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| Lesser-included Instructions |
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Scott v. State
, 2005 OK CR 3 January 28, 2005) : If trial court proposes lesser-included instructions at the close of evidence, Defendant may object and proceed on an “all or nothing” course of action; but Defendant must object to all lesser-included instructions. Here, Defendant objected to Murder II, but requested Man. I, and was convicted of Murder II. Held: No error in trial court giving the Murder II instruction (over objection) because Defendant did not insist on an “all or nothing”.
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Swanson v. State,
No. F-2004-529 (Okl.Cr., June 6, 2005) (Unpublished): Nice win on a lesser-included instruction issue. Swanson was tried on one count of Possession of Cocaine Base w/Intent to Distribute. The trial court, over Swanson's objection, instructed the jury on the lesser-included charge of Possession of Cocaine Base and the jury convicted on this lesser charge. The State did not request any lesser-included instructions and, as the case is controlled squarely by Shrum, the Court reversed with instructions to dismiss.
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McHam v. State,
2005 OK CR 28 (Okl.Cr., December 14, 2005): Interesting opinion dealing with several issues, but most significantly clarifying the law on when lesser-included instructions may be given over the objection of the accused. McHam was charged with Murder I. At trial he defended on the basis of self-defense. At the conclusion of the evidence the State did not request a lesser charge instruction, but the trial court sua sponte gave a heat-of-passion manslaughter instruction over McHam's objection. The jury found him guilty of the lesser charge and sentenced him to 20 years. On appeal he argued that his strategy and intention was to go all-or-nothing and the trial court erred in giving the instruction. HELD: it was not error for the trial court to give the lesser instruction over the objection of the accused. The Court stated that the accused may proceed on an all-or-nothing basis, but the trial court is not bound by such a decision. PROCEDURAL RULE: In addition, the Court reiterated the rule that in order to challenge the sufficiency of the evidence at trial, the accused must file a motion to quash the Information for insufficient evidence. NOTE: this opinion was 3-2, with Judge Lewis and Chapel dissenting. ALSO NOTE: in paragraph 11 of the opinion is one of the worst examples of ending a sentence in a preposition that I have ever seen.
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Kenneth Lee Rawlins v. State,
No. F-2004-866 (Okl.Cr., August 17, 2006) (unpublished): Jury Instructions/Lesser-Included Instructions: The Rawlins brothers were tried in three separate cases way down in Love County. They were accused of Shooting with Intent to Kill, but Kenneth Rawlins was ultimately convicted in one case of Assault and Battery with a Deadly Weapon when the trial judge, Hon. John Skaggs, instructed the jury on this crime as a lesser-included offense. The appellate court affirmed two of the cases but reversed and remanded for a new trial the third case, holding that Judge Skaggs committed error when he instructed the jury, over objection by the defense and without a request from the State, that Assault and Battery with a Deadly Weapon was a lesser-included offense of Shooting with Intent to Kill. Here is the bit of intellectual dishonesty by the Court that is very puzzling: the Court purported to overrule Elder v. State, 1988 OK CR 96, 755 P.2d 690, on this issue(?!) Rawlins is an unpublished case that purports to overrule a published decision on a rule of law. Sometimes the Court just does things that cannot be explained in a rational manner and this appears to be one of them.
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United States v. Bruce,
No. 05-2150 (10th Cir., August 15, 2006) (Published): Jury Instructions; Lesser-Included Instructions: Bruce got into a nasty domestic dispute with his girlfriend and mother of his four children and beat her up severely in a trailer house in New Mexico. He was indicted and convicted of two counts of Assault with a Dangerous Weapon with Intent to do Bodily Harm and one count of Assault Resulting in Serious Bodily Injury. The Circuit affirmed his convictions over a claim that he was entitled to a lesser-included instruction, but reversed a special condition of supervised release that involved consent to search his person and property while on probation because the District Court did not give Bruce proper notice of imposition of the condition. The opinion contains a good discussion of lesser-included offense instructions in the federal system.
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United States v. Eddy,
No. 07-5081 (10th Cir., April 29, 2008) (Published): Jury Instructions; Lesser-Included Instructions: Eddy was convicted by a jury in Tulsa of drug and firearm charges and sentenced to 61 months. The Circuit described the legal issue as: On appeal Mr. Eddy argues that the district court committed plain error when it failed to instruct the jury that distribution of a small amount of marijuana for no remuneration constitutes simple possession under 21 U.S.C. sec. 841(b)(4), punishable as a misdemeanor, and that if the conviction on Count 2 is invalid, Count 3 should also be reversed because Count 2 was an alternative predicate for Count 3. As good as all that sounds, the panel AFFIRMED. NOTE: There was no requested instruction at trial, thus this was a plain error case. In fact, the panel intimated that the failure of a trial court instruct sua sponte on lesser crimes is not error at all in a non-capital case; and certainly not constitutional or plain error in this case.
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