COMMONWEALTH vs. ORESTES LORA.

GREENBERG, J. A complaint charged the defendant, Orestes Lora, with a violation of G. L. c. 90, s. 23. The second paragraph of the statute reads in pertinent part:

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"Any person convicted of operating a motor vehicle after his license to operate has been suspended or revoked, . . . . or after notice of the suspension or revocation of his right to operate a motor vehicle without a license has been issued by the registrar and received by such person or by his agent or employer, and prior to the restoration of such license . . shall be punished . . . ." [Note 1]

At trial by a jury of six in the Roxbury District Court, the Commonwealth established the following. On October 7, 1994, Officer Jack Marotta of the Boston police department observed the defendant driving a black 1989 Ford Probe automobile on Melnea Cass Boulevard in the city of Boston. The officer stopped the defendant for making an illegal left hand turn onto Washington Street. The defendant was unable to produce his driver's license. A computer check revealed that the defendant's license had been suspended for drunk driving. So apprised, the officer placed the defendant under arrest. On the citation, he listed the defendant's address as 20 East Brookline Street in Boston.

The Commonwealth introduced in evidence certified copies of documents from the Registry of Motor Vehicles. One such document, the notice of suspension sent to the defendant, listed his address as Box 312, Line Street, Boston, MA 02118. In contrast, another document containing the defendant's driving history listed two additional addresses: (1) a mailing address as Box 312 Line Street, Boston, MA 02143; and (2) a residential address as 20 E. Brookline Street, Apt. 84, Boston, MA 02118-1988. Contending that he never received notice of the suspension of his license, the defendant moved for a required finding of not guilty at the dose of the Commonwealth's case. The judge denied the motion.

For the defense, Juan Santiago, a friend of the defendant, testified that about 4 P.M. on the day of the arrest, the defendant appeared at his home "very ill." He testified that the defendant's complexion was pallid, his hands and feet swollen, and that the defendant had complained of severe pain. Santiago loaned the defendant ten dollars to purchase medicine. Because Santiago refused to go to the pharmacy for him, the defendant drove away himself, presumably to make the purchase.

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The defendant took the witness stand. He testified, in effect, that he suffers from rheumatoid arthritis, poor circulation, and high blood pressure. He stated that on the day in question, he felt as if he "wanted to die," and he had exhausted his supply of Motrin, a pain killing medication prescribed by his health care provider. The defendant explained that necessity compelled him to drive himself to the pharmacy; he could not afford a taxi, his housemate, Luiz Colon, did not drive, and Santiago was unwilling to do the errand. After deliberation, the jury rejected this defense and found him guilty.

1. Instructions on the defense of necessity. The judge instructed the jury in the language set out in the margin. [Note 2] In so doing, he tracked the language of Model Jury Instruction 6.02 (1988) used in the District Court. Before the charge, defense counsel objected to the fourth factor of the instruction. He asked that the jury be told that the Legislature had not made a determination of values that would rule out his defense in these circumstances. The judge refused the request. The charge was exemplary in all respects except, as the defendant argues, it left the jury to determine whether the Legislature had ruled out the defense in the circumstances of this case. We agree with the defendant that this was error.

The defendant argues that leaving unanswered the question whether the statute permits the defense, requires the jury to

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engage in an exercise beyond its institutional competence. [Note 3] As such, the defendant claims a violation of his due process rights.

