State v. Williams

• Decision Date: 03 October 1974
• Citation: 99 Or.Adv.Sh. 1934,526 P.2d 1384,270 Or. 152
• Parties: STATE of Oregon, Respondent, v. Dennis Ralph WILLIAMS, Petitioner.
• Court: Oregon Supreme Court

Page 1384

526 P.2d 1384

270 Or. 152

STATE of Oregon, Respondent, v. Dennis Ralph WILLIAMS, Petitioner.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 3, 1974.

Decided Oct. 3, 1974.

Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Scott McAlister, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

HOWELL, J.

The defendant was indicted for burglary in the first degree and robbery in the first degree. He was convicted of burglary in the first degree and robbery in the second degree. The conviction was affirmed by the Court of Appeals, 16 Or.App. 48, 517 P.2d 311 (1973). We granted review to consider the question of whether the trial court must instruct the jury on all lesser included offenses whenever requested to do so by the defendant.

At the close of the trial, ¹ defendant requested the court to instruct the jury with respect to the crime of criminal trespass (ORS 164.255) as a lesser included offense within the crime of burglary (ORS 164.225). ² The trial court refused to give the instruction on criminal trespass, and on appeal the Court of Appeals sustained this action.

ORS 136.660, relating to lesser included offenses, states:

'In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the indictment or of an attempt to commit such crime.' ³

The Court of Appeals held that the trial court is not required to instruct on lesser included offenses where there are no disputed issues of fact which warrant the submission of the lesser included offenses to the jury.

The rule that the trial judge must instruct on lesser included offenses only when justified by the evidence or inferences to be drawn from the evidence is followed by the majority of state and federal courts. 54 Mich.L.R. 707 (1956). The has been followed in Oregon in several previous decisions. State v. Stoneberg, 16 Or.App. 444, 517 P.2d 333 (1973); State v. Atkins, 14 Or.App. 603, 513 P.2d 1191 (1973); State v. Boucher, 13 Or.App. 339, 509 P.2d 1228 (1972).

The United States Supreme Court on several occasions has rejected any requirement that a judge must instruct on all lesser included offenses if so requested.

In Sparf and Hansen v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895), the court refused to reverse a criminal conviction for failure to give an instruction on a lesser included offense. The court stated:

'* * * A verdict of guilty of an offense less than the one charged would have been in flagrant disregard of all the proof, and in violation by the jury of their obligation to render a true verdict. * * * There was an entire absence of evidence upon which to rest a verdict of guilty of manslaughter or of simple assault.' 156 U.S. at 63--64, 15 S.Ct. at 278.

In Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965), the United States Supreme Court held that a lesser included offense instruction is only proper where there is a 'disputed factual element.' The defendant is entitled to an instruction on lesser included offenses only if 'there are disputed issues of fact which would enable the jury rationally to find that, although all the elements of * * * (the greater offense) have not been proved, all the elements of one or more lesser offenses have been, * * *.'

The federal circuit court in Driscoll v. United States, 356 F.2d 324, 327--328 (1st Cir. 1966), vacated on other grounds, 390 U.S. 202, 88 S.Ct. 899, 19 L.Ed.2d 1034 (1968), interpreted Sansone as follows:

'We take Sansone to mean that when the government has made out a compelling case, Uncontroverted on the evidence, on an element required for the charged offense but not for the lesser-included offense, there is a duty on defendant to come forward with some evidence on that issue if he wishes to have the benefit of a lesser-included offense charge. To put it another way, while a judge cannot prevent a jury from rejecting the prosecution's entire case, he is not obligated, under these circumstances, to assist a jury in coming to an irrational conclusion of partial acceptance and partial rejection of the prosecution's case by giving a lesser-included offense instruction. Two prerequisites seem vital: that There be no factual dispute and that a finding contrary to the only evidence on the issue would be irrational.' (Emphasis supplied.)

In Driscoll, the government presented direct evidence of the greater offense through three witnesses. The court stated:

'* * * The record before us discloses no efforts to impeach, contradict, or explain this testimony. All we have are the pleas of not guilty.

