State v. Dansinger

that she executed on June new will

1984. property,

A contract devise offer, contract, requires an other

with Fah

acceptance and consideration. See Strine, 420 Pa.

ringеr v. Estate of affidavit plaintiffs nothing more than deposition establish Chilling- promise made Mrs.

a naked genuine is no issue of fact There

worth. offer to

concerning the existence of an plaintiffs a trust benefit

establish nurs pro quo for his continued quid

as a

ing his forebearance services compliance

insisting on tax withhold Moreover, no

ing arrangements. there is

genuine of fact the exist issue acceptance consideration.

ence of plaintiff suggests affidavit that ‍‌​‌‌​​​‌​‌​​​‌‌​‌‌​​‌​​​‌‌​‌​‌​‌‌‌‌​‌‌‌‌​‌‌‌​‌‌​‍in his Chillingworth’s promise motivat

Mrs. in her

ed a desire have him continue

employ, suggestion there is no exchange

such an basis

bargain. summary judgment

Since we affirm grounds

on the oral contract exist, unnecessary for us to ad-

dress the other issues.1 entry is:

Judgment affirmed. concurring.

All

STATE of Maine DANSINGER,

Lawrence et al. Maine.

Supreme Judicial Court of Sept. 5,

Argued

Decided Feb. note, however, pleaded defense as an affirmative court had not been 1. We do introduced, required of the M.R.Civ.P. defendants sponte, the is- as was sua should not 8(c). illegality illegality of the contract sue Christopher Almy, Atty., Grego-

R. Dist. ry Campbell (orally), Atty., Asst. Dist. Ban- gor, plaintiff. for Orono, James (orally), R. Crotteau defendant. NICHOLS, WATHEN,

Before SCOLNIK, GLASSMAN and JJ. NICHOLS, Justice. Dansinger, Lawrence Harlan, Roosen, Marguerite

Karen David Demere, Millard, Mary Peter Lois Falcone, Anderson and Francine judgments Superior in Court Penob- County, scot finding guilty them оf crimi- trespass, nal 17-A M.R.S.A. 402 The Defendants contend (1) sug- Court committed in reversible error gesting that the State move for an in order limine exclude certain evidence De- trial; jury ‍‌​‌‌​​​‌​‌​​​‌‌​‌‌​​‌​​​‌‌​‌​‌​‌‌‌‌​‌‌‌‌​‌‌‌​‌‌​‍fendants wished to adduce at the (2) ruling on in the motion a manner erro- law; (3) instructing neous a matter of jury in a manner that was erroneous (4) incomplete; imposing sentences improper that were because the justicе stated that these sentences were based in on fact that Defend- ants claimed their constitutional to a jury trial. reject

We the. Defendants’ assertions pertaining error li- both the motion in mine and to the instructions af- judgment firm conviction af- Court. we cannot imposed. firm the va- We must cate the sentences and remand re-sen- tencing. August 5, 1984,

