Commonwealth v. Kendall
2008 Mass. LEXIS 205, 883 N.E.2d 269, 451 Mass. 10 (2008)
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Rule of Law:
To be entitled to a jury instruction on the defense of necessity, a defendant must present some evidence on all elements of the defense, including that there were no effective legal alternatives to violating the law.
Facts:
- Clinton Kendall and his girlfriend, Heather Maloney, consumed enough alcohol at a pub and restaurant to become intoxicated.
- After walking back to Kendall's trailer, he stumbled and accidentally bumped into Maloney, causing her to fall and hit her head on a table.
- Maloney suffered a wound to her head and began to bleed profusely.
- Kendall's attempts to stop the bleeding were unsuccessful.
- The trailer did not have a telephone, and neither Kendall nor Maloney had a cellular telephone.
- Kendall's trailer was located in a mobile home park with approximately 75-80 other trailers, a neighbor was at home about 40 feet away, and a fire station was located approximately 100 yards away.
- Without attempting to seek help from a neighbor or the nearby fire station, Kendall decided to drive Maloney to the hospital himself.
Procedural Posture:
- The Commonwealth charged Clinton Kendall with operating a motor vehicle while under the influence of intoxicating liquor (OUI) in a Massachusetts District Court (trial court).
- At the close of evidence at trial, Kendall's counsel requested a jury instruction on the defense of necessity.
- The trial judge denied the request for the instruction.
- The jury returned a guilty verdict on the OUI charge.
- Kendall (appellant) appealed the conviction to the Massachusetts Appeals Court (intermediate appellate court).
- The Appeals Court affirmed the trial court's judgment.
- Kendall (appellant) petitioned for further appellate review, which the Supreme Judicial Court of Massachusetts (highest court) granted.
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Issue:
Does a defendant charged with operating a motor vehicle while under the influence of intoxicating liquor have a right to a jury instruction on the defense of necessity when they failed to present any evidence that they attempted to use or considered available legal alternatives to abate the danger?
Opinions:
Majority - Spina, J.
No. A defendant is not entitled to a jury instruction on the defense of necessity if they fail to present some evidence on each of the four required conditions, particularly the absence of effective legal alternatives. The common-law defense of necessity requires a defendant to present evidence on four conditions: (1) a clear and imminent danger; (2) a reasonable expectation that their action will abate the danger; (3) the absence of any effective legal alternative; and (4) no legislative preclusion of the defense. The court found that Kendall failed to meet his burden for the third element. The record was devoid of any evidence that Kendall made any effort to seek assistance from neighbors, the nearby fire station, or the Chinese restaurant before choosing to drive while intoxicated. Because a defendant must present at least some evidence on each condition to be entitled to the instruction, and Kendall failed to show that available legal alternatives were futile or ineffective, the trial judge did not err in denying the request.
Dissenting - Cowin, J.
Yes. A defendant should be entitled to a jury instruction on necessity if a jury could find it was reasonable for the defendant to reject potentially time-consuming and uncertain legal alternatives in favor of an unlawful but more certain and immediate solution to a serious danger. The majority places an unreasonably high burden on a defendant acting in an emergency. Requiring someone to test every legal alternative, such as knocking on a neighbor's door, could consume valuable time and risk failure, potentially leading to a worse outcome. A jury should be allowed to decide whether it was reasonable for Kendall to reject those risky alternatives and instead choose the unlawful but more effective option of driving his heavily bleeding girlfriend to the hospital. The ultimate question of whether the defendant chose the lesser of two evils is a factual determination for the jury, not a legal threshold to be decided by the judge.
Analysis:
This decision clarifies the evidentiary threshold for a defendant seeking a jury instruction on the necessity defense in Massachusetts. By emphasizing the defendant's burden to present some evidence showing the futility of legal alternatives, the court strengthens the judge's gatekeeping role. This makes it more difficult for defendants to argue necessity unless they can demonstrate they actively considered or attempted lawful options before breaking the law. The ruling reinforces that the necessity defense is a narrow exception reserved for situations where no viable, lawful course of action exists.