'We do not think that these pleas, standing alone, create the contradiction in evidence required by Sansone, supra. It is true that, at the outset of the case the pleas of not guilty created an ultimate issue as to willfulness to be resolved by the jury. It is also true that by their silence in the face of specific and direct evidence on the issue of willfulness, appellants did not forfeit their right to have the jury instructed that willfulness must be proven beyond a reasonable doubt. But we think it is equally true that by remaining mute in the face of such evidence and relying solely on their pleas of not guilty, appellants did not create such a 'disputed factual element' in the sense that entitled them to an instruction for a lesser-included offense. (Citations omitted.)' 356 F.2d at 327--328.

The state of Iowa has a statute almost identical to ORS 136.660. In State v. Merrill, 242 Iowa 1156, 49 N.W.2d 547 (1951), the Iowa Supreme Court held their statute to mean that before an instruction on lessor included offenses is required, it must be justified by the evidence. Quoting from another Iowa case, State v. Ockij, 165 Iowa 237, 145 N.W. 486 (1914), the court stated:

"The jury ought not to be allowed to speculate upon a supposed state of facts, of which there is no evidence, in order that they may reduce a serious crime to a trifling misdemeanor. To say that a man may use a deadly weapon and inflict a wound such (as is described here), * * *, and that he may be convicted of a simple assault or assault and battery, would be to make a mockery of the penal statutes and of the enforcement of the law." 49 N.W.2d at 549.

The argument is made that a jury in a criminal case is entitled to accept in part and to reject in part the state's evidence. The same argument was made to and rejected by the courts in Kennedy v. Coyle, 352 F.2d 867 (7th Cir. 1965); United States v. Markis, 352 F.2d 860 (2d Cir. 1965); Driscoll v. United States, supra, and State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954). While there is nothing to prevent a jury, as the trier of facts, from rejecting the prosecution's case in full and finding the defendant not guilty, this does not justify instructions on unsupported lesser included offenses. 'The lesser-included offense charge is not required simply because the jury could exercise its power of acquitting on the greater charge for no reason at all. * * * There must be a rational basis for its doing so.' United States v. Markis, supra 352 F.2d at 867.

The dissenting opinion in the instant case suggests that the efficient administration of trials in criminal cases would be enhanced if the trial court automatically instructed on all lesser included offenses because it would be less time consuming than the 'judicial time involved in making the decision to grant or refuse requested instructions' on lesser included offenses. We believe the contrary would be true. If the dissenting opinion were adopted, it would mean a trial judge must instruct on all included offenses--and they could be numerous--even though the evidence of the greater offense was uncontroverted and not capable of any inference which could reduce the greater offense.

However, the problem does not focus on the judicial administration of the trial of criminal cases. The question here presented is the same as in all cases, civil or criminal--is there evidence, or possible inferences to be drawn from the evidence, sufficient to require submission of the charge to the jury? If the evidence is insufficient, then the court does not submit the charge to the jury for its consideration. The same rule of evidence should apply when the trial court is instructing the jury on lesser included offenses.

We agree with the decision of the Court of Appeals that a trial judge is not required to instruct on lesser included offenses where there are no disputed issues of fact which warrant the submission of the lesser included offenses to the jury.

Affirmed.

DENECKE, J., did not participate in this decision.

O'CONNELL, Chief Justice (dissenting).

The rule stated by the majority has been adopted by almost all of the courts in the United States, including Oregon. ¹ A contrary view is expressed in Brown v. State, Fla., 206 So.2d 377, 382 (Fla.1968), where the Florida court interpreted its statute ² to require the court to instruct on the lesser-included offense 'even though the proofs might satisfy the trial judge that the more serious offense was committed.'

The majority view is predicated on the idea that in its role as finder of fact the jury has the duty to act rationally on the evidence presented. If a rational examination of the evidence points either to the defendant's guilt of the crime charged or else his innocence, an instruction on a lesser-included offense is seen as an improper invitation to the jury to engage in conjecture or compromise. The majority rule is best supported by those cases in which the defendant's entire defense is based on an alibi, a plea of insanity, or the statute of limitations. In these circumstances, if the state's evidence unequivocally...