State v. Ward

• Decision Date: 08 April 2019
• Docket Number: No. 77044-6-I,77044-6-I
• Citation: 438 P.3d 588
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Kenneth A. WARD, Petitioner.

438 P.3d 588

STATE of Washington, Respondent,

v.Kenneth A. WARD, Petitioner.

No. 77044-6-I

Court of Appeals of Washington, Division 1.

FILED: April 8, 2019

Ralph Hurvitz, Attorney at Law, Po Box 25642, Seattle, WA, 98165-1142, Lauren C. Regan, 783 Grant Street, Suite 200, Eugene, OR, 97402, for Appellant.

Skagit County Prosecuting Attorney, Attorney at Law, Erik Pedersen, Skagit County Prosecutor's Office, 605 S 3rd St., Courthouse Annex, Mount Vernon, WA, 98273-3867, Sloan Gerriets Johnson, Attorney at Law, 530 East McDowell Rd., Ste. 107-56, Phoenix, AZ, 85004, A. O. Denny, Mount Vernon City Attorney, 910 Cleveland Ave., Mount Vernon, WA, 98273-4212, for Respondent.

PUBLISHED OPINION

Mann, A.C.J.

¶1 Washington recognizes a common law necessity defense. The defense may be raised when a defendant demonstrates that they reasonably believed the commission of the crime was necessary to avoid or minimize a harm, the harm sought to be avoided was greater than the harm resulting from a violation of the law, the threatened harm was not brought about by the defendant, and no reasonable legal alternative existed.

¶2 Kenneth Ward appeals his conviction for burglary in the second degree after he broke into a Kinder Morgan pipeline facility and turned off a valve, which stopped the flow of Canadian tar sands oil to refineries in Skagit and Whatcom Counties. Ward intended to protest the continued use of tar sands oil, which he contends significantly contributes to climate change, and the inaction by governments to meaningfully address the crisis of climate change. Ward argues that he was deprived of his Sixth Amendment right to present his only defense—necessity—after the trial court granted the State’s motion in limine excluding all testimony and evidence of necessity.¹ We agree and reverse.

I.

¶3 Kinder Morgan transports tar sands oil from Canada into the United States by pipeline. On October 11, 2016, Kinder Morgan was notified by telephone that persons "would be closing a valve, one of our main line valves in the Mount Vernon area within the next 15 minutes." Following the call, Ward cut off a padlock and entered the Kinder Morgan pipeline facility off of Peterson Road in Burlington. Ward then closed a valve on the Trans-Mountain pipeline and placed sunflowers on the valve. At the same time, other protesters closed similar valves in North Dakota, Montana, and Minnesota. Collectively, the protests temporarily stopped the flow of Canadian tar sands oil from entering into the United States.

¶4 Ward was arrested at the pipeline facility and charged with burglary in the second degree, criminal sabotage, and criminal trespass in the second degree. Ward admitted his conduct but argued that his actions were protected under a necessity defense. The trial court granted the State’s pretrial motion in limine to preclude all witnesses and evidence offered in support of Ward’s necessity defense.

¶5 Ward’s first trial ended with a hung jury. The State then recharged Ward with burglary in the second degree and criminal sabotage. Ward moved for reconsideration of the trial court’s order granting the State’s motion in limine. In support of his motion, Ward offered argument, the curriculum vitae for eight proposed expert witnesses, and voluminous scientific evidence documenting the impacts of climate change, that climate change is primarily caused by greenhouse gas emissions resulting from human activity, and the contribution of burning tar sands oil. The trial court denied Ward’s motion for reconsideration and excluded all testimony and evidence in support of Ward’s necessity defense. A second jury found Ward guilty of burglary but were unable to return a verdict on criminal sabotage. Ward appeals.

II.

¶6 Ward argues that the trial court denied his constitutional right to present a defense by granting the State’s motion in limine striking all testimony and evidence of necessity. We agree.

¶7 We review a claim of a denial of Sixth Amendment rights de novo. State v. Jones, 168 Wash.2d 713, 719, 230 P.3d 576 (2010) ; State v. Lizarraga, 191 Wash. App. 530, 551, 364 P.3d 810 (2015). Since Ward argued that his Sixth Amendment right to present a defense has been violated, we review his claim de novo.²

¶8 The Sixth Amendment to the United States Constitution and article 1, sections 21 and 22 of the Washington Constitution guarantee a defendant the right to trial by jury and to defend against criminal allegations. State v. Darden, 145 Wash.2d 612, 620, 41 P.3d 1189 (2002). "The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). "A defendant’s right to an opportunity to be heard in his defense, including the rights to examine witnesses against him and to offer testimony, is basic in our system of jurisprudence." Jones, 168 Wash.2d at 720, 230 P.3d 576.

