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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Garrison (11/09/2007) sp-6188
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Supreme Court No. S- 12381 | |
| Petitioner, | ) Court of Appeals No. A-9631 |
| ) Superior Court No. 1JU-05-1537 Cr. | |
| v. | ) |
| ) O P I N I O N | |
| LINA I. GARRISON, | ) |
| ) No. 6188 - November 9, 2007 | |
| Respondent. | ) |
| ) | |
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court First Judicial
District, Juneau, Patricia A. Collins, Judge.
Appearances: Diane L. Wendlandt, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for Appellant. Renee McFarland, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Lina Garrison was arrested and charged with one count
of felony driving while intoxicated and one count of driving
while her license was suspended. At her first trial Garrison
presented the affirmative defense of necessity to the jury. When
that trial ended with a hung jury the state moved for an order
precluding Garrison from raising the necessity defense at her
second trial. The superior court denied that motion and the
court of appeals denied the states ensuing pretrial petition for
review. The state now petitions for hearing. Because Garrison
presented no evidence that would permit a reasonable person to
find that driving intoxicated was safer than anything else she
could have done, we vacate the superior court order that allowed
Garrison to present the necessity defense to the jury.
II. FACTS AND PROCEEDINGS
At about 8:00 p.m. on December 1, 2005 Lina Garrison
was a passenger in her own car, traveling southbound on the Egan
Expressway, a four-lane highway in the City and Borough of
Juneau.1 An acquaintance of Garrison identified only as Travis
was driving Garrisons car because she was intoxicated and lacked
a valid drivers license.
As Garrisons car approached the lighted, traffic-signal-
controlled intersection at Vanderbilt Hill Road about five miles
from downtown Juneau, a pin in the steering wheels ignition lock
unexpectedly popped out, causing the steering wheel to lock.
Travis was somehow able to navigate Garrisons car off the highway
to the roadside emergency lane beside the Egan Expressway. The
car stopped just north of the signal lights controlling the Egan
Expressway and Vanderbilt Hill Road intersection. Travis told
Garrison that although he could not stay with her because there
was a warrant out for his arrest, he would go get help.
Garrison became concerned for her safety soon after
Travis left the scene. In particular, Garrison was afraid of
being struck by a passing car traveling at a high speed.
At about 8:15 p.m. Juneau Police Officer Christopher
Gifford saw Garrisons car parked on the side of the highway and
pulled up behind her. After Officer Gifford explained to
Garrison that her car posed a hazard where it was parked, Officer
Gifford offered to call Garrison a tow truck. Garrison asked
Officer Gifford to call a tow truck driver named Sid, but Officer
Gifford refused because Garrison could not afford to pay Sid for
his services. After Garrison told Officer Gifford that she would
use her cell phone to call someone for help, Officer Gifford
drove away.
After Officer Gifford left, Garrison realized that her
cell phone was not working. Garrison claimed that as she
understood her situation at the time, she had five options: she
could (1) walk to Western Auto, which had a phone she could use;
(2) walk to a radio station over two miles away; (3) hitchhike;
(4) stay in the car and wait for help; or (5) drive herself
several miles to a clearing along the road and walk from there to
a payphone. Garrison concluded that driving herself to the
clearing was the safest option. She then put the pin back in the
steering wheel ignition lock, started her car, drove on through
the Vanderbilt Hill Road intersection, and continued southbound
on the Egan Expressway.
The next turnoff available to Garrison was at the
Salmon Creek intersection, where she stopped her car at a red
light. Officer Gifford, who was parked there, noticed Garrisons
car. When the traffic light turned green Garrison proceeded on
the highway through the intersection towards downtown Juneau.
After briefly following Garrisons car, Officer Gifford pulled
Garrison over, performed field sobriety tests, and arrested her
for driving while intoxicated.
Garrison was charged with one count of felony driving
while intoxicated and one count of driving while her license was
suspended. Garrison gave notice before trial that she wished to
raise the necessity defense. The superior court ruled that
Garrison had presented some evidence in support of the necessity
defense and allowed the defense to go to the jury. The jury
could not reach a verdict and the superior court declared a
mistrial.