The common law defense of "necessity" is often referred to as the "choice of evils" defense. LeFave & Scott, Handbook on Criminal Law s. 5.4, at 442 (2d ed. 1986). In essence, it involves a judgment as to whether public policy concerns eclipse those values protected by the law, rendering punishment under the criminal law inappropriate. Commonwealth v. Hutchins, 410 Mass. 726 , 730 (1991). The defense exonerates a defendant where the harm resulting from a violation of the law is significantly less than the harm that compliance would have wrought. [Note 4] Commonwealth v. Brogan, 415 Mass. 169 , 175 (1993). Commonwealth v. Brugman, 13 Mass. App. Ct. 373 , 376-377 (1982). See, e.g., Commonwealth v. Iglesia, 403 Mass. 132 , 134 (1988) (evidence sufficient to raise issue of necessity as defense to unlawful carrying of firearms where, under threat of immediate use, defendant seized weapon and immediately fled to safety). Contrast Commonwealth v. Hood, 389 Mass. 581 , 593 (1983) (because threat of nuclear war not an obvious and generally recognized harm defense not recognized); Commonwealth v. Hutchins, 410 Mass. at 732 (alleviation of medical symptoms would not clearly outweigh potential harm to public from not punishing cultivation of marijuana); Commonwealth v. Leno, 415 Mass. 835 , 839-841 (1993) (possibility of contracting AIDS in future not imminent harm which would justify operation of needle exchange program in violation of statutes restricting possession and distribution of hypodermic needles).

Neither party has cited any case, nor have we found one, where a jury has found the defense of necessity not available on grounds of legislative intent. That determination has only been made by a judge, as a preliminary ruling. [Note 5] See State v. Dorsey, 118 N.H. 844

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(1978) (at trial, judge ruled defense of necessity unavailable where foreclosed by legislative intent); State v. Tate, 102 N.J. 64 (1986) (legislative intent regarding possession of marijuana for medical reasons was matter for interlocutory review); Bird v. Municipality of Anchorage, 787 P.2d 119, 121-122 (Alaska App. Ct. 1990) Judge determined Legislature had already balanced competing values and refused to instruct on necessity); State v. Hanson, 468 N.W.2d 77 (Minn. App. Ct. 1991) (where defendant gave notice that he would present defense of medical necessity court held offer of proof hearing and ruled defense unavailable because Legislature excluded it in this situation).

As we have stated in the instant case, nothing appears in the statute demonstrating that the Legislature has acted to preclude or limit the defense by a dear and deliberate choice regarding the values at issue. [Note 6] In cases such as this, where the statute provides no clear guidance, judges should prevent jurors from engaging in an exercise of legislative interpretation. A judge should either omit the fourth element from the charge, or inform the jury that the Legislature has left the defense available, leaving the jury to decide whether the evidence satisfies the first three elements so as to justify the defendant's violation of the law. [Note 7]

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Our inquiry does not end there. Because the defendant's trial counsel objected to this part of the instruction, we examine whether the instruction as given prejudiced the defendant. See Commonwealth v. Mejia, 407 Mass. 493 , 497 (1990); Mass.R. Crim.P. 24, 378 Mass. 895 (1979).

Because the Commonwealth presented no evidence which would have permitted the jury to conclude that the Legislature had ruled out the necessity defense, the instruction could not have misled the jury. In addition, the judge properly instructed the jury that the Commonwealth had the burden to prove, beyond a reasonable doubt, that the defendant did not act out of necessity. Moreover, by addressing the particular circumstances of the defendant's medical condition, as testified to by the defendant and his witnesses, defense counsel framed the analysis of the defense of necessity for the jury. Defense counsel argued that the defendant had no choice but to drive himself to the pharmacy. In response, the prosecutor argued that the defendant's medical history was an excuse unworthy of belief. [Note 8]

While future juries will benefit from a closer assessment of the fourth element of the defense of necessity by trial judges, in the case at bar, the jury were apprised of what proof was required. The jury were free to draw from their own common understanding and experiences in deciding whether the defendant's condition amounted to a legitimate medical necessity to drive. The error, therefore, did not prejudice the defendant. Contrast Kunkel v. Alger, 10 Mass. App. Ct. 76 , 84-85 (1980) (reversal warranted where portion of charge on negligent entrustment flawed and counsel failed to clarify theory of the case).

2. Exclusion of the defendant's medical records. The Commonwealth objected (by motion in limine) to the admission of the defendant's medical records. Because these records did not relate

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to treatment on the day of his arrest, the Commonwealth argued that the information was too remote in time to be relevant. [Note 9] We disagree.