On the Defendants were trespass upon arrested for criminal Maine property Bangor Air National Guard Airport International in of 17-A violation (1983), a Class crime.1 Trespass, 1. 17-A M.R.S.A. § 402 Criminal states B. He is enters structure that locked pertinent part: barred; or if, person guilty place 1. A of criminal C. He enters from which he knowing privileged lawfully posted that he licensed be excluded and which is in a to do so: prescribed by manner law or in a manner likely reasonably to come to the attention of trial. taking part disruptive evidence advance had The Defendants by Rule expressly Inter- peace demonstration at the Its use is 12(c) Proce Airport the nuclear Maine Rules of Criminal national “Bangor arms race as members of Gendron v. Pawtuck generally dure. See The Defendants were Company, Peace Initiative.” et Mutual Insurance following day in District arraigned (Me.1979). The Defendants raise guilty (Bangor) pleaded and each potential appeal pertaining issues charges. Upon by a motion to the the motion in limine. abuses of the District Court consolidated is no point is that there the fundamental cases of these Defendants trial. unless the motion was abuse of discretion relevant, evi to exclude admissible used At thе call of the docket on November Therefore, inquiry our focuses dence. suggested sought to upon the nature of the evidence serve and file a prosecutor that the State be adduced. in limine in order to review certain motion anticipated Defend- the court evidence in limine chal- In this case the motion present to at trial. At ants would seek lenged evidence that the Defendants limine, De- hearing on the motion in sought proffer to their defense expressed desire to offer fendants statute, upon “competing harms” based they moral- evidence at trial believed would 103(1)2 upon princi- 17-A M.R.S.A. § legally justify their actions. Their ly and ples of international law. trespass defense to the criminal was based that the “com- The Defendants contend statute, (a) “сompeting harms” 17-A justification is to peting harms” available (b) (1983), principles of M.R.S.A. 103 intentionally them their actions of because hearing international At the on the law. committing trespass were neces- a criminal motion in limine the Court deemed physical to sary to imminent harm avoid the Defendants much of the evidence that They urge that the and others. themselves present “competing on the wished Air National at the Maine aircraft stationed justification harms” inadmissible at be refuel capacity Guard base have presented. trial as irrelevant to the issues arms, carrying nuclear that are aircraft pretrial A later motion to overrule the or- States nuclear integral part of the United by and de- der was made the Defendants the nuclear This force and arms force. by nied the court. of conditions build-up constitute a set arms January 23 and juryA trial was had on argue presents the the Defendants Each of the Defendants was contemplated physical harm imminent each guilty found of criminal the statute. fined $250.00. mis argument is The Defendants’ major contention of the Defend plain reasons. guided for several the motion in limine. The ants concerns itself, together language of the statute procedural motion limine is an effective the Criminal Law the comment of upon a trial court to rule device that allows Commission, make clear that prejudicial Revision admissibility potentially to be the actor believes 1. Conduct which or otherwise or which is fenced intruders designed physical harm to necessary imminent in a manner to exclude to avoid enclоsed intruders; justifiable if the desira- or another is himself any place defiance of avoiding He remains in urgency D. harm out- bility leave, personally order to which a lawful ordinary weigh, according standards of rea- owner or other to him the communicated sonablness, sought prevented the harm person, .... charged. defining the crime the statute urgency desirability of such conduct B, C, 1, paragraрh 2. Violation