State v. Baker

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
 
 
                                No. 88-616
 
 
State of Vermont                             Supreme Court
 
                                             On Appeal from
     v.                                      District Court of Vermont,
                                             Unit No. 2, Chittenden Circuit
 
Timothy R. Baker                             February Term, 1990
 
 
Michael S. Kupersmith, J.
 
William Sorrell, Chittenden County State's Attorney, Burlington, and
  Rosemary Hull and Gary S. Kessler, Department of State's Attorneys,
  Montpelier, for plaintiff-appellee
 
Walter M. Morris, Jr., Defender General, and Daniel Smith, Montpelier,
  for defendant-appellant
 
 
PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
 
 
     DOOLEY, J.   Defendant appeals from a jury conviction of operating a
motor vehicle while his license was suspended (DLS), in violation of 23
V.S.A. { 674(a).  He alleges two errors:  (1) the trial court placed the
burden of proving the necessity defense upon him rather than requiring the
State to disprove the existence of the defense; and (2) the court refused to
consider community service as an alternative to imprisonment.  We reject
both claims and affirm.
     On August 27, 1988, an Essex Junction police officer stopped a car
driven by defendant after observing that the car had a large crack in the
windshield and a loud muffler.  The officer asked defendant for identifi-
cation, and, at first, defendant misidentified himself.  He then furnished
his true identity and stated that he did not have a driver's license.  The
officer cited defendant for driving with a suspended license and released
him.
     At trial, the State produced evidence that defendant operated a motor
vehicle on a public highway at a time when his license was under suspension.
The defense then produced evidence to establish the affirmative defense of
necessity.  Defendant's wife and sister testified that they were passengers
in the car when it was stopped by the officer and further related the
following events.  Defendant's wife was initially driving the car when they
stopped at the drug store for a snack.  When defendant's sister bit into the
plastic wrapper of her snack to open it, a piece of the wrapper lodged in
her throat and she began to choke.  Defendant's wife took control of the
situation because defendant was apparently unable to handle medical
emergencies.  She directed defendant to drive the car to the hospital while
she remained in the back seat to assist her sister-in-law.  Shortly before
the car was stopped, the plastic was dislodged and defendant's sister was
breathing normally again.
     The trial court determined that defendant established a prima facia
case for each of the elements of the necessity defense and therefore gave
instructions to the jury concerning this defense.  Defendant requested that
the court instruct the jury that the State had the burden of disproving the
defense of necessity beyond a reasonable doubt, but the court denied the
request.  The court instructed the jury that the State had the burden of
proving every element of the offense beyond a reasonable doubt, and
explained that defendant was presumed innocent and need not introduce any
evidence on his own behalf.  The court went on to charge, over defendant's
objection, that defendant had the burden to prove the necessity defense by a
preponderance of the evidence in order to gain an acquittal on that ground.
The jury returned a guilty verdict.
     At sentencing, the State emphasized that defendant's license had been
suspended for operating a motor vehicle under the influence of an
intoxicating liquor, in violation of 23 V.S.A. { 1201, and that the DLS
statute, 23 V.S.A. { 674(c)(1), established a two-day jail sentence as a
mandatory minimum sentence in such instances.  The defense argued for
community service as an alternative to imprisonment.  The court imposed a
three-day jail sentence.
     Defendant first argues that the trial court erred by placing the burden
of proving the necessity defense upon him rather than allocating to the
State the burden of disproving this defense.  In analyzing this claim, we
begin by noting that there are two burdens which must be met when a
defendant wishes to go forward with an affirmative defense.  The first is