Before her second trial Garrison again gave notice that
she wished to raise the necessity defense. The superior court
again ruled that Garrison was entitled to submit the defense to
the jury. After the superior court denied the states motion for
reconsideration, the court stayed the second trial pending the
outcome of the states petition for review to the court of
appeals. The court of appeals denied the states petition for
review. The state then filed a petition for hearing with this
court. We granted the states petition and ordered full briefing
and heard oral argument.
III. DISCUSSION
A. Standard of Review
A defendant is entitled to a jury instruction on the
necessity defense if he presents some evidence in support of that
defense.2 The term some evidence refers to evidence that, if
viewed in the light most favorable to the defendant, would allow
a reasonable juror to find in the defendants favor on each
element of the defense.3 Whether a defendant has presented some
evidence of a proposed defense is a question that we review de
novo, based on the entire record.4
B. The Necessity Defense
Necessity is an affirmative defense available to
criminal defendants except where preempted or excluded by the
legislature.5 A defendant is entitled to a jury instruction on
the necessity defense if she presents some evidence6 that (1) she
committed the charged offense to prevent a significant evil; (2)
there was no adequate alternative to the charged offense; and (3)
the harm caused was not disproportionate to the harm she avoided
by breaking the law.7 If the defendant is charged with a
continuing offense, the defendant must also show some evidence
that (4) she stopped violating the law as soon as the necessity
ended.8
The necessity defense is available if the accused
reasonably believed at the time of acting that the first, second,
and, if applicable, fourth elements were present,9 even if that
belief was mistaken; but the accuseds belief will not suffice for
the third element. An objective determination must be made as to
whether the defendants value judgment was correct, given the
facts as he reasonably perceived them.10
Garrison argues that she has presented some evidence of
each element of the necessity defense. She contends that she has
presented some evidence of the first element that she reasonably
believed that she drove her car to prevent a significant evil
because she testified that she believed that if she did not drive
her car, there was a risk her car would be struck by a passing
vehicle, potentially causing injury to herself and others, and a
risk she would be harmed by a passing stranger.
Garrison also argues that she has presented some
evidence of the second element of the necessity defense that
there was no adequate alternative because she did not feel that
there was a reasonable alternative to her driving, as it was
unsafe to walk to Western Auto or along the side of the road for
two miles, she feared Officer Gifford, and she did not know of
any other alternatives.
Garrison further contends that she has presented some
evidence of the third element of the necessity defense that the
harm caused was not disproportionate to the harm avoided because
the foreseeable harm caused by her driving while intoxicated
where neither property nor people were actually hurt as a result
was less than the foreseeable harm avoided if she had stayed with
her vehicle or attempted to cross the highway.
The defendants burden of producing some evidence in
support of a proposed defense is not a heavy one.11 If a
defendant produces some evidence to support each element of a
specific instruction, [a]ny weakness or implausibility in that
evidence is irrelevant.12 But even though the defendants
supporting evidence may be weak or implausible, the defendant
will be entitled to an instruction on the defense if it is at
least sufficient to permit a reasonable juror to find that each
element of the defense has been satisfied.13 If the evidence,
when viewed in the light most favorable to the defendant, fails
to support one or more elements of a proposed defense, the
defendant is not entitled to a jury instruction on that defense.14
To satisfy the proportionality element a defendant must
as a threshold matter present some evidence that the harm she
actually caused was not disproportionate to the harm she avoided
by breaking the law.15 If the defendant satisfies the threshold
test, the proportionality requirement of the necessity defense
then calls for a balancing of values and requires that the actors
conduct effect a net benefit.16 In this case, the reasonably
foreseeable harm that could have resulted from Garrisons failure
to act must be balanced against the reasonably foreseeable harm
that could have resulted from Garrisons illegal action.17
Garrison had the burden of establishing the defense of necessity
by a preponderance of the evidence.18
The parties disagree about whether the court or the
jury should objectively determine whether Garrisons value
judgment regarding her choice to drive while intoxicated was
correct. The state argues that the proportionality element is a
question of law that must be decided by the trial judge before
the defendant may present the necessity defense to the jury.
