State v. Ogden

¶1specially concurring.

¶2An appellate court’s responsibility in a case of first impression such as this is not merely to decide that the instruction to the jury was erroneous, but to explain our reasoning and in so explaining to provide some *99guidance to the trial court in this and future cases as to how to frame a proper instruction. The majority opinion does not explain our reasoning. Rather, it engages in an exercise of illustrating how the statutes and cases relied on by the state are irrelevant to the issues presented. It also cites, but does not discuss, cases from other jurisdictions which hold to be erroneous instructions substantially similar to that at issue here. The majority then concludes that the instruction here was error because it invades the province of the jury. The majority makes no attempt to explain how it reached this conclusion. Equally without analysis, the majority goes on to suggest an alternate instruction which is erroneous.

¶3The Rationale

¶4The reasons for invalidating the instruction at issue here are embedded in the policy considerations of the lesser-included offense doctrine. There are two possible rationales for that doctrine. The doctrine originated to assist the prosecution in obtaining a conviction. State v. Washington, 273 Or 829, 836, 543 P2d 1058 (1975). Arguably, the rule is only applicable where the prosecution’s evidence has failed to make out the elements of the offense charged, but has proved the elements of a lesser offense. If this is the only import of the lesser-included offense rule, then the trial court’s instruction here was correct. However, the rationale for the rule is broader, encompassing not only a failure of proof by the prosecution, but also the inherent power of the jury to pardon.1 This rationale is implicit in the fact that the rule has been extended to permit not only the prosecution but also the defense as a matter of right to demand lesser-included offense *100instructions. Washington, 273 Or at 837. If the lesser-included offense rule merely pertains to a failure of proof, it is questionable how such instruction could benefit the defendant who obviously would prefer an acquittal to a conviction of a lesser offense.

¶5There is not a great deal of authority articulating the purposes of the lesser-included offense doctrine. In Washingtonthe court stated that a purpose of the rule was to cover the situation where the prosecution failed to prove all the elements of the offense, but also acknowledged that a likely result is "compromise verdicts.” 273 Or at 840. Courts in other states have been more explicit when confronted with the issue. See e.g., People v. Powell, 34 Cal 2d 196, 208 P2d 974 (1949); Killen v. State, 92 So 2d 825 (Florida 1957); People v. Munoz, 11 App Div 2d 79, 202 NYS 2d 743 (1960); People v. Clemente, 285 App Div 258, 136 NYS 2d 202, 62 ALR 2d 1009 (1954), aff’d, 309 NY 890, 131 NE 2d 294 (1956); People v. Mussenden, 308 NY 558, 127 NE 2d 551 (1955); see also People v. Hurst, 396 Mich 1, 238 NW 2d 6 (1976). In Mussenden, the New York Court of Appeals, interpreting statutes identical to ORS 136.460 and 136.465, stated:

"It has been repeatedly written that if, upon any view of the facts, a defendant could properly be found guilty of a lesser degree or an included crime, the trial judge must submit such lower offense. … And it does not matter how strongly the evidence points to guilt of the crime charged in the indictment, or how unreasonable it would be, as a court may appraise the weight of the evidence, to acquit of that crime and convict of the less serious. … Consequently, although originally 'intended merely to prevent the prosecution from failing where some element of the crime charged was not made out’, People v. Murch, 263 N.Y. 285, 291, 189 N.E. 220, 222; see, also, People v. Miller, supra,143 App. Div. 251, 128 N.Y.S. 549, affirmed 202 N.Y. 618, 96 N.E. 1125, the doctrine, given expression in sections 444 and 445, redounds to the benefit of defendants as well, since its effect actually is to empower the jury 'to extend mercy to an accused by *101finding a lesser degree of crime than is established by the evidence’. … 308 NY at 561-62.

¶6It follows that if one of the purposes of the lesser-included offense doctrine is to allow the jury latitude in selecting whether to convict of the offense charged or a lesser offense, then it is the province of the jury to determine when and how it makes that selection. The instruction here directing that the jury reach a verdict before considering the lesser-included offense invaded that province. The majority impliedly adopts this view, but is unwilling to say so.

¶7Guidelines as to the Proper Instruction

¶8In this case the jury, after deliberating for two hours and finding itself divided seven to five, asked the trial court whether it must reach a verdict on the burglary charge before it considered the lesser-included offense of criminal trespass. The trial court responded by erroneously instructing the jury that it must first reach a verdict before it could consider the lesser offense. Considering the rationale for the lesser-included offense doctrine, the proper supplemental instruction would have been to advise the jury that the manner and order in which it considers the offenses is wholly within its province, provided it considers all of the offenses about which it was instructed.

¶9The majority opinion, however, suggests that the proper instruction would have been to tell the jury "first to consider the charge in the accusatory instrument and if they cannot agree upon a verdict on that charge they are to consider the lesser-included offenses.” 35 Or App at 98. (Emphasis supplied.) The criticism I have of this suggested instruction is that it begs the question. Under the circumstances presented here, it could be anticipated that the jury would then ask: "Does your instruction mean that because we have deliberated for two hours and have a seven to five division as to the verdict on the offense charged, we *102can now consider the lesser-included offense?” Or: "Would you define for the jury what constitutes a disagreement?” The answers to these questions invite instructions which are foreign to the Anglo-American jury trial. The majority, in its zeal to make sure that the jury considers the highest offense charged, apparently perceives the lesser-included offense rule as permitting the jury only to consider the lesser offense if it reaches a not guilty verdict or is "hung”as to the offense charged. This is a novel proposition since traditionally it has been the province of the trial court, not the jury, to determine when the jury is "hung.” Upon making such determination, the trial court ordinarily dismisses the jury and declares a mistrial because the jury is unable to decide the case. There is no precedent for instructing the jury itself as to how to determine that it is in disagreement and cannot reach a decision.

¶10The premise underlying the lesser-included offense doctrine is that the jury will reach a verdict on one of the offenses submitted and that the selection of the appropriate offense is wholly within its province. The manner and order in which the offenses are considered by the jury is for it to decide. The majority’s concern that the highest offense will not be considered is alleviated if the jury is carefully instructed that it must consider all the offenses charged. The majority concedes that as a practical matter the jury will in any event exercise its pardon power by convicting of a lesser offense, if that is in fact its desire, even though the evidence of the offense charged is overwhelming. Thus, there is no justification for the majority’s suggested instruction the only effect of which will be to confuse and which has no basis in law.