the burden of production.  We have previously held that a defendant carries
the burden of production in such instances and must establish a prima facia
case on each of the elements of the affirmative defense before the court can
submit the defense to the jury.  See State v. Squires, 147 Vt. 430, 431, 519 A.2d 1154, 1155 (1986) (necessity defense).
     The second burden is the burden of persuasion (or proof).  We have
never resolved which party has the burden of persuasion where a necessity
defense is properly raised.  In the absence of any legislative directive, we
allocate the burden of persuasion of defenses in criminal cases based upon a
two-step analysis.  We first determine whether there are any constitutional
constraints and then, if there are no such constraints, we place the burden
in accordance with a number of factors developed in our cases.
     The due process clause of the Fourteenth Amendment to the United States
Constitution mandates that a defendant may be convicted only if the State
proves beyond a reasonable doubt "every fact necessary to constitute the
crime with which he is charged."  In re Winship, 397 U.S 358, 364 (1970);
see also State v. Messier, 145 Vt. 622, 625, 497 A.2d 740, 744 (1985).
Recent United States Supreme Court decisions make it clear, however, that
the burden may be placed on a defendant to prove affirmative defenses by a
preponderance of the evidence provided that the affirmative defense "does
not serve to negative any facts of the crime which the State is to prove in
order to convict."  Patterson v. New York, 432 U.S. 197, 206-07 (1977); see
also Martin v. Ohio, 480 U.S. 228, 233 (1987); State v. Messier, 145 Vt. at
626-27, 497 A.2d  at 744 (decided under Federal and State Constitution).
     In the present case, defendant was charged with operating a motor
vehicle with a suspended license in violation of 23 V.S.A. { 674(a).  To
obtain a conviction under { 674(a), the State must prove beyond a reasonable
doubt that defendant's license was suspended, that it has not been
reinstated, and that defendant was operating, or attempting to operate, a
motor vehicle upon a public highway.  After proving these elements, the
State is not constitutionally required to go further unless defendant
raises a defense which negates one of these elements.  Here, defendant
raised the necessity defense.
     Necessity is a well established affirmative defense in Vermont.  See
State v. Squires, 147 Vt. at 431, 519 A.2d  at 1155; State v. Shotton, 142
Vt. 558, 458 A.2d 1105 (1983).  The four elements of the necessity defense
are:
              (1)  there must be a situation of emergency arising
         without fault on the part of the actor concerned;
              (2)  this emergency must be so imminent and compel-
         ling as to raise a reasonable expectation of harm,
         either directly to the actor or upon those he was
         protecting;
              (3)  this emergency must present no reasonable op-
         portunity to avoid the injury without doing the criminal
         act; and
              (4)  the injury impending from the emergency must
         be of sufficient seriousness to outmeasure the criminal
         wrong.
Shotton, 142 Vt. at 560-61, 458 A.2d  at 1106.  None of these necessity
defense elements serve to negate any of the elements of the crime that the
State must prove.  Cf. State v. Messier, 145 Vt. at 628 n.*, 497 A.2d  at 743
n.* (defense of insanity does not by itself negate specific intent in murder
case); State v. Wilkins, 144 Vt. 22, 25, 473 A.2d 295, 296 (1983)
(entrapment is affirmative defense, which defendant must prove by a
preponderance of the evidence).  Therefore, the State is not
constitutionally required to bear the burden of disproving the necessity
defense in this case.
     Once we determine that an affirmative defense does not challenge an
element of the crime, the constitutional requirement that the burden rest
upon the State evaporates.  Hence, the burden of persuasion may be placed on
either the defendant to prove the defense by a preponderance of the evidence
or the prosecution to disprove the defense beyond a reasonable doubt.  See
State v. St. Francis, 151 Vt. 384, 387-91, 563 A.2d 249, 251-53 (1989).
     It is fair to say that our law on allocation of burdens of persuasion
in criminal cases is going through a period of development.  We have
traditionally allocated to the State the burden to disprove affirmative
