By: dmc-admin//February 11, 2004//
The court agreed that a per se rule against supplemental jury instructions on lesser-included offenses is not warranted, although such instructions should be rare, and reserved for exceptional circumstances.
The question is, what constitutes exceptional a difficult question, given the similarities between the case at bar and U.S. v. Welbeck, 145 F.3d 493 (2d Cir. 1998), the only case cited with approval by the court in which the court held that the supplemental instructions were proper.
In Welbeck, the defendant was charged with possession of cocaine base with intent to distribute. Neither side requested a lesser-included offense instruction for simple possession.
During deliberations, however, the jury sent a note to the judge asking, Can a lesser charge be just possession? and another asking, We are stuck on distribution. Is there a lesser charge? Id. at 495-496.
Over the defendants objection, the instruction was given, and within 15 minutes the jury returned with a guilty verdict on simple possession. Id.
Upholding the conviction, the court noted several factors. First, it did not violate the Federal Rules of Criminal Procedure. Id. Wisconsins rules, likewise, do not prohibit the practice.
Second, the court found that the defendant did not request the opportunity to give supplemental closing arguments to address the newly presented charge. The court stated, Had such a request been made in these circumstances, it would have been altogether reasonable. … But because Welbeck made no such request, he cannot complain that the opportunity was denied. Id.
Like Welbeck, Thurmond declined the opportunity to make additional closing arguments.
Third, the court found no particular harm to Welbeck from not being given notice of the possibility for lesser-included offense prior to the original instructions.
The Welbeck court noted that, in some cases where reversal was found to be warranted, the lesser-included offense was given on the courts own initiative, suggesting that such a conviction had the courts imprimatur.
The court also noted other instances in which the defendant had made strategic concessions in summation that would be damaging if the supplemental instructions were given.
The court reasoned, a defendant who relies on the courts charge on only possession of drugs with intent to distribute might concede possession in summation and contest only the intent to distribute. Such a defendant would have a strong claim of prejudice if the jury were later charged on a lesser-included charge of simple possession. Id. at 497, fn. 3.
On this point, the two cases are distinguishable, or at least to the majority. The majority found that permitting the instruction would rebut the very points the defense made in closing arguments.
Another similarity between the cases is that, once the supplemental instructions were given, the jury returned guilty verdicts almost immediately. The majority in the case at bar found this relevant, while the Welbeck court did not.
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Obviously, however, this factor will be irrelevant to a trial court in deciding whether to issue supplemental instructions. Furthermore, it is also