State v. Cram

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as well as formal revision before publication in the Vermont Reports.
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                                No. 90-548


State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                      District Court of Vermont,
                                             Unit No. 2, Chittenden Circuit

Stephen Cram                                 April Term, 1991


George T. Costes, J.

Jeffrey L. Amestoy, Attorney General, and David E. Tartter, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

Robert Bensing, Plattsburgh, New York, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     ALLEN, C.J.   On November 20, 1989, defendant and five other
individuals entered the grounds of a test firing range facility in
Underhill, Vermont, and remained after notice against trespass had been
communicated to them.  Defendant's avowed purpose in entering was to prevent
the testing by General Electric Company of "gatling guns" and, consequently,
delay shipment of the guns to El Salvador, where they were being used by the
military to shoot civilians.  Defendant was charged with unlawful trespass
under 13 V.S.A. { 3705(a)(1).  At a pretrial status conference, and again in
answer to a motion in limine by the State, the trial court ruled that
defendant was barred from presenting defenses based on necessity and
justification under international law.  Defendant was convicted after a jury
trial.  Defendant argues on appeal that he was entitled to present both
defenses to the jury.  We affirm.
     That part of defendant's offer of proof that is relevant to this
opinion is as follows.  The harm defendant was trying to avert was the
killing of civilians by the El Salvadoran military.  Killing was taking
place in the city of San Salvador on the day defendant entered the Underhill
facility, as well as on the days immediately preceding and following.  Much
of the killing was being committed with gatling guns.  The gatling guns used
by the El Salvadoran military were manufactured solely at the General
Electric plant in Burlington.  Every gun, gun barrel, and component that
General Electric produces in Burlington is tested at the Underhill facility.
The testing is intermittent.  The El Salvadoran government had asked for
additional arms from the United States government, and the United States
government had agreed to send such arms.  Further, the barrels on the
gatling guns already in the El Salvadoran military's possession would have
to be replaced because they warp with constant use.  As defendant approached
the Underhill facility, he heard guns being tested.  The gun barrel he stood
in front of was smoking.  He was on the grounds of the facility for two and
one-half hours, during which time no guns were tested.
                                     I.
     A pretrial ruling on the admissibility of a defense based on necessity
is proper.  See State v. Warshow, 138 Vt. 22, 23-26, 410 A.2d 1000, 1001-02,
(1980) (upholding trial court's pretrial denial of defendant's necessity
defense because the offered evidence was insufficient); accord United States
v. Dorrell, 758 F.2d 427, 430 (9th Cir. 1985); Commonwealth v. Capitolo, 508
Pa. 372, 378-79, 498 A.2d 806, 809 (1985).  Where the facts pointed to in
defendant's offer, taken as true, are insufficient to sustain the defense,
the trial court should deny use of the defense.  Dorrell, 758 F.2d  at 430;
Capitolo, 508 Pa. at 379, 498 A.2d  at 809.  Accordingly, the ruling below
was proper if, taking the facts in defendant's offer as true, no reasonable
juror could find that the requirements of the necessity defense were
satisfied.  Cf. State v. Shotton, 142 Vt. 558, 561, 458 A.2d 1105, 1106
         (1983) (denial of instruction on necessity was improper where the jury could
have concluded on the evidence presented that the requirements of the
necessity defense were met).
     Defendant bears the burden of proving the affirmative defense of
necessity.  State v. Baker, 154 Vt. 411, 419, 579 A.2d 479, 483 (1990).  The
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 compelling
         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
         opportunity 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.

