Questions for a Lawyer: Lesser Included Offense

The concept is relatively simple, but extremely technical. Basically each crime has certain elements that have to be met by the defendant for the defendant to be convicted.

For instance, let's say someone is charged with public intoxication as a minor. Case goes to trial, and proves that the defendant was drinking Buds at a McDonalds. That covers the elements of public and intoxication. However, evidence shows the defendant was twenty-two at the time. He does not meet the element of being a minor. Therefore, he can't be convicted of being publicly intoxicated as a minor. He can, however, be convicted of the lesser included crime of public intoxication.

See. Simple.

Each state defines homicide (realize that not all homicides are murder) in slightly different ways. I'm going to use New Hampshire, since I'm more familiar with this. It would change slightly in a different state. New Hampshire has six homicide statutes:

• Capital Murder
• First Degree Murder
• Second Degree Murder
• Manslaughter
• Negligent Homicide
• Causing or aiding suicide

Each of these have different elements. For example, for Capital Murder, you need to have killed one of the following:

I. A person is guilty of capital murder if he knowingly causes the death of:
(a) A law enforcement officer or a judicial officer acting in the line of duty or when the death is caused as a consequence of or in retaliation for such person's actions in the line of duty;
(b) Another before, after, while engaged in the commission of, or while attempting to commit kidnapping as that offense is defined in RSA 633:1;
(c) Another by criminally soliciting a person to cause said death or after having been criminally solicited by another for his personal pecuniary gain;
(d) Another after being sentenced to life imprisonment without parole pursuant to RSA 630:1-a, III;
(e) Another before, after, while engaged in the commission of, or while attempting to commit aggravated felonious sexual assault as defined in RSA 632-A:2;
(f) Another before, after, while engaged in the commission of, or while attempting to commit an offense punishable under RSA 318-B:26, I(a) or (b).

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If you didn't kill someone in these circumstances, the crime has to be reduced to the lessor included offense of First Degree Murder.

Judges are not required to instruct on lesser included offenses. The court can decide on its own, but it is usually at the request of either the defense (usually) or the prosecution. Or the prosecution can indicate on lesser included offenses. For example, a defendant in NH could be indicted for committing capital murder as the murder occurred in the course of a kidnapping. Defendant is also indicted for first degree murder for the same homicide, because there's some question whether there was actually a kidnapping going on.

Obviously it is to the defendant's advantage to be convicted of a lesser included offense, as the maximum sentence is usually significantly less. The prosecution might ask for it, however, when it realizes it can't make an element in the case (such as the public intoxication by a minor case discussed above). However, some times you don't want to ask for a lesser included and hope your client walks free. Again, going back to the public intoxication, I had a case where the prosecution forgot to get in the defendant's age. And then forgot to include the lesser offense. My client walked free when the judge realized the prosecution forgot the minor element.

In murder cases, frequently the lesser included offense is because of the defendant's state of mind. Let's take a look at first and second degree murder, manslaughter, and negligent homicide. I'm going to highlight the state of mind in each statute.

630:1-a First Degree Murder. –
I. A person is guilty of murder in the first degree if he:
(a) Purposely causes the death of another; or
(b) Knowingly causes the death of:
(1) Another before, after, while engaged in the commission of, or while attempting to commit felonious sexual assault as defined in RSA 632-A:3;
(2) Another before, after, while engaged in the commission of, or while attempting to commit robbery or burglary while armed with a deadly weapon, the death being caused by the use of such weapon;
(3) Another in perpetrating or attempting to perpetrate arson as defined in RSA 634:1, I, II, or III;
(4) The president or president-elect or vice-president or vice-president-elect of the United States, the governor or governor-elect of New Hampshire or any state or any member or member-elect of the congress of the United States, or any candidate for such office after such candidate has been nominated at his party's primary, when such killing is motivated by knowledge of the foregoing capacity of the victim.
II. For the purpose of RSA 630:1-a, I(a), "purposely'' shall mean that the actor's conscious object is the death of another, and that his act or acts in furtherance of that object were deliberate and premeditated.
III. A person convicted of a murder in the first degree shall be sentenced to life imprisonment and shall not be eligible for parole at any time.

