United States v. Whitaker

Citation447 F.2d 314,144 US App. DC 344
Decision Date26 May 1971
Docket NumberNo. 23185.,23185.
PartiesUNITED STATES of America v. Willie WHITAKER, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Mr. Daniel Gilligan Grove, Washington, D. C. (appointed by this Court) for appellant.

Mr. William S. Block, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before LEVENTHAL, ROBB, and WILKEY, Circuit Judges.

WILKEY, Circuit Judge:

Appellant Whitaker was convicted in the court below under a one-count indictment charging first degree burglary.1 As one of his points on appeal,2 he assigns as error the trial court's refusal to instruct the jury on unlawful entry as a lesser included offense of first degree burglary. On the indictment and evidence presented at trial, we conclude that the instruction should have been given and remand for either a new trial or resentencing in accordance with the procedure and for the reasons set forth below.

At approximately 10:45 a. m. on 31 October 1968 appellant Whitaker knocked at the front door of a private home owned by Mr. and Mrs. John O. Fogg on Maryland Avenue, N.E. Mrs. Fogg, alone at the time, was using the telephone inside the house and did not respond to the knock. Whitaker waited for a short while and then threw a brick through the glass portion of the front door. He retreated to the street, walked a short distance away from the house, but then returned and entered it by forcing the front door. At this time Mrs. Fogg was inside her bedroom on the first floor of the house telephoning the police, and had chain-locked the door to the room. Appellant tried this door, but upon finding it locked proceeded up the stairs to the second floor, which included the bedrooms of the Foggs' children and one boarder.

After she heard Whitaker go upstairs, Mrs. Fogg slipped out the back and summoned help. She and her neighbor's brother returned to the front hallway of the house in time to hear Whitaker's voice on the second floor and to observe him descend the stairs. They accosted the appellant and prevented him from leaving until the police arrived shortly thereafter.

After Whitaker had been placed under arrest, Mrs. Fogg and the arresting officer investigated the second floor of the house, and, apart from finding some of the bedroom doors ajar, detected no sign that anything had been disturbed. According to the officer, Whitaker had been drinking, an observation confirmed by appellant's testimony that he had been imbibing heavily the preceding evening and had swilled at least a half pint of gin on the morning of his arrest.

At the close of all the evidence defense counsel requested that the trial court instruct the jury on unlawful entry as a lesser included offense of first degree burglary. The government successfully blocked this instruction by arguing that for an offense to be lesser included in another, its theoretical elements all must be identically reflected in the theoretical elements of the greater. It was argued that since the offense of unlawful entry required the element of entry without lawful authority and against the will of the lawful occupant, while in certain circumstances burglary could be committed even though the entry was authorized (e. g., entering a place of business open to the public or a friend's apartment with intent to steal), unlawful entry was not a lesser included offense of burglary.

This argument was not inconsistent with previous decisions of this court on fact situations not substantially different from this case.3 But on the particular circumstances here we hold that the requested charge on unlawful entry as a lesser included offense should have been given.

I. The Test for a Lesser Included Offense

Rule 31(c), Fed.R.Crim.P., provides that "the defendant may be found guilty of an offense necessarily included in the offense charged." As the Supreme Court explained, "in a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justified it, would no doubt be entitled to an instruction which would permit a finding of guilt of the lesser offense."4

The National Commission on Reform of Federal Criminal Laws has recommended a comparable definition of a lesser included offense:

(3) Conviction of Included Offenses * * * 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; * * *.5

This court has held that for the defense (or prosecution) to be entitled to a lesser included offense charge five conditions must be met. First, as with most other charges, a proper request must be made. Second, the elements of the lesser offense must be identical to part of the elements of the greater offense6 (comparable to definition of Included Offense above). Third, there must be some evidence which would justify conviction of the lesser offense.7 Fourth, the proof on the element or elements differentiating the two crimes must be sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense.8 Fifth, "in general the chargeability of lesser included offenses rests on a principle of mutuality, that if proper, a charge may be demanded by either the prosecution or defense."9

On the first prerequisite, here Rule 30, Fed.R.Crim.P., was not technically complied with, but the oral request sufficed to inform the trial court clearly of the point involved, as evidenced by the ensuing argument.

As to the third, there was ample evidence to justify conviction of unlawful entry.

