Failure To Instruct On Lesser Included Offense May Present The Jurors With A "Hobbesian Choice" In Violation Of “Fundamental Fairness” (Maryland)

In Hook v. State, 315 Md. 25, 553 A.2d 233 (1989), a first degree murder prosecution, the defendant asked the judge to instruct on second degree murder.  The judge refused and instructed counsel that he could not address the issue of second‑degree murder during his closing, except to notify the jury that it was not before them. Id. at 37‑38. On appeal, the Court of Appeals analyzed whether petitioner was deprived of his right to fundamental fairness because the trial court failed to provide the instruction for second‑degree murder. Id. at 36‑37. The Court of Appeals held that petitioner was deprived of fundamental fairness, and explained: “When the defendant is plainly guilty of some offense, and the evidence is legally sufficient for the trier of fact to convict him of  either the greater offense or a lesser included offense, it is fundamentally unfair [to not instruct on] the lesser included offense. . . .[I]t is simply offensive to fundamental fairness, in such circumstances, to deprive the trier of fact, over the defendant’s objection, of the third option of convicting the defendant of a lesser included offense. And if the trial is before a jury, the defendant is entitled, if he so desires, to have the jury instructed as to the lesser included offense.” Id. at 43‑ 44; compare Harrison v. State, 2011 Md. App. LEXIS 43, 3‑28 (4/4/2011, Md. Ct. Spec. App. No. 2247) [The record reflects that it was appellant’s strategic choice to proceed with the “all‑or‑nothing” approach that left the jury with the “Hobbesian choice” of convicting appellant of [the greater offense] or setting him free]; but see People v. Barton (1975) 12 Cal.4th 186 [disapproving rule allowing defendant to waive instruction on lesser offense].

Historical Note:  The Hook Court explained the genesis of the term “Hobsian choice” as follows: “‘After Thomas Hobson, 1631 English liveryman, from his practice of requiring every customer to take the horse which stood nearest the door. Thus, the forced acceptance of something whether one likes it or not; the necessity of accepting something objectionable through the fact that one would otherwise get nothing at all; something that one must accept through want of any real alternative.’ Webster’s Third New International Dictionary of the English Language Unabridged (1981) at 1076.315 Md. at 38 n.18.”

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Chapter 265: Lesser Included Offenses: General Principles

265.3.9 Appellate Counsel Has Duty To Raise Failure Of Trial Court To Sua Sponte Instruct On Lesser Included Offense

296.2.6.1 Failure To Instruct Sua Sponte On Lesser Included Offense As Violation Of Federal Due Process

296.2.6.2 Refusal Of Request To Instruct On Lesser Included Offense Governed By Federal Standard Of Prejudice

296.2.6.3 Failure To Instruct On Lesser Offense Creates Improper All‑Or‑Nothing Choice

300.7 Failure To Instruct On Lesser Included Offenses In Noncapital Case

300.8 Failure To Instruct On Lesser Included Offense In Capital Case

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PG V(A)(7)  Judge’s Duty To Instruct On Lesser Included Offense

PG X(J)   Standard of Prejudice: Failure to Instruct on LIO

LIO II ‑ Duty to Instruct

Instructing Jurors On False Options Violated Two Jury Instruction Practice Maxims (Kentucky)

In Fegley v. Commonwealth, 2011 Ky. App. LEXIS 60, 6‑13 (4/1/2011, Ky. Ct. App., No. 2009‑CA‑001898‑MR) the jury was incorrectly asked to make a sentencing recommendation between 10 and 120 years.  The correct range was 10 to 70 years.  Even though the jury’s recommendation of 60 years was within the correct range and  the judge was not obligated to follow the jury’s recommendation, Fegley’s habeas petition was granted based on the following "goal post" rationale from Lawson v. Commonwealth, 85 S.W.3d 571 (Ky. 2002):

[B]ecause of the improper information given to the jury regarding the maximum sentence it could fix, no one will ever know what sentence the jury would have recommended if it had deliberated Appellant’s punishment in reference to the proper maximum penalty “goalpost”‑twenty (20) years . . .  Although we recognize that the trial court may again elect to sentence Appellant to a total sentence of twenty (20) years, we believe due process entitles Appellant to a jury recommendation as to whether the sentences for his convictions run concurrently or consecutively, and we also know that the jury’s recommendation will be considered by the trial court before it makes a final decision. [Emphasis added.] Id. at 582. 

