State v. LeVasseur (1980)

STATE OF HAWAII, Plaintiff-Appellee, v. KENNETH LE VASSEUR, Defendant-Appellant, and STEVEN CHARLES SIPMAN, Defendant

No. 6930

INTERMEDIATE COURT OF APPEALS OF HAWAII

1 Haw. App. 19; 613 P.2d 1328; 1980 Haw. App. LEXIS 106



June 27, 1980

PRIOR HISTORY: [***1]

Appeal from First Circuit Court; Honorable Masato Doi, Judge.



DISPOSITION: Affirmed.



HEADNOTES:

LARCENY — description of property.



Action which interferes with the rightful possession of captured wild animals is, and always has been, “theft”.

CRIMINAL LAW — examination of prospective jurors — discretion of trial court.



The
regulation of voir dire is a matter of discretion for the trial judge
and will not be disturbed on appeal absent abuse of the trial court’s
broad discretion, and a showing that the rights of the accused have
been substantially prejudiced.

CRIMINAL LAW — examination of prospective jurors — scope.



Where
voir dire is conducted not by the trial court but by defense counsel,
this court must examine whether counsel was given sufficient
opportunity to question prospective jurors on pretrial publicity, and
not the extent to which prospective jurors were questioned about such
publicity.

CRIMINAL LAW — justification defenses — choice of evils — necessity.



A
dolphin is not “another” within the meaning of HRS § 703-302 where HRS
§ 701-118(8) defines “another” as “any other person and includes, where
relevant, the United States, this State [***2] and any of its
political subdivisions, and any other state and any of its political
subdivisions” and HRS § 701-118(7) defines “person” as a natural person
and when relevant a corporation or an unincorporated association.

ANIMALS — cruelty.



The Animal Welfare Act, 7 U.S.C. § 2131 et seq.
and its accompanying regulations manifest a national policy to protect
the well-being of laboratory animals like the instant dolphins.

CRIMINAL LAW — justification defenses — choice of evils — necessity.



Appellant’s
action in removing the dolphins from their tanks, transporting them to
Yokohama Bay and there releasing them into the ocean, thereby
committing the crime of theft, was at least as great an evil as a
matter of law as the cruelty to the dolphins which appellant sought to
prevent and therefore, the court below properly ruled that the “choice
of evils” was not a permissible defense in this case.

CRIMINAL LAW — discovery during trial — subpoena duces tecum.



A
mere desire to fish for regulations does not meet the requirements of
specificity and particularization required by HRPP 17(b) and State v. Pacarro, 61 Haw. , No. 6316 (May 21, 1979). [***3]

CRIMINAL LAW — appeal and error — reduction or mitigation of sentence.



This
court may modify a sentence if, in its opinion, the sentence is
excessive and injuriously affects the substantial rights of the
appellant.

CRIMINAL LAW — appeal and error — reduction or mitigation of sentence.



The
trial court’s decision to place appellant, who is a twenty-nine year
old college educated adult with no criminal record, on probation with
the special condition that he serve six months in jail cannot be said
to be excessive where appellant engaged in vigilante action that
destroyed costly research.

CRIMINAL LAW — appeal and error — reduction or mitigation of sentence.



Under Rule 35, HRPP, it is open to the court below to reduce the sentence within ninety (90) days of the receipt of our mandate.



COUNSEL: John F. Schweigert for the defendant-appellant.



Sandra Alexander for the plaintiff-appellee (Arthur E. Ross on the brief).



JUDGES: Hayashi, C.J., Padgett and Burns, JJ. Opinion of the Court by Padgett, J.



OPINIONBY: PADGETT



OPINION:
[*20] [**1330] Mr. LeVasseur was indicted on June 22, 1977, for
having committed the offense of theft in the first degree, [***4] HRS
§ 708-831(1)(b) by removing two Atlantic Bottlenose dolphins (Kea and
Puka) from the University of Hawaii marine laboratory [*21] at Kewalo
Basin, Honolulu, Hawaii and placing them in the ocean off the Waianae
coast of Oahu. Following a trial by jury, Appellant LeVasseur was
convicted and sentenced to five years probation with the special
condition that he serve six months in jail. His conviction and sentence
are the subject of the instant appeal.



