Commonwealth v. Schuchardt
557 N.E.2d 1380, 1990 Mass. LEXIS 376, 408 Mass. 347 (1990)
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Rule of Law:
The common law defense of necessity is highly restricted, requiring a clear, imminent, and generally recognized danger for which the defendant's actions are a directly effective and only legal alternative; additionally, an offense is lesser included only if all its elements are necessarily part of the greater offense, and not if it requires distinct elements of proof.
Facts:
- On July 14, 1983, the defendants entered AVCO Systems, a defense contractor manufacturing component parts for nuclear missiles.
- The defendants poured blood on various blueprints of warheads.
- The defendants hammered various equipment used in making the weapons.
- The defendants urged AVCO employees to stop the manufacture of AVCO’s products.
- The defendants engaged in these acts as a form of political protest against nuclear war.
Procedural Posture:
- The defendants were convicted of criminal trespass and wanton destruction or injury to property following a first instance jury trial in the District Court.
- Before trial, the defendants moved for leave to introduce evidence in support of a justification by necessity defense, while the Commonwealth moved for exclusion of such evidence.
- The trial judge excluded Dr. Brenman-Gibson's testimony but admitted other evidence pertaining to necessity de bene (conditionally).
- At the conclusion of the evidence, the trial judge determined that the evidence was insufficient to warrant jury consideration of the necessity issue, thus refraining from instructing the jury on the defense and directing them to disregard related evidence.
- The defendants were complained of for wilfully and maliciously injuring or destroying equipment and merchandise, but not expressly charged with wanton destruction or injury.
- The trial judge instructed the jury, over the objections of both parties, that wanton destruction or injury to property is a lesser included offense of wilful and malicious destruction or injury to property.
- The defendants applied for direct appellate review.
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Issue:
1) Did the trial judge err by excluding expert testimony, instructing the jury to disregard admitted testimony, and refusing to instruct the jury on the defense of justification by necessity? 2) Is wanton destruction of property a lesser included offense of willful and malicious destruction of property?
Opinions:
Majority - O’Connor, J.
No, the trial judge did not err in his rulings regarding the necessity defense, but yes, wanton destruction or injury is not a lesser included offense of willful and malicious destruction or injury. The common law defense of necessity is strictly limited to circumstances where the defendant faces a clear and imminent danger that is 'obvious and generally recognized,' not debatable or speculative. The defendant must also reasonably expect their action to be effective as a direct cause of abating the danger, have no legal alternatives, and the Legislature must not have precluded the defense. Here, the evidence, including Dr. Brenman-Gibson's testimony, did not establish that the threat of nuclear war met the 'generally recognized and not fairly debatable' standard for an imminent danger. No precedent supports applying the necessity defense in similar circumstances. Therefore, the judge was correct to exclude expert testimony and withdraw the necessity defense from jury consideration. Regarding the lesser included offense, an offense is 'lesser included' only if all its elements are necessarily found within the greater offense. Wanton conduct requires a 'high degree of likelihood that substantial harm will result' and an 'indifference to or disregard of probable consequences.' Wilful and malicious conduct requires intent for the conduct and its harmful consequences, motivated by 'cruelty, hostility or revenge,' but does not require that the harmful consequences be substantial or highly likely. Because wanton criminality requires proof of substantial harm being highly likely, an element not required for wilful and malicious destruction, the former is not included in the latter. Thus, the convictions for wanton destruction or injury must be reversed.
Concurring-in-part-and-dissenting-in-part - Liacos, C.J.
Yes, the defendants were entitled to have the jury consider their defense of justification by necessity, but agrees that wanton destruction or injury is not a lesser included offense of wilful and malicious destruction or injury. There was sufficient evidence presented to raise the necessity defense, particularly concerning the element of 'imminent danger.' Expert witnesses, including Dr. Daniel Ellsberg (former consultant for the Rand Corporation, Defense Department, State Department, and White House) and Rear Admiral Gene LaRoq (Director of the Center for Defense Information), testified that the danger of nuclear war, especially with the introduction of Pershing II missiles (manufactured by AVCO), had become imminent and posed a continuous risk of accidental launch. The jury, as the 'conscience of the community,' should have been permitted to consider this evidence to temper strict legal rules with common sense judgment and act as a check on arbitrary law enforcement. The jury itself requested an explanation as to why they could not consider the justification defense, highlighting their desire to weigh higher values. Therefore, the judge erred by not allowing the jury to consider the necessity defense. However, the Chief Justice concurs with the majority's conclusion regarding the lesser included offense issue.
Analysis:
This case significantly tightens the criteria for invoking the common law necessity defense, particularly for political protests addressing broad societal dangers like nuclear war. By requiring an 'obvious and generally recognized' danger, the court effectively limits the defense to immediate, universally acknowledged threats, preventing its application to issues still subject to public debate or legislative action. The ruling also clarifies the strict 'elements' test for lesser included offenses, emphasizing that semantic similarities between crimes are insufficient; all elements of the lesser offense must be intrinsic to the greater for it to qualify. The dissenting opinion highlights a fundamental tension between judicial gatekeeping on legal defenses and the jury's traditional role as the 'conscience of the community' in determining culpability.