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630:1-b Second Degree Murder. –
I. A person is guilty of murder in the second degree if:
(a) He knowingly causes the death of another; or
(b) He causes such death recklessly under circumstances manifesting an extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor causes the death by the use of a deadly weapon in the commission of, or in an attempt to commit, or in immediate flight after committing or attempting to commit any class A felony.
II. Murder in the second degree shall be punishable by imprisonment for life or for such term as the court may order.

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630:2 Manslaughter. –
I. A person is guilty of manslaughter when he causes the death of another:
(a) Under the influence of extreme mental or emotional disturbance caused by extreme provocation but which would otherwise constitute murder; or
(b) Recklessly.
II. Manslaughter shall be punishable by imprisonment for a term of not more than 30 years.
III. In addition to any other penalty imposed, if the death of another person resulted from the driving of a motor vehicle, the court may revoke the license or driving privilege of the convicted person indefinitely.

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630:3 Negligent Homicide. –
I. A person is guilty of a class B felony when he causes the death of another negligently.
II. A person is guilty of a class A felony when in consequence of being under the influence of intoxicating liquor or a controlled drug or any combination of intoxicating liquor and controlled drug while operating a propelled vehicle, as defined in RSA 637:9, III or a boat as defined in RSA 265-A:1, II, he or she causes the death of another.
III. In addition to any other penalty imposed, if the death of another person resulted from the negligent driving of a motor vehicle, the court may revoke the license or driving privilege of the convicted person for up to 7 years. In cases where the person is convicted under paragraph II, the court shall revoke the license or driving privilege of the convicted person indefinitely and the person shall not petition for eligibility to reapply for a driver's license for at least 7 years. In a case in which alcohol was involved, the court may also require that the convicted person shall not have a license to drive reinstated until after the division of motor vehicles receives certification of installation of an ignition interlock device as described in RSA 265-A:36, which shall remain in place for a period not to exceed 5 years.

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Okay, here's the facts. Santa Clause was driving a sled and drove over Grandma, causing Grandma to cease and desist breathing.

Santa is guilty of first degree murder is Santa has a gun sight attached to his sled, pictures of grandmas he's run over in the past on the side, and was heard to shout, "On Donner, On Blitzen, On so on and so forth, let's kill another grandma," as Santa carefully draws a bead on Grandma. Further, Santa prior to going out for his ride, said to the head Elf, "Going to get me another grandma tonight." Santa was clearly acting PURPOSELY.

However, if instead, Santa did not announce to the head Elf that he was going to get another grandma and didn't have the pictures of other run over grandmothers, and Santa made a sudden decision to run over grandma, Santa would be guilty of Second Degree Murder, because he acted KNOWINGLY. Another way of saying this is that Santa did not act with malice aforethought.

Santa would be guilty of Manslaughter if Grandma started screaming at Santa, yelling "Honky Fat Boy," and "What are you going to do with your elves tonight?" This causes Santa to lose his ho, ho, ho attitude, turning bright red as Santa becomes pissed and decides instead of coal, Grandma needs a little bump and run by the sled. Santa acted with EMOTIONAL DISTURBANCE CAUSED BY EXTREME PROVOCATION.

And finally, Santa is a bit behind on his annual run, and doesn't have his list up-to-date. Santa is texting as he drives, checking up on what he should give people with his head Elf. Looking at his texting, he runs down Grandma. Santa acted NEGLIGENTLY.

See how simple this all is? Course when you go to trial, trying to convince a jury of this sort of stuff is hard to do.

Best of luck,

Jim Clark-Dawe

JD - Santa needs you in his corner. Just sayin.

jeffo20 said:

Jim, thanks a ton for your help. Now allow me to 'talk out loud' a bit for clarification, using the situation of my protagonist.

He kills someone, no doubt about it, witnessed by a number of people. I didn't discuss this, but absolutely for a homicide conviction, you've got to have a dead body whose death was caused by the defendant.

In NY, Murder 1 seems largely restricted to killing law enforcement/corrections officers, torture, terrorism, murder for hire, Most states have an elevated statute, with enhanced penalties, such as the death penalty or life without parole. These can be called the State is really pissed about the killing. For example, killing a cop gets the State upset really quickly.

so it goes to Murder 2 (not sure if this would be different in 1983 when this part of the story takes place; hope so!). I don't know, but somewhere should be a legislative history of the statute. This will include all the changes that have occurred in the statute.

As I read the statute, Manslaughter 1 is a lesser included offense of Murder 2. It should be, as nearly always manslaughter requires a lesser state of mind.

