), and the First Amendment.

The defendant, Kenneth McCormack, is a freelance journalist. On Labor Day 1981, while covering a demonstration at the Waste Isolation Pilot Plant (WIPP) site near Carlsbad, he crossed a police barricade and was arrested and charged with criminal trespass. The court found him guilty, sentenced him to thirty days in the Eddy County jail, and fined him $500.00; the jail sentence was suspended.

The defendant appealed to this Court. We reversed holding that Section 30-14-1 was inapplicable because the WIPP site was on federal land. The Supreme Court reversed and remanded the case to us for consideration of the remaining two issues, which concern the First Amendment and intent. State v. McCormack, 100 N.M. 657, 674 P.2d 1117 (1984). Another issue, listed in the docketing statement but not briefed, is abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976).

The Waste Isolation Pilot Plant is a project of the United States government. It is an experimental project which deals with the disposal of nuclear waste. The WIPP site is located about twenty-three miles east of Carlsbad in remote and empty country. It includes a construction yard where drilling is done. This construction yard is surrounded by an eight-foot chain-link fence topped with barbed wire. Outside this fenced site there are office trailers and a diesel generator and transformer. Citizens against the project planned a demonstration for September 7, 1981 (Labor Day). Roger Dintamin, the project manager employed by the Department of Energy (DOE), knew about the planned demonstration. Most indications were that the demonstration would be non-violent.

Normally, it was possible to drive up to the gate on the fenced construction site. However, the DOE, preparing for the demonstration, placed "No Trespassing" signs and a sawhorse barricade on the road to the work yard. On the day of the demonstration about forty law enforcement officers were to man the barricade. These officers consisted of DOE security men, sheriff's officers, and New Mexico State Police. This barricade was within the WIPP site, but located about 800 feet from the fenced construction yard. A parking area was provided for the demonstrators outside the barricade. Access to the WIPP site was allowed except for the barricaded area. Mr. Dintamin testified that "one of the stated purposes of this group was to stop construction," and that, concerning the construction yard and the buffer zone, "this was the area we wanted to protect." Mr. Dintamin stated that he viewed the demonstration as a "possible threat." He testified that by creating the buffer zone his objectives were to protect the people working in the construction yard and the property and equipment in the yard. He said he did not want the operation, a costly one, to be shut down. Further, on September 4, 1981, the defendant was interviewed by Nolan Hester. The following appears in the record:

Q. And it is true, is it not, that you told this reporter [Hester] that the group planned to block the roads into the site on Labor Day and, as a result, disrupt the drilling now underway?

[The defendant:] I can't remember the exact words, but that was the message.

The day before the demonstration Mr. Dintamin held a meeting with the local media. At this meeting Dintamin explained the precautions that had been taken, told the media that the barricaded area was posted, and told them that there were no exceptions. The defendant was not at this meeting.

On September 7, 1981, about 150 demonstrators entered the WIPP site and gathered at the parking area. Then they walked down the road to the barricade. They sang songs and held hands. Nothing suggested any violence. When they came to the barricade a loudspeaker warning was repeatedly given. There is ample evidence that the demonstrators were warned not to cross the barricade or they would be arrested for trespassing. There is also evidence that the defendant heard the warning. In fact, on appeal the defendant admits he crossed the barricade and that he heard the warnings, but argues that he did not have the required intent, and that he had a First Amendment right to cross into the restricted zone.

Some of the demonstrators and media people crossed the barricade. Most of the demonstrators did not cross. Mr. Dintamin stated that twenty-nine people were arrested so he assumed that is how many crossed. No arrests were made at the barricade. Sergeant Holder of the New Mexico State Police testified that no arrests were made at the barricade because of the possibility of a confrontation with 150 people. The demonstrators who did cross were allowed to walk up the road toward the construction yard. The defendant was following the demonstrators, off to the side, and taking pictures. He was arrested well beyond the barricade.

Other facts will be discussed where appropriate.

1) Intent.

Defendant contends that proof of intent is insufficient to support his criminal trespass conviction because he did not believe the warnings applied to the press.

Formerly, the criminal trespass statute required "malicious intent." See, Sec. 30-14-1; State v. Ruiz, 94 N.M. 771, 617 P.2d 160 (Ct.App.1980). In 1981 the Legislature removed the "malicious intent" requirement. 1981 N.M.Laws, ch. 34, Sec. 1; see also, Sec. 30-14-1. In so doing, the intent required by Section 30-14-1 became general criminal intent.

Our Supreme Court has adopted Uniform Jury Instructions. We have no authority to overrule instructions approved by the Supreme Court. State v. Sheets, 94 N.M. 356, 610 P.2d 760 (Ct.App.), cert. denied, 94 N.M. 675, 615 P.2d 992 (1980). NMSA 1978, UJI Crim. 16.70 (Repl.Pamp.1982) states the essential elements of criminal trespass: that the defendant entered or remained without authorization or permission, knowing that consent to enter had been denied or withdrawn. NMSA 1978, UJI Crim. 1.50 (Repl.Pamp.1982) defines general criminal intent and must be used for every crime except those crimes not requiring criminal intent and first degree murder. See Use Note to UJI Crim. 1.50. UJI Crim. 1.50 states:

[T]he state must prove to your satisfaction beyond a reasonable doubt that the defendant acted intentionally when he committed the crime. A person acts intentionally when he purposely does an act which the law declares to be a crime, [even though he may not know that his act is unlawful].

The Use Note to UJI Crim. 1.50 states that the bracketed language is to be used only if applicable. The bracketed language embodies the general rule that, for a general intent crime, ignorance of the law is no defense. See W. LaFave and A. Scott, Criminal Law, Sec. 47 (1972) at 363. It applies here because the defendant claims he did not know he was violating the law.

In this case the State was required to show that the defendant purposely did the act declared to be a crime--entering land without authorization knowing that consent to enter was denied. Viewed in the light most favorable to the verdict, State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978), the evidence establishes the required intent. The defendant purposely entered the barricaded area even after he had heard the warnings. This meets the requirement of UJI Crim. 16.70, which makes knowledge that consent to enter is denied an element of criminal trespass.

2. The First Amendment.

The defendant contends that as applied the criminal trespass statute is unconstitutional because it impermissibly abridges the First Amendment. First, he argues that it infringes on the right of the public generally to peaceably assemble. Second, he argues that as a newsman it infringes on his right to gather and report news.

Concerning the right to peaceably assemble, it has never been held that this includes the right to peaceably assemble anytime, anywhere. Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). In examining restrictions on the right to assemble the Supreme Court has used an analysis based on the place of assembly: is it a traditional public forum? Adderley v. Florida; Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976); U.S. Postal Service v. Greenburgh Civic Assns., 453 U.S. 114, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981).

The defendant argues that the WIPP site "was a unique locus for an assembly to petition the government to modify its nuclear policies." However, the test is not whether the place is appropriate considering the demonstration, but whether the character of the place is appropriate for the expression of views and ideas generally. The jail grounds in Adderley may have been an appropriate place to assemble to protest the arrest of students, racial segregation, and segregation at the jail, but that did not make it a public forum. The defendant has also argued that because on any day other than September 7, the public was free to drive right up to the construction yard, that somehow transforms it into a public forum. The fact that the public is generally allowed access does not transform a place owned or operated by the Government into a public forum. Greer; Adderley.

Streets and parks are traditional public forums. See Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). The WIPP site, a construction site located in a remote area, is more similar to the jail considered in Adderley, the military base considered in Greer, and the letter boxes...