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Published: 2008-03-26

Mrs. Burns' Lesser Included Offense Pyramid: Important New Rules for Charging the Jury



Given the requirement of a charge to the jury on lesser included offenses, the obvious questions arise as to what offenses are lesser included to others and when should they be instructed. These issues have continued to perplex the courts, due in no small measure to the tendency of the legislature to constantly modify the elements of criminal offenses. Thus, judicial precedent is not always a reliable guide as to which offense is lesser to another.

In State vs. Trusty, 911 S.W.2d 305 (Tenn. 1996) the Supreme Court explained that there were two types of offenses that may be included in the offense charged in the indictment. The first type is a true "lesser included" offense: The elements of the included offense are a subset of the elements of the charged offense, where the greater offense cannot be committed without also committing the lesser offense. The second type is a "lesser grade or class," even though the lower offenses might have different or additional elements than the greater offenses.

On Nov. 8, 1999 the Supreme Court of Tennessee overruled Trusty to the extent that the prior opinion recognized the concept of "lesser grades" of offenses. The court found that Trusty was "unworkable in application." State v. Dominy, ______ S.W.3d _______, 1999 W.L. 1006322 (Tenn. 1999). In a companion case the court promulgated new rules as to what offenses might be considered lesser to others and also when those offenses should be charged to the jury. State v. Burns, 6 S.W.3d 453 (Tenn. 1999).

The facts in Burns read like a chapter from The Godfather. The deceased had been a member of the Columbo crime family in New York City. He moved to Tennessee under the Federal Witness Protection Program. The deceased was found in Camden with his throat slashed. The authorities arrested Michael Spadafina and Vito Licari. These fellows were clearly not local boys!

Vito confessed but claimed that he had been put up to the job by Mrs. Burns, the former wife of the deceased. Vito testified against Mrs. Burns. She was convicted of murder in the first degree under what we would call an accessory before the fact under prior law. (Mr. Spadafina was convicted in a separate trial as being an accessory to Mr. Licari.)

In Mrs. Burns' trial no jury instructions were given on the issue of any lesser included offenses such as solicitation to commit murder or facilitation to commit murder.

After the trial Mrs. Burns hired me to represent her. Post-trial investigation revealed that several other witnesses had heard Spadafina and third persons conspiring to kill Mr. Burns. Indeed, some of this information was conveyed to the police even before Mr. Burns was murdered.

The Court of Criminal Appeals reversed the conviction because the missing evidence may well have created a reasonable doubt as to whether Mrs. Burns was the one soliciting her former husband's death. Our proof established that the real soliciting party was named Paul Frappolo who was not a local boy either. Could this have been a hit in retaliation for disloyalty to the mob? They do not put folks into the Federal Witness Protection Program for nothing. Anyway, as to the question or lesser included offenses, the Court of Criminal Appeals found that neither facilitation nor solicitation need have been charged to the jury here.

The state appealed the missing evidence reversal. We countered by taking a cross-appeal on the lesser included offense issue. The Supreme Court of Tennessee granted both applications.

The case was docketed as part of the SCALES Program where the court sits in county courthouses throughout the state so that school children may observe. By coincidence, the court heard oral argument in the exact same courtroom where Mrs. Burns was tried by a jury. The court sustained our reversal finding that the missing evidence of the murder plot by others was sufficient to raise a reasonable doubt and that this evidence should be heard by another jury. No new law on that point.

The court also found merit to our argument that at least solicitation should have been charged to the jury. While not only granting relief to Mrs. Burns, the Supreme Court issued a seminal Opinion that changed the law (1) as to how lesser included offenses are to be defined and, (2) when they should be instructed.