He's indicted on murder charges; the prosecutor, if I read your answer correctly, can choose to try him on Manslaughter if he thinks he won't be able to get a conviction on murder, correct? Yes, the prosecutor chooses the level of crime subject to the evidence. To prove murder, the prosecutor is either going to have to prove knowingly or purposely. If the prosecutor can't, he or she has to charge manslaughter.

Assume the DA wants to swing for the fences and goes for Murder. Before the case goes to trial, the evidence will have to show that the prosecutor has enough evidence to potentially get a jury to convict. This is judged without a defense to the charge. If there is NO evidence of a knowingly or purposely state of mind, the prosecutor cannot charge murder.

The defense can either try to throw enough doubt on the case to get an outright acquittal (reasonable doubt) OR can argue that there were 'mitigating circumstances'. Absolutely. This is part of the trial approach that the defendant and his/her attorney decide on. You can wait until all the evidence is in to make a final decision.

In this case the defense is effectively invoking the 'lesser included offense' of manslaughter by claiming emotional distress/disturbance. The jury can convict the defendant of murder, or can acquit him of murder but find him guilty of manslaughter 2. If the jury believes the emotional distress/disturbance, then the jury must convict of manslaughter. If the jury does not believe the emotional distress/disturbance, then the jury must convict of murder.

Not sure if they can clear him of all charges because it seems that, in invoking the LIO, the defense is effectively saying, 'yeah, he did it, BUT...', and the defense must prove the state of mind of the killer. Is my understanding of this correct? No. The defense could be arguing that the victim died because the doctor at the hospital accidentally shoved him down an elevator (known medical risks are not a subsequent cause of death). Or that the victim was already dead. Or the defendant is not guilty by reason of insanity.

Second, the prosecutor has to prove the state of mind of the defendant to the jury's satisfaction beyond a reasonable doubt. If the jury has a reasonable doubt, they can't convict on that charge. In essence, the defendant doesn't have to "prove" a damn thing. All the defendant has to do is punch the right hole in the prosecutor's case. For example, O.J.'s glove. This was enough to make the jury doubt that O.J. committed the murder beyond a reasonable doubt. A civil jury, on the same fact pattern, but with a lower standard of proof (preponderance of the evidence) determined he did do it and found him civilly liable.

Finally, it seems from what you said the the judge could, at his discretion, instruct the jury to consider the LIO when deliberating, but that probably wouldn't/doesn't happen all that often. Judges try not to interfere with trials.

Please pardon the long-winded response to the long response. The level of detail is not important in that it won't be in the story, but *I* need to know it.

Thanks again,

Jeff

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Best of luck,

Jim Clark-Dawe

Great answers by Jim. The only thing I would take issue with is on the instructions on the lesser includeds. Judges instruct juries on the elements of the crimes with which the defendant is charged. So, if every time a jury is considering a lesser included offense, the judge will have given them an instruction listing the elements of that crime or describing what the jury has to find to convict him of that lesser crime.

So you're statement that judge wouldn't instruct the jury to consider the lesser is incorrect. The judge, of course, wouldn't highlight that option, but it would be included in the jury instruction packet.

leon66a said:

Great answers by Jim. The only thing I would take issue with is on the instructions on the lesser includeds. Judges instruct juries on the elements of the crimes with which the defendant is charged. So, if every time a jury is considering a lesser included offense, the judge will have given them an instruction listing the elements of that crime or describing what the jury has to find to convict him of that lesser crime.

So you're statement that judge wouldn't instruct the jury to consider the lesser is incorrect. The judge, of course, wouldn't highlight that option, but it would be included in the jury instruction packet.

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I'm sorry that wasn't clearer. I was thinking of a situation in which a defendant is not charged with the lesser included offense. For example, going back to the public intoxication by a minor. The defendant is charged with that crime, but is not charged with public intoxication. Defendant does not raise the issue of the lesser included offense and does not request a jury instruction to that effect. The judge, sua sponte (on the court's motion), can decide to include the lesser included offense (and yes, for the attorneys in the crowd, there's a bunch of appeal issues here).

If the defendant is charged with both public intoxication by a minor and public intoxication, the judge, in his or her charge to the jury, will include instructions on the elements of both crimes.

Best of luck,

Jim Clark-Dawe