Garrison responds by arguing that the proportionality element is
a question for the jury.
The state cites two prior decisions of this court to
support the states contention that the proportionality element
presents a question of law. It cites Nelson v. State,19 in which
we noted that the majority of jurisdictions appear to hold that
[determination of the proportionality element] must be made, at
least initially, by the court.20 We then held, as a matter of
law, that the defendants fears about damage to his truck roof
were no justification for his appropriation of two Highway
Department vehicles.21 Two years later, in Cleveland v.
Municipality of Anchorage,22 we stated that [a]n objective
determination [of the proportionality element] must be made23 and
held that because the Alaska legislature had already spoken as to
the balancing in front of the court and concluded that the
interests the defendants sought to vindicate are outweighed by
the interests they sought to invade,24 the legislature has
resolved the choice of evils questions [the defendants] would
have [this court] decide.25
The state also cites two post-Cleveland court of
appeals cases, Seibold v. State26 and Allen v. State.27 In
Seibold, the court of appeals expressly held for the first time28
that the court objectively determines the proportionality
element.29 The court maintained, however, that a defendant is
entitled to a jury instruction on the necessity defense if he
presents some evidence in support of each of the three elements
of the defense.30 Dissenting, Judge Mannheimer wrote that [i]t is
the duty of the courts to declare the law of necessity to define
the scope and the limits of the defense through the process of
deciding individual cases.31 This language is instructive of the
court of appeals rationale in Allen v. State,32 its most recent
decision that addresses the proportionality element. In Allen,
Judge Mannheimer, writing for the majority, stated in dictum that
the
third element of the necessity defense the
proportionality of the harm done compared to
the harm avoided is a question of law to be
decided by the judge. The judge must make an
objective determination . . . as to whether
the defendants value judgment was correct,
given the facts as [the defendant] reasonably
perceived them.[33]
But in McGee v. State, we avoided deciding whether the
jury should play a role in determining proportionality.34 Viewing
the issue of proportionality from the defendants perspective, we
discerned no basis for declaring as a matter of law that the
physical damage caused by McGee outweighed the serious physical
injury he feared at the time.35 We went on to reverse McGees
conviction and remand, concluding that the some evidence test had
been met as to all elements of his necessity defense; we
expressed no opinion as to whether proportionality should be
considered by the jury on retrial.36
If, as the state argues, Garrison has failed to present
some evidence that places the necessity defense in issue, it will
be unnecessary for us to decide whether the court or the jury
should decide whether the proportionality element has been met.
The state contends that Garrison has not identified any
reasonably foreseeable harm that was greater than the risk she
created when she got behind the wheel of her car and drove drunk
down a busy four-lane highway. Garrison responds by arguing that
a serious physical injury was the reasonably foreseeable harm
that she avoided by driving. Garrison argues that she was in
reasonably foreseeable danger of being struck by a passing car,
being harmed by a stranger, or suffering from an allergic
reaction to the cold weather.
We acknowledge that the threshold for the some evidence
test is low; some evidence is evidence which, viewed in the light
most favorable to Garrison, is sufficient to permit a reasonable
juror to find in Garrisons favor on the proportionality element
of the necessity defense.37 As Garrison observes, some evidence
only requires more than a scintilla and any doubt should be
resolved in her favor.38
Garrison testified about the foreseeable harms that she
allegedly avoided by driving her car. She testified that it was
unsafe to walk to Western Auto because she would have had to
cross four lanes of highway. She also testified that it would
have been unsafe to walk to the radio station for various
reasons. The radio station was about two miles away from where
she was parked; it was dark and she was wearing dark clothing;
she was afraid that a stranger might take advantage of her
because she was alone and a female; and she had a rare skin
disorder that caused her to suffer an allergic reaction to cold
weather. Garrison also testified that hitchhiking would have
been unsafe because it was nighttime. Finally, she testified
that it would have been unsafe for her to have stayed in her car
because her car was a hazard to passing motorists where it was
parked.
