U.S. v. Browner

• Decision Date: 23 July 1991
• Docket Number: No. 90-8316,90-8316
• Citation: 937 F.2d 165
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gina Antoinette BROWNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 165

937 F.2d 165

UNITED STATES of America, Plaintiff-Appellee, v. Gina Antoinette BROWNER, Defendant-Appellant.

No. 90-8316.

United States Court of Appeals, Fifth Circuit.

July 23, 1991.

Ricardo D. Gonzalez, Walter L. Boyaki, Miranda & Boyaki, El Paso, Tex., for defendant-appellant.

Philip Police, LeRoy M. Jahn, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, JOHNSON and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

This appeal follows a retrial after the voluntary manslaughter conviction of defendant-appellant Gina Antoinette Browner (Mrs. Browner) ¹ was reversed by this Court and a new trial ordered for failure to instruct on the lesser included offense of involuntary manslaughter. United States v. Browner, 889 F.2d 549 (5th Cir.1989) (Browner I). At her second trial, Mrs. Browner was acquitted on the charge of voluntary manslaughter but convicted of assault with a dangerous weapon, in accordance with an instruction that assault with a dangerous weapon is a lesser included offense of voluntary manslaughter. We conclude that assault with a dangerous weapon is not a lesser included offense of voluntary manslaughter, and we therefore reverse.

Facts and Procedural History

The facts are recounted in detail in our opinion in Browner I and will be summarized here only briefly.

The defendant concedes that on the night of February 7, 1987, she stabbed her husband, United States Army Private First Class Curtis Browner, once in the left shoulder. The incident took place in their on-base housing at the Fort Bliss Military Reservation near El Paso, Texas. The knife tip severed the subclavian artery, causing massive bleeding. Mrs. Browner called an ambulance immediately after the stabbing, but the wound ultimately proved to be fatal. Mrs. Browner maintained that the stabbing was an accident and that she merely intended to warn away her allegedly violent husband. Mrs. Browner also raised a claim of self-defense.

In April 1988, a grand jury charged Mrs. Browner with voluntary manslaughter committed in the special maritime and territorial jurisdiction of the United States in violation of 18 U.S.C. Sec. 1112. ² At the close of the evidence after the first trial, defense counsel requested the district court to instruct the jury on involuntary manslaughter, 18 U.S.C. Sec. 1112, as a lesser included offense, but the district court refused. After Mrs. Browner was convicted of voluntary manslaughter and sentenced to a five year prison term, this Court upheld her challenge to the denial of the requested instruction, reversing her conviction and ordering a new trial. Browner I, 889 F.2d at 555-56.

At the second trial, the district court gave the involuntary manslaughter instruction. The district court also gave an instruction on assault with a dangerous weapon as a lesser included offense, over Mrs. Browner's objection. The jury convicted Mrs. Browner of assault with a dangerous weapon and acquitted her of voluntary manslaughter and involuntary manslaughter. This time the death of her husband netted Mrs. Browner a prison sentence of only one year. She is free on an unsecured bond pending the outcome of this appeal.

Mrs. Browner asserts in this appeal that the district court erred by charging the jury, over her objection, on the offense of assault with a dangerous weapon, 18 U.S.C. Sec. 113(c), as a lesser included offense of voluntary manslaughter. ³

Discussion

Most courts, state and federal, have adopted one of three tests to determine when, assuming a proper evidentiary showing, an offense not otherwise specifically charged may be deemed a lesser included offense of another, greater offense charged. See generally State v. Dordain, 566 A.2d 942, 945-48 (R.I.1989). The most expansive of the three tests is the "inherent relationship" test. A leading case adopting this test is United States v. Whitaker, 447 F.2d 314 (D.C.Cir.1971):

"A more natural, realistic and sound interpretation of the scope of 'lesser included offense,' in line with our own views on the subject, is that defendant is entitled to invoke Rule 31(c) when a lesser offense is established by the evidence adduced at trial in proof of the greater offense, with the caveat that there must also be an 'inherent' relationship between the greater and lesser offenses, i.e., they must relate to the protection of the same interests, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offenses is necessarily presented as part of the showing of the commission of the greater offense." Id. at 319.

The Ninth Circuit also adopted the inherent relationship test, United States v. Martin, 783 F.2d 1449, 1451 (9th Cir.1986), as have some state courts. E.g., Dordain, 566 A.2d at 947-48 (reaffirming inherent relationship test and rejecting on state law grounds Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989)).