Appellant
LeVasseur began working at the University of Hawaii marine laboratory
at Kewalo Basin, Honolulu, as an undergraduate research assistant in
January, 1975. In May of 1975, he moved into living quarters at the
laboratory and continued to reside there until the date of the theft.
During the nearly two years he worked at the lab, his duties were
primarily concerned with maintenance. He repaired and cleaned the
dolphins’ tanks, fed them and swam with them. On May 27, 1977, he was
[**1331] informed that he was being discharged and was given 30 days
notice to leave the Kewalo facility.



Approximately
two hours before sunrise on May 29, 1977, Appellant LeVasseur and four
or five other people removed the two dolphins [***5] from their tanks
at the Kewalo Basin laboratory and transported them by van some fifty
miles to Yokohama Bay, on the northwest side of the island of Oahu. The
dolphins were taken from the van and released into the ocean about 45
minutes before sunrise. Appellant testified that his intention was to
give the dolphins freedom of choice as to whether or not they returned
to captivity.



The law with respect to the dominion and ownership of wild animals, called ferae naturae
in law latin is ancient and well-developed. Cases respecting such
matters date back to the very beginnings of the common law. Actions
such as appellant took interfering with the rightful possession of such
animals are, and always have been “theft.” See, e.g., Gavit, Bernard, Blackstone’s Commentaries on the Law, pp. 454, 850 (1941).



ADVANCEMENT OF THE CASE



Appellant
contends that the advancement of the trial date by the trial court from
February 20, 1978 to November 28, [*22] 1977 deprived him of his
Sixth Amendment right to effective assistance of counsel. We disagree.



On
September 13, 1977, the November 28, 1977 trial date was stipulated to
by the parties. On November 23, 1977 the November [***6] 28, 1977
trial date was advanced until February 20, 1978 because new counsel was
substituted for Appellant LeVasseur’s co-defendant. One day later
(November 24, 1977), the defense was informed by the prosecution of its
intent to move to sever the co-defendant’s case and return appellant’s
case to the November 28, 1977 trial date. The state’s motion was
granted on November 28, 1977. Thus, defense counsel was anticipating a
February 20, 1978 trial date for only five days of the nearly three
months following appellant’s indictment. We are not persuaded that
these five days, coming as they did on the very eve of trial, at a time
when defense counsel should have been nearing the end of his trial
preparation, prejudiced the preparation of appellant’s defense.



VOIR DIRE



Appellant
also contends that the trial court abused its discretion by limiting
his counsel’s voir dire of the jury panel. The regulation of voir dire
is a matter within the discretion of the trial judge and will not be
disturbed on appeal “absent abuse of [the trial court’s] broad
discretion, and a showing that the rights of the accused have been
substantially prejudiced”. State v. Altergott, 57 Haw. 492, [***7] 499, 559 P.2d 728, 734 (1977).



Appellant’s
counsel began the voir dire of the original jury panel by directing
questions in an apparently random manner from juror to juror. Rather
than discussing a series of topics with each individual juror, he
skipped back and forth between subjects as he switched his questioning
from one juror to the next. After three hours of such questioning, the
trial court informed counsel that he would have 15 minutes to complete
his voir dire; however, upon his representations that he had not had
sufficient opportunity to question the jurors about, inter alia,
pretrial publicity, the court granted appellant’s [*23] counsel an
additional one and one-half hours (with directions that he ask all his
questions of the jurors one at a time). At the conclusion of the
additional time, the court stopped the voir dire of the original jury
panel even though appellant’s counsel had not gotten around to
questioning three of the jurors on the issue of pretrial publicity.
Thereafter, the court entertained challenges for cause to the jury as
well as peremptory challenges.



[**1332]
Appellant argues that the court’s action constituted substantial
prejudice. [***8] Specifically, he contends that without knowledge of
the effect, if any, of pretrial publicity on those three jurors, he
could not effectively exercise his peremptory challenges. We note that
he did not exercise his third and last peremptory challenge. Our
Supreme Court has stated that:


The amount
and nature of pretrial publicity directly determines the lengths to
which a trial judge must go on voir dire to assess the possibility of
prejudice resulting from that publicity.




