State v. Jeffries

• Decision Date: 19 October 1988
• Docket Number: No. 86-917,86-917
• Citation: 430 N.W.2d 728
• Parties: STATE of Iowa, Appellee, v. James J. JEFFRIES, Appellant.
• Court: Iowa Supreme Court

Page 728

430 N.W.2d 728

STATE of Iowa, Appellee, v. James J. JEFFRIES, Appellant.

No. 86-917.

Supreme Court of Iowa.

Oct. 19, 1988.

Barry M. Anderson, Keokuk, for appellant.

Thomas J. Miller, Atty. Gen., Ann E. Brenden and Thomas H. Miller, Asst. Attys. Gen., and Michael P. Short, County Atty., for appellee.

Considered en banc.

LAVORATO, Justice.

Faced in this criminal further review proceeding with a lesser-included offense issue, we take this opportunity to reexamine our approach to the lesser-included offense doctrine and conclude it should be modified.

The State argues that the court of appeals erred in reversing James J. Jeffries' insurrection conviction because of the district court's refusal to submit his requested jury instructions on lesser-included offenses. The State also argues that the defendant waived the lesser-included offense issue because he neither cited authority nor discussed the issue. See Iowa R.App.P. 14(a)(3). Finding no merit in the latter argument, we consider the substantive issue.

Jeffries was charged with and eventually convicted of insurrection, among other things, after he participated in an inmate uprising at the Iowa State Penitentiary. At trial Jeffries requested that the district court instruct the jury on willful disturbance and harassment of public officers and employees as lesser-included offenses of insurrection. The district court refused to do so, and on appeal Jeffries contended this refusal was erroneous.

We transferred the case to the court of appeals. That court reversed the insurrection conviction and remanded for a new trial on the insurrection charge only, reasoning that the jury should have been given Jeffries' requested instructions.

On further review, we think that under our modified approach to lesser-included offenses, the district court correctly refused Jeffries' requested instruction on willful disturbance but erroneously denied a similar request for an instruction on harassment. Accordingly, we vacate the court of appeals decision, affirm in part and reverse in part the judgment of the district court, and remand the case for a new trial on the insurrection charge only.

I. The Lesser-Included Offense Doctrine.

This case presents us with an opportunity to reexamine our approach to the lesser-included offense doctrine. This subject is fraught with confusion because of the doctrine's elusiveness in its definition and application. Adding to this confusion is the interplay between the doctrine and several constitutional principles. See Blair, Constitutional Limitations on the Lesser-Included Offense Doctrine, 21 Am.Crim.L.Rev. 445, 446 (1984). Generally, the doctrine allows a trier of fact to convict a defendant of an offense less serious than the one charged. Id. at 445. Rooted in sixteenth-century English common law, the doctrine found its way into American jurisprudence in the late 1700's. Ettinger, In Search of a Reasoned Approach to the Lesser-Included Offense, 50 Brooklyn L.Rev. 191, 195 (1984).

Historically, the doctrine developed to implement the policy at common law against multiple trials for the same allegations of illegal conduct. The doctrine eventually evolved as an aid to the prosecution when there was a failure of proof of some element necessary for conviction of the offense charged. Mascolo, Procedural Due Process And the Lesser-Included Offense Doctrine, 50 Alb.L.Rev. 263, 265-66 (1986). Today, the defense, more often than the prosecution, is likely to seek the doctrine's application as a hedge against conviction of the greater offense. Barnett, The Lesser-Included Offense Doctrine: A Present Day Analysis For Practitioners, 5 Conn.L.Rev. 255, 255-56 (1972).

In applying the doctrine, courts must ask two questions: what is a lesser-included offense, and when should a trial court instruct on it. Koenig, The Many-Headed Hydra of Lesser-Included Offenses: A Herculean Task for the Michigan Courts, 1975 Det.C.L.Rev. 41, 43.

A. Defining the lesser-included offense. The commentators agree that the definition of a lesser-included offense is a conceptual one. This is so because the doctrine is based on a relationship between the elements of at least two separate crimes. Barnett, 5 Conn.L.Rev. at 256; Comment, The Lesser-Included Offense Doctrine in Iowa: The Gordian Knot Untied, 59 Iowa L.Rev. 684, 684 (1974).

Courts have generally adopted any one of three approaches and, in some cases, a combination of these approaches to define a lesser-included offense. This phenomenon has caused much of the confusion surrounding the doctrine. Blair, 21 Am.Crim.L.Rev. at 447. The three approaches have been denominated the common-law or strict statutory-elements approach, the cognate approach, and the Model Penal Code approach. Id. at 447-51.

