State v. Daulton

Decision Date28 June 1994
Docket NumberCr. N
Citation518 N.W.2d 719
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. James W. DAULTON, Defendant and Appellant. o. 930260.
CourtNorth Dakota Supreme Court

Patricia L. Burke, State's Atty., Bismarck, for plaintiff and appellee.

Wayne D. Goter, Bismarck, for defendant and appellant.


James W. Daulton appeals from a jury verdict and judgment convicting him of robbery with a firearm or other dangerous weapon. We affirm.


A Bismarck convenience store was robbed on December 25, 1992. The store clerk testified a man pointed a gun at her, threatened to shoot her, and demanded money. She handed him two packs of 25 one-dollar bills from the store safe.

Daulton was arrested a few hours later. His car matched the description given by the store clerk and other witnesses. He had 41 one-dollar bills in his possession. The store clerk identified Daulton as the robber in a photo line-up and at trial. The jury returned a verdict of guilty of robbery with a firearm or dangerous weapon, a class B felony. See N.D.C.C. Sec. 12.1-22-01(2).


Daulton asserts the trial court erred in giving an "acquittal first" jury instruction. This Court has not directly addressed the proper form of instruction to guide a jury in its transition from considering the charged offense to considering lesser included offenses. There are primarily two types of transitional instructions: (1) the "acquittal first" instruction, 1 which requires the jury to agree unanimously to acquit on the greater offense before considering lesser offenses, and (2) the "unable to agree" instruction, 2 which instructs the jury it may consider lesser included offenses if, after reasonable efforts, the jurors cannot agree on a verdict on the greater offense.

The trial court in this case gave the following instruction:


"The elements of the offense I have earlier described, if proved, constitute a Class B felony. If all of the elements of the offense described are proved except No. 3 (that a firearm was used) the offense is a Class C Felony.

"In your deliberations, you must first determine whether the offense charged (the Class B felony) has been proved. If so, there is no need to consider the C felony charge. If the Class B felony charge has not been proved, you must then determine whether the C felony charge has been proved. If not so proved, you must return a verdict of Not Guilty. You must, in any event, sign only one verdict."

Daulton requested the following unable to agree instruction:


"If, after full and careful consideration of the evidence you cannot agree on a verdict on the charged offense of Robbery With a Firearm or Dangerous Weapon, as charged in the information, you should then consider whether the Defendant is guilty of committing the crime of Robbery, an offense that is necessarily included in the offense charged."

The issue of which transitional instruction is appropriate has created a wide divergence of opinion. The majority of courts presented with the issue have approved the acquittal first instruction. See, e.g., Lindsey v. State, 456 So.2d 383, 387 (Ala.Crim.App.1983), aff'd 456 So.2d 393 (Ala.1984), cert. denied, 470 U.S. 1023, 105 S.Ct. 1384, 84 L.Ed.2d 403 (1985); State v. Staatz, 159 Ariz. 411, 768 P.2d 143, 148 (1988); State v. Wussler, 139 Ariz. 428, 679 P.2d 74, 76 (1984); People v. Padilla, 638 P.2d 15, 17-18 (Colo.1981); State v. Sawyer, 227 Conn. 566, 630 A.2d 1064, 1075 (1993); Lamar v. State, 243 Ga. 401, 254 S.E.2d 353, 355 (1979); State v. Van Dyken, 242 Mont. 415, 791 P.2d 1350, 1361, cert. denied, 498 U.S. 920, 111 S.Ct. 297, 112 L.Ed.2d 251 (1990); State v. Jones, 245 Neb. 821, 515 N.W.2d 654, 656 (1994); People v. Boettcher, 69 N.Y.2d 174, 513 N.Y.S.2d 83, 86-87, 505 N.E.2d 594, 597-598 (1987); State v. Wilkins, 34 N.C.App. 392, 238 S.E.2d 659, 665, review denied, 294 N.C. 187, 241 S.E.2d 516 (1977); Commonwealth v. Hart, 388 Pa.Super. 484, 565 A.2d 1212, 1216 (1989), appeal denied, 525 Pa. 642, 581 A.2d 569 (1990); State v. McNeal, 95 Wis.2d 63, 288 N.W.2d 874, 875-876 (1980).

Two states have adopted a variation of the acquittal first rule, holding the jury should be instructed it may consider lesser included offenses before acquitting on the greater charge, but must unanimously acquit on the greater charge before returning a verdict on the lesser offense. See Whiteaker v. State, 808 P.2d 270, 271 (Alaska App.1991); Dresnek v. State, 697 P.2d 1059, 1060-1064 (Alaska App.1985), aff'd, 718 P.2d 156 (Alaska), cert. denied, 479 U.S. 1021, 107 S.Ct. 679, 93 L.Ed.2d 729 (1986); People v. Berryman, 6 Cal.4th 1048, 25 Cal.Rptr.2d 867, 881-884, 864 P.2d 40, 54-57 (1993); People v. Kurtzman, 46 Cal.3d 322, 250 Cal.Rptr. 244, 248-253, 758 P.2d 572, 576-580 (1988).