State v. Pokini,
55 Haw. 640, 642, 526 P.2d 94, 99 (1974). Certainly, the extensive
coverage of appellant’s case in the media, both in Hawaii and other
parts of the world, should have alerted appellant’s counsel to the
desirability of voir dire of prospective jurors concerning their
exposure to such publicity.



If, under Hawaii Rules of Penal Procedure
24(a), the trial court had conducted the voir dire in the present case,
this court would closely consider the extent to which prospective
jurors were questioned about pretrial publicity. Cf. Pokini, supra.
In the present case, however, defense counsel was permitted to conduct
voir dire at great length and sufficient opportunity was
provided [***9] to question prospective jurors on pretrial publicity
and its effects.



Trial counsel did
question each of the members of the original jury panel during his
initial three hours of voir dire. The fact that after three hours he
still had not seen fit to question three of the jurors about pretrial
publicity was not a failure for which the trial court was responsible.
Yet, thereafter the trial court gave trial counsel an hour and one-half
of additional time to complete his questioning of the original jury
[*24] panel; but he chose to spend his time asking individual jurors
questions on a variety of topics rather than limiting his questions to
pretrial publicity. Moreover, the trial court asked the members of the
jury panel when they were first seated whether they had been exposed to
or affected by pretrial publicity.



The trial court did not abuse its discretion in regulating the voir dire.



CHOICE OF EVILS



At
various times during the trial, appellant attempted to offer evidence
of the poor conditions at the laboratory in support of a “choice of
evils” defense.



In the beginning, he
asserted this defense based on the contention that dolphins were
included within the meaning [***10] of “another” in HRS § 703-302.
Later he added a contention, eventually made explicit, that the United
States was “another” being protected under that statute. Under this
theory, appellant contended that he chose the lesser of two possible
harms when he released the dolphins. Simply put, he contended that he
chose to commit the lesser harm of theft in the first degree in order
to avoid greater harm either to the dolphins or to the statutorily
expressed policy of the United States. The trial court’s ruling that
the choice of evils defense was not available to the appellant is a
central issue in this appeal.



In the State of Hawaii, the choice of evils defense is defined by statute as follows:




§ 703-302. Choice of evils.
(1) Conduct which the actor believes to be necessary to avoid an
imminent harm or evil to himself or to another is justifiable provided
that:




(a) The harm or evil
sought to be avoided by such conduct is greater than that sought to be
prevented by the law defining the offense charged; and



(b)
Neither the Code nor other law defining the offense provides exceptions
or defenses dealing with the specific situation involved; and



[*25] (c) A legislative [***11] purpose to exclude the justification claimed does not otherwise plainly appear.






(2)
When the actor was reckless or negligent in bringing about the
situation [**1333] requiring a choice of harms or evils or in
appraising the necessity for his conduct, the justification afforded by
this section is unavailable in a prosecution for any offense for which
recklessness or negligence, as the case may be suffices to establish
culpability.




Appellant
contends that because the dolphins were included in a “specific
situation” for which “neither the Code nor the law defining the offense
[of theft] provides exceptions or defenses”, they should be considered
within the term “another”. This argument must fail because, as the
trial court noted, the legislature has provided a specific definition
of “another” that does not include dolphins. HRS § 701-118(8) defines
“another” as “any other person and includes, where relevant, the United
States, this State and any of its political subdivisions, and any other
state and any of its political subdivisions.” Person is defined as a
natural person and when relevant a corporation or an unincorporated
association. HRS § 701-118(7). Thus, [***12] the statute makes clear
that a dolphin is not “another” under HRS § 701-118(8).



