Being Present Where Object Is Located Is Not Possession (Tennessee)

In United States v. Morrison [excerpt after the jump] the trial court correctly clarified the meaning of possession when it granted the defense’s request to instruct that "just being present where something is located does not equal possession."

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Forecite National™
33.4.8 - Possession Of Recently Stolen Property: Defense Theory That Prosecution Has Not Proven That Possession Was Exclusive
56.2 - Possession: Sufficiency Of Proof
The Shellow Instructions
Drugs, Controlled Substances: Possession
Forecite California™
F 1.24 Possession
F 3306 Possession Based Offenses—Defense Theories

Michigan Supreme Court Holds That The Defendant Did Not Lose The Right To Self-Defense Merely By Presenting Himself To The Victim On A Public Street While Armed (Michigan)

In People v. Bailey [excerpt after the jump] the trial judge instructed the jurors that a person cannot “claim self defense if . . . they confront someone, intending, by their mere presence, to provoke the person to do something, and then take advantage of it.”

The Michigan Supreme Court concluded that this instruction misstated the facts and the law of self-defense because “[s]tanding alone, Bailey’s armed presence on the street [did] not amount to either fault or provocation.”

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Forecite National™
253.4.15 - Self Defense By Aggressor
Forecite California™
F 5.54 - Self-Defense By An Aggressor

Sample Instruction: Preliminary Fact – Whether A Prior Crime Offered For Impeachment Bears On Truthfulness (North Carolina)

You may consider this evidence for one purpose only. Again, if, considering the nature of the crime, you believe that it bears on truthfulness, then you may consider it together with all other facts and circumstances bearing upon the witnesses' truthfulness.

Source: Approved in  State v. Riley, (N.C. Ct. App., NO. COA09-643, Feb. 2, 2010).

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Forecite National™
27.3.2 - Prior Conviction Of Defendant
The Shellow Instructions
Prior Convictions To Impeach Defendant's Credibility: Limiting Instruction
Forecite California™
F 2.23a Defendant’s Testimony: Impeachment By Prior Conviction

Failure To Instruct On Mens Rea Of Lesser Included Offense Deprived Defendant Of An Instruction Which Correctly Stated His Theory Of The Case (Alabama)

In Jackson v. State [excerpt after the jump] the trial judge instructed on vehicular homicide as a lesser included offense of the manslaughter charge.  However, the instructions on vehicular manslaughter were misleading because they did not correctly explain that the lesser offense could be found if the jurors found that the defendant acted recklessly as the defense contended.  Because the instructions foreclosed the jurors from finding the defendant guilty of vehicular manslaughter based on reckless conduct, the error was prejudicial.

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Forecite National™
45.4 - Concurrence Of Act And Intent
45.1.1 - Requirement Of Criminal Intent Or Culpable Mental State: General Principles 
Forecite California™
CG 3.12 Requirement Of Criminal Mens Rea

Cautionary Instruction Required When Law Enforcement Officer Provides Both “Fact Testimony” And “Opinion Testimony”

In United States v. Munoz [excerpt after the jump] the trial judge ruled that a cautionary instruction was necessary to assure the jurors would properly differentiate between the witness’s “fact testimony” and “opinion testimony”.

For subscription based briefing and sample instructions on this and related issues see:

Forecite National™
29.1 - Expert Qualification And Scope Of Expert Testimony
29.2 - Instruction On Expert Testimony
Chapter 30 - Lay Opinion/Nonexpert Opinion 
The Shellow Instructions
Expert Witnesses
Forecite California™
F 332 Expert Witness Testimony
F 333 Opinion Testimony Of Lay Witness

Right To Lesser Included Instruction Based On Weak And Contradicted Testimony (Texas)

Williams v. State [excerpt after the jump] held that a lesser included offense instruction was required even though the testimony in support of that instruction was weak, impeached and contradicted.

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Forecite National™
265.2.1 - Any Substantial Evidence Test For Lesser Included Offenses
Forecite California™
LIO II - Lesser Included Offenses - Duty To Instruct

Self-Defense As Basis For Reducing A Robbery To A Theft (Texas)

If a shoplifter or thief uses force to escape with the stolen property then the crime may be considered to be a robbery in many jurisdictions.  However, if the thief/shoplifter used force to defend against an assault and not to perpetuate the theft the crime may be theft instead of robbery. (See e.g. Williams v. State [excerpt after the jump].

