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A parallel universe

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David Deanda caught a pretty big break at trial.  He'd gotten into a knife fight where the other guy had forgotten to bring a knife.  As might be expected, the other guy wound up the worse for it; Deanda was still yelling that he was going to kill the victim after the cops pulled him away, and the victim had to be life-flighted to the hospital.  That earned Deanda an indictment for attempted murder, but the jury convicted him of the lesser included offense of felonious assault. 

Deanda caught an even bigger break in the court of appeals.  By a 2-1 vote, it decided that the jury shouldn't have been charged on felonious assault, because felonious assault wasn't a lesser offense of attempted murder.

So there was everybody at the oral argument on the case last week before the Supreme Court, about whether the decision to charge on a lesser offense should be made based on an abstract comparison of the elements of the charges, or by taking into consideration the facts of the case.  As Yogi Berra would say, "It's déjà vu all over again."

The abstract elements/facts argument, of course, is a rehash of the debate over allied offenses that played out after the Supreme Court's 1999 decision in State v. Rance.  Under Rance, if it was theoretically possible to commit one offense without committing the other, they were separate offenses.  It took about eight years for the court to realize that Rance was producing absurd results, and it spent the next three years trying to patch up the damage.  The court finally took Rance off life support in 2010, in State v. Johnson adopting a test that determined whether the defendant had committed the crimes with the same conduct.  The question became not whether the two offenses could be committed separately, but whether they were.

Something similar played out in the law on lesser-included offenses.  Back in 1988, the Supreme Court laid down a three-part test for lesser included offenses in State v. Deem.  Two parts were easy:  the lesser offenses had to be of a lesser degree, and some element of the greater offense isn't required to prove the lesser.  Simple assault is a lesser offense than felonious assault, because the latter contains the additional element of serious physical harm or use of a deadly weapon.  The third part is where it gets tricky:   "the offense of the greater degree cannot, as statutorily defined, ever be committed without the offense of the lesser degree, as statutorily defined, also being committed."  (Keep that "ever" in mind.)

And that was where the 3rd District hung its hat in reversing in Deanda.  Attempted murder required an attempt to kill.  Felonious assault requires the infliction of serious physical harm.  One can attempt to kill someone without causing serious physical harm, the court coming up with the analogy of the man who attempts to kill his wife by poisoning her, except she doesn't eat the poison:  attempt to kill, but no harm.

There are different approaches to this question, one being to look at the legal principles involved, carefully examine the statutes at issue, and apply the principles in light of legal precedent.  The other is to say, "Does this make any sense?  Should the criminal justice produce this kind of result?"  The answer is no.  Deandra knifed a guy.  The only question was whether he had the intent to kill him.  The jury decided he didn't, and a conviction for felonious assault is just right.

So why isn't that the result?  Because the Supreme Court hasn't gotten around to saying so yet.  The absurdity of the results that Deem could produce was highlighted a couple years back in State v. Evans.  Evans had tried to pull a purse-snatching, but the woman wouldn't give it up, even after Evans claimed he had a gun, which he never produced.  He was charged with aggravated robbery, but the judge in a bench trial decided he didn't have a gun, and so convicted him of the lesser offense of robbery.  The court of appeals reversed, finding that robbery requires an infliction, or attempt to inflict or of a threat of, physical harm, and thus wasn't a lesser offense of aggravated robbery, which required use of a gun.  The Supreme Court found that the threat to produce a gun satisfied the "threaten physical harm" element and reversed, and took a potshot at the "implausible scenarios" presented by the defense as hypotheticals as to how robbery couldn't be a lesser offense by announcing that it was deleting the word "ever" from the Deem test. 

What exactly that meant wasn't clear, but it couldn't be interpreted as meaning that the abstract comparison test was dead; in fact, the opinion took pains to note the precedents holding that "'the evidence presented in a particular case is irrelevant to the determination of whether an offense, as statutorily defined, is necessarily included in a greater offense."  It wasn't irrelevant to Chief Justice O'Connor on Wednesday; "You have to look at the facts," she told the prosecutor.  "That has to be part of the analysis."

Whether that's going to happen is hard to tell.  Both attorneys argued the facts didn't matter.  The prosecutor spent most of his argument in the thickets of inchoate offenses -- the problem, as he deemed it, was that this called for comparing an attempt with a completed crime.  (The 3rd District explained that it would have had no problem holding that attempted felonious assault was a lesser included offense of attempted murder.)  The defense attorney spent his time, of course, defending that 3rd District's decision that the facts didn't matter.  Plus, the court could sidestep the issue completely on procedural issues of waiver or invited error.  The defense had in fact brought up the issue in the trial court by asking for a charge on aggravated assault.  The prosecution countered by requesting an instruction on felonious assault, and the defense didn't object.

It's unlikely that the court will adopt the same "conduct" test for lesser includeds that it did for allied offenses.  There are some differences between the two, after all.  Conviction of a lesser included offense poses the potential of the defendant being convicted of a crime that the grand jury never considered in indicting him, and that he had no notice that he was defending against.  And a relaxation of the Deem test is usually to the defendant's benefit, since it creates alternatives to a finding of guilt on the main charge.  Still, the bottom line is that the result in Deanda doesn't make sense, and I think the court's going to do something about that.

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