The fundamental due process right to present a defense is the right to offer testimony and compel the attendance of a witness. ‘[I]n plain terms the right to present a defense [is] the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.’

Lizarraga, 191 Wash. App. at 552, 364 P.3d 810 (quoting Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) ).

¶9 This right is not absolute. "The defendant’s right to present a defense is subject to established rules of procedure and evidence." Lizarraga, 191 Wash. App. at 533, 364 P.3d 810 (internal citation omitted). A defendant does not have a constitutional right to present irrelevant evidence. Jones, 168 Wash.2d at 720, 230 P.3d 576. "[I]f relevant, the burden is on the State to show the evidence is so prejudicial as to disrupt the fairness of the fact-finding process at trial." Darden, 145 Wash.2d at 622, 41 P.3d 1189. "The State’s interest in excluding prejudicial evidence must also be balanced against the defendant’s need for the information sought, and only if the State’s interest outweighs the defendant’s need can otherwise relevant information be withheld." Darden, 145 Wash.2d at 622, 41 P.3d 1189.

¶10 Below, the trial court prohibited Ward from presenting evidence or witnesses on the necessity defense. If Ward submitted a sufficient quantum of evidence to show that he would likely be able to meet each element of the necessity defense, then the trial court’s exclusion of evidence in support of his sole defense violated Ward’s constitutional rights.

III.

¶11 "[A]n act is justified if it by necessity is taken in a reasonable belief that the harm or evil to be prevented by the act is greater than the harm caused by violating the criminal statute." State v. Aver, 109 Wash.2d 303, 311, 745 P.2d 479 (1987). Necessity is available when "the pressure of circumstances cause the accused to take unlawful action to avoid a harm which social policy deems greater than the harm resulting from a violation of the law ... [but not where] a legal alternative is available to the accused." State v. Gallegos, 73 Wash. App. 644, 651, 871 P.2d 621 (1994) (citing State v. Diana, 24 Wash. App. 908, 913-14, 604 P.2d 1312 (1979) ).

¶12 To successfully raise the necessity defense the defendant must prove, by a preponderance of the evidence, that: (1) they reasonably believed the commission of the crime was necessary to avoid or minimize a harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, (3) the threatened harm was not brought about by the defendant, and (4) no reasonable legal alternative existed. Gallegos, 73 Wash. App. at 650, 871 P.2d 621 ; See also 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 18.02, at 292 (4th ed. 2016) (WPIC).

¶13 The State argues that Ward’s offer of proof failed to establish the elements of the necessity defense. A challenge to the sufficiency of evidence "admits the truth thereof and all inferences that can reasonably be drawn therefrom." State v. Cole, 74 Wash. App. 571, 578, 874 P.2d 878 (1994). "It requires the trial court and appellate courts to interpret the evidence most favorably for the defendant." Cole, 74 Wash. App. at 578-79, 874 P.2d 878. In this light, we review Ward’s offer of proof as to each element of the necessity defense.

A.

¶14 Ward presented sufficient evidence that he reasonably believed the crimes he committed were necessary to minimize the harms that he perceived. Ward’s offer of proof included evidence of how past acts of civil disobedience have been successful, evidence of previous climate activism campaigns, and evidence of his own personal successes in effectuating change through civil disobedience. Specifically, Ward offered evidence that he has been working with environmental issues for more than 40 years but that the majority of his efforts failed to achieve effective results. Ward asserted that because of these failures he "came to understand that the issue of climate change would require other than incremental change" and that "direct action was necessary to accomplish these goals." Ward offered three experts—Eric de Place, Bill McKibben, and Martin Gilens—who were prepared to testify as to the efficacy of civil disobedience and how such actions have become necessary in the climate movement. Ward argued that to decide whether his actions were "reasonably calculated to be effective in averting the imminent harm of climate change requires [the] expert testimony and evidence" that he was prepared to present to the jury, and that whether his beliefs were reasonable was a question for the jury, not the trial court, to decide.

¶15 The...