Should The Written Verdict Forms Be Submitted With The Written Instructions? (Texas)

In Jennings v. State [excerpt after the jump] the judge failed to give the jurors a “not guilty” verdict form for the lesser-included offense.  No one noticed this omission, the defendant did not object, and the jurors did not question its absence.  The jurors returned a verdict of guilty on the lesser offense.

On appeal the defendant claimed that the missing verdict form was reversible error but the appellate court held the issue was waived.  The Texas Supreme Court remanded the case to the appellate court  to analyze the verdict issue under the “egregious harm” standard as set out in Almanza v. State 686 S.W.2d 157 (Tex. Crim. App. 1985).

For subscription based briefing and sample instructions on this and many other issues see:

Forecite National™
287.3 - Verdict And Verdict Forms
Forecite California™
F 3517 - Deliberations And Completion Of Verdict Forms

Special Verdict: Instructions Erroneously Gave Prosecution Two Opportunities To Convict Defendant When There Was Only One Crime (Kentucky)

In Leinenbach v. Commonwealth [excerpt after the jump] the defendant was indicted on a single count of rape.  However, the instructions erroneously used a so-called juror interrogatory or special verdict format which gave the jurors two opportunities to convict the defendant.

Sample Instruction: Third Party Guilt (Indiana)

Kenneth Cronin has asserted the defense that a third party, Derrick Stiles, committed the crimes of manufacturing and dealing methamphetamine and has acted to conceal his crimes and avoid punishment by placing the blame on Mr. Cronin.
    
Kenneth claims that to further his plan, Derrick Stiles lied to police about Kenneth's activities, placed incriminating evidence at the Aster Road property Stiles rented and in Kenneth's garage and vehicle at his Highwater Road residence.
    
If the State of Indiana has not convinced you beyond a reasonable doubt that Kenneth's defense, that is that Derrick Stiles performed these acts, you should find Kenneth Cronin not guilty.

Source: Cronin v. State, (Ind. Ct. App., No. 62A01-0904-CR-186, Jan. 25, 2010) [requested in Cronin]. [NOTICE: This opinion is UNPUBLISHED.]

Juror’s Questions Demonstrate That California’s Pattern Instruction On Aiding And Abetting Are Confusing (California)

Years ago Forecite California™ suggested that CALJIC 3.00 (now CALCRIM) should be modified to make it clear that an aider and abettor can be convicted of a lesser offense than the perpetrator. People v. Nero [excerpt after the jump] agreed with Forecite’s position concluding that “even in unexceptional circumstances CALJIC No. 3.00 and CALCRIM No. 400 can be misleading.” And, as Nero observed, the jurors’ questions during deliberations demonstrated the confusion engendered by CALJIC 3.00:

Notwithstanding that [other] instructions suggest[ing] that Brown's mental state was not tied to Nero's, the jury still asked if they could find Brown, as an aider and abettor, guilty of a greater or lesser offense than Nero. This suggests to us that the aider and abettor instructions—namely, CALJIC No. 3.00—are confusing and should be modified. And where, as here, the jury asks the specific question whether an aider and abettor may be guilty of a lesser offense, the proper answer is “yes,” she can be. The trial court, however, by twice rereading CALJIC No. 3.00 in response to the jury's question, misinstructed the jury.

For subscription based briefing and sample instructions on this and many other issues see:

Forecite National™
Chapter 65 - Lesser Offense Liability For Aider And Abettor
Forecite California™
F 3.00 n5 - Lesser Offense Liability For Aider And Abettor

Florida Jury Instruction Improperly Required Intent To Kill For Manslaughter Conviction (Florida)

Montgomery v. State [excerpt after the jump] held that the trial court fundamentally erred in instructing the jury that to convict the defendant of the lesser included charge of manslaughter by act, they had to find that he intentionally caused the death of the victim. In so doing the Court noted that the Florida Supreme Court recently revised the manslaughter pattern instruction in a manner consistent with the opinion in Montgomery.

Sample Instruction: Proof Beyond A Reasonable Doubt Precludes Every Reasonable Hypothesis Except Guilt (Connecticut)

Proof beyond a reasonable doubt does not mean proof beyond all doubt. The law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. The law requires that after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of the jurors, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.

Source: Approved in State v. Vazquez, 119 Conn. App. 249, slip opn. p. 9 (Conn. App. Ct., AC 30057, 2010) and State v. Howard, 88 Conn. App. 404, 428-29, 870 A.2d 8, cert. denied, 275 Conn. 917, 883 A.2d 1250 (2005)