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Commonwealth v. Magadini

Supreme Judicial Court of Massachusetts, Berkshire

June 23, 2016


          Heard: December 7, 2015.

         The cases were tried before Fredric D. Rutberg, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          Joseph N. Schneiderman for the defendant.

          Jessie J. Rossman (Matthew Segal with her) for American Civil Liberties Union of Massachusetts & others.

          John Bosse, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

          HINES, J.

         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.[1] 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. We granted the defendant's application for direct appellate review.

         On appeal, the defendant asserts the following errors at trial: (1) denial of his request for an instruction on the defense of necessity; (2) limitation of his cross-examination of witnesses; (3) misstatements made by the prosecutor during closing argument; and (4) denial of his motion for a required finding of not guilty on the charge stemming from the April 8 incident.[2] We conclude that 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, [3] and that the error was prejudicial. Accordingly, we vacate the first six convictions and remand for a new trial.[4] The defendant did not, however, meet his burden to demonstrate the foundational requirements for a necessity defense instruction as to the seventh conviction, stemming from the June 10 trespass. Therefore, we affirm that conviction as well as the denial of his motion for a required finding of not guilty for the April 8 incident. We address the defendant's remaining claims, which relate to issues that may arise at retrial.


         We recite the facts the jury could have found, reserving certain details for our discussion of the specific issues raised. In 2014, the defendant was charged with trespassing on three properties in Great Barrington --Barrington House, Castle Street, and SoCo Creamery. Barrington House is a mixed-use building with several different restaurants, an enclosed atrium, and apartments above the businesses. Castle Street is a three-story building with retail establishments, offices, and apartments. SoCo Creamery is an ice cream shop. The defendant was barred from each property by no trespass orders. The owner of the Castle Street building had the defendant served with a no trespass order in July, 2008; the manager of Barrington House had the defendant served in June, 2012; and the owner of SoCo Creamery had the defendant served in January, 2014. All of the no trespass orders were in effect at the time the charges were brought against the defendant.

         Four charges related to the defendant's presence at Barrington House. On February 21, March 4, and March 6, police found the defendant lying in a hallway by a heater during the evening, nighttime, or early morning hours of days described as "cold" or "very cold." At approximately noon on April 8, a day described as "cool, " police responded to a report and observed the defendant walking through a common area in the Barrington House toward the front door. Two charges stemmed from the defendant's presence at Castle Street, where police had found the defendant lying on the floor in the lobby next to a heater during periods of cold weather. The first incident occurred between 8 A.M. and 10 A.M. on February 20, 2014; the defendant was awake. The second incident occurred at approximately 6:30 A.M. on March 28; the defendant was sleeping. The seventh charge was based on conduct that occurred on June 10, 2014, when the defendant entered SoCo Creamery, ignored requests by the clerk to leave the premises, and used the bathroom for ten to fifteen minutes. The defendant did not dispute that he violated all of the trespass orders, focusing his case instead on the necessity defense in cross-examination and his direct testimony.

         The defendant, a lifelong resident of Great Barrington, became homeless after he moved out of his parents' home in 2004. His purpose in moving out was to "reorganize." He planned to return to his parents' home, but he was unable to do so because the "landlord, " who "wanted [the defendant] out" refused to allow it. After leaving his parents' home, he generally lived outside year-round, but during the winter months, he tried to "find a more sheltered area" from the "ice and a snow storm." During the cold weather, the defendant used blankets, gloves, and scarves to try to stay warm, but when the weather was "so severe . . . that [it was] not possible, " he would seek shelter in private buildings.

         For a two- to three-month period in the winter of 2007, the defendant stayed at the local homeless shelter, called the Construct.[5] Three days before he began staying there, he had gone to that shelter at approximately 3 A.M. following a blizzard. He was refused entry, and he stayed on the porch for about an hour before being asked to leave. A few days later, he spoke with someone from the shelter, and he was allowed to stay for a few months before he was told to leave because of "certain issues." Therefore, the defendant had no other place to stay in Great Barrington.[6] For a period of "three to four years, " he lived outdoors, first at Stanley Park and later at the outdoor gazebo behind the Great Barrington Town Hall, where he had been living at the time of the trespass incidents. He considered the gazebo his home and registered to vote from that address.[7]

         At the time of the trial, the defendant was a sixty-seven year old unemployed college graduate. He had worked in the past, but he was not employed at the time he was charged with the trespassing offenses. The defendant had attempted to obtain an apartment almost "every week for about seven years." Although he had money to pay for an apartment depending on the day, he explained that it was very difficult to find an apartment in Great Barrington because of the upfront fees. Accordingly, he was unable to obtain an apartment. He was aware of a homeless shelter in Pittsfield, but he did not consider renting lodging or staying at a homeless shelter outside of Great Barrington. He testified, "I was born here and I intend to stay here." He does not have a driver's license.


         1. Necessity defense.

         The defendant claims that the judge erroneously denied his request for a jury instruction on the defense of necessity and that he improperly excluded evidence relevant to the defense. 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." Commonwealth v. Kendall, 451 Mass. 10, 13 (2008), quoting Commonwealth v. Hood, 389 Mass. 581, 590 (1983). As such, the necessity defense may excuse unlawful conduct "where the value protected by the law is, as a matter of public policy, eclipsed by a superseding value . . . ." Kendall, supra, quoting Hood, supra.

         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, " Kendall, 451 Mass. at 14: "(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." Id. at 13-14, quoting Hood, 389 Mass. at 591. If the defendant satisfies these foundational conditions, "the burden is on the Commonwealth to prove beyond a reasonable doubt the absence of necessity." Commonwealth v. Iglesia, 403 Mass. 132, 134 (1988).

         The judge focused only on the third element in his denial of the defendant's request for a necessity defense instruction at the close of all the evidence. The judge ruled that the defendant had other available legal alternatives, "motels, and hotels, the police station, " and that the evidence was lacking on the defendant's inability to "rent a hotel room on these isolated evenings." We conclude that the judge erred in ruling that the defendant failed to meet his burden to provide some evidence that showed the lack of an available legal alternative to the trespasses.

         a. Clear and ...

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