Garrison testified that these fears were foreseeable
because she was parked on the side of the busiest highway in
Juneau; she knew of two people who had been killed while changing
a tire on the side of that highway; it was cold, dark, and the
roads were icy; and she did not know if her cars flashers were
working. Although this evidence shows that she subjectively
believed that driving was her safest alternative, it is
insufficient to support an objective finding that her belief was
correct.
In McGee we determined that the defendant adequately
raised the defense of necessity by claiming that he caused
property damage to avoid a potentially serious physical injury.39
The defendants claim included testimony that he acted in a
panicked state of mind triggered by [a] sudden, unprovoked attack
and express threat of imminent death.40 In Allen, the court of
appeals allowed a necessity defense to go to the jury where the
defendant drove with a suspended license because he reasonably
believed that his mother needed speedy medical attention.41
But Garrison presented no evidence that could permit a
reasonable jury to find that any of the alleged harms she avoided
outweighed the very real dangers she risked by driving drunk.
Garrison contends that her fears were reasonably foreseeable, yet
refers us to no evidence about the frequency, likelihood, or
immediacy of the alleged harms. She provided no plausible basis
for finding that those supposed harms were real. Furthermore, it
is irrelevant that, as Garrison notes, her conduct did not result
in actual harm to people or property; her conduct is weighed
against the very real harm reasonably foreseeable when she began
driving, rather than the harm that actually occurred.42
Finally, Garrison believed that Officer Gifford was
going to return in ten minutes. She produced no evidence that
would have permitted a reasonable person to find that during that
ten-minute period the harm she may have faced had she taken any
alternative action outweighed the harm she risked by driving
drunk for an extended distance. Garrisons failure to present
that evidence precludes her from submitting the necessity defense
to the jury as a matter of law.
IV. CONCLUSION
Because Garrison produced no evidence that would permit
a reasonable person to find that driving intoxicated was safer
than anything else she could have done, she is not entitled to
present the necessity defense to the jury as a matter of law. We
therefore VACATE the superior court order that permitted Garrison
to submit the necessity defense to the jury.
_______________________________
1 Because the state is asking us to reverse the superior
courts order that allowed Garrison to present the necessity
defense to the jury, the facts in this part have been described
in the light most favorable to Garrison. See Dandova v. State,
72 P.3d 325, 332 (Alaska App. 2003) (citing Paul v. State, 655
P.2d 772, 775 (Alaska App. 1982)) (stating that when determining
whether some evidence in support of a defense exists, courts view
evidence in light most favorable to defendant); Seibold v. State,
959 P.2d 780, 782 (Alaska App. 1998) (A defendant is entitled to
a jury instruction on the necessity defense if he [or she]
presents some evidence in support of each of the three elements
of the defense.) (citations omitted).
2 Seibold, 959 P.2d at 782 (citing Degler v. State, 741
P.2d 659, 661 (Alaska App. 1987); Schnabel v. State, 663 P.2d
960, 966 (Alaska App. 1983)).
3 See Ha v. State, 892 P.2d 184, 190 (Alaska App. 1995)
(noting that defendant must produce some evidence, viewed in
light most favorable to defendant, that tends to prove each
element of defense before trial judge may allow jury instruction
on that defense).
4 Cf. Hamilton v. State, 59 P.3d 760, 771 (Alaska App.
2002) (If there is some evidence of a proposed defense, a judge
has no discretion to refuse a timely defense request for a jury
instruction on that defense. This is an issue of law which we
resolve de novo based on the entire record.).
5 Bird v. Municipality of Anchorage, 787 P.2d 119, 120-21
(Alaska App. 1990) (interpreting AS 11.81.320).
6 See AS 11.81.320(b) (stating that necessity is an
affirmative defense); AS 11.81.900(b)(2)(A) (stating that an
affirmative defense requires some evidence that places that
defense in issue); see also Lacey v. State, 54 P.3d 304, 306
(Alaska App. 2002); Seibold, 959 P.2d at 782; Degler, 741 P.2d at
661; Schnabel, 663 P.2d at 966.