defenses beyond a reasonable doubt.  Prior to the recent statutory amend-
ment, we required the State to prove sanity -- that is, disprove insanity --
beyond a reasonable doubt.  See State v. Gokey, 136 Vt. 33, 37, 383 A.2d 601, 603 (1978).  Our cases on self-defense allocate to the State the burden
to disprove the defense beyond a reasonable doubt, if evidence raising the
issue appears during the case.  State v. Barrett, 128 Vt. 458, 460, 266 A.2d 441, 443 (1970).  The burden of persuasion of this defense was placed on the
State over one hundred years ago in State v. Patterson, 45 Vt. 308, 314-16
(1873), a manslaughter case.  The Court adopted the views of cases from
other states to the effect that the prosecution has the burden of showing
that the killing was unjustifiable and unlawful.  Thus, the Court summarized
that the State must show "beyond a reasonable doubt that the crime charged
in the indictment was committed by the respondent."  Id. at 316.
     The rule in Patterson was not deemed controlling in State v. McCaffrey,
69 Vt. 85, 37 A. 234 (1896), a case in which defendant was charged with
truancy for not sending his child to school.  Defendant argued that he fit
within certain statutory exceptions to the attendance requirement and that
the State was required to negate these exceptions as part of its proof.
The Court disagreed stating that "the exceptions must be negatived only
where they are descriptive of the offense or define it."  Id. at 90, 37 A. 
at 235-36.  The Court held that the exceptions were not descriptive of the
offense and the State did not have to negate them.  It went on to note that
"the fact [of the exceptions] was peculiarly within [defendant's] . . .
knowledge."  Id. at 90-91, 37 A.  at 236.
     In a series of recent cases, we have held that the defendant has the
burden of persuasion with respect to a particular defense.  In State v.
Messier, we considered a recent statute under which the defendant has "the
burden of proof in establishing insanity as an affirmative defense by a
preponderance of the evidence."  13 V.S.A. { 4801(b).  We concluded that the
statute was constitutional, finding that the language of the statute
"demonstrates an intent by the legislature to eliminate sanity as an essen-
tial element of [the] crime."  Messier, 145 Vt. at 627, 497 A.2d  at 742.
     In State v. Wilkins, 144 Vt. at 25, 473 A.2d  at 296, we held that the
defendant has the burden of establishing the affirmative defense of
entrapment by a preponderance of the evidence.  This decision was based in
part on the Legislature's action in placing the burden of proving insanity
on the defendant.  We found in the action "an intent to require defendants
to prove affirmative defenses by a preponderance of the evidence."  Id. at
25, 473 A.2d  at 296-97.
     Most recently, we held that once the State proves beyond a reasonable
doubt that a defendant committed a crime within the boundaries of the
State, the burden is then allocated to defendant to prove by a preponderance
that the State lacks jurisdiction over him because he is an Indian and the
alleged crime was committed in Indian country.  St. Francis, 151 Vt. at 391,
563 A.2d  at 253 (1989).  In St. Francis, we developed several factors to
consider when allocating the burden of persuasion.  These factors were based
primarily upon the general principles set forth in State v. McCaffrey and
those described by Professor Wigmore in 9 J. Wigmore, Evidence in Trials at
Common Law { 2486 (1981).  These factors generally place the burden upon the
party:  (1) seeking to prove the existence of a fact rather than its
nonexistence, (2) to whose case the fact is essential, and (3) who has
peculiar knowledge of the existence of the facts at issue.  St. Francis, 151
Vt. at 388, 583 A.2d  at 251-52.
     We recognize that there are similarities between the defenses of
necessity and self-defense and that these similarities suggest that the
burden of persuasion for both defenses should be allocated to the same
party.  There are, however, also differences.  Necessity is a "confession
and avoidance" defense, raised as "justification for the commission of a
crime."  State v. Warshow, 138 Vt. 22, 24-26, 410 A.2d 1000, 1001-1003
(1979).  The defense is "founded upon public policy and provides a
justification distinct from the elements required to prove the crime."
People v. Heath, 207 Cal. App. 3d 892, 900-01, 255 Cal. Rptr. 120, 124
