State v. Crick

• Decision Date: 09 November 1983
• Docket Number: 18219,Nos. 18080,s. 18080
• Citation: 675 P.2d 527
• Parties: The STATE of Utah, Plaintiff and Respondent, v. Charles L. CRICK, et al., Defendant and Appellant. STATE of Utah, Plaintiff and Respondent, v. Mary HOLLOWAY, aka Mary V. Creighton, Defendant and Appellant.
• Court: Utah Supreme Court

Page 527

675 P.2d 527

The STATE of Utah, Plaintiff and Respondent, v. Charles L. CRICK, et al., Defendant and Appellant.

STATE of Utah, Plaintiff and Respondent, v. Mary HOLLOWAY, aka Mary V. Creighton, Defendant and Appellant.

Nos. 18080, 18219.

Supreme Court of Utah.

Nov. 9, 1983.

Stephen R. McCaughey, Salt Lake City, for Crick.

Ronald Yengich, Salt Lake City, for Holloway.

David L. Wilkinson, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

OAKS, Justice:

Samuel Beare died of multiple stab wounds to his chest, any one of which could have been fatal. His body was found when a witness saw it removed from a car and deposited on the ground by one Garcia in the presence of defendants Crick and Holloway. Garcia had a separate trial, and this Court affirmed his conviction of second degree murder. State v. Garcia, Utah, 663 P.2d 60 (1983).

In this appeal from their convictions of second degree murder, defendants Crick and Holloway have but one assignment of error: the refusal of their request to have the jury instructed on the lesser included offense of manslaughter. That single question, properly preserved at trial, raises fundamental issues on the content and administration of the rules of lesser included offenses in the various crimes of homicide.

Defendants' argument has three steps: (1) Manslaughter is a lesser included offense of second degree murder. (2) If there is any evidence on any reasonable theory of the case under which the defendants might be convicted of that lesser included offense, they have a right to a jury instruction on that offense. State v. Dougherty, Utah, 550 P.2d 175, 176-77 (1976); State v. Gillian, 23 Utah 2d 372, 374, 463 P.2d 811, 812-13 (1970); State v. Hyams, 64 Utah 285, 287, 230 P. 349, 349- 50 (1924); State v. Mewhinney, 43 Utah 135, 154, 134 P. 632, 639-40 (1913). (3) Here there was sufficient evidence to convict defendants of manslaughter, so they were entitled to an instruction on that lesser included offense. For the reasons noted hereafter, we disagree with defendants' points (2) and (3), and affirm their convictions.

I. LESSER INCLUDED OFFENSES IN CRIMINAL HOMICIDE

We agree that manslaughter is a lesser included offense of second degree murder, but for reasons different from those cited in the parties' briefs. There are scores of decisions elaborating the rules on lesser included offenses under the statutory and decisional law that preceded our Criminal Code, but those cases are no longer entirely on point on these questions.

Utah adopted a new Criminal Code in 1973. U.C.A., 1953, § 76-1-101 to § 76-10-1401. Although often termed a "codification" of the common law, this Code in fact changed the definitions of various crimes. It also made important changes in the definition of the lesser included offense and in the rules governing the relationship between greater and lesser offenses. Consequently, cases decided under prior statutes are not automatic precedents to govern similar questions under the new Criminal Code. The old precedents must be viewed with caution.

The starting point is the language of the new Code. So far as pertinent in this case, § 76-1-402 provides as follows:

(3) A defendant may be convicted of an offense included in the offense charged but may not be convicted of both the offense charged and the included offense. An offense is so included when:

(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(b) It constitutes an attempt, solicitation, conspiracy, or form of preparation to commit the offense charged or an offense otherwise included therein; or

(c) It is specifically designated by a statute as a lesser included offense.

(4) The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.

Subsection (3) defines the lesser included offense, and subsection (4) dictates the rule for charging the jury in respect to the lesser included offense.

Subsection (3)(a) states the rule for identifying lesser included offenses that are not otherwise specified in the statute (such as in (b) and (c)). Subsection (3)(a) is authoritatively construed in State v. Baker, Utah, 671 P.2d 152 (1983). Baker holds that the lesser included offense relationship is determined by a comparison of statutory elements when the prosecution requests the instruction and by the facts proved at trial when the defendant requests the instruction. For purposes of this case, we need not decide whether Baker 's interpretation of (3)(a) makes some or all of the various types of manslaughter (§ 76-5-205) lesser included offenses of some or all of the various types of second degree murder (§ 76-5-203), ¹ because that relationship is specified by a subsequent provision.