Appellant’s
second argument is that his actions protected the United States (which
is “another”) by enforcing its policy of protecting dolphins.
Specifically, he cites the Marine Mammal Protection Act, 16 U.S.C. §
1361 and the Animal Welfare Act, 7 U.S.C. § 2131, as evidence that
cruelty to dolphins is a harm clearly recognized by the United States.
While it is unclear whether the Marine Mammal Protection Act represents
such a policy with respect to the instant dolphins, n1 it is clear that
the provisions of the Animal Welfare Act apply to Kea and Puka since
the protection of the Animal Welfare Act extends to all warm-blooded
animals. As noted in [*26] House Report No. 91-1651, 91st Cong., 2nd
Sess., the purpose of the bill was to establish “by law, the humane
ethic that animals should be accorded the basic creative comforts of
adequate housing, ample food and water, reasonable handling, decent
sanitation, sufficient ventilation, shelter from extreme of weather and
temperature, and adequate veterinary care including the appropriate use
of pain-killing drugs.” Reprinted in [1970] U.S. [***13] Code
Cong. and Ad. News 5103, 5104. The provisions of the statute and its
concomitant regulations establish conditions for the housing, n2 care,
n3 and feeding n4 of laboratory animals, including dolphins. Moreover,
civil penalties of up to $ 1,000 a day are provided for research
facilities that do not comply with the specified standards. n5 Thus, 7
U.S.C. § 2131 et seq. and its accompanying regulations manifest
a national policy to protect the well-being of laboratory animals like
the instant dolphins.



– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –





n1
The Marine Mammal Protection Act was enacted on December 21, 1972; the
two dolphins were acquired by the University of Hawaii laboratory in
1969 and June of 1972.





n2 9 CFR § 3.100, 103, 108.





n3 4 CFR § 3.106, 109.





n4 9 CFR § 3.104.





n5 7 U.S.C. § 2149.





– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –



Appellant
testified at length about his familiarity with facilities that could
hold the dolphins at least temporarily, for example, the Navy Undersea
Laboratory and Sea Life Park; nonetheless, he chose to release the
dolphins into [***14] the open ocean. Furthermore, appellant testified
that he began researching the release of the dolphins a year before the
event in question took place; and that the actual decision to release
the dolphins was made a month ahead of time. Yet, he offered no
explanation as to why he never attempted to contact the federal
government either by phone or mail to report the alleged
life-threatening conditions at the laboratory. In other words, it is
clear that the appellant consciously and deliberately chose “theft” of
the dolphins as that crime is defined by our statutes as the
alternative to the “evil” of the alleged violation of the policy of the
United States for the protection of laboratory animals.



[*27]
[**1334] Consequently, the trial court was squarely faced, as are we,
with the threshold determination of whether, as a matter of law, the
harm or evil of the alleged violation of the policy of the United
States for the protection of laboratory animals outweighed the evil of
the commission of the crime of theft. We agree with the ruling of the
court below and hold that appellant’s action in removing the dolphins
from their tanks, transporting them to Yokohama Bay and there [***15]
releasing them into the ocean, thereby committing the crime of theft,
was at least as great an evil as a matter of law as that sought to be
prevented. Accordingly, the trial court correctly ruled that under the
instant circumstances, the choice of evils defense was not available.



Appellant
complains of the quashing of certain subpoenas and the refusal to allow
certain testimony. With one exception, all these rulings involved
evidence offered in support of the asserted “choice of evils” defense
and are therefore, affirmed.



One, however, evidences a different possible defense, that of a claim of authority under HRS § 708-834(1)(b).



QUASHING SUBPOENA



Appellant
caused the issuance of a subpoena duces tecum directing Dr. Herman,
head of the laboratory, to bring with him to court all records
regarding the dolphins and any and all procedures, rules and
regulations of the University of Hawaii concerning the care and
treatment of the dolphins at its laboratory facilities. At the hearing
on the motion to quash the subpoena, appellant’s counsel stated that on
the basis of his client’s representations, he believed certain
University regulations authorized the release of the dolphins [***16]
under emergency conditions. Appellant’s counsel also stated that he was
engaging in a “fishing expedition”. The government objected to the
request for research data and University of Hawaii’s rules regarding
the care and treatment of the dolphins as being burdensome and
oppressive. The trial court found the subpoena to be “oppressive and
unreasonable, especially in [*28] view of its broad scope and its
dubious relevancy to the issues at trial”.



Our Supreme Court in State v. Pacarro,
61 Haw. 84, 595 P.2d 295 (1979), made clear that a subpoena duces tecum
is not be be used as an additional means of discovery or to permit a
fishing expedition.



In the present case,
appellant’s request for all Dr. Herman’s research data was clearly
overbroad. The request for University regulations was a different
matter. Presumably, the regulations regarding laboratory procedures
were not so extensive as to preclude their ready productions in a
manageable form.