A few jurisdictions hold it is error to give an acquittal first instruction, and require the unable to agree instruction. State v. Ferreira, 8 Haw.App. 1, 791 P.2d 407, 408-409, cert. denied, 71 Haw. 668, 833 P.2d 901 (1990); People v. Handley, 415 Mich. 356, 329 N.W.2d 710, 712 (1982) (ruling applied prospectively only); State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286, 292-293 (1988), cert. denied, 493 U.S. 826, 110 S.Ct. 89, 107 L.Ed.2d 54 (1989); State v. Allen, 301 Or. 35, 717 P.2d 1178, 1180-1181 (1986).

Daulton asks us to adopt the "optional approach" formulated by the United States Court of Appeals for the Second Circuit in United States v. Tsanas, 572 F.2d 340 (2d Cir.), cert. denied, 435 U.S. 995, 98 S.Ct. 1647, 56 L.Ed.2d 84 (1978). The court in Tsanas addressed at length the policy considerations implicated in the acquittal first and the unable to agree instructions, and concluded neither instruction is wrong as a matter of law. Tsanas at 346. However, the Tsanas court further concluded the defendant should have the option to elect which instruction he prefers, and the court is bound to give the requested instruction. If the defendant makes no request, the court may give either. 3 Tsanas. A few federal circuits and other jurisdictions have adopted the Tsanas rule. See United States v. Jackson, 726 F.2d 1466, 1469 (9th Cir.1984); Catches v. United States, 582 F.2d 453, 459 (8th Cir.1978); Jones v. United States, 620 A.2d 249 252 (D.C.1993); State v. Powell, 158 Vt. 280, 608 A.2d 45, 47 (1992).

We find the cases approving the acquittal first rule to be better reasoned and supported by strong policy considerations. We agree "the instruction which requires an acquittal of the offense charged before consideration of lesser-included offenses provides for a more logical and orderly process for the guidance of the jury in its deliberations." State v. Wussler, supra, 679 P.2d at 76. As noted by the court in Commonwealth v. Hart, supra, 565 A.2d at 1216 (citation omitted):

"While the jury must serve as the sole finder of fact, the trial court has a duty to frame legal issues for the jury and instruct the jury on the applicable law.... One method by which the court may choose to clarify issues for the jury is to direct the jury to consider at the outset the most serious form of the offense with which the defendant has been charged.... By directing the jury to begin its deliberations with the greater offense, the judge can help to ensure that the jury will bring its independent judgment to bear on all important aspects of the Commonwealth's case."

Strong policy arguments have been advanced rejecting the Tsanas approach:

"The jury instruction to be given at the conclusion of a trial, however, is a question of law that cannot be resolved by deference to the wish of the defendant or by a sporting theory of justice.... A criminal trial is not a game of chance. Allowing the defendant to choose the transitional instruction and to gamble on its consequences slights the desirable goals of thorough deliberations and finality and neglects the state's interest in the resolution of the charges on which it presented the defendant.... Such an approach to transitional instructions is dictated more by expediency than by a commitment that justice be done to both the state and the defendant, and that the charges brought be thoroughly deliberated, considered and disposed of definitively. See Uniform Rules of Criminal Procedure 535(b), comments, 10 U.L.A. 281-82 (1974) (unanimity requirement leads to more thorough consideration of issues and more careful deliberation)."

State v. Sawyer, supra, 630 A.2d at 1071 (citations omitted). The Court of Appeals of New York also eloquently rejects Tsanas:

"[W]e reject Tsanas (supra ) and its progeny because they give insufficient weight to the principle that it is the duty of the jury not to reach compromise verdicts based on sympathy for the defendant or to appease holdouts, but to render a just verdict by applying the facts it finds to the law it is charged.... It is no doubt true, as we have noted in the past, that in jury rooms, as well as all other deliberative bodies, some strong members are able to impress their will upon the weaker ...; but acknowledgment of the imperfection of human nature is quite a different thing from the creation of an environment conducive to such behavior."

People v. Boettcher, supra, 513 N.Y.S.2d at 86-87, 505 N.E.2d at 597-598 (citations omitted).

By constitution, statute, and rule, all jury verdicts in criminal cases must be unanimous. Article I, Sec. 13, North Dakota Constitution; N.D.C.C. Sec. 29-17-12; Rule 31(a), N.D.R.Crim.P. The primary difficulty with the unable to agree instruction is it dilutes the requirement of unanimity and encourages the jury to bypass the charged offense on its way to a compromise verdict:

"The defendant assumes, nonetheless, that when lesser included offenses are involved, a middle ground, compromise position always waits in the wings and may be turned to by the jury at any time that it is unable to agree on a verdict on the charged offense. That assumption carries with it the further...

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