State v. Washington

543 P.2d 1058, 273 Or. 829, 1975 Ore. LEXIS 386

• Court: Oregon Supreme Court
• Decided: December 26, 1975
• Status: Published

Opinions

HOWELL, J.

This, is a petition to review the decision of the Court of Appeals in State v. Washington, 20 Or App 350, 531 P2d 743 (1975), which affirmed a conviction of the crime of burglary in the first degree. At trial, petitioner had requested a jury instruction on theft in the second degree by receiving. The requested instruction was based on his version of the events leading up to his arrest. The trial court denied his request, and the jury found him guilty of burglary. We granted the petitions for review in this case and in the companion case, State v. Nye, 20 Or App 454, 532 P2d 42 (1975), to reexamine the lesser included offense doctrine in Oregon. The facts are as follows:

On the afternoon of February 14, 1974, Robert Redfern and defendant were together in a cocktail lounge in Portland. Redfern’s car was being repaired at a nearby garage, and defendant offered him a ride. Redfern testified that he dozed off shortly after leaving the lounge and awoke as he was being pushed from the car. Redfern also testified that before being ejected from the car he had been deprived of two wallets and a set of keys, including those to his house.

Approximately one and one-half hours later, Redfern’s daughter, Judith DeVine, returned to her father’s home where she also lived. As she approached, she noticed a bronze Pontiac with Iowa license plates in front of the house. The motor was running, but the car appeared to be unattended. Entering the house, she discovered that the front door was ajar, and, as she laid down her purse, she turned and saw a man coming down the hallway toward her. She asked him what he was doing in her home. The intruder grabbed her, covered her eyes, and dragged her down the hall. She was forced into the bathroom and beaten. The intruder then dragged her into the family room, shoved her up against a couch and told her not to move or she would be killed. He then left the room, and shortly thereafter Ms. DeVine heard the front door slam. She left the house by a back door and called the police from a neighbor’s home.

Investigation of the premises revealed that Ms. DeVine’s purse had been taken, and that a portable stereo and a television set had been moved. There were no signs of a forced entry. A single fingerprint was found on the stereo dust cover.

Later in the evening of the burglary, the police located a car matching the. description of the bronze Pontiac. It was parked in front of the cocktail lounge at which defendant and Redfern had met. The officers saw a man leave the ear and enter the lounge. Several minutes later, they noticed the car being driven away. The officers then followed the car and stopped it.

Defendant, who was driving the car, got out at the officers’ request. While the door of the car was open, one of the officers saw a purse protruding from beneath the seat. When he pulled out the purse a wallet came with it. Defendant and the items found beneath the car seat were then taken to the police station.

Under questioning at the police station, defendant related the following story of the day’s events:

Defendant had met Redfern at the cocktail lounge where Redfern was buying drinks. Redfern ran out of money and requested a ride to his place of employment to get more. Defendant offered Red-fern a ride, and, on the way to the car, they encountered Nathaniel Johnson, who joined them for the ride. At Redfern’s place of employment, defendant remained in the car while Johnson and Redfern went in together to get the money. A short time later Johnson returned alone to the car, stating that Redfern had decided to stay. Johnson then asked defendant to drive to an address in northeast Portland. The address was that of Redfem’s home.

When they arrived, Johnson went into the house alone while defendant remained in the car. After a few minutes, defendant saw a woman drive up and enter the house. Eventually, Johnson emerged from the house carrying a purse and a paper hag. He asked to he driven hack to the cocktail lounge. On the way, defendant asked Johnson, who was going through the purse, what had happened in the house. Johnson explained. that Redfern owed him money which he was attempting to collect. He said that the woman who drove up had pretended not to know anything about the debt, so he had had to beat her. Upon their arrival at the lounge, Johnson left the purse in the car and asked defendant to dispose of it. Defendant told the police that he had planned to return the purse but had not had time to do so before he was stopped.

Neither the defense nor the police were able to locate Johnson or to confirm his existence. The fingerprint on the stereo dust cover was not that of. the defendant, and Ms. DeVine was unable to identify the defendant as her assailant.