of subsection pertaining may upon considerations not rest D is a Class E crime. ... advisability of such stat- morality and ute. 103(1) "Competing harms" states: statute is not available the Defendants. Warshow, 138 Vt. states, That clearly comment A.2d 1000 The second sentence of the first subsec- Finally, this inapplicable statute is be designed tion is this section cause it envisions a situation where a de being justifying a basis for acts justifiable fendant’s acts are because those civil disobedience. directly acts work to lessen the threat posed by opposing harm. the case Second, importantly, and most “com before us there is no reason to believe that peting justification inapplicable harms” the Defendants’ acts would lessen the because threat cited is not of the immi Moreоver, threat of harm of nuclear war. nence required by the statute. The De proof Defendants offered no of such a argue fendants nuclear war is “imminent” proposition. See Commonwealth Ave possible that it occur rill, 12 Mass.App.Ct. 260, 261-62, 423 anytime. However, improper 6, 7, (1981), N.E.2d stated, ‍‌​‌‌​​​‌​‌​​​‌‌​‌‌​​‌​​​‌‌​‌​‌​‌‌‌‌​‌‌‌‌​‌‌‌​‌‌​‍where the court construction of the statutory term. Stat An justification essential element of the ordinary meaning utes arе to be their defense, e.g., duress ... reading from a is that the actor language of the that reasonably Legislature anticipated a direct Vainio, causal used. State v. 466 relationship act 471, between his and the (Me.1983), A.2d denied, 474 467 cert. avoidance of harm .... For this reason 1204, 2385, U.S. 104 S.Ct. 81 L.Ed.2d 344 necessity generally defense of arises (1984). ordinary meaning for “immi in emergency situations, when the is, “appearing nent” as if happen; about to threatened disaster is immediate. likely happen delay; impend without ” ing— Unabridged Webster’s Dictio (emphasis added). See also Common- 2d, 1979, nary p. 909. Hood, 196; wealth v. 452 N.E.2d at LaFave Scott, & Law 50 at Criminal Further, in a case where previ- we were (1972). ously upon interpret called this same enough statute declared that we it is not sought At trial the Defendants subjectively that the individual believes present alleged illegality evidence of physical that imminent threat of harm weaponry preparation nuclear and the exists, requisite but “... it is further that principles nuclear war under of internation it shown as a physical that such treaties, expressed al law as internation fact is imminently harm threatened.” State v. al conventions and the United Nations Kee, 384, (Me.1979) 398 (emphasis 386 Vаlidly Charter. ratified treaties do indeed added). jurisdictions In “competing with a supreme become the law of the land. U.S. Const, harms” VI, statute similar to 2; Holland, our own art. cl. Missouri v. 416, courts overwhelmingly rejected 382, 252 U.S. 40 L.Ed. 641 S.Ct. 64 (1920); 677, defense similar circumstances owing Paquete Habana, 175 U.S. inability 290, seeking (1900). defendants in- 20 S.Ct. 44 320 From L.Ed. protests proposition voke this defense for their leap nuclear the Defendants prove the “imminent” nature of the conclusion their efforts interfere Best, F.Supp. threat. 476 country’s capability United States with this nuclear (D.Colo.1979); 34 Marley, 54 Ha- justi Maine Air National Guard Base are 450, (1973); 102(1) 509 1095 waii P.2d fied under Common- section of 17-A M.R.S.A. (1983)3 Hood, 581, wealth v. 389 Mass. 452 N.E.2d because they making an ef (1983); 188 Brugmann, allegedly Commonwealth v. fort to 373, Mass.App.Ct. illegal 13 433 governmental N.E.2d 457 action. 102(1) provides: public the assistance to be rendered servants duties; conduct, Any performance gov- in the of their physical laws other than the use of erning legal process specifically force under circumstances dealt the execution or of chapter, justi- duty; with military judgments in other sections of this orders law, including fiable when it is authorized public courts or other tribunals. defining public laws functions of servants or