Accordingly, the Fegley court concluded that instructing the jurors on “false options” was reversible error.

The Fegley decision illustrates two jury instruction practice maxims.

1. Juror Propensity to Compromise Makes False Options Prejudicial

First, jurors will deliberate within the parameters of the options they are given and may reach a compromise verdict based on these options.  For example in Price v. Georgia (1970) 398 U.S. 323, the Supreme Court reversed the defendant's conviction for voluntary manslaughter because he had improperly been tried for first degree murder. The court reasoned:

“Further, and perhaps of more importance, we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence. [Citation.]” (Id. at 331.)

This principle has been recognized and/or applied in a number of other cases. (People v. Doolittle (CA 1972) 23 Cal.App.3d 14, 22 [Price cited and potential for prejudice recognized]; Leonard v. People (CO 1962) 369 P.2d 54, 59 [reversed where defendant was charged with first degree murder and convicted of voluntary manslaughter; court notes its long‑standing recognition that “there is a real danger to a defendant in instructing upon higher degrees of homicide when the evidence will not support such instructions”]; People v. Mayo (NY 1979) 48 N.Y.2d 245, 250 [397 N.E.2d 1166, 1169] [recognized the "clear import" of Price and reversed]; Harrison v. State (GA 1977) 240 S.E.2d 263, 265‑266 [reversed where district attorney and court improperly referred to charge of murder in a prosecution for voluntary manslaughter]; People v. Marshall (MI 1962) 115 N.W.2d 309, 311 [reversed where defendant was charged with first degree murder and convicted of manslaughter; court recognizes that when twelve jurors agree, there is a “composition of views” which can be affected by improper greater charges]; People v. Hansen (MI 1962) 118 N.W.2d 422, 350 [reversed where defendant charged with first degree murder and convicted of second degree; additional cases cited]; Pugliese v. Perrin (1st Cir. 1984) 731 F.2d 85, 88 [defendant charged with manslaughter and convicted of negligent homicide]; Sherman v. State (MD 1980) 421 A.2d 80, 83 [discussing potential prejudice from submission of "dead counts" to the jury].)

Accordingly, a false option may be prejudicial even though the verdict does not expressly embrace that option. 

2. Allowing Jurors to Consider False Options Undermines Confidence in the Judicial System

Second, giving the jurors false options undermines the mandates and ideals of the constitution by reducing the people’s confidence in their judiciary: 

“It would seem that a court’s instruction that a jury may in fact sentence a defendant to a “confinement in the penitentiary” to a term of years which exceeds the mandates of KRS 532.110(1)(c), is no less false or incorrect than the testimony of the probation officer or the closing statements of the prosecuting attorney. As emphasized by the Supreme Court in Peyton v. Commonwealth, 253 S.W.3d 504, 511 (Ky. 2008),What is at stake here is judicial transparency. The judiciary is duty‑bound to maintain credibility with the jurors of this Commonwealth. As a matter of policy, the Commonwealth’s courts should not instruct a jury that they have options in relegating a sentence for a criminal defendant, and then take these options away. It is incumbent upon this Court to ensure that the People have confidence in their judiciary. Therefore, if we instruct the jury that they have the power to recommend a sentence with one hand, and then take that decision away from them with the other, we have failed in our task to uphold the mandates and ideals of our Constitution.”  Fegley, supra.

Kansas Judge Committed Reversible Error By Instructing The Jurors On An Uncharged Offense Which Was Not Included In The Charged Offense (Kansas)

In Kansas the crime of criminal deprivation of property is “obtaining or exerting unauthorized control over property, with intent to deprive the owner of the temporary use thereof, without the owner’s consent but not with the intent of depriving the owner permanently of the possession, use or benefit of such owner’s property.” K.S.A. 21‑3705(a). Theft is “[o]btaining or exerting unauthorized control over property . . . with intent to deprive the owner permanently of the possession, use or benefit of the owner’s  [*4] property.” K.S.A. 21‑3701(a)(1).

