State v. Daulton
Decision Date | 28 June 1994 |
Docket Number | Cr. N |
Citation | 518 N.W.2d 719 |
Parties | STATE of North Dakota, Plaintiff and Appellee, v. James W. DAULTON, Defendant and Appellant. o. 930260. |
Court | North 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:
Daulton requested the following unable to agree instruction:
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) ( ); 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):
Strong policy arguments have been advanced rejecting the Tsanas approach:
State v. Sawyer, supra, 630 A.2d at 1071 (citations omitted). The Court of Appeals of New York also eloquently rejects Tsanas:
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:
To continue reading
Request your trial-
State v. LeBlanc
...persuaded that Wussler should be overruled. I acknowledge that there is "a wide divergence of opinion" on this issue. State v. Daulton, 518 N.W.2d 719, 721 (N.D.1994); see also Jay M. Zitter, Annotation, When Should Jury Deliberations Proceed from Charged Offense to Lesser-Included Offense,......
-
State v. Davis
...consider the public policy concerns inherent in what some courts refer to as the "transitional instruction." See, e.g., State v. Daulton, 518 N.W.2d 719, 720 (N.D.1994). As noted in the concurring opinion, there is "a wide divergence of opinion" on the issue of the order and manner in which......
-
Mason v. Mitchell
...State v. Schultz, 141 N.H. 101, 677 A.2d 675, 678 (1996); Missouri v. Wise, 879 S.W.2d 494, 517 (Mo.1994) (en banc); State v. Daulton, 518 N.W.2d 719, 723 (N.D. 1994); Thomas, 40 Ohio St.3d at 220-21, 533 N.E.2d at 292-93; Colorado v. Padilla, 638 P.2d 15, 17-18 (Colo.1981) (all holding sim......
-
State v. Lewis, S-1-SC-36428
...677 A.2d 1093, 1097-98 (1996) ; People v. Boettcher , 69 N.Y.2d 174, 505 N.E.2d 594, 598, 513 N.Y.S.2d 83 (1987) ; State v. Daulton , 518 N.W.2d 719, 720-23 (N.D. 1994) ; State v. Turnidge , 359 Or. 364, 374 P.3d 853, 930-32 (2016) ; Commonwealth v. Hart , 388 Pa.Super. 484, 565 A.2d 1212, ......