(1989).  The allocation of the burden of persuasion with respect to self-
defense in Patterson was based upon the view that lack of self-defense was a
part of the essential elements of the crime.  We cannot make this
characterization of the necessity defense.
     We also recognize that in many jurisdictions, decisions have allocated
the burden of persuasion to negate necessity beyond a reasonable doubt.
See, e.g., People v. Perez, 97 Ill. App. 3d 278, 280, 422 N.E.2d 945, 947
(1981) (once defendant presents "some evidence" in support of the necessity
defense, the State then shoulders the burden of disproving the
applicability of the defense beyond a reasonable doubt); Walden v. State,
251 Ga. 505, 507, 307 S.E.2d 474, 476 (1983) (State must disprove
affirmative defenses beyond a reasonable doubt once raised by defendant).
While this is probably the majority rule, other courts have reached the
contrary result.  The California courts, for example, have held that the
necessity defense does not negate any element of the crime and therefore
have determined that the defendant has the burden of proving the defense by
a preponderance of the evidence.  Heath, 207 Cal. App. 3d  at 901, 255 Cal. Rptr.  at 125; People v. Condley, 69 Cal. App. 3d 999, 1013, 138 Cal. Rptr. 515, 522 (1977).  The Supreme Court of Nevada has likewise adopted the
California reasoning and has held that "the state bears no burden of
disproving the defense of necessity, and there is no constitutional
impediment to allocating the burden of proof to the defendant."  Jorgensen
v. State, 100 Nev. 541, 545, 688 P.2d 308, 310 (1984).
     Although the question is not free from doubt, we choose to allocate the
burden of persuasion for the necessity defense in accordance with the
factors set forth in St. Francis.  We have reasons to distinguish the burden
allocation in self-defense cases and are following the modern trend of our
case law.  We are dealing here with a statutory crime on which we must
engraft a necessity defense without legislative direction.  Thus, the
grounds to allocate the burden to defendant are greater than in State v.
McCaffrey, where the Court allocated the burden of proving legislatively
created defenses to the defendant.  We are also persuaded by the extent to
which the relevant facts are entirely within the knowledge of the defendant
and his witnesses in cases like this one.
     Under the basic principles of allocating the burden of persuasion, we
conclude that defendant must bear the burden of proving the necessity
defense by a preponderance of the evidence.  First, if the burden rests on
the State, it would be put in the position of proving a negative, that is,
the nonexistence of facts, rather than the existence of facts.  Second, as
previously stated, none of the elements of the necessity defense are
essential to the prosecution's case against the defendant.  Third, the facts
at issue to the necessity defense are in many instances "peculiarly" within
the defendant's knowledge.
     Defendant's second claim is that the trial court erred in refusing to
consider community service as an alternative to imprisonment.  Defendant
argues that community service was a permissible alternative to imprisonment
under the penalty provision for DUI offenses contained in 23 V.S.A. {
1210(c)(2)(B).  We fail to see how this penalty statute applies in this
case.  While defendant's license was originally suspended for DUI, he was
charged in this case with operating a motor vehicle with a suspended
license in violation of 23 V.S.A. { 674(a).  Thus, the applicable penalty
provision was 23 V.S.A. { 674(c), and it mandates a minimum sentence of two
days in jail where the original suspension was caused by a DUI conviction.
The trial court was therefore without authority to impose a lesser sentence
or to substitute community service for jail time.  See State v. Saari, ___
Vt. ___, 568 A.2d 344 (1989).  Although we accept the general principle that
statutes dealing with the same subject matter must be read in pari materia,
State v. Francis, 151 Vt. 296, 306, 561 A.2d 392, 398 (1989), the community
service alternative is not part of the same statutory scheme as the DLS
offense and its punishment.  Its availability to DUI defendants does not
help the DLS defendant in this case.
     Affirmed.
                                        FOR THE COURT:
 
 
 
 
                                        Associate Justice