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296.2 Standards Of Prejudice On Appeal

    296.2.6 Lesser Offenses: Analysis Of Prejudice On Appeal

    296.2.6.1 Failure To Instruct Sua Sponte On Lesser Included Offense As Violation Of Federal Due Process
    296.2.6.2 Refusal Of Request To Instruct On Lesser Included Offense Governed By Federal Standard Of Prejudice
    296.2.6.3 Failure To Instruct On Lesser Offense Creates Improper All-Or-Nothing Choice
    296.2.6.4 Prejudicial Effect Of Submitting Lesser Offense Option
    296.2.6.5 Over Charging/Juror Compromise: Prejudicial Effect Of Over-Charging/Over-Instruction When Defendant Convicted Of Lesser Offense

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    See NCJIC 300.6.1 [Failure To Instruct Upon Defenses].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: When a lesser included offense instruction is requested, it becomes a defense theory to which federal constitutional rights to due process, fair trial by jury and to present a defense apply. (See 5th, 6th and 14th Amendments; see NCJIC 300.6.2 [Requested: Denial Violates Due Process].) Hence, this heightens the importance of trial counsel being aware of and requesting instruction on lesser included offenses.

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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    296.2.6.3    Failure To Instruct On Lesser Offense Creates Improper All-Or-Nothing Choice

APPELLATE PRACTICE NOTE: The principle prejudice which results from the failure to instruct on a lesser included offense is to give the jury an all-or-nothing choice. In other words, the jury is forced to choose between convicting of the greater offense not proven by the prosecution or letting a person who is not totally unblameworthy go free.

    By providing the jury with such a Hobson's choice, the failure to instruct on the lesser included offense makes it likely that "'the jury ... resolve[d] its doubts in favor of conviction.'" (Beck v. Alabama (1980) 447 US 625, 634 [100 SCt 2382; 65 LEd2d 392], quoting from Keeble v. U.S. (1973) 412 US 205, 208 [93 SCt 1993; 36 LEd2d 844]; U.S. v. Warren (9th Cir. 1993) 984 F2d 325, 327 [reversible error to not instruct jury that it could consider lesser included offense of second degree murder].)

    Hence, if the failure to instruct creates a risk that the jury will convict "simply to avoid setting the defendant free," the error should require reversal; but if there is no such danger, the error may be harmless. (See Schad v. Arizona (1991) 501 US 624, 646 [111 SCt 2491; 115 LEd2d 555;]; see also Villafuerte v. Stewart (9th Cir. 1997) 111 F3d 616, 622 [failure to instruct on lesser included of predicate felony murder was error but reversal not required because under the circumstances the jury was not required to find the defendant guilty of murder if he committed kidnapping]; People v. Breverman (CA 1998) 19 C4th 142, 165 [77 CR2d 870] [failure to instruct on lesser offense is not reversible per se].)

    However, even if the jury was not given an "all or nothing" choice (e.g., jury was instructed upon first degree murder and lesser included of second degree murder and voluntary manslaughter), the failure to instruct upon a lesser offense (e.g., involuntary manslaughter), should be reversible if the jury convicted the defendant of the lowest available charge (e.g., voluntary manslaughter). (See e.g., People v. Ray (CA 1975) 14 C3d 20, 31-32 [120 CR 377].)

    For example, People v. Turner (CA 1990) 50 C3d 668, 692 [268 CR 706] concluded that the failure to instruct on a lesser included offense was harmless because there "appears no chance the jury was misled by an 'all-or-nothing choice'" because the special circumstance instructions required the jury to confront the issue which was removed by the failure to instruct on the lesser included offense. (Turner, 50 C3d at 692.) The Turner court also suggested that by returning verdicts of first degree murder and death eligibility under the robbery murder special circumstance, the jury further indicated that its conviction of robbery, as opposed to theft, was not a reluctant verdict based on an all-or-nothing choice. (Id. at 693.) Accordingly, under these circumstances the failure to instruct on the lesser included offense was not reversible error.

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: Submitting lower crimes in an inappropriate case may constitute "an invitation to the jury to foreswear its duty and return a compromise or otherwise unwanted verdict." (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:14 [Lesser Included Offenses] (West, 1999); see also People v. Butler (NY1994) 644 NE2d 1331, 1334.)

    See also NCJIC 296.2.6.5 [Over Charging/Juror Compromise: Prejudicial Effect Of Over-Charging/Over-Instruction When Defendant Convicted Of Lesser Offense].

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: The fact that the defendant was only convicted of a lesser charge does not necessarily render improper instruction upon a greater charge harmless. It is widely recognized that prejudicial error can occur when the jury is improperly instructed upon a greater offense, even though the defendant was only convicted of a lesser charge. (Wharton’s Criminal Law (West, 15th Ed. 1993) § 140, p. 250 [...[a] jury may be inclined to find a defendant guilty of murder in the second degree as a convenient compromise between murder in the first degree and manslaughter].)

    For example in Price v. Georgia (1970) 398 US 323 [90 SCt 1757; 26 LEd2d 300], the Supreme Court reversed the defendant's conviction for voluntary manslaughter because he had improperly been tried for first degree murder. The court reasoned:

    "Further, and perhaps of more importance, we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence. [Citation.]" (Id. at 331.)

    This principle has been recognized and/or applied in a number of other cases. (People v. Doolittle (CA 1972) 23 CA3d 14, 22 [99 CR2d 810] [Price cited and potential for prejudice recognized]; Leonard v. People (CO 1962) 369 P2d 54, 59 [reversed where defendant was charged with first degree murder and convicted of voluntary manslaughter; court notes its long-standing recognition that "there is a real danger to a defendant in instructing upon higher degrees of homicide when the evidence will not support such instructions"]; People v. Mayo (NY 1979) 48 NY2d 245, 250 [397 NE2d 1166, 1169] [recognized the "clear import" of Price and reversed]; Harrison v. State (GA 1977) 240 SE2d 263, 265-266 [reversed where district attorney and court improperly referred to charge of murder in a prosecution for voluntary manslaughter]; People v. Marshall (MI 1962) 115 NW2d 309, 311 [reversed where defendant was charged with first degree murder and convicted of manslaughter; court recognizes that when twelve jurors agree, there is a "composition of views" which can be affected by improper greater charges]; People v. Hansen (MI 1962) 118 NW2d 422, 350 [reversed where defendant charged with first degree murder and convicted of second degree; additional cases cited]; Pugliese v. Perrin (1st Cir. 1984) 731 F2d 85, 88 [defendant charged with manslaughter and convicted of negligent homicide]; Sherman v. State (MD 1980) 421 A2d 80, 83 [discussing potential prejudice from submission of "dead counts" to the jury].)

RESEARCH NOTES:

Annotation, Modern Status Of Law Regarding Cure Of Error, An Instruction As To One Offense, By Conviction Of Higher Or Lesser Offense, 15 ALR4th 118.

Annotation, Propriety Of Manslaughter Conviction In Prosecution For Murder, Absent Proof Of Necessary Element Of Manslaughter, 19 ALR4th 861.

See also generally, NCJIC 305.1.12 [Appeal].