Subsection (3)(c) specifies that an offense is a lesser included offense when "[i]t is specifically designated by a statute as a lesser included offense." We conclude that § 76-5-201 and the succeeding sections under the heading of "criminal homicide" (through § 76-5-207) amount to such a designation. Section 76-5-201 provides:

(1) A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence unlawfully causes the death of another.

(2) Criminal homicide is murder in the first and second degree, manslaughter, or negligent homicide, or automobile homicide.

In the succeeding sections, the Code sets out the statutory definitions of the various types of criminal homicide, each (except for automobile homicide) in descending order of seriousness. This structure--notably the identification of the crime of criminal homicide and the specification of common elements in § 76-5-201, and the relationships inherent in the succeeding sections--fulfills the § 76-1-402(3)(c) requirement of specific (statutory) designation of a lesser included offense. Consequently, all of the various degrees of homicide have the relationship of greater and lesser included offenses. ² Although not mandated by the legislative history, which is silent on this point, our construction of (3)(c) is consistent with the evident purpose of the Model Penal Code, from which these subsections were drawn. ³

II. JURY INSTRUCTIONS ON LESSER INCLUDED OFFENSES

Defendants argue that they have a right to an instruction on any lesser included offense for which, on any reasonable theory of the case, there is any evidentiary basis to convict them. Holloway even argues that there is a presumption that a lesser included instruction requested by a defendant should be given, even when it is inconsistent with the evidence at trial. And Crick argues that in determining the degree of homicide of which a defendant is guilty "the jury may consider not only the nature of the killing, but also the personal turpitude of the defendant." The thrust of defendants' arguments is that the jury should be free to convict defendants of a lesser included offense without regard to whether they are guilty of the charged offense.

Whatever merit defendants' argument might have claimed under prior law, it was specifically rejected in our unanimous decision in State v. Baker, 671 P.2d, at 159:

Once it is established that an offense is included within the meaning of § 76-1-402(3), one more step is required before the trial court must instruct the jury regarding it. Under § 76-1-402(4), the court is obligated to instruct on the lesser offense only if the evidence offered provides a "rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense."

(Bracketed numbers added.) Defendants' argument and the pre-Code authorities they cite are consistent with the second element in § 76-1-402(4), but they ignore the first element. In short, as we recognized in Baker, our Criminal Code added the requirement that the evidence must provide a rational basis for both acquitting of the charged offense and convicting of the lesser included offense.

This is the clear and stated purpose of the Model Penal Code provision from which § 76-1-402(4) is copied verbatim. Thus, the reporter's note states that where the evidence would not justify any verdict other than conviction or acquittal of the charged offense, an instruction on an included offense would be improper because it "might well be an invitation to the jury to return a compromise or otherwise unwarranted verdict." Consequently, the note continues, "The submission of an included crime is justified only where there is some basis in the evidence for finding the defendant innocent of the crime charged and yet guilty of the included crime. People v. Mussenden [308 N.Y. 558, 127 N.E.2d 551 (1955) ], supra." ALI Model Penal Code, Tent. Draft No. 5, p. 43 (1956). People v. Mussenden, 308 N.Y. 558, 127 N.E.2d 551 (1955), which was cited in the reporter's note and relied on in our decision in State v. Baker, 671 P.2d at 157-158, supports and further explains the rationale for this position. Although conceding that the jury has an inherent "mercy-dispensing power" as an inevitable consequence of the jury system, Mussenden holds that the jury does not "have the right to find a fact and then refuse to render the verdict which such a finding necessarily requires." "[C]ertainly," the opinion continues, a trial court "should avoid doing anything, such as submitting lower crimes in an inappropriate case, that would constitute an invitation to the jury to foreswear its duty and return a compromise or otherwise unwarranted verdict." 308 N.Y. at 563, 127 N.E. at 554. We agree.

For these reasons, it is not sufficient merely "to determine if there exists [a] reasonable basis upon which a conviction of the lesser offense could rest," as was suggested in State v. Dougherty, 550 P.2d at...