689 owner, in fact a license or application principles inter- when such legally privilege law is error. come from valid national authority, harms” “competing as the it is true international treaties While statute.5 land, supreme of the it is become that, is a equally true “... it of our merit This of error is assertion without application princi its own law for the only argua it is several reasons. ples, are and these cоncerned with interna justice’s instructions were ble rights tional and duties and not with do of “li At the first mention misleading. rights mestic duties.” Skiriotes v. justice’s privilege” cense or words 73, 924, 926, Florida, 69, 61 313 U.S. S.Ct. privilege license or must imply that such (1940). Particularly ‍‌​‌‌​​​‌​‌​​​‌‌​‌‌​​‌​​​‌‌​‌​‌​‌‌‌‌​‌‌‌‌​‌‌‌​‌‌​‍1193 85 L.Ed. However, in sum come from the owner. criminal offenses violations international justice marizing instructions occur are law do not defendants owner, so omitted reference aсting state. nationals Wilson v. no error point. clarified the There was 1409, 1 Girard, 524, L.Ed. 354 U.S. 77 S.Ct. charge must because the correctness 1544 see also Banco National de reading entirety, in its be determined it 398, Sabbatino, 376 U.S. 84 S.Ct. Cuba v. by extracting certain instruc isolated 923, 11 (1964); Dreyfus 804 L.Ed.2d v. Von Ryder, tions: Finch, (2d Cir.1976), 534 F.2d cert. 1975). denied, 429 U.S. 97 S.Ct. Also, important to note that L.Ed.2d in- privilege necessarily issue of license sum, “compet- neither the defense of mind of the volves the state ing principles harms” nor of international an excuse provide and them with would to are available these Defendants. The they licensed or only they if believed no error Superior by Court committed en- trespass property. the privileged to onto tertaining granting a motion limine a However, they clearly did not have such to exclude evidence to suсh a de- relevant belief, by words. as is their own evidenced Kee, v. A.2d at fense. State 398 the the two of One week before Mary Lois The Defendants contend that the David Demere Anderson, Police Sta- Superior Court committed several reversi went Chief Captain Stockford and jury ble errors the instructions. tion told Defendants, however, of they and other members object to Woodhead that to intended jury “Bangor these the to its the Peace Initiative” before retired consider trespass” upon Na- verdict, required 30(b). the by as M.R.Crim.P. commit a “criminal Also, Therefore, property. Defendants instructions are re tional Guard jury Peter Millard admitted error Karen Harlan and only on for obvious viewed “au- they they knew were not affecting rights. M.R.Crim.P. at trial that substantial Winchenbach, property.6 onto 52(b); v. thоrized” to enter 501 A.2d State Therefore, jury 1282, (Me.1985). instruction 1286 error that an obvious does constitute the Defendants assert that rights the Defend- affected of substantial 402(1)4 the instruction 17-A M.R.S.A. § ants. Trespass” They inaccurate. “Criminal Defendants contention jury last argue that court instructed sen- concerns the merits discussion privilege onto that that a license imposed by legally from tences property only come reject us the Defend- 4. See footnote These also lead facts 1 for the text of the statute. "Igno- 36§ based on ants defense applica- That section is not rance or mistake." 445, Thibeault, 5. State v. 402 A.2d clearly indicated ble to Defendants who these privilege 1979) implies that license a valid they the time of their arrest that and at before anyone possession, or in lawful сan come they enter onto were not authorized to believed give permission enter. property. 690

