52 N.E.3d 1041 (Mass. 2016)
David Magadini, a sixty-seven-year-old lifelong resident of Great Barrington, became homeless after moving out of his parents' home in 2004 with the intention to reorganize his life.1 He generally lived outside year-round but sought more sheltered areas during winter months to avoid ice and snow storms.2 He eventually considered a gazebo behind the Great Barrington Town Hall as his home, where he registered to vote.3
In 2007, he stayed at the local Construct shelter for two to three months after being allowed entry following an initial denial at 3 A.M. following a blizzard.4 He was later told to leave because of issues with his stay and had no other place to stay in Great Barrington.5 He had attempted to obtain an apartment nearly every week for seven years but could not due to upfront fees.6 He had no driver's license.7
In 2014, Magadini faced seven counts of criminal trespass at three properties subject to no trespass orders issued in 2008 for Castle Street, 2012 for Barrington House, and January 2014 for SoCo Creamery.8 Police found him in hallways or lobbies near heaters on cold days in February and March.9 He was observed walking through a common area on April 8.10 He used the bathroom at SoCo Creamery on June 10 after ignoring requests to leave.11
At trial the defendant did not dispute violating the orders but presented evidence of his homelessness and efforts to find shelter.12 The judge denied his request for a necessity defense instruction, finding legal alternatives available such as motels, hotels, and the police station.13 The jury convicted him on all seven counts.14 The judge imposed concurrent thirty-day sentences in a house of correction.15 A single justice of the Appeals Court stayed the sentences pending appeal.16 The Supreme Judicial Court granted direct appellate review.17
Whether the trial judge erred by denying the defendant's request for a jury instruction on the defense of necessity for the February through April trespass charges?18
The common-law defense of necessity exonerates one who commits a crime under the pressure of circumstances if the harm that would have resulted from compliance with the law exceeds the harm actually resulting from the defendant's violation of the law.19 For a defendant to be entitled to a necessity defense instruction, he or she must present some evidence on each of the four underlying conditions of the defense.20 The conditions are (1) a clear and imminent danger, not one which is debatable or speculative; (2) a reasonable expectation that his or her action will be effective as the direct cause of abating the danger; (3) there is no legal alternative which will be effective in abating the danger; and (4) the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue.21 If the defendant satisfies these foundational conditions, the burden is on the Commonwealth to prove beyond a reasonable doubt the absence of necessity.22
Yes. The defendant presented some evidence on each element for the February through April charges. The weather conditions on the dates of the offenses in February and March presented a clear and imminent danger to a homeless person as the temperatures were described as cold, really cold, and very cold, and the incidents occurred in early morning or late evening hours when the defendant was sleeping or lying down near heaters.23 The defendant testified that he stayed at an outdoor gazebo year round, that in 2007 he was told to leave the only local homeless shelter after an initial denial following a blizzard and had no other place to stay in Great Barrington, that no other places want him in their facility, that he was unable to rent an apartment despite repeated attempts nearly every week for seven years due to upfront fees, and that there was nowhere besides public parks where he could stay.24
The officer who asked the defendant to leave on February 21 testified that the defendant had to go back outside.25 This evidence, taken as true with all reasonable inferences resolved in the defendant's favor, creates at least a reasonable doubt as to the availability of lawful alternatives such as motels, hotels, or the police station.26
The judge erred in denying the defendant's request for an instruction on the defense of necessity as to the six trespassing charges related to the incidents from February through April, 2014, and the error was prejudicial, requiring vacation of those convictions and remand for a new trial.27
Whether the defendant met his burden to show a clear and imminent danger supporting a necessity defense instruction for the June 10 trespass charge?28
For a defendant to be entitled to a necessity defense instruction, he or she must present some evidence on each of the four underlying conditions of the defense, including (1) a clear and imminent danger, not one which is debatable or speculative.29
No. The defendant did not meet his burden to show a clear and imminent danger for the incident on June 10.30 The evidence showed only that he entered SoCo Creamery, ignored requests by the clerk to leave, and used the bathroom for ten to fifteen minutes on a day with no indication of extreme weather or other danger.31 The defendant did not request a necessity defense instruction on this charge and instead limited the request to charges occurring between February and April due to the weather.32
The defendant did not meet his burden to demonstrate the foundational requirements for a necessity defense instruction as to the seventh conviction stemming from the June 10 trespass, so that conviction is affirmed.33
Whether the judge improperly limited the scope of the defendant's cross-examination of prosecution witnesses on relevancy grounds?34
Evidence is relevant if it renders the desired inference more probable than it would be without the evidence.35 Relevant evidence may be admissible if it tends to establish the issue or constitutes a link in the chain of proof.36 In the context of the necessity defense, that evidence would be anything that tends to establish any of the four elements of the necessity defense.37
Yes. The judge ruled as irrelevant questions by defense counsel during cross-examination that related to whether the defendant was asleep or intoxicated when trespassing.38 The judge prohibited counsel from asking officers who responded to the trespass calls whether they offered the defendant transportation to a shelter.39 Those questions speak directly to the presence of a clear and imminent danger, the effectiveness of the defendant's conduct in abating that danger, or the availability of alternatives, and are therefore relevant to the necessity defense.40
The judge infringed on the defendant's ability to demonstrate the foundational elements of the necessity defense by limiting the scope of questioning on relevancy grounds, and such evidence should be admissible at retrial.41
Whether the prosecutor's closing argument contained misstatements of the evidence?42
The defendant argues on appeal that this misstatement was prejudicial to his argument that he sought shelter during the cold out of necessity.43
The prosecutor stated in closing argument that the defendant testified he was at the Construct up until the first week of March before these incidents occur, but the defendant had actually testified that he stayed at the Construct in 2007, not 2014.44 The misstatement concerned the defendant's efforts to seek shelter during cold weather and thus bore on his necessity defense.45 Because the court assumes that this misstatement will not occur at retrial and only affects the convictions that have been vacated, the claim requires no further discussion.
The prosecutor's closing argument contained a misstatement of the evidence regarding when the defendant stayed at the Construct shelter, though the court assumes the misstatement will not occur at retrial and it affects only the vacated convictions.46
Whether the judge erred in denying the motion for a required finding of not guilty on the April 8 trespass charge?47
The criminal trespass statute, G. L. c. 266, § 120, provides that whoever, without right enters or remains in or upon the dwelling house or buildings of another after having been forbidden so to do by the person who has lawful control of said premises shall be punished.48 The statute does not require an extra element of loitering or lingering.49
No. The defendant was subject to a no trespass order for Barrington House issued in 2012 that remained in effect.5051 On April 8 he was observed walking through a common area in the building toward the front door during business hours on a cool day.52 Any implied license to enter the common areas was revoked by the no trespass order, and the statute does not require proof of loitering or lingering beyond the forbidden entry or remaining.53
The judge did not err in denying the defendant's motion for a required finding of not guilty on the April 8 trespass charge, and that aspect of the judgment is affirmed.54