The crucial defect in the
request for the laboratory regulations was that appellant provided no
basis to indicate that the regulations in fact contained exculpatory
information. In other words, the defense merely sought to
peruse [***17] the regulations to ascertain whether any of them were
of an exculpatory nature. As noted in Pacarro, such a
generalized request is contrary to the purpose of the subpoena duces
tecum. If appellant had submitted evidence to the trial court by
affidavit or otherwise, indicating that specific regulations of an
exculpatory nature existed, his request might well have been granted.
But a mere desire to fish for such regulations did not meet the
requirements of specificity and particularization required by HRPP
17(b) and State v. Pacarro, 61 Haw. 84, 595 P.2d 295. We also
note that appellant in his testimony at trial did not indicate the
existence of such regulations; nor was Dr. Herman asked about the
existence of such regulations on cross-examination when he testified
that appellant’s act was unauthorized. Moreover, when asked for an
offer of proof in support of the claim of justification, appellant’s
counsel did not allude to such regulations.



Any
contention that there existed a regulation allowing appellant to
secretly remove [**1335] the dolphins from Kewalo Basin and turn them
loose in the ocean strains credulity; but if such was appellant’s
contention, he should have [***18] made the existence of the
regulation clear rather than simply telling the court that he was on a
fishing expedition.



[*29] INSTRUCTIONS



We
also find appellant’s objections to the court’s rejection of his jury
instructions to be without merit. Defendant’s Instruction No. 7
defining property was repetitive in view of the court’s instruction to
the jury that the dolphins were property. Sherry v. Asing, 56
Haw. 135, 531, P.2d 648 (1975). Similarly, Defendant’s Instruction No.
23 regarding the definition of “deprive” was covered by the court’s
instruction to the jury that deprive means to make it unlikely that the
owner will recover his property.



Defendant’s Instruction No. 4:

“Obtain”
means, when used in relation to property, to bring about a transfer of
possession or other interest whether to the obtainee or another;






Defendant’s Instruction No. 13:

It
is a defense to a prosecution for theft that the defendant believed
that he was authorized, by the owner or by law, to obtain or exert
control as he did;




and Defendant’s Instruction No. 14 regarding the choice of evils defense, HRS § 703-302, were not supported by the evidence. Id.



[***19] FAIR TRIAL



Appellant
also asserts that the numerous “errors” about which he complains on
appeal constitute evidence that he was denied his right to an impartial
tribunal as guaranteed by the Fourteenth Amendment to the United States
Constitution and an Article 1, § 14 of the Hawaii Constitution. In
light of our determination that the trial court was not in error, we
find appellant’s contention to be without merit. In this connection, a
careful review of the transcript shows the judge below to have been
patient and fair in a situation where appellant’s counsel persistently
attempted to go into areas already ruled irrelevant. The judge did not
depart from scrupulous fairness in the face of obvious provocation.



[*30] SENTENCE



Finally,
appellant argues that his sentence was unduly harsh. He was convicted
of having committed theft in the first degree, a Class C felony (HRS §
708-831) punishable by a $ 5,000 fine and a maximum sentence of five
years in prison, HRS § 706-640 and 660, respectively, and was sentenced
pursuant to HRS § 706-624(3) to five years probation with the special
condition that he serve six months in jail.



This
court may modify a sentence if, [***20] in its opinion, the sentence
is excessive and injuriously affects the substantial rights of the
appellant. HRS § 641-16. Appellant LeVasseur is a twenty-nine year old
college educated adult with no criminal record. While letters submitted
to the trial court indicate that a number of well-respected citizens in
the community believed that the criminal act for which he was convicted
was motivated by a sincere desire to protect the dolphins, the trial
court was able to observe his demeanor and conduct as a witness, which
we are unable to do. Nothing we see in the transcript of appellant’s
testimony leads us to believe the trial judge acted erroneously in
passing sentence. HRS § 706-621. Contrary to the assertions of
appellant, it is apparent from the trial court’s decision to grant
probation that he benefited from the trial court’s consideration of
factors enumerated in HRS § 706-621.



The
court’s decision to impose a six-month jail term for appellant’s
vigilante action that destroyed costly research, cannot be said to be
excessive. However, we point out that under Rule 35, HRPP, it is open
to the court below to reduce the sentence within ninety (90) days of
the receipt of our [***21] mandate if it sees fit.



Affirmed.

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