Accordingly, that criminal deprivation of property is not a lesser included offense of theft because theft requires intent to permanently deprive the owner of the possession, use, or benefit of the property, while the definition of criminal deprivation specifically excludes the intent to permanently deprive. State v. McKissack, 283 Kan. 721, 728‑29 (2007).

In State v. Stoughton, (4/1/2011, Kan. Ct. App., No. 103,898) [NOTICE: This opinion is UNPUBLISHED] Stoughton was charged with theft but not criminal deprivation and the complaint was never amended. The first time that criminal deprivation of property was mentioned was when the judge decided to instruct the jury on the issue at the close of the trial.

Accordingly, the district court was without jurisdiction to convict Stoughton of criminal deprivation of property. “A judgment for an offense where the court is without jurisdiction is void.” State v. McKissack, 283 Kan. 721, 731 (2007).

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267.2 Instruction On Uncharged Nonincluded Lesser Offense Over Objection Violates Due Process

300.2.1 Charging Variance: Instruction On Uncharged Theory Violates Notice/Due Process Principles And Right To Effective Assistance Of Counsel

The Shellow Instructions

Lesser Included Offense/Other Offense: Judge’s Submission Of Alternative Offenses

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PG VII(C)(11)  Instruction On Uncharged Theory Violates Due Process And Right to Effective Assistance of Counsel

LRO IV(B) Mere Failure To Object To Uncharged Related Offense Is Not Implied Consent

Jurors Use Of Electronic Communication Devices Should Be Prohibited (Indiana/Kansas/New York)

State v. Mitchell, (4/8/2011, Kan. Ct. App., No. 101,611) encouraged the PIK (Pattern Jury Instruction, Kansas) committee to consider a revision to the general instruction on juror communication along the lines of that utilized in New York: “‘Jury Admonitions in Preliminary Instructions’ to include specific instructions to jurors not to use ‘internet maps or Google Earth’ as well as not to actually visit any place mentioned during the trial, not to use ‘the internet’ to do any research about the case, and not to use ‘text messages, email, internet chat rooms, blogs or social websites, such as Facebook, MySpace, or Twitter’ as well as face‑to‑face conversations to discuss the case.” People v. Jamison, 24 Misc. 3d 1238[A], 899 N.Y.S.2d 62, 2009 WL 2568740 (N.Y. Sup. Ct., Misc. 3d 2009) [NOTICE: This opinion is UNPUBLISHED.]

The rationale for this instruction was explained by Henri v. Curto, 908 N.E.2d 196, 202‑03 (Ind. 2009) as follows:

“We additionally observe that permitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant potential problems impacting the fair administration of justice. These include the disclosure of confidential proceedings or deliberations; a juror’s receiving improper information or otherwise being influenced; and a witness’s or juror’s distraction or preoccupation with family, employment, school, or business concerns. These and other detrimental factors are magnified due to swift advances in technology that may enable a cell phone user to engage in text messaging, social networking, web access, voice recording, and photo and video camera capabilities, among others. The best practice is for trial courts to discourage, restrict, prohibit, or prevent access to mobile electronic communication devices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation.”

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16.4.1 Jury Not To Read Internet, E‑mail, On‑line Discussion Groups Or Other Computer‑ Based Sources Of Media Reports About The Trial

16.6.9 Jurors Accessing Information From The Internet

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PG II(E)(3)  Reference To Specific Facts/Witnesses: Blanket Admonition May Be Undercut By List Of Specific Items

F 1.00 n5  Pretrial Instruction Re Jury’s Duty (PC 1122(a)); CRC Rule 2.1035

Kansas Disapproves Instruction Regarding The “Burden” Of A Retrial On Both Parties (Kansas)

The 2004 version of a Kansas pattern instruction instructed the jury that “another trial would be a burden on both sides” (PIK Crim. 3d 68.12 (2004 Supp.).  State v. Mitchell, (4/8/2011, Kan. Ct. App., No. 101,611) held that giving the jury such an instruction was error.  However, the erroneous instruction did not warrant reversal because it was given before commencement of deliberations.

