State v. Neider

Decision Date20 September 1982
Docket NumberNo. 15143,15143
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Shelly Lynn NEIDER.

Syllabus by the Court

1. "The test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser offense. An offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense." Syllabus Point 1, State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981).

2. Where there is no evidentiary dispute or insufficiency on the elements of the greater offense which are different from the elements of the lesser included offense, then the defendant is not entitled to a lesser included offense instruction.

3. "At common law, the definition of robbery was (1) the unlawful taking and carrying away, (2) of money or goods, (3) from the person of another or in his presence, (4) by force or putting him in fear, (5) with intent to steal the money or goods." Syllabus Point 1, State v. Harless, 168 W.Va. 707, 285 S.E.2d 461 (1981).

4. "To support a conviction for larceny at common law, it must be shown that the defendant took and carried away the personal property of another against his will and with the intent to permanently deprive him of the ownership thereof." Syllabus Point 3, State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981).

5. Under the legal test set out in Syllabus Point 1 of State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981), larceny is a lesser included offense in robbery.

6. "A trial court must inquire beyond a simple and direct questioning of a juror as to whether he can decide a case fairly and impartially after having read news articles related to the trial of a case. Specific questions should be asked in order to determine whether a juror, even without his own knowledge, may be biased or prejudiced." Syllabus Point 6, State v. Williams, 169 W.Va. 19, 230 S.E.2d 742 (1976).

7. " 'The true test as to whether a juror is qualified to serve on the panel is whether without bias or prejudice he can render a verdict solely on the evidence under the instructions of the court.' Syllabus Point 1, State v. Kilpatrick, 158 W.Va. 289, 210 S.E.2d 480 (1974)." Syllabus Point 3, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981).

Harry G. Deitzler, Pros. Atty. and Dennis R. Lewis, Asst. Pros. Atty., Williamstown, for appellee.

Ernest M. Douglass, Parkersburg, for appellant.

MILLER, Chief Justice:

The defendant in this proceeding, Shelly Lynn Neider, was sentenced by the Circuit Court of Wood County to ten years in the state penitentiary for aggravated or armed robbery. 1 On appeal she argues that larceny was a lesser included offense under her robbery indictment and consequently the trial court erred in refusing to give a larceny instruction. She also claims that some members of the jury panel were tainted by a newspaper article relative to a jailbreak in which she was involved. After examining the questions presented, we disagree with the defendant's assertions, and we affirm the judgment of the circuit court.

On July 9, 1979, a grand jury in Wood County returned an indictment charging that the defendant, armed with a deadly weapon, had robbed one Jeffrey Craig Dooley of sixty dollars. The defendant was tried by a jury on December 19 and 20, 1979. In the course of the trial, Mr. Dooley stated that the defendant appeared in the store where he was working. As she approached the counter where the cash register was located, she said: "Give me all your money or you are dead." At the time, the defendant had a closed pocketknife in her hand. Mr. Dooley testified that he asked her if she was serious. She said "yes" and opened the knife. Dooley then opened the cash register and gave the defendant the money. Thereupon the defendant ran out of the store.

Mr. Dooley testified that the blade of the knife was about three inches long and that the defendant held it about a foot away from him after she opened it and that he was placed in fear for his safety.

The defendant's story was that she had been drinking and taking "acid" and that she did not have perfect recall of the incident. She said, "I remember setting out to rob a store. I remember threatening Jeff Dooley." Beyond that she could not testify about what happened.

At the conclusion of the evidence defense counsel offered an instruction which would have allowed the jury to find the defendant guilty of armed robbery, guilty of unarmed robbery, guilty of petit larceny, or not guilty. The court refused to give the instruction and informed the jury that the only possible verdicts in the case were guilty of armed robbery or not guilty.

The question whether a defendant is entitled to an instruction on a lesser included offense involves a two-part inquiry. The first inquiry is a legal one having to do with whether the lesser offense is by virtue of its legal elements or definition included in the greater offense. Our standard test for this inquiry is contained in Syllabus Point 1 of State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981):

"The test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser offense. An offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense." 2

See State v. Daggett, 167 W.Va. 411, 280 S.E.2d 545 (1981); State v. Bailey, 159 W.Va. 167, 220 S.E.2d 432 (1975).

The second inquiry is a factual one which involves a determination by the trial court if there is evidence which would tend to prove such lesser included offense. Our law in this area is not extensively developed. Our leading case on this point is State v. Allen, 131 W.Va. 667, 49 S.E.2d 847 (1948), where this Court stated in its single Syllabus:

"Where, on the trial of an indictment for murder, the homicide charged is clearly proved or admitted, and there is appreciable evidence in the case tending to show the commission of a particular offense embraced within the charge contained in the indictment, it is error not to instruct the jury on the nature, elements and punishment for the offense to which such evidence relates, when request therefor is made either by the State or the defendant."

Allen drew heavily on general instructional law to the effect that an instruction whose theory is supported by some evidence should be given. Allen dealt with two lesser included offenses which were embodied in an instruction covering both voluntary and involuntary manslaughter on a general murder indictment. Allen has not been frequently cited and this may be because most of our lesser included offense cases have turned on the first step analysis and the legal determination that the lesser offense was not included in the definition of the greater offense.

We did in State v. Spicer, 162 W.Va. 127, 245 S.E.2d 922 (1978), recognize the Allen principle and concluded under the facts of that case there was no appreciable evidence to warrant the giving of an unarmed robbery instruction as a lesser included offense of armed robbery.

There is no doubt that Allen's "appreciable evidence" is a rather general standard for resolving the fact question of whether a lesser included offense instruction should be given under the evidence. Another test used in some jurisdictions which seems equally vague is that the evidence should produce a rational basis for a verdict acquitting the defendant of the greater offense charged and convicting him of the lesser charge. E.g., State v. Brown, 173 Conn. 254, 377 A.2d 268 (1977); State v. Nelson, 297 N.W.2d 285 (Minn.1980); State v. Kyle, 628 P.2d 260 (Mont.1980); State v. Weik, 206 Neb. 217, 292 N.W.2d 289 (1980); State v. Poss, 298 N.W.2d 80 (S.D.1980); Hawthorne v. State, 99 Wis.2d 673, 299 N.W.2d 866 (1981).

It is apparent that because the legal definition of a lesser included offense requires its elements to be embraced within the greater offense, the primary factual inquiry will center on those elements of the greater offense which are different from the elements of the lesser offense. This has led a number of courts to formulate the rule that unless there is some factual conflict over the disparate elements, a lesser included offense instruction is not warranted.

Thus, in Sansone v. United States, 380 U.S. 343, 350, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882, 888 (1965), this rule was stated: "A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense." See also Valentine v. State, 617 P.2d 751 (Alaska 1980); People v. Karasek, 63 Mich.App. 706, 234 N.W.2d 761 (1975); State v. Vicars, 207 Neb. 325, 299 N.W.2d 421 (1980); State v. Howland, 119 N.H. 413, 402 A.2d 188 (N.H.1979); State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971). 3

It seems quite logical to require some evidentiary conflict or evidentiary insufficiency as to the elements of the greater offense which differ from the elements of the lesser included offense in order to require the giving of a lesser included offense instruction. If there is no dispute as to these differing elements the State has conclusively proven the greater offense. The defendant is not entitled to claim a lesser included offense instruction because he has in effect not shown any conflict in proof as to the elements of the greater offense. To hold otherwise would mean as to those crimes which do carry in their legal definition lesser included offenses a defendant would always be entitled to a lesser included offense instruction even though there was no factual conflict as to the elements making up the greater offense. In other words, the...

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