7 Cleveland v. Municipality of Anchorage, 631 P.2d 1073,
1078 (Alaska 1981) (quoting Nelson v. State, 597 P.2d 977, 979
(Alaska 1979)).
8 Allen v. State, 123 P.3d 1106, 1108 (Alaska App. 2005)
(citing Reeve v. State, 764 P.2d 324, 326 (Alaska App. 1988);
Gerlach v. State, 699 P.2d 358, 362 (Alaska App. 1985); Wells v.
State, 687 P.2d 346, 350 (Alaska App. 1984)).
9 Id.
10 Cleveland, 631 P.2d at 1078 (citing Nelson, 597 P.2d at
979, 980 n.6).
11 Carson v. State, 736 P.2d 356, 359 (Alaska App. 1987);
see also Brown v. State, 698 P.2d 671, 674 (Alaska App. 1985);
Brown v. Anchorage, 680 P.2d 100, 103 (Alaska App. 1984); Paul,
655 P.2d at 775.
12 Toomey v. State, 581 P.2d 1124, 1126 n.10 (Alaska 1978)
(citations omitted).
13 See Ha v. State, 892 P.2d 184, 190 (Alaska App. 1995).
14 See id.
15 See Allen, 123 P.3d at 1108; Gerlach, 699 P.2d at 362;
Wells, 687 P.2d at 350.
16 2 Paul H. Robinson, Criminal Law Defenses 124(d), at
50 (1984 & Supp. 1999).
17 Cleveland v. Municipality of Anchorage, 631 P.2d 1073,
1080 (Alaska 1981).
18 AS 11.81.900(b)(2)(B).
19 Nelson v. State, 597 P.2d 977 (Alaska 1979).
20 Id. at 980 n.6 (citing Lawrence P. Tiffany & Carl A.
Anderson, Legislating the Necessity Defense in Criminal Law, 52
Denv. L.J. 839, 871-72 (1975)).
21 Id. at 980.
22 Cleveland v. Municipality of Anchorage, 631 P.2d 1073
(Alaska 1981).
23 Id. at 1078.
24 Id. at 1081.
25 Id. at 1081 n.17.
26 Seibold v. State, 959 P.2d 780 (Alaska App. 1998).
27 Allen v. State, 123 P.3d 1106 (Alaska App. 2005).
28 In Reeve v. State, 764 P.2d 324, 326 (Alaska App.
1988), the court of appeals acknowledged that the proper division
of responsibility between the court and the jury in evaluating
the proportionality element was a difficult, unresolved issue.
29 Seibold, 959 P.2d at 782 (citing Bird, 787 P.2d at 120-
21 (quoting Cleveland, 631 P.2d at 1078)). This approach is also
consistent with the analysis of professors LaFave and Scott. 1
Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law
5.4(d)(4), at 36 (1986) (It is for the court, not the defendant,
to weigh the relative harmfulness of the [harm avoided and the
harm done] . . . .).
30 Seibold, 959 P.2d at 782 (citing Degler v. State, 741
P.2d 659, 661 (Alaska App. 1987); Schnabel v. State, 663 P.2d
960, 966 (Alaska App. 1983)).
31 Id. at 788 (citing United States v. Schoon, 971 F.2d
193, 196-97 (9th Cir. 1991)).
32 Allen v. State, 123 P.3d 1106 (Alaska App. 2005).
33 Id. at 1108 (citing Seibold, 959 P.2d at 782 (quoting
Bird, 787 P.2d at 120-21)).
34 McGee v. State, 162 P.3d 1251 (Alaska 2007).
35 Id. at 1262.
36 Id. at 1261-62.
37 Lacey v. State, 54 P.3d 304, 308 (Alaska App. 2002).
38 Christie v. State, 580 P.2d 310, 314-15 (Alaska 1978).
39 McGee, 162 P.3d at 1262.
40 Id. at 1262 n.54.
41 Allen, 123 P.3d at 1108-09.
42 Nelson v. State, 597 P.2d 977, 979-80 (Alaska 1979)
(citations omitted).
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