Commonwealth v. Livington
70 Mass. App. Ct. 745 (2007)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A defendant is entitled to a jury instruction on the defense of necessity for a criminal charge when there is sufficient evidence that (1) they faced a clear and imminent danger, (2) their actions were a reasonable and effective way to abate that danger, and (3) there was no effective legal alternative, provided the harm avoided substantially outweighs the harm caused by the criminal act.
Facts:
- On March 15, 2005, the defendant drove three friends to the Archdale Community Center in Boston.
- The defendant and one friend, Jose Mow, exited the vehicle and went around the corner of the building.
- A few minutes later, gunshots were heard, and the defendant and Mow ran back to the vehicle.
- The defendant had sustained a gunshot wound to his abdomen.
- Despite his injury, the defendant got into the driver's seat and began driving to seek medical help.
- For approximately thirty seconds, the defendant drove at a high rate of speed on the wrong side of Washington Street, passing other cars.
- The defendant then pulled into a gas station, opened his car door, and collapsed onto the pavement.
Procedural Posture:
- The defendant was tried before a jury in a District Court on charges of reckless operation of a motor vehicle, carrying a firearm without a license, and possession of ammunition without a license.
- The jury convicted the defendant of reckless operation of a motor vehicle.
- The jury acquitted the defendant of the firearm and ammunition charges.
- The defendant appealed his conviction for reckless operation to the Appeals Court of Massachusetts.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a defendant who drives recklessly to get to a hospital immediately after suffering a life-threatening gunshot wound present sufficient evidence to warrant a jury instruction on the defense of necessity?
Opinions:
Majority - Cypher, J.
Yes. A defendant is entitled to a jury instruction on the defense of necessity when the evidence sufficiently raises the issue. The court applied a three-part test for necessity: (1) the defendant must face a clear and imminent danger; (2) the defendant's action must be reasonably expected to abate the danger; and (3) there must be no effective legal alternative. Here, the gunshot wound constituted a clear and imminent danger. Driving away from the scene to seek medical help was a reasonable action to abate the danger of being shot again and to treat the wound. Given the urgency of the life-threatening injury, the defendant had no effective legal alternative to driving himself. Finally, the court weighed the competing harms, concluding that the risk of harm from the gunshot wound to the defendant's abdomen far outweighed the potential harm from his brief period of reckless driving. Because the evidence fairly raised the defense, trial counsel's failure to request a necessity instruction constituted ineffective assistance of counsel, requiring reversal of the conviction.
Analysis:
This decision clarifies the application of the necessity defense to driving offenses committed during a medical emergency. It establishes that a life-threatening injury can justify otherwise criminal conduct, provided the defendant's response is reasonable and the harm avoided outweighs the harm caused. The case reinforces that the evidentiary threshold to receive a jury instruction on an affirmative defense is not insurmountably high; the defendant need only produce enough evidence to raise a reasonable doubt. It also serves as a strong reminder that a defense attorney's failure to request a jury instruction on a viable defense can be grounds for an ineffective assistance of counsel claim, potentially leading to the reversal of a conviction.
Unlock the full brief for Commonwealth v. Livington