The most restrictive approach is the "statutory elements" test. Under this test an offense is not lesser included unless each statutory element of the lesser offense is also present in the greater offense. For this purpose, the comparison of the statutory elements between the lesser and greater offenses parallels the statutory elements analysis conducted under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) for double jeopardy purposes. The statutory elements test is simple to apply and has attracted a strong following in the courts. E.g., Government of Virgin Islands v. Joseph, 765 F.2d 394, 396 (3d Cir.1985); United States v. Campbell, 652 F.2d 760, 761-62 (8th Cir.1981); State v. Roden, 384 N.W.2d 456, 457 (Minn.1986); State v. Cimino, 126 N.H. 570, 575-76, 493 A.2d 1197, 1202 (1985); State v. Spearin, 477 A.2d 1147, 1158 (Me.1984).

An intermediate approach is the "pleading" or "indictment" theory used in several states. This approach allows a jury to consider a lesser offense if that offense is contained within the language of the indictment or information as the means by which the charged greater offense was committed. See, e.g., Dorsey v. State, 490 N.E.2d 260, 268 (Ind.1986) (instruction on lesser offense unnecessary if lesser offense not contained in information); State v. Madrid, 108 Idaho 736, 702 P.2d 308, 309-10 (1985) (lesser offense alleged in indictment as means of committing greater); State v. Marino, 190 Conn. 639, 653, 462 A.2d 1021, 1029 (1983). ⁴

Federal Rule of Criminal Procedure 31(c) provides in pertinent part: "The defendant may be found guilty of an offense necessarily included in the offense charged...." In Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989), the Supreme Court recently adopted what it characterized as an "elements" test in resolving a circuit conflict over how lesser included offenses were to be determined under the "necessarily included" standard of Rule 31(c). Id. 109 S.Ct. at 1450. Mrs. Browner argues that Schmuck has adopted the statutory elements test. The government concedes that Schmuck rejects the inherent relationship test, ⁵ but argues that Schmuck does not foreclose resort to an indictment-based test, in lieu of the strict statutory elements test, under appropriate circumstances.

Assault with a dangerous weapon, 18 U.S.C. Sec. 113(c), requires, as the title of the offense implies, the use of a dangerous weapon as an element of the offense. See Shaffer v. United States, 308 F.2d 654, 655 (5th Cir.1962), cert. denied, 373 U.S. 939, 83 S.Ct. 1544, 10 L.Ed.2d 694 (1963). The use of a dangerous weapon, although frequently associated with a killing, is not an element of voluntary manslaughter. Thus, under the statutory elements test, assault with a dangerous weapon is not a lesser included offense of voluntary manslaughter. See Government of Virgin Islands v. Smith, 558 F.2d 691, 695-96 (3d Cir.) (carrying or using a dangerous weapon not a lesser included offense of second degree murder under Rule 31(c)), cert. denied, 434 U.S. 957, 98 S.Ct. 486, 54 L.Ed.2d 316 (1977). The government notes that a dangerous weapon--a knife with a blade of approximately eight inches--was in fact used, and it observes that the indictment alleges that Mrs. Browner killed the decedent "by stabbing" him "with a knife." No other cause of death was alleged, nor did the evidence show any other conduct of Mrs. Browner as a possible cause of the death. The government argues that under its proposed indictment-based test, in this case assault with a dangerous weapon is a lesser included offense of the charged voluntary manslaughter offense. The government may well be correct in its argument that it would prevail under the indictment-based test, although we do not decide that question. Rather, we conclude that Schmuck adopts the strict statutory elements test, under which assault with a dangerous weapon contrary to section 113(c) may not be a lesser included offense under a count charging voluntary manslaughter in violation of section 1112.

Taken as a whole, the language of Schmuck indicates that it adopts a strict statutory elements approach to the question of lesser included offenses. In Schmuck, the Court quotes with approval the following language from Giles v. United States, 144 F.2d 860 (9th Cir.1944): " ' "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." ' " 144 F.2d at 861 (quoting House v. State, 186 Ind. 593, 595-96, 117 N.E. 647, 648 (1917)), quoted in Schmuck, 109 S.Ct. at 1452. Schmuck also quotes with approval People v. Kerrick, 144 Cal. 46, 47, 77 Pac. 711, 712 (1904), in which that California Supreme Court explained that " '[t]o be "necessarily included" in the offense charged, the lesser offense must not only...