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Another foray into the lesser offenses thicket

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"Although the concept of lesser included offenses is easily understood in theory, it can be downright baffling in practice."  That's the first sentence of the section labeled "Analysis" in the Supreme Court's decision last week in State v. Deanda.  Sadly, Deanda, and another decision the court made  last week do not contribute to a lessening of bafflement on the subject.

Deanda knifed a guy, and was charged with attempted murder, but the jury convicted him of the lesser included offense of felonious assault.  Did I say "lesser included offense"?  The 3rd District didn't think so; it reversed, finding that felonious assault wasn't a lesser.  At first blush, that seems clearly wrong.  The jury obviously figured that felonious assault was a fair result -- maybe it found that Deanda didn't intend to kill, maybe it decided that the victim was somebody who deserved a good whooping, whatever.

Let's start with the law.  An offense is a lesser included if (a) it carries a lesser penalty, (b) the greater offense cannot be committed without committing the lesser offense, and (c) some element of the greater offense is not required to prove the commission of the lesser offense.

So what's the problem?  The second and third steps require a comparison of the elements of the two offenses in the abstract, without consideration of the facts.  Felonious assault requires proof of infliction of serious physical harm, while attempted murder requires only an attempt to kill.  You can attempt to kill a person without causing them serious physical harm -- the 3rd used as an example someone trying to poison his wife -- so it's possible to commit attempted murder, the greater offense, without committing the lesser.

Deanda is not the only time that the adherence to the abstract elements comparison has led to absurd results.  Prior decisions have held that felonious assault under the "deadly weapon" provision isn't a lesser included of attempted murder, and that theft is a lesser included offense of robbery, but not of aggravated robbery.  In fact, when I'd discussed the oral argument in Deanda, I'd noted the parallels to the law on allied offenses, which had also required a comparison of the elements of the two offenses in the abstract under State v. Rance, until the court realized that was stupid, and jettisoned it in State v. Johnson.  It seemed that several justices had that in mind in Deanda, with O'Connor pointedly telling the prosecutor, "You have to look at the facts.  That has to be part of the anlaysis."

Well, no you don't, it turns out.  O'Neill's opinion in Deanda is devoted largely to a narrative about the development of the law, from which he concludes that "the statutory-elements test for lesser included offenses has been repeatedly refined, clarified, modified, and amended, but it has never been overruled."  He notes that one of the problems here is the comparison of an attempted offense (attempted murder) to a completed one (felonious assault), observing that "it seems illogical to impose the requirement that the greater offense cannot be committed without the lesser offense also being committed, because an attempt offense almost always involves not committing the crime charged."  O'Neill then discards the attempted murder charge and focuses on the "core offense of murder," deciding that anyone who intends to kill intends to cause serious physical harm, and thus

The only practical difference between attempted murder and felonious assault through causing serious physical harm is whether the defendant intended to kill the victim when he engaged in the particular conduct or whether he intended merely to injure the victim with that conduct. Since the desire to physically harm is a subset of, and necessarily included in, the desire to kill, and since one cannot intend to kill without also intending to cause physical harm, we conclude that felonious assault through causing serious physical harm is a lesser included offense of attempted murder.

That achieves the desired result -- Deanda's conviction stands -- but the discomfiture with the process by which it is achieved is reflected by the fact that while the decision is unanimous, three justices concur only in judgment.  The difficulty of the task is reflected by the fact that none of those three venture their own opinion as to what the law should be.

Any lingering doubt as to the muddled state of the law on lesser included offenses was dispelled by the Supreme Court's other decision on the subject last week, State v. Davis.  Davis had shot Myers, the victim, ten times after Myers had punched Davis' pregnant girlfriend, knocking her unconscious.  The judge refused to give an instruction on voluntary manslaughter, and the jury acquitted of Davis of murder, but convicted him of felony murder and felonious assault.  Davis appealed, and the issue argued by the parties was whether the trial court was correct in concluding that insufficient evidence of provocation had been shown.  The 9th District sidestepped the issue and introduced one not briefed or argued:  it held that Davis wasn't prejudiced by the failure to give the instruction because he was acquitted of the purposeful murder charge, and that voluntary manslaughter wasn't a lesser included or inferior offense of felony murder, under an abstract comparison of the elements:   voluntary manslaughter requires "knowingly causing the death of another," and felony murder doesn't -- it only requires that death have resulted from the commission of another felony, such as felonious assault.

It should be obvious that the result in Davis is as untenable as the result in Deanda:  in both cases, a lesser included instruction was in accord with the evidence presented at trial, and should have been submitted for the jury's consideration.  So what did the Supreme Court do in Davis?  Nothing; it dismissed the appeal as having been improvidently granted, over the strenuous dissent of O'Neill, who argued that "we should make the effort to untangle this case and clarify the law on these fundamental issues."

True that.


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