As to the first question, Justice Barker, writing for a unanimous court began his analysis by reviewing the "traditional" rule as to when offenses are lesser included to others: "The lesser offense may not require proof of any element not included in the greater offense as charged in the indictment." Justice Barker found that this restrictive test for lesser included offenses might deprive the defendant of the right to present a defense. He noted the classic example of where the state has charged rape and proves sexual battery but the evidence arguably does not support a finding of penetration that is a necessary element of rape. Under the traditional test, a defendant would not get an instruction on sexual battery because that offense requires the additional element that the touching is for the purpose of sexual arousal, which is not a statutory element of rape. Such a situation forces the jury into an "all or nothing" decision that is likely to be resolved against the defendant who is clearly guilty of "something."

Justice Barker's opinion noted that other jurisdictions resolved this "dilemma" by adopting modified versions of the Model Penal Code definition of lesser included offenses, which considers the traditional "elements" test, but adds an attempt or solicitation test, and a test inquiring as to whether the lesser offense differs from the charged offense only with respect to a less serious injury or a lesser kind of culpability.

The following edited excerpts from the opinion describe when offenses are lesser included to others and also when they should be charged to the jury, which is a completely separate question:

Based on our interpretation of its terms, we find that the Model Penal Code approach, as hereinafter modified, is logical and consistent with the structure of our own criminal code. The Tennessee criminal code is structured to define offenses and assign degrees of punishment by determining the completion of the crime, the culpability of the individual criminal actor, and the degree of perceived harm to the victim or society as a whole. The crime carried to completion, the more responsible party, and the more serious offenses merit harsher penalties. In a general sense, the various criminal offenses can be visualized as "layers," with the most serious, culpable versions of each type of crime at the top, meriting the most severe punishment. Correspondingly, underneath are the less serious versions in decreasing order of seriousness and culpability and with consequently less serious punishment. We find that the following definition of "lesser-included" offenses adapts well to the structure of our Code, and we therefore adopt it for use in our trial courts:

An offense is a lesser-included offense if:
(a) all of its statutory elements are included within the statutory elements of the offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it contains a statutory element or elements establishing
(1) a different mental state indicating a lesser kind of culpability; and/or
(2) a less serious harm or risk of harm to the same person, property or public interest; or
(c) it consists of
(1) facilitation of the offense charged or of an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or
(2) an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or
(3) solicitation to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b).

Part (a) of this test defines lesser-included offense using a statutory elements approach consistent with [the traditional rule]. Part (b) of the test modifies the statutory elements test by creating two exceptions to the requirement that all the statutory elements of a lesser-included offense must be included within the statutory elements of the offense charged. Under part (b), the lesser-included offense may contain a statutory element or elements establishing: (1) a different mental state indicating a lesser kind of culpability, and/or (2) a less serious harm or risk of harm to the same person, property or public interest. While conceptually related to paragraph (c) of the Model Penal Code test, part (b) of our test is narrower in that the statutory elements remain the focus of the inquiry. Part (c) of the test specifically includes the inchoate offenses of facilitation, attempt, and solicitation as lesser-included offenses when the evidence in the case would support a conviction for those offenses. The structure of our Code indicates that the Legislature viewed these as lesser offenses of the specific crime charged.

We choose to include these offenses in our definition so as to provide clear, comprehensive guidance for our trial courts to use in their determination of lesser-included offenses. [In a footnote the court added that "trial courts should also consider any offenses that presently or in the future are expressly designated lesser-included offenses. See, e.g., Tenn. Code Ann. §39-15 401(d) (Supp. 1998) (child abuse or neglect is a lesser-included offense of any kind of homicide, statutory assault, or sexual offense if the victim is a child and the evidence supports such a charge); Tenn. Code Ann. §55-10 415(c) (1998) (the offense of underage driving while impaired is a lesser included offense of driving while intoxicated)."]

Having stated the test for determining whether a particular offense is a lesser-included offense of another, we must acknowledge that our inquiry continues. Whether a lesser-included offense must be charged in a jury instruction is a two-part inquiry. First, the trial court must apply the new test to determine whether a particular lesser offense is included in the greater charged offense. If a lesser offense is not included in the offense charged, then an instruction should not be given, regardless of whether evidence supports it. If, however, the trial court concludes that a lesser offense is included in the charged offense, the question remains whether the evidence justifies a jury instruction on such lesser offense.

