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State v. Caswell1/30/2001
ee with the concurring opinion that the stop at the gasoline station broke the chain of events and caused the threat of imminent harm to disappear. The threat of imminent harm, both before and after Caswell stopped at the station, was created by the rapist's actions that evening.
I strongly disagree with the assertion in the majority opinion that allowing the competing harms defense in this case would do away with the requirement that physical harm be imminently threatened and would create a change in the law eliminating all requirements of the competing harms defense except the subjective belief of the defendant. If Caswell's testimony was only that she believed she was being followed, and if there was no evidence that she had been followed and raped shortly before her conduct that led to her detention by the police, then the assertion in the opinion would be correct. However, here we have significant evidence that makes the existence of the imminent threat more than subjective; the evidence is sufficient to demonstrate the reasonable and factual existence of an imminent threat.
I also write separately to address the issue of the admissibility of Dr. Rines's testimony. His testimony was admissible because it was relevant to the issue of whether Caswell had a reasonable alternative to driving. By case law we have crafted an additional requirement to the competing harms defense, which is that there must be evidence that the defendant's conduct is necessary because there is "no reasonable alternative other than violating the law." State v. Moore, 577 A.2d 348, 350 (Me. 1990). This element of the defense is a judicial interpretation of the requirement of showing the necessity of the conduct, that is, the conduct of the defendant can be seen as necessary to avoid the imminent physical harm when there is no reasonable alternative.
Because the trial court found that there was insufficient evidence to allow the competing harms defense to go to the jury, the court ruled that Rines's testimony was not relevant. "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." M.R. Evid. 401. Rines's testimony made the lack of a reasonable alternative more probable than it would have been without the evidence. Dr. Rines's testimony was that because Caswell was suffering from rape trauma, she was not acting as logically as someone who had not been raped might have acted. The fact that Caswell did not want to talk to the officers about what had just transpired was consistent with the actions of other rape victims. Because the lack of a reasonable alternative is an element of the defense, its existence is a fact of consequence. Dr. Rines's testimony was, therefore, relevant and should have been admitted.
A jury, upon hearing all of the evidence and upon being given a competing harms instruction, may have decided that the State had disproven the existence of the competing harm. It could have chosen not to believe that Caswell was raped or that she was afraid her rapist was following her. Perhaps the jury would have concluded that Caswell had a reasonable alternative. Caswell's jury, however, was not given the opportunity to determine the viability of the competing harms defense. In my opinion, the evidence, viewed in the light most favorable to Caswell, was sufficient to put the competing harms defense in issue, and the jury should have been given the opportunity to decide it.
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