Another foray into the lesser offenses thicket
"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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