[As to the second part of the test], our prior decisions … support the application of a two-step analysis for determining whether a lesser included offense instruction should be given [in a particular case]. First, the trial court [after determining that an offense is legally a lesser included offense to the charged crime] must determine whether any evidence exists that reasonable minds could accept as to the lesser-included offense. In making this determination, the trial court must view the evidence liberally in the light most favorable to the existence of the lesser included offense without making any judgments on the credibility of such evidence. Second, the trial court must determine if the evidence, viewed in this light, is legally sufficient to support a conviction for the lesser included offense. This two-step analysis is practical, can be easily applied by the trial courts, and remains broad enough to preserve both the state's and defendant's rights to consider any lesser-included offenses fairly raised by the proof.

As to Mrs. Burns' appeal, the court held that solicitation and facilitation to commit murder were both lesser included offenses to murder in the first degree. In other words, these offenses qualified under the first part of the new test. As to whether these offenses should have actually been instructed in this particular case, (the second part of the test) the court found that facilitation need not have been instructed but that solicitation should have been charged. The court observed that because the facts might change on retrial, the decision to charge facilitation might be different.

Burns is significant because it greatly expands the number of potential lesser included crimes that might be charged to the jury. Lesser included offenses were traditionally viewed as a stack of bricks, with the charged offense at the top and the lesser offenses neatly stacked below in a narrow vertical column. While this perception of lesser included offenses might be helpful in determining whether a particular crime need be instructed in a given trial, it is now more useful to think of the universe of potential lesser included offenses as a pyramid with the charged offense as the cap stone.

Lesser included offenses differ depending on whether one is dealing with attempts, mental states, degrees of harm, or degrees of responsibility. In short, one can have multiple lesser included offenses "below" the offense charged in the indictment.

On one "face" of the pyramid, we have lesser offenses characterized by the attempt to commit the crime. Offenses may also be lesser to another based on the different harms to the person, property or public interest described in the statute. Another "face" of the pyramid is the differing mental states. Thus, recklessly starting a fire is clearly a lesser offense to knowingly burning personal property of another.

Burns not only expands the number of theoretical lesser included offenses, the Opinion mandates an actual instruction when there is "any evidence" as to the lesser included offense and where the evidence would support an actual conviction for this lesser crime. This part of the test is extremely broad because "the trial court must view the evidence liberally in the light most favorable to the existence of the lesser included offense without making any judgments on the credibility of such evidence."

Another part of the holding dealt with the facilitation statute. There has been great debate as to whether facilitation to commit a crime is actually a lesser included offense. The Supreme Court made that quite clear by finding that facilitation was a lesser included offense to higher crimes. The propriety of charging facilitation was resolved by a citation to an earlier Court of Criminal Appeals opinion holding that "virtually every time one is charged with a felony by way of criminal responsibility for the conduct of another, facilitation of the felony would be a lesser included offense." In other words, where multiple persons are accused of committing a crime, those persons whom we would have previously considered to have been "accessories" would now be possible facilitators as a lesser included offense to full criminal responsibility for the indicted crime.

No longer do we have a rule saying that one offense begins only where the other one ends. There is now play for considerable overlap between greater and lesser crimes. The critical passage in the opinion appears at its conclusion:

Whether sufficient evidence supports a conviction of the charged offense does not affect the trial court's duty to instruct on the lesser offense if evidence also supports a finding of guilt on the lesser offense. The jury, not the judge, performs the function of fact-finder.

The trial judge should not simply say that there is sufficient evidence to find the defendant guilty of the higher, charged crime that would, under prior law, arguably preclude the necessity of a lesser offense charge. Under Burns, that there may be legally sufficient evidence to convict of the higher crime in no way detracts the duty of the judge to charge as to the lesser offense.

It is suggested that the easiest way to comply with Burns is to instruct "several layers down" of lesser included offenses. Ultimately, the jury will "sort it out" as part of its function to find the truth and do justice.