On February 21, 1974, the grand jury returned the following indictment:

“The above-named defendant is accused by the Grand Jury of Multnomah County, State of Oregon, by this indictment of the crime of BURGLARY IN THE FIRST DEGREE committed as follows:

“The said defendant, on or about February 14, 1974, in the County of Multnomah, State of Oregon, did knowingly and unlawfully enter a building, to-wit: a dwelling, located at 5526 Northeast 38th, Portland, in the County and State aforesaid, with the intent to commit the crime of theft therein, contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.

((^ ^ ^ ^

The sole issue before us. in this petition for review is whether the trial court erred in refusing to give defendant’s requested instruction on the crime of theft in the. second degree.

① We conclude that no error was committed.

We have two statutes which bear on this problem: OES 136.460, relating to inferior degrees of crimes, and OES 136.465, relating to necessarily included offenses.

OES 136.460 states:

“Verdict where crime consists of degrees. Upon a charge for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the accusatory instrument and guilty of any degree inferior thereto or of an attempt to commit the crime or any such inferior degree thereof.”

This statute gives both the defendant and the prosecution the right to receive instructions either as to lesser degrees of crimes consisting of different degrees (such as first and second degree burglary), or as to the crime of attempting to commit the offense charged or a lesser degree thereof.

OES 136.465 states:

“Verdict where crime or attempt included within charge. In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the accusatory instrument or of an attempt to commit such crime.”

That statute relates to lesser offenses which are not merely lower degrees of the crime charged but are either necessarily included in the statutory definition of the crime (criminal trespass in burglary) or expressly included in the criminal offense as charged in the indictment (assault with a deadly weapon nnder indictment charging assault with intent to kill and alleging use of a deadly weapon). See, e.g., State v. Eyle, 236 Or 199, 201, 388 P2d 110 (1963); State v. Carroll, 155 Or 85, 88-89, 62 P2d 830 (1936); State v. Houghton, 46 Or 12, 14, 75 P 822 (1904); State of Oregon v. McLennen, 16 Or 59, 60-61, 16 P 879 (1888); State v. Washington, supra. Thus, either the defendant or the prosecution can request an instruction as to lesser offenses which are included either under the statutory definition or under the indictment charging the crime.

The single limitation on the right of either the prosecution or the defendant to request lesser included offense instructions under these statutes is that there must he evidence, or an inference which can be drawn from the evidence, which supports the requested instruction so that the jury could rationally and consistently find the defendant guilty of the lesser offense and innocent of the greater.② See State v. Williams, 270 Or 152, 526 P2d 1384 (1974), and cases cited therein.

Historically, the lesser included offense-doctrine originated as a rule which was developed to assist the prosecution in obtaining a conviction when the evidence produced at trial was insufficient as to one or more elements of the offense actually charged in the indictment. See Fuller v. United States, 407 F2d 1199, 1230, n. 40 (DC Cir 1967), cert. denied 393 US 1120, 89 S Ct 999, 22 L Ed 2d 125 (1969); People v. Mussenden, 308 NY 558, 562, 127 NE2d 551 (1955).

As originally developed, it allowed the prosecution to request an instruction as to a lesser offense, the elements of which were included in the statutory or common law definition of the offense charged. Since the defendant had notice as. to all elements of lesser crimes necessarily included in the principal offense, no due process notice problems were involved in allowing a conviction on the lesser included offense. See Paterno v. Lyons, 334 US 314, 320-21, 68 S Ct 1044, 92 L Ed 1409 (1948); State v. Anderson, 270 So 2d 353, 356 (Fla 1972). Eventually, the doctrine was extended so as to permit the defendant to request an instruction on lesser included offenses — but only in cases in which the prosecution could have obtained such an instruction. Fuller v. United States, supra.

Gradually, several jurisdictions began to expand the concept of lesser included offenses beyond those necessarily included in the common law or statutory definition of the principal crime. These courts held that the allegations of the indictment or pleadings in a criminal case were also sufficient to give the defendant notice of the criminal conduct complained of and supplement the elements of criminal conduct contained in the statute defining the principal offense. Thus, the prosecution was allowed to request additional instructions on offenses, which were not necessarily included in the statutory or common law definition of the principal crime, but which were supported by the allegations of the pleadings. See 4 Wharton’s Criminal Law and Procedure, § 1888 (Anderson ed 1957); Comment, Jury instructions on Lesser Included Offenses, 57 Nwu L Rev 62, 63-64 (1963).