1. The common-law or strict statutory-elements approach. The common-law or strict statutory-elements approach employs the following definition of a lesser-included offense: " 'To be necessarily included in the greater offense the lesser must be such that it is impossible to commit the greater without first having committed the lesser.' " Comment, Jury Instructions on Lesser-Included Offenses, 57 Nw.U.L.Rev. 62, 62 (1962). This approach simply looks to the elements of the main and lesser crimes as set out by the applicable statutes, rather than to the charge or the evidence. Ettinger, 50 Brooklyn L.Rev. at 198.

In employing this mechanical approach, a court places the applicable statutes side by side and examines their elements in the abstract. Id. at 198-99. The comparison must produce a nearly perfect match. If the lesser offense contains an element that is not part of the greater offense, the lesser cannot be included in the greater. Id. at 199; see also Government of the Virgin Islands v. Smith, 558 F.2d 691, 696 (3rd Cir.) (applying strict statutory-elements approach), cert. denied, 434 U.S. 957, 98 S.Ct. 486, 54 L.Ed.2d 316 (1977); State v. Zdiarstek, 53 Wis.2d 776, 785-86, 193 N.W.2d 833, 838 (1972) (same).

While described as the easiest of the three approaches to apply, the strict statutory-elements approach has been criticized as inherently inflexible. Blair, 21 Am.Crim.L.Rev. at 447. For example, although the facts of the case may establish a less serious, but merely related, offense, the less serious offense cannot be considered by the trier of fact because it fails to meet the statutory test. The elements of the offense rather than the facts of the case are the chief concern under this approach. According to one commentator, "[t]he rigid results mandated by the strict statutory interpretation theory conflict with a principal function of the lesser-included offense doctrine, which is to '[e]nable the jury to correlate more closely the criminal conviction with the act committed.' " Id. at 448-49.

2. The cognate approach. In response to the rigidity of the strict statutory-elements approach, a number of jurisdictions have opted for the more liberal cognate approach. This approach is recognized as the majority view. Koenig, 1975 Det.C.L.Rev. at 43. Under the cognate approach, a defendant may be convicted of a lesser offense that, under the strict statutory-elements approach, is not necessarily committed in the course of committing the greater offense. The lesser offense is related and, hence, "cognate" in the sense that it has several elements in common with the greater offense but may have one or two elements not essential to the greater crime. Comment, 57 Nw.U.L.Rev. at 62-63.

In applying the cognate approach, courts have used two methods. One, the cognate-pleadings method, involves examining the facts alleged in the accusatory pleading rather than just the statutory elements of the offense. Blair, 21 Am.Crim.L.Rev. at 449; see also United States v. Stavros, 597 F.2d 108, 112 (7th Cir.1979) (applying the cognate-pleadings method); State v. Brown, 163 Conn. 52, 61-62, 301 A.2d 547, 552-53 (1972) (same); Commonwealth v. Stots, 227 Pa.Super. 279, 281-83, 324 A.2d 480, 481-82 (1974) (same). The other, the cognate-evidence method, focuses on the evidence supporting the charge rather than on the statutory elements or the accusatory pleading. Blair, 21 Am.Crim.L.Rev. at 449; see also State v. Boyenger, 95 Idaho 396, 400-01, 509 P.2d 1317, 1321-22 (1973) (applying the cognate-evidence method); People v. Beach, 429 Mich. 450, 464-65, 418 N.W.2d 861, 867-68 (1988) (applying the cognate-evidence method in addition to strict statutory-elements approach).

The criticism leveled at the cognate-pleadings method is that the prosecution can control the language of the accusatory pleading and thus limit lesser-included offenses. See Blair, 21 Am.Crim.L.Rev. at 449. In contrast to the criticism of the strict statutory-elements approach, the cognate-evidence method has been criticized as too flexible. See Koenig, 1975 Det.C.L.Rev. at 45. As a result of this undue flexibility, the cognate-evidence method

may, in cases in which the possible lesser-included offenses could be numerous, put the defendant at an unfair disadvantage. He will either have to prepare to defend against all the possible lesser-included offenses, or else take the risk of only preparing to defend against the charged offense. This disadvantage, however, is not unique to the defendant. The prosecution must also in such cases be prepared for all the possible lesser-included offenses, in the event the defense seeks to have the jury charged on one or more of them.

Blair, 21 Am.Crim.L.Rev. at 450.

3. The Model Penal Code approach. The third approach is advocated by the Model Penal Code:

A defendant may be convicted of an offense included in the offense charged in the indictment [or the information]. 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 consists of an attempt or solicitation to commit the offense charged or to...