the statements of the court eight relative possible there- There are purposes that can to. The Defendants claim the court com- through be satisfied imposition of a mitted error imposing a more severe criminal penalty.10 penalty upon them they chose tо In this case the Court enu right exercise their to a by jury. trial Af- purposes merated none of the punish stating ter that the offense did not call for ment were considered in impos it incarceration, kind of the court stated ing fact, these only fines. state a fine attempt recoup order to ments made the court at time cost court trial.7 Our sentencing were constitutionally impermis role, аppellate however, is limited to a re- sible as rendering the basis for a sentence. State v. view of the legality. sentence’s Sutherburg, 1294, 402 A.2d 1296 Palmer, (Me.1983). 468 A.2d 985 To con- (Me.1979). legality sider its we must consider the con- conclude, then, We these sentences statutory stitutional limitations im- were an punishment unconstitutional posed on judge a trial sentencing. legal right Defendants’ exercise Clearly, the Defendаnts are correct a by jury. trial in their assertion that it is a violation of entry is: process due punish of law to an individual Judgments the exercise of his conviction affirmed. constitutional Farnham, to a trial. Judgment of sentences vacated. 887, (Me.1984); Bordenkircher Remanded for consistent with Hayes, 434 U.S. 98 S.Ct. opinion herein. North Carolina v. L.Ed.2d 604 Pearce, 395 U.S. 89 S.Ct. SCOLNIK, JJ., GLASSMAN and L.Ed.2d 656 The statute that concurring. provides Defendants violated the of WATHEN, Justice, dissenting fense is Class crime8 that authorizes imprisonment up respectfully to months and a fine I must dissent from that up ($500.00).9 five hundred dollars opinion dealing of the Court 7. The through Court stated to the Defendants: 1. To crime the deterrent sentences, effect of of however, rehabilitation con- Almy your points It is as Mr. out— persons, victed and the restraint of convicted your well, right exercise оf it isn’t even a — persons required pub- the interest of in protest. Your violation of the law has been safety; lic attempt you to secure a forum from which encourage 2. To restitution in all cases in express opinion you could ... have cost compensated taxpayers which the victim can be quite money your bit a of in purposes appropri- referring other can be сhoice of am of forum ... I also to the served; forum, 12, ately expense jurors. of this fineA my opinion experiences clearly in in order and 3. To minimize correctional somewhat although pay criminality; reflective ‍‌​‌‌​​​‌​‌​​​‌‌​‌‌​​‌​​​‌‌​‌​‌​‌‌‌‌​‌‌‌‌​‌‌‌​‌‌​‍promote not—won’t for the which serve further of— you give entire cost The fact warning ... is that To 4. fair of the of nature statement, chosen to violate the law to makе a imposed sentences that be on the convic- that, personally judge crime; as I a feel if a tion of a going violation of to be used to inequalities 5. To eliminate in sentences that statement, perhaps a make expected then can we be legitimate criminological are unrelated to attempt recoup at least the goals; your speak. cоsts to us of choice of vehicles to encourage among To 6. differentiation of- just a fenders with view individualization 402(2) (1983). 8. 17-A M.R.S.A. senences; of promote development To of correc- 1301(1)(C) (1983); 17-A M.R. programs cooperation tional elicit the which (1983 Supp.1986). S.A. § 1252 & persons; of convicted permit 8. To do dimin- sentences which (1-8) (1976 10. 17-A M.R.S.A. § 1151 Supp. & offenses, gravity ish reference to 1985), which states: factor, others, among age of the Purposes § 1151 victim. also, Samson, general purposes provisions The of the of this See (Me.1978). State v. are: Following im- fined a trial de illegality with the O.U.I. and $150. Court, a in the posed. I do not find the statement of novo before again once convicted and sentencing justice in this case demon- defendant was sentencing justice explicit- jurisdictional infirmity a as a mat- fined $750. strаtes thus, justi- ly ter I not take stated that defendant was without of law and would case. After calculat- cognizance appeal. trying on direct fication for claim providing jury the court ing the cost of Initially, sen- it should be noted that the stated: case a fine of tence each consisted of him I am going I am to fine $750. And Criminal is a Class crime $250. compromising jury, on the full cost of the and the of Maine аuthorize a sentence laws pay he should I feel that $750 imprisonment period for a not in excess to the State for some reimbursement (17-A 1252(2)(E)), of 6 months M.R.S.A. § put to in this case. expense it has been (17-A not in excess of and a fine $500 facts had no 1301(1)(C)). Although at 1296. On those we consider- Id. M.R.S.A. § difficulty concluding from the record of the sen- severity ation of the relative justice that, that “the comments controlling, is not it is сlear tence being face, case, clearly that the defendant was fit reveal their the sentences exercising right trial penalized for his comfortably within the scale of the lower jury.” Sutherburg, In there could be range gravity. Id. disagreement as to the exist- no rational general principle that underlies our infirmity in the sentence and in ence of the analysis illegality claims of has sentence the sentence fact the State conceded that clearly stated as follows: present unconstitutional. Id. illegali- principle though This is that even record it is not at all clear from the case ty may qualify in a sentence for review ex- penalized that the defendants appeal, ‘jurisdictional’ in a direct as a ercising by jury. to trial infirmity, yet, in a review disagreement as recоrd admits of rational strictly direct is confined appropriately defendants were to whether brought court, record before the committing involving penalized for a crime illegality claimed a sentence be City or were expense to the cognizance ap- ultimate on direct demanding a trial penalized for unjustly peal only alleged sentencing where alleged infirmi- jury. Direсt review appears infirmity plainly so on the face fact that the ty precluded should be of the record that there can no ration- af- appear plainly infirmity does disagreement al as to its existence. I affirm firmatively on the record. would Blanchard, judgment. the entire 1979). present appears In the case the Court analy- the usual method of

have reversed uncon-

sis. The sentences are found

stitutional, demon- not because the record infirmity beyond the existence of an

strates disagreement, any possibility of rational VALDASTRI, Joseph et al. rather, is uncertain the Court led to the to what valid considerations BATH, that such a imposed. I submit et al. CITY OF appeal. cognizable on direct defect is of Maine. Supreme Judicial Court sentencing record in comparison A 6, 1987. Argued Jan. record involved this case with the Decided Feb. (Me.1979) Sutherburg, 402 A.2d analysis. error in this Court’s reveals first the defendant had Sutherburg District Court convicted

Case Details

Case Name: State v. Dansinger

Court Name: Supreme Judicial Court of Maine

Date Published: Feb 25, 1987

Citation: 521 A.2d 685

Court Abbreviation: Me.