Under the pleadings or indictment approach, like the statutory or common law approach, defendants were also able to obtain instructions on lesser offenses — but only if the prosecution would have been entitled to a similar instruction. Thus, the rules for the prosecution and the defendant remained identical. See e.g., Fuller v. United States, supra at 1230.

The pleadings or indictment approach is followed in the majority of jurisdictions throughout this country and is codified in Oregon in'ORS 136.460 and 136.465. Neither of these statutes supports defendant’s requested instruction on second degree theft as a lesser included offense to the charge of burglary. Second degree theft — in this case, theft by receiving —is not a crime which is necessarily included in the statutory definition of the. offense charged, burglary. Moreover, the indictment in this case does not allege that a theft was committed, only that the defendant entered with the intent to commit the crime of theft.③ Consequently, there was no basis in this case for a lesser included offense instruction on theft by receiving.④

The defendant argues, however, that even if second degree theft is not a lesser included offense either under the burglary statute or under the allegations of the indictment, the requested instruction should have been given since there was evidence in this case which, if believed, could provide the basis for a conviction as to second-degree theft and an acquittal as to the burglary charge. Only one jurisdiction, the United States Court of Appeals for the Distriet of Columbia, follows an approach that would permit such an instruction in similar situations. See United States v. Whitaker, 447 F2d 314 (DC Cir 1971).

The Whitaker court concluded that the defendant’s right to lesser included offense instructions ought not to be limited by the same restrictions which apply to the prosecution. In Whitaker, the court pointed out that the restrictions on the prosecution’s use of such instructions stem from due process considerations involving the sufficiency of the notice afforded the defendant by the charges brought against him. The court reasoned that, since the defendant himself was requesting the instruction, no due process problems were involved, and, therefore, “[t]he defense ought not to be restricted by the stringent constitutional limits upon the prosecutor’s right.” 447 F2d at 321.

We believe, however, that there are other reasons for retaining the restrictions on the defendant’s right to request lesser included offense instructions. The first, of course, is that in this state the statutes set forth above seem to preclude instructions which do not have a basis either in the statutory framework or in the indictment itself. Second, we feel that, even in the absence of those statutes, the interests of judicial administration would require the continuance of the present limitations on the defendant’s right to lesser included offense instructions. If defendant’s approach were to be adopted, we believe that trial courts would be receiving requests for instructions limited only by the imagination and ingenuity of the defendant. Requests for such instructions would act only to further complicate the jury’s decision-making process. Under the dissent’s approach, trial judges, not being certain whether the requested instruction were, actually proper under the new standard, would usually give the instruction in order to avoid any possibility of reversible error on appeal. This would not only needlessly prolong the court’s instructions, but would also add to the number of issues which the jury would be required to consider — thereby substantially increasing the possibility for jury confusion and compromise verdicts.⑤

Moreover, if the dissent’s approach were to be adopted, we have no doubt that many more appeals would ultimately be necessary to finally delineate its bounds. The standard suggested by the dissent for administering its approach is extremely vague. Under that approach, the only restriction on instructions as to lesser offenses is that they be “inconsistent with and rebut the state’s charge” rather than relating to “extraneous offenses which do not serve to rebut the offense charged.” Individual trial judges and trial counsel would certainly have very different ideas as to whether a particular requested instruction was inconsistent with and in rebuttal of the offense charged. For example, if one were to attempt to apply that test to the facts in the companion case, State v. Nye, it would certainly not be unreasonable to conclude that the requested instruction on sexual abuse was not “inconsistent with and [did not] rebut the state’s charge” of burglary by breaking and entering with the intent to commit sexual abuse. Similarly, as applied to the facts in this case, it would seem that a requested instruction on theft by receiving amounts to an instruction on an “extraneous offense which, [does] not serve to rebut the offense charged” —first degree burglary.

