Satisfaction of the third element of the necessity defense requires a defendant to demonstrate that he made himself aware of any available lawful alternatives, or showed them to be futile in the circumstances. On that point, the defendant must present some evidence, enough that supports at least a reasonable doubt whether the unlawful conduct was justified by necessity. The defendant must present enough evidence to demonstrate at least a reasonable doubt that there were no effective legal alternatives available before being entitled to an instruction on the necessity defense. This does not require a showing that the defendant has exhausted or shown to be futile all conceivable alternatives, only that a jury could reasonably find that no alternatives were available.
The defendant, David Magadini, was convicted by jury on seven counts of criminal trespass, each based on the defendant's presence, in 2014, in privately-owned buildings where he was the subject of no trespass orders. Five incidents occurred between February and March, the sixth occurred on April 8, and the seventh occurred on June 10. Before trial and during the charge conference, the defendant requested a jury instruction on the defense of necessity, asserting that his conduct was justified as the only lawful alternative for a homeless person facing the “clear and imminent danger” of exposure to the elements during periods of extreme outdoor temperatures. The judge denied the request, concluding that the defendant had legal alternatives to trespassing available. As to each conviction, the judge imposed concurrent sentences of thirty days in a house of correction. A single justice of the Appeals Court stayed the sentences pending resolution of this appeal.
Can the defense of necessity apply to a homeless individual who has trespassed on a private property in order to find safe shelter in winter conditions?
The Court held that the judge erred in denying the defendant's request for an instruction on the defense of necessity. As the defendant satisfied the foundational elements entitling him to the defense, the judge's failure to instruct the jury about the defendant's principal defense requires a new trial. It noted that the temperatures on the dates of the offenses were not admitted at trial, but the weather on the February and March dates was described as “cold,” “really cold,” and “very cold.” Moreover, the timing of each of those incidents, in the early morning or late evening hours when the defendant was either sleeping or lying down, suggests the dangerousness of the circumstances where sleeping may place one in the same position for an extended period and, thus, increases the potential harm from the weather.