Warshow, 138 Vt. at 24, 410 A.2d  at 1001-02.  Further, the necessity defense
is not applicable if it has been legislatively precluded.  "Determination of
the issue of competing values and, therefore, the availability of the
defense of necessity is precluded . . . when there has been a deliberate
legislative choice as to the values at issue."  Id. at 27, 410 A.2d  at 1003
(Hill, J., concurring).  The second and third elements are governed by
defendant's belief, and that belief must be reasonable.  See Shotton, 142
Vt. at 560-61, 458 A.2d  at 1106 (issue in necessity defense is whether
actions were "reasonably conceived by [defendant] to have been a
necessity"); 1 W. LaFave & A. Scott, Substantive Criminal Law { 5.4, at 635-
36 (1986) (to have defense of necessity, "[a]n honest (and, doubtless,
reasonable) belief in the necessity of the action is all that is required .
. . .  The defendant's belief as to the relative harmfulness of the harm
avoided and the harm done does not control, however.").
     Implicit in the requirement that there be "no reasonable opportunity to
avoid the injury without doing the criminal act" is an element of causation:
doing the criminal act will avoid the injury.  The actions are necessary
only if the actor reasonably believes that they will avoid the injury.
Without a belief that they will avoid the injury, the actions are by
definition not necessary, as the belief can only be that the injury will
persist and a criminal act will be committed.  If an actor does not reason-
ably believe the action will avoid the injury, it is a gesture, not a
necessity.  It is not entitled to the protections of the necessity defense.
"'An essential element of the so-called justification defenses is that a
direct causal relationship be reasonably anticipated to exist between the
defender's action and the avoidance of harm.'"  United States v. Seward, 687 F.2d 1270, 1275 (10th Cir. 1982) (quoting United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972), cert. denied, 459 U.S. 1147 (1983); see Dorrell,
758 F.2d  at 433 (same); United States v. Cassidy, 616 F.2d 101. 102 (4th
Cir. 1979) (same); Commonwealth v. Hood, 389 Mass. 581, 593, 452 N.E.2d 188,
196 (1983) (denying necessity defense to defendants who trespassed in order
to distribute literature opposing nuclear arms race because defendants
"could not have reasonably expected their actions to abate the alleged
danger directly"); State v. Champa, 494 A.2d 102, 105 (R.I. 1985) (denying
necessity defense to defendants because it was "patently impossible" for
defendants to demonstrate that "the act of spray-painting could reasonably
be calculated to bring about an actual halt of all future production of
missile components"); Wilson v. State, 777 S.W.2d 823, 825 (Tex. App. 1989)
(denying necessity defense because no person could "reasonably anticipate
that the seizure of [university president's office] would actually and
directly result in the stopping of apartheid"); P. Robinson, Criminal Law
Defenses { 124(c), at 8 n.9 (Supp. 1988) ("A defendant who violates the law
in a manner that will not avert the harm sought to be prevented has simply
not satisfied [a requirement of the necessity defense].").
     Defendant's theory of causation is that by interfering with the testing
of guns while he was on the range, he would delay the shipping of gatling
guns or replacement gun barrels to El Salvador.  By delaying the shipping,
one less gatling gun would be fired, or one more civilian would successfully
flee or hide, and, consequently, one life would be saved.
     We find the uncertainty surrounding defendant's actions to be so great
that no reasonable juror could conclude that defendant reasonably believed
his actions would have a direct causal effect in preventing the killing of
civilians in El Salvador.  Defendant's offer demonstrates that at the time
of his trespass he did not know whether the guns then being tested were to
be sent to the government of El Salvador.  In order for defendant to believe
his actions would have a direct causal effect, he had to at least have known
the likely result of his underlying act.  Without this knowledge, the most
that defendant could reasonably have believed is that his actions could have
a direct causal effect.  Such a belief does not suffice.  "It is not enough
that the actor believes that his conduct possibly may be conducive to
ameliorating certain evils; he must believe it is necessary to avoid the
evils."  Model Penal Code { 3.02 comment at 12 (1985); see United States v.
Schoon, 939 F.2d 826, 830 (9th Cir. 1991) (necessity defense unavailable for
indirect civil disobedience because the act is unlikely to abate the
perceived harm or change congressional policy); Dorrell, 758 F.2d  at 433
(defendant's necessity defense "fails because he has not established that
his actions would bring about the ends he sought") (emphasis added); United
States v. May, 622 F.2d 1000, 1008 (9th Cir. 1980) (necessity defense not
available to defendants "because there was no reasonable belief that a
direct consequence of their actions would be the termination of the Trident
program") (emphasis added), cert. denied, 449 U.S. 984 (1980). (FN1) Accord-
ingly, the decision below to bar defendant's use of the defense of
necessity was proper.
                                    II.
     We also find proper the bar on defendant's alternative defense, that of
justification based on international law.  We do not take issue with
defendant's contention that the killing of civilians would be in violation
of international law applicable to El Salvador either by virtue of it being
a signatory to various agreements or by "jus cogens."  We do take issue,
however, with defendant's contention that, having failed to satisfy the
requirements of the necessity defense, he nevertheless had a privilege under
international law to attempt to prevent the killing.
     As interpreted by our federal courts, the privilege under international
law to transgress domestic law exists only when domestic law requires the
commission of an act that violates international law.  See, e.g., United
States v. Kabat, 797 F.2d 580, 590 (8th Cir. 1986), cert. denied, 481 U.S. 1030 (1987); United States v. Montgomery, 772 F.2d 733, 737-38 (11th Cir.
1985); United States v. Brodhead, 714 F. Supp. 593, 597-98 (D. Mass. 1989).
As stated by the court in Montgomery, it "stand[s] this doctrine on its head
[to argue] that a person charged with no duty or responsibility by domestic
law may voluntarily violate a criminal law and claim that violation was
required to avoid liability under international law."  772 F.2d  at 738.
Where, as here, domestic law did not require of defendant anything arguably
criminal under international law, a privilege under international law was
not available, and its use was properly denied.
                                   III.
     In denying defendant a defense based on necessity, we do not make a
judgment on the morality of his actions.  We merely recognize that
violation of the criminal law is not justified by necessity unless the
strict requirements of that defense have been met.  Were we to relax the
requirements of the necessity defense in accordance with our moral beliefs,
we would turn the defense into an expression of our own view of morality.
This is a result we must resist.  Because defendant did not meet the
requirements of necessity, his conviction must be affirmed.
     Affirmed.

                                        FOR THE COURT:




                                        Chief Justice





FN1.    This standard does not require that a defendant believe his actions
will without fail avoid the injury.  Consider the example of one speeding
to take a badly wounded friend to a hospital.  This person cannot reasonably
believe that his act of speeding will without fail save his friend's life,
as this certainty of belief cannot reasonably exist.  He can, however,
reasonably believe that his actions would have a direct causal effect in
avoiding the harm.  This driver knows the nature of his underlying act and
that by speeding he will reach the hospital faster.  Defendant, as pointed
out above, did not know whether he was interfering with the testing of guns
bound for El Salvador or for the United States military.  Without this
knowledge, the most he could reasonably have believed was that his actions
could, not would, have a direct causal connection.