Apparently the dissent would apply its suggested approach even when the evidence relied on in support of the lesser offense instruction had not been presented by the defendant but had been gleaned from the prosecution’s own ease by a defendant who continued to insist he was guilty of nothing. As evidenced by its application to State v. Nye, the dissent’s approach would allow defendants to argue insanity or an alibi as a complete defense, while at the same time sifting the state’s evidence for facts sufficient to support any inference running contrary to the prosecution’s case on one or more elements of the offense charged — and on that basis alone demanding instructions on one or more lesser offenses. Defendants would then have little to lose in requesting instructions on other crimes based on inferences which might be drawn from portions of the state’s evidence. If they were allowed to demand lesser offense instructions on the basis of such evidence, defendants would have little incentive to come forward ydth evidence of their own as to the actual events which took place and, therefore, would be free to argue a fictitious alibi or other complete defense at the same time.

While the dissent asserts that its “reasonably precise rule” would avoid “the danger of giving the defendant a tool for confusion and possible reversible error,” we believe that the view expressed by the Florida Supreme Court in rejecting a similar approach is a more accurate assessement of its effect: “Such an innovation in our law is more conducive to confusion than to reason.” State v. Anderson, 270 So 2d 353, 357 (Fla 1972).

We believe the approach suggested by the dissent would impair rather than promote the efficient administration of criminal justice.

Affirmed.

The defendant requested the following instruction:

“I instruct you that you may also consider the lesser included offense of Theft in the Second Degree by Receiving. The State, of course, still has the burden of proving each and every element of this crime beyond a reasonable doubt as I have already defined that term. The elements of the lesser included crime of Theft in the Second Degree by Receiving are the following:

“1. That the defendant, Billy Walker Washington, unlawfully and knowingly received, retained, concealed or disposed of the property of Judy DeVine, knowing that the property had been stolen from Judy DeVine.

“2. That at the time of this receipt, retention, concealment, or disposal, if any, Billy Walker Washington had the intent to deprive Judy DeVine of the said property or to appropriate the said property to himself.

“3. That the crime, if any, occurred on February 14, 1974.

“4. That the crime, if any, occurred within Multnomah County, State of Oregon.

“If the State fails to prove any one or several of the elements of the lesser included offense of Theft in the Second Degree by Receiving then you are required to return with a verdict of Not Guilty.

ORS 164.095

ORS 164.015”

For example, this limitation would preclude the giving of instructions on reckless driving and/or failure to yield right of way under an indictment charging criminally negligent homicide if the evidence were clear that defendant’s reckless conduct caused the death of another person. Similarly, if a woman were charged with the murder of her child on the basis that she recklessly caused the child’s death by failing to obtain needed medical and physical care, and by abandoning the child in a place where medical care was not available, and if the fact that her conduct caused the child’s death is not disputed, an instruction as to abandonment or criminal nonsupport would clearly be improper. Any suggestion to the contrary arising from State v. Bobkiewicz, 20 Or App 479, 532 P2d 256 (1975), or State v. Devereaux, 20 Or App 358, 531 P2d 749 (1975), should be disregarded.

Defendant cites State v. Taylor, 17 Or App 499, 522 P2d 499 (1974), for the proposition that theft is a lesser included offense under an indictment charging breaking and entering with the intent to commit theft. * In that case, however, the attorney general’s brief conceded the lesser included offense issue — for reasons which are not apparent — and argued only that the evidence was not sufficient to support such an instruction. In any event, to the extent of any inconsistency with this opinion, that decision is expressly overruled.

Of course, if the indictment had contained two counts charging both burglary and theft, an instruction on second degree theft as a lesser included offense to the theft count would then be proper if the evidence adduced at trial would support it.

“Essentially the same problem underlies the included offenses area when the defendant wishes instructions on less serious offenses not listed in the information. In most instances, what the defendant is after is a smorgasbord of counts for the jury, in the hopes that it will choose a light salad rather than a heavy meat course. * * *” George, Lesser Included Offenses in Michigan, 1 Det L Rev 35, 37 (1975). (Emphasis added.)