Evidence is relevant if it renders the desired inference more probable than it would have been without it. Commonwealth v. Fayerweather, 406 Mass. 78 , 83 (1989). As long as evidence "tends to establish the issue" or "constitutes a link in the chain of proof," it may be sufficiently relevant. Poirier v. Plymouth, 374 Mass. 206 , 210 (1979), quoting from Commonwealth v. Abbott, 130 Mass. 472 , 473 (1881).

The Commonwealth's argument misconstrues the purpose for which the evidence might be admitted. There was sufficient evidence to show that the defendant had suffered from arthritis for at least six years prior to the time of his arrest and that he had taken prescription drugs to alleviate the symptoms. There was also circumstantial evidence, not remote in time, tending to link his condition on the day in question to chronic illness, particularly the indications of recurrence observed by Santiago just before the defendant's arrest. On this evidence, the jury should have been free to consider whether the medical records corroborated the defendant's complaints.

Massachusetts courts have generally not upheld the exclusion of such evidence on the ground of remoteness. [Note 10] See Kramer v. John Hancock Mut. Life Ins. Co., 336 Mass. 465 , 467-468 (1957) (medical evidence intended to show person suffering from ailments in 1943 and 1948 would be suffering from same ailments in 1952 improperly excluded); Commonwealth v. Guadalupe, 23 Mass. App. Ct. 97 , 101 (1986) (where defendant intended to

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assert defense of lack of criminal responsibility, court held that "[b]lanket exclusion of [testimony regarding medical treatment the defendant received in the year prior to his arrest] was contrary to the principle that a defendant is entitled to place before the jury any and all nonexpert evidence which is at all probative of his mental health"). The error was harmless, however, because there was, as we have stated, other evidence of the defendant's medical condition to guide the jury's consideration of his necessity defense. We do not think that a different result might have been reached had the excluded evidence been considered by the jury. See and compare Commonwealth v. Bradshaw, 385 Mass. 244 , 274 (1982).

3. Required finding of not guilty. When defense counsel argued his motion for a required finding of not guilty in the trial court, he focused entirely on the alleged failure of the Commonwealth to prove that the registrar sent the notice of license suspension to the correct address. [Note 11] He based his argument on the fact that the Registry of Motor Vehicles sent the notice to Box 312, Line Street, Boston, 02118, despite a notation in the defendant's registry record showing his residential address as 20 East Brookline Street, Boston. On appeal, appellate counsel urges an entirely different ground: that neither the mailing address listed in the registry's record of his driving history, nor the address on the notice actually exists. [Note 12] The defendant, therefore, could not have received the notice. Because this argument was not put before the trial court, we need only consider whether the denial of the motion raises the possibility of a substantial risk of a miscarriage of justice. [Note 13] Commonwealth v. Good, 409 Mass. 612 , 617 (1991).

On the grounds briefed, there was sufficient evidence that the defendant received notice that his license had been suspended. To prove receipt of notice the Commonwealth need only prove that the registry properly mailed the notice. See Commonwealth v. Koney, 421 Mass. 295 , 303-304 (1995).

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It was certainly open to the jury to infer that the registrar sent the notice of suspension to a proper address. General Laws c. 90, s.s. 8 and 26A, required the defendant to provide the registry with his address. These provisions would be meaningless if the registry is not permitted to rely on the accuracy of the information provided thereunder. If the mailing address was incorrect, the defendant should have corrected it. Cf. Commonwealth v. Francis, 374 Mass. 750 , 753-754 (1978) (Commonwealth not precluded from prosecuting defendant's case where clerk's office took all reasonable steps to effect notice when it sent notice to defendant's last known address and defendant failed to notify court of any change). See also Commonwealth v. O'Clair, 374 Mass. 759 , 764 (1978) (same); Commonwealth v. Hampton, 26 Mass. App. Ct. 938 , 940 (1988), to the same effect.

Judgment affirmed.