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286.3.2 Deadlock: Instruction Should Not Stress The Expense and Difficulties Involved In Retrial

Witness Harassment Instruction Omitted Intent Element (Idaho)

In State v. Anderson, 144 Idaho 743, 170 P.3d 886 (2007) the defendant was arrested for shoving his wife a number of times. Several days after the incident, Anderson left a voice mail for one of the arresting officers. The officer testified that Anderson stated he was going to “get me on the stand and let people know I’m gay.” Id. at 745, 170 P.3d at 888.  Based on this voice mail Anderson was charged with harassing a witness and at the end of the trial the essential elements of the charge were defined as follows:

“1. On or about the 14th day of January, 2005;

2. in the state of Idaho;

3. the defendant, JOHN CORNELL ANDERSON, did willfully threaten or harass;

4. a witness in a criminal proceeding;

5. or a witness the defendant believe[d] may be called in a criminal proceeding.”  Anderson, 144 Idaho at 748, 170 P.3d at 891.

Anderson was convicted but on appeal the reviewing court held that the instruction erroneously failed to require a jury finding that Anderson willfully threatened or harassed the witness “from testifying freely, fully and truthfully.” Ibid. Accordingly, the instruction omitted an essential element of the crime in violation of  Anderson’s right to due process.  The state failed to meet is burden of demonstrating the error was harmless because the jury could have thought that Anderson called the officer to vent his anger or to irritate or annoy the officer, rather than intimidate him regarding his testimony. Id. at 749, 170 P.3d at 892; see also State v. Sutton, (4/1/2011, Idaho Ct. App. No. 36819, 2011 Opinion No. 17) [The witness intimidation instruction was plain error which violated an unwaived constitutional right and was not harmless].

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3.1 Duty To Instruct On Elements Of The Charged Offense

77.13 Witness Intimidation

296.2.3.2 Standard Of Prejudice On Appeal: Removal Of A Single Element

The Shellow Instructions

Witness Intimidation

Consciousness Of Guilt: Threatening To Harm Witness

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PG V(A)(2) Duty to Instruct on General Principles, Elements and Theories

PG X(C)(1)(b) Removal Of A Single Element

F 7.14 Witness Intimidation

F 7.15 Witness Intimidation

F 7.16 Witness Intimidation and Testimony
F 16.505 Witness Intimidation

Florida Appellate Court Reverses False Imprisonment Conviction Due To Omission Of Material Element (Florida)

To establish the crime of false imprisonment in Florida, the state is required to prove two elements beyond a reasonable doubt: (1) the defendant forcibly, secretly, or by threat confined, abducted, imprisoned or restrained the victim against his or her will; and (2) the defendant had no lawful authority to do so. § 787.02(1)(a), Fla. Stat. (2006); Fla. Std. Jury Instr. (Crim.) 9.2. The instruction given in Seavey v. State, 2011 Fla. App. LEXIS 4661, 2‑4 (4/1/2011, Fla. Dist. Ct. App., No. 5D09‑3430) omitted the portion requiring that the offense be committed “forcibly, secretly, or by threat.” The omission of this element was fundamental error because the omission was material to what the jury must consider in order to convict. Ibid.; see also State v. Delva, 575 So. 2d 643, 645 (Fla. 1991).

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3.1 Duty To Instruct On Elements Of The Charged Offense

93.3 False Imprisonment

296.2.3.2 Standard Of Prejudice On Appeal: Removal Of A Single Element

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PG V(A)(2) Duty to Instruct on General Principles, Elements and Theories

PG X(C)(1)(b) Removal Of A Single Element

F 9.60 False Imprisonment

F 1240 Felony False Imprisonment

F 1242 Misdemeanor False Imprisonment

Florida Invalidates Standard Instruction Requiring Jury To Find Intent To Kill Before Returning A Verdict Of Voluntary Manslaughter (Florida)

In State v. Montgomery, 39 So. 3d 252 (Fla. 2010) the jury was instructed on the charged offense of first degree murder as well as the lesser included offenses of second degree murder and manslaughter.  The judge instructed the jurors on manslaughter based on the standard pattern instruction which provided in relevant part:

    To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:

        1. (Victim) is dead.

        2. a. (Defendant) intentionally caused the death of (victim).

. . .

    However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms.

    In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.  Fla. Std. Jury Instr. (Crim.) 7.7 (2006) (emphasis added).

On appeal the Florida Supreme Court held that “use of the standard instruction was fundamental error” because under Florida law manslaughter by act does not require that the defendant intentionally caused the death of the victim.  By failing to provide a complete and accurate instruction on manslaughter the judge effectively precluded the jury from fully considering the lesser offense because manslaughter is a residual offense which is “[c]haracterized by what it is not....”  See also Rojas v. State, 552 So. 2d 914, 915 (Fla. 1989).  And, the instruction was not subject to harmless error analysis because the jury convicted Montgomery of second degree murder which was only “one step removed” from manslaughter which was the next lesser option. See Montgomery, 39 So.3d at 259; see also Pena v. State, 901 So. 2d 781, 787 (Fla. 2005).

After the Montgomery decision the First and Fourth District Courts of Appeal have issued conflicting opinions as to whether Montgomery is equally applicable to attempted manslaughter. Compare Lamb v. State, 18 So. 3d 734 (Fla. 1st DCA 2009), First District, and Rushing v. State, 35 Fla. L. Weekly D1376, D1377 (Fla. 1st DCA June 21, 2010) with Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010).

Also, subsequent to Montgomery, Barros‑Dias v. State, 41 So. 3d 370, 372 (Fla. 2d DCA 2010), held that the standard manslaughter instruction was not fundamentally erroneous where the jury was also instructed on manslaughter by act by culpable negligence. See also Haygood v. State, 36 Fla. L. Weekly D270, D270‑71 (Fla. 2d DCA Feb. 4, 2011); but see Pollock v. State, (4/8/2011, Fla. Dist. Ct. App., No. 2D10‑1027) [Montgomery error held to be fundamental because Pollock properly objected to the trial court’s instructing the jury on manslaughter by culpable negligence on the basis that the evidence did not support it].

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Chapter 92: Homicide

92.3 Voluntary Manslaughter

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Series 500 Homicide

Public Authority Defense: Reliance On Foreign Government Agency Or Official (7th Circuit)

The Seventh Circuit pattern instruction on the “Public Authority Defense” provided as follows:

“A defendant who acts in reliance on public authority does not act knowingly . . . and should be found not guilty. A defendant acts under public authority if:

(1) that defendant is affirmatively told that his/her conduct would be lawful;

(2) the defendant is told this by an official of the [United States] government; [and]

(3) the defendant actually relies on what the official tells him/her in taking the action; [and,

(4) the defendant's reliance on what he/she was told by the official is reasonable in light of the circumstances.]

In considering whether a defendant actually relied on representations by an official that his/her conduct would lawful, you should consider all of the circumstances of their discussion, including the identity of the official, the point of law discussed, the nature of what the defendant told, and was told by, the official, and whether that reliance was reasonable.”  Seventh Circuit Pattern Criminal Federal Jury Instructions § 6.07 (Nov. 30, 1998).

Accordingly, if the only evidence in support of the defense is based on reliance of a foreign official the defense is not available and the instruction should not be given.  See United States v. Kashmiri, 2011 U.S. Dist. LEXIS 36400, 3‑9 (4/1/2011, N.D. Ill. No. 09 CR 830‑4) [defendant claimed to rely on Pakistani government and ISI officials]; see also United States v. Rector, 111 F.3d 503 (7th Cir. 1997).

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83.3.1.9 Conspiracy: Defendant’s Belief That He Or She Is Assisting The Government As Defense Theory [Public Authority Or Authorization Defense]

252.10.1.1 Defense Theory: Defendant's Belief That He Or She Was Acting As Agent Of Law Enforcement In Performance Of Legitimate Law Enforcement Activities

257.4.1 Equitable Estoppel Or Entrapment By Estoppel

The Shellow Instructions

Defense Theory: Reasonable Reliance On Authority

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F 3305 Inst 2 Equitable Estoppel/Entrapment By Estoppel/Public Authority/Government Authorization

Must The Judge Poll Jurors On Whether Further Deliberations Might Be Helpful Before Giving An Allen Charge?

Bright v. Haviland, (4/1/2011, E.D. Cal. No. CIV S 09 1774 JAM CHS) considered a habeas petition challenging a state conviction, inter alia, on the basis that the judge gave an Allen charge [Allen v. United States, 164 U.S. 492 (1896)] without first inquiring whether further deliberations would be productive. Petitioner further claimed that the Allen instruction improperly suggested to the jury that failure to reach a verdict was an unacceptable result, and thus was coercive. The federal district court concluded that the United States Supreme Court has never held that a trial court must poll jurors on whether further deliberations might be helpful before giving an Allen charge. Furthermore, the district court saw no reason for the state trial judge to believe that further deliberations would not be fruitful.

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Chapter 286: Deadlock
287.5 Jury Poll

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F 17.55 Deadlock Instructions

Instructions Which Increase The Prosecution’s Burden Are Harmless Error (3rd Circuit / Virgin Islands)

Courts have held that instructions that increase the Government's burden do not prejudice the defendant. See United States v. Johnson, 462 F.2d 423, 427 (3d Cir. 1972) [holding that the defendant was not prejudiced by a jury instruction that contained an unnecessary element for the offense charged because “[t]he judge's charge merely placed an additional burden of proof upon the Government, a burden which it was not required to sustain under the statute”]; see also Fleming v. People of the Virgin Islands, 2011 U.S. Dist. LEXIS 37181, 10‑15 (4/5/2011, D.V.I. No.2006‑55.

Pattern Instructions Are “Precatory, Not Mandatory” (1st Circuit)

In United States v. Jadlowe, 628 F.3d 1, 17 n.29 (1st Cir. 2010) the First Circuit emphasized that “although pattern instructions are often helpful, their use is precatory, not mandatory."  (Internal quotation marks and citations omitted).

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1.3 The Inherent Limitation Of Pattern Instructions

Chapter 3: Duty Of Court Regarding Instructions

Chapter 4: Duty Of Counsel Regarding Instructions

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PG XI(A) Propriety Of Non‑CALCRIM Instructions

PG I(B) Duty Of Court To Go Beyond The Standard Pattern Instructions

Use Or Carrying Firearm: Factual Examples In Jury Instructions Did Not Constitute Improper “Coaching” (1st Circuit)

In United States v. Alverio‑Melendez, (4/1/2011, 1st Cir. No. 09‑2269, No. 09‑2277) the defendants contended that the judge improperly coached the jury by instructing that "to carry a firearm during and in relation to a drug trafficking crime means to move or transport the firearm on one's person or in a vehicle or in a container during and in relation to the crime."  The First Circuit concluded that rather than coaching, the district court was merely explaining in general terms the charge against the defendants.  In so doing the reviewing court noted that the same language is used in the Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 4.07 (1998).  The defendants also alleged that the district court improperly coached the jury when it instructed that the firearm "must have played some sort of important role in the commission of the offense" and noted that "the role could have been protection, . . . security," or some other role but the First Circuit held that this did not constitute coaching either. See also United States v. Hernandez, 490 F.3d 81, 84 (1st Cir. 2007) ["It is unquestioned that, when instructing a jury, a judge 'may explain, comment upon and incorporate the evidence into the instructions in order to assist the jury to understand it in light of the applicable legal principles.'" (quoting United States v. Maguire, 918 F.2d 254, 268 (1st Cir. 1990))].