For the fourth, the element in addition to proof of unlawful entry which was necessary to establish burglary was entry with intent to commit a crime, and this was the principal issue in appellant's defense. The jury could have believed appellant's testimony that he entered looking for his friend Williams, and found him innocent of burglary but guilty of unlawful entry, had the lesser included offense charge been given.

This leaves the second, partial identity of elements of the offenses, and the fifth, mutuality, to be analyzed at some length.

II. Identical Elements Necessary in the Two Offenses

To determine that two offenses in a given case are in the relation of greater offense and lesser included offense is not as simple as defining the elements of the two offenses separately and laying them side by side, for this area of law is encrusted with much ancient lore. In our own jurisdiction we have cases apparently speaking as if the elements of the two offenses were to be determined in the abstract solely by the indictment without recourse to the proof adduced at trial,10 and other opinions pointing out that in the context of particularized offenses an exact replica of the lesser included offense need not be contained in the greater.11

Rule 31(c) uses the phrase "necessarily included" to describe the relationship of the elements. "Necessarily included" as of what time? By a comparison of what? The indictment with another indictment (necessarily a theoretical indictment and charge, because the lesser included offense question only arises when no charge of it has been drafted)? The proved elements of each offense actually adduced at trial? The Supreme Court quotation above speaks both of "the crime charged" and "the evidence." Likewise, the very recent Draft Federal Criminal Code speaks of "established by proof" and "the facts required."

Merely because a burglary can in rare circumstances be accomplished by means of an entry which is "permitted," does it follow that unlawful entry cannot be considered a lesser included offense of burglary in the usual case, as is this one, where the entry is undeniably unauthorized? On the above authorities it would seem that Rule 31(c) should not be so strictly construed.

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 offense is necessarily presented as part of the showing of the commission of the greater offense.12 This latter stipulation is prudently required to foreclose a tendency which might otherwise develop towards misuse by the defense of such rule. In the absence of such restraint defense counsel might be tempted to press the jury for leniency by requesting lesser included offense instructions on every lesser crime that could arguably be made out from any evidence that happened to be introduced at trial. "An element of the mercy-dispensing power is doubtless inherent in the jury system, and may well be a reason why a defendant seeks a lesser included offense instruction, but it is not by itself a permissible basis to justify such an instruction."13

Turning to the case at bar, appellant Whitaker was originally charged only with first degree burglary. Not only is the offense of burglary usually accompanied by a trespass and hence the offense of unlawful entry, but the criminal activity proscribed by the two offenses violates the same interest — that of the property owner in protecting the integrity of his premises. Considering the proof adduced at trial in support of the charged offense, Whitaker was shown to have battered down the door of a dwelling house in order to gain entry. His entry was by force and was therefore unauthorized and...

To continue reading

Request your trial
144 cases
  • State v. Whistnant
    • United States
    • Supreme Court of Connecticut
    • February 12, 1980
    ...U. S. v. Coppola, 526 F.2d 764, 774 (10th Cir. 1975); U. S. v. Thompson, 492 F.2d 359, 362 (8th Cir. 1974); U. S. v. Whitaker, 144 U.S.App.D.C. 344, 447 F.2d 314, 317 (D.C.Cir.1971). In citing these authorities it must be noted that the rule we adopt today includes the rule of State v. Brow......
  • People v. Geiger, Cr. 23105
    • United States
    • United States State Supreme Court (California)
    • February 2, 1984
    ...importance of this option was explained by the United States Court of Appeals for the District of Columbia Circuit in United States v. Whitaker (1971) 447 F.2d 314, 321: "The defense ought not to be restricted by the stringent constitutional limits upon the prosecutor's right. If the proof ......
  • Schmuck v. United States
    • United States
    • United States Supreme Court
    • March 22, 1989
    ...test for determining what constitutes a lesser included offense for the purpose of Rule 31(c). See, e.g., United States v. Whitaker, 144 U.S.App.D.C. 344, 349, 447 F.2d 314, 319 (1971). Under that test, one offense is included in another when the facts as alleged in the indictment and prove......
  • Warren v. State
    • United States
    • United States State Supreme Court of Wyoming
    • June 5, 1992
    ...on proof of all the elements of the lesser offense to prove, in turn, guilt of the greater offense." This is a basic Whitaker rule. Whitaker, 447 F.2d 314. See also United States v. Cooper, 812 F.2d 1283 (10th Cir.1987); United States v. Zang, 703 F.2d 1186 (10th Cir.1982), cert. denied 464......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT