State of Missouri, Respondent, vs. Jason Michael Hurst, Appellant.
APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY
The Honorable Kevin L.
Jason Hurst appeals his judgment of conviction for first-degree tampering and resisting arrest. The conviction stemmed from an incident in which he stole a police vehicle and drove it in a reckless manner, endangering many persons for more than 10 miles in a high-speed vehicle chase.
Background
In November 2017, Hurst was evicted from the trailer park where he and his wife lived. On the day of the eviction, officers with the Newton County Sheriff’s Department arrived to find Hurst and his wife present at the trailer park. It was later determined that Hurst was under the influence of multiple controlled substances at the time. The officers repeatedly informed Hurst he needed to leave and warned he would be arrested and charged with trespassing if he did not, but he refused. Accordingly, the officers informed Hurst he was being placed under arrest. In response, Hurst held onto the bed of his pickup truck and refused to let go. An altercation ensued when police attempted to subdue Hurst, during which the officers both maced and tased him. Hurst was eventually handcuffed and placed in the back seat of a police vehicle.
While officers attempted to remove Hurst’s wife from the backseat of а relative’s nearby vehicle, Hurst, while handcuffed, maneuvered himself to the front seat of the police vehicle and drove away. An extensive vehicle chase ensued, during which Hurst drove between 50 and 100 miles per hour, recklessly veering “all over the road.” After fleeing from the officers’ immediate vicinity, Hurst stopped the vehicle and radioed for help. Rather than remaining in place and awaiting a response, he decided to drive back to the trailer park to see if his wife was safe. In doing so, Hurst fled back past the chasing police, nearly colliding with another police cruiser. After confirming his wife was still in the relative’s vehicle, Hurst then decided to drive into downtown Neosho, purportedly to capture any further police conduct on one of the store camеras on the main boulevard. Throughout the chase, Hurst ran stop signs, almost struck two pursuing police vehicles, hit a parked vehicle, and ran an oncoming motorist off the road. The chase came to an end when, after Hurst entered Neosho, police successfully performed a Precision Immobilization Technique (“PIT“) maneuver, causing Hurst to overturn the vehicle.
The State charged Hurst with first-degree tampering and resisting arrest. At trial, Hurst testified that the police initiated the physical altercation without provocation and that he had been beaten, tased, and maced to the verge of unconsciousness.1 He further testified that, during the altercation, he heard one of the officers tell his wife, “don’t worry, we’re coming for you next.” Hurst claimed he believed the officers were gоing to kill him, and he “knew [he] had to distract [the officers] at the very least so that [his wife] would be okay.” Based on this testimony, Hurst proffered jury instructions for the defense of necessity pursuant to
The jury found Hurst guilty on both counts, and the court sentenced him as a persistent misdemeanor offender to concurrent terms of five years and four years in prison. Hurst appealed his convictions, arguing the circuit court erred in refusing to give his proffered necessity instructions. After an opinion by the court of appeals, this Court granted transfer.
Standard of Review
This Court reviews de novo the circuit court’s decision whether to give a requested jury instruction. State v. Straughter, 643 S.W.3d 317, 321 (Mo. banc 2022). The evidence is viewed in the light most favorable to the submission of the instruction. Id. This Court takes the defendant’s testimony regarding the facts and circumstances of the defense to be true and considers whether those facts are legally sufficient to support the instruction. State v. Zuidema, 552 S.W.3d 186, 187 n.1 (Mo. App. 2018).
Analysis
The issue before this Court is whether the circuit court erred in refusing to give Hurst’s proffered jury instructions on the defense of necessity. This Court has never before addressed the propriety of giving a necessity instruction. Accordingly, it is beneficial to begin with a brief background about necessity.
Necessity is a defense that was first recognized at common law.3 City of St. Louis v. Klocker, 637 S.W.2d 174, 175 (Mo. App. 1982). It “is often expressed in terms of choice of evils: (w)hen the pressure of circumstances presents one with a choice of evils, the law prefers that he avoid the greater evil by bringing about the lesser evil.” Id. (alteration in original) (internal quotation omitted). “The defense is based on social policy which recognizes that individuals should at times be free from legal restraints in order to avoid certain imminent harms.” State v. O’Brien, 784 S.W.2d 187, 189 (Mo. App. 1989). While necessity was traditionally limited to situations involving harm from physical forces of nature, that requirement has been relaxed over time to allow the defense to also apply to harms caused by people. Id.
Since 1977, necessity has been codified in
Unless inconsistent with other provisions of this chapter defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute any offense other than a class A felony or murder is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability of avoiding the injury outweighs the desirability of avoiding the injury sought to be prevented by the statute defining the offense charged.
This statute establishes four elements a defendant must prove to raise a successful necessity defense; otherwise criminal conduct
Regarding the fourth element of
In general, a defendant is entitled to a jury instruction when “substantial evidence and the reasonable inferences drawn therefrom support the theory propounded in the requested instruction.” Straughter, 643 S.W.3d at 321. “In making this determination, a court must view the evidence in a light most favorable to the defendant[.]” State v. Barnett, 577 S.W.3d 124, 126 (Mo. banc 2019) (internal quotation omitted). Substantial evidence exists if “there is evidence putting a mattеr in issue.” State v. Bruner, 541 S.W.3d 529, 535 (Mo. banc 2018) (internal quotations omitted). Such evidence may come from the defendant’s testimony alone. Id. “If the evidence tends to establish the defendant’s theory, or supports differing conclusions, the defendant is entitled to an instruction on it.” Westfall, 75 S.W.3d at 280.
Here, the circuit court determined there was not substantial evidence to support a necessity instruction for either of the charges against Hurst. Upon review, the circuit court did not err because the evidence was insufficient for Hurst to prove all four elements in
First, Hurst could not show his actions were “necessary as an emergency measure” under the circumstances. In interpreting this requirement, courts must give effect to legislative intent as reflected in the plain language of the statute. State ex rel. Burns v. Whittington, 219 S.W.3d 224, 225 (Mo. banc 2007). “In the absence of statutory definitions, the plain and ordinary mеaning of a term may be derived from a dictionary, and by considering the context of the entire statute in which it appears.” Id. (internal citation omitted). Webster’s Third New International Dictionary defines “necessary” as “unavoidable” and “[something] that must be done.” Webster’s Third New International
Assuming, arguendo, Hurst had a reasonable fear of imminent harm to himself or his wife, he had several significantly more reasonable choices to prevent that harm. For example, Hurst could have simply locked himself inside the police vehicle and radioed for help from another nearby law enforcement agency. If his goal was merely to create a diversion, Hurst could have activated the vehicle’s sirens or even driven a short distance to give his wife, who was situated in a nearby vehicle, time to flee. At the very minimum, Hurst could have exited the vehicle and fled on foot оnce he escaped the immediate vicinity of police instead of continuing to operate the vehicle while handcuffed and under the influence of controlled substances. Instead of pursuing any of these safer alternatives, Hurst engaged in a reckless, high-speed chase, which required police to perform a PIT maneuver before it came to an end. Hurst could not show this extremely dangerous behavior was necessary to abate any imminent harm he or his wife allegedly faced.
Second, to be entitled to a necessity instruction,
Finally, Hurst could not show his “situation occasioned or developed through no fault” of his own. This entire incident began because Hurst and his wife were trespassing at the trailer park after being evicted. Hurst ignored multiple warnings from police that he would be arrested for trespassing if he did not leave the premises. When officers attempted to place Hurst under arrest, he did not comply, instead
Conclusion
Because there was not substantial evidence to show Hurst was entitled to jury instructions on the defense of necessity, the circuit court’s judgment is affirmed.5
Mary R. Russell, Judge
Wilson, C.J., Breckenridge, Draper, Fischer, and Ransom, JJ., concur; Powell, J., concurs in separate opinion filed.
CONCURRING OPINION
I concur with the well-written and reasoned principal opinion. The circuit court did not err in refusing to submit Jason Hurst’s necessity defense instruction as the principal opinion properly concludes. I write separately, however, to emphasize the unique nature of the defense of necessity and to underscore the narrow limits of its applicability. These noteworthy characteristics are laid bare in the distinctions between the defense of necessity and other more common justification defenses such as self-defense, and in the court’s statutorily pronounced gatekeeping role in applying the necessity defense.
Although unique and rarely applied, “[t]he defense of necessity has its roots deep in the common law” as a type of justification defense. State v. O’Brien, 784 S.W.2d 187, 189 (Mo. App. 1989). It “is often expressed in terms of choice of evils: [w]hen the pressure of circumstances presents one with a choice of evils, the law prefers that [she] avoid the greater evil by bringing about the lesser evil.” City of St. Louis v. Klocker, 637 S.W.2d 174, 175 (Mo. App. 1982) (first alteration in original) (quoting LaFave and Scott, Criminal Law, § 50 at 382). “Thus, conduct which would otherwise be a crime is, under unusual and imminent circumstances, the lesser of two evils and no offense.” O’Brien, 784 S.W.2d at 189.
In 1977, the defense was codified as part of this state’s original criminal code. With no substantial changes since its codification,
- Unless inconsistent with other provisions of this chapter defining justifiable usе of physical force, or with some other provision of law, conduct which would otherwise constitute any offense other than a class A felony or murder is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability of avoiding the injury outweighs the desirability of avoiding the injury sought to be prevented by the statute defining the offense charged.
- The necessity and justifiability of conduct under subsection 1 of this section may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. Whenever evidence relating to the defense of justification under this section is offered, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a justification.
- The defense of justification under this section is an affirmative defense.
defense, and this Court should simply apply and adhere to the language of the statute as the principal opinion cites and directs.
This Court, however, has never had the occasion to interpret the language of
By contrast, the availability of the defense of necessity has been “extremely limited.” Stewart, 186 S.W.3d at 834. Traditionally, the defense was reserved for situations wherein the harm to be avoided was caused by physical forces of nature resulting in “absolute and uncontrollable necessity” for the defendant to commit a crime. O’Brien, 784 S.W.2d at 189. Even after the application of the defense was relaxed to encompass harms caused by mortal man, its use remained limited. Id. The language of
This case demonstrates at least one pitfall in applying self-defense concepts and caselaw to the defense of necessity. In this case, Hurst testified he subjectively believed he had to commit the charged offenses to avoid death or injury to him and his wife. To establish self-defense, a defendant “must have believed that such act was necessary, and he must have had reasonable grounds for such belief.” State v. Singleton, 77 S.W.2d 80, 83 (Mo. 1934). This long-held understanding of self-defense has been codified in
The evidence relevant to the application of
extraordinary circumstance in which an emergency situation may justify criminal behavior. Stewart, 186 S.W.3d at 834.
Moreover, unlike the self-defense statute,
The gatekeeping language in
In Reeve v. State, the Alaska court of appeals noted “[a]n objectivе determination must be made” regarding whether “the harm caused” was “disproportionate to the harm avoided” and pondered whether this question was for the court or the jury. 764 P.2d 324, 325 (Alaska Ct. App. 1988). In its discussion, the court cited Nelson v. State, 597 P.2d 977, 980 n.6 (Alaska 1979), which noted “[a]n objective determination” must be made regarding this “value judgment” and “[t]he majority of jurisdictions appear to hold that this determination must be made, at least initially, by the court.” Following Reeve, the Alaska court of appeals suggested it is the court alone that determines whether the defendant’s value judgment was correct. Seibold v. State, 959 P.2d 780, 782 (Alaska Ct. App. 1998). The Alaska court of appeals later went on to find “the proportionality of the harm done compared to the harm avoided [] is a question of law to be decided by the judge.” Allen v. State, 123 P.3d 1106, 1108 (Alaska Ct. App. 2005).9
Similarly, State v. Tate held “[t]he underlying value judgment (assuming the required elements do have factual underpinning) as to whether the individual’s need outweighs society’s interest in enforcing the criminal law must be made by the judge after hearing the proofs.” 477 A.2d 462, 469 (N.J. Super. Ct. Law Div. 1984). The Tate court explained
“justification by necessity is an expression of public policy. What that public
policy means in an individual case is not left to the jurors but rather is decided by the public official presiding – the judge .… The judge is believed to be in a better position to determine what is public policy in each case.”
Id. The court in Tate gave numerous examples from the common law in support of this conclusion. Id. at 465-66, 69. For example, it was the court in State v. Burton, 103 A. 962, 962-64 (R.I. 1918), determining as matter of law whether a military dispatch driver was justified in speeding to deliver an urgent message. Similarly, in United States v. Ashton, 24 F. Cas. 873, 874 (C.C.D. Mass. 1834), the court articulated the circumstances under which the defendants could be justified in committing mutiny. In United States v. Holmes, 26 F. Cas. 360, 368-69 (C.C.E.D. Pa. 1842), the court held the lower court did not err in stating as a matter of law that a ship’s captain could not be justified identifying passengers to throw overboard in an effort to save others.
The gatekeeping language in
Moreover, courts in other jurisdictions interpreting similar gatekeeping language in their respective necessity statutes have found such language as reflecting the court’s role in making the requisite value judgment. New York’s necessity statute,
defense of necessity in that case. 477 A.2d at 469. In holding the value judgment determination is to be made by the court, Tate rested not only on common law cases but on
Colorado’s necessity statute also provides similar gatekeeping language, and Colorado courts have recognized the
advisability of the criminal statute defining the offense charged. The Colorado court of appeals has noted, “in recognition of the broad scope of the defense’s applicability and of its potential for misuse and abuse,” Colorado’s necessity statute provides “different and more exacting standards as prerequisites for presentation to a jury ... than those required for other justification defenses.” People v. Brandyberry, 812 P.2d 674, 677 (Colo. App. 1990). The court noted this follows from traditional limitations on the applicability of the defense at common law, where the “necessity defense is not available as an instrument of juror nullification of unpopular laws or for juror condonation of crimes committed against persons who espouse or adhere to unorthodox or unpopular ideas or causes that pose no threat of immediate injury.” Id.
The gatekeeping language in
and circumstances creating the alleged dangers Hurst and his wife faced in being arrested, if true, simply did not outweigh the dangers to Hurst and others resulting frоm stealing the patrol vehicle and engaging in the high-speed chase through city streets. For these reasons, the circuit court did not err in refusing to give Hurst’s proffered necessity instruction. C.f. Karr, 968 S.W.2d at 715-16 (holding the circuit court did not err in refusing to give a necessity instruction when insufficient evidence existed to support the defense). As the principal opinion properly reaches this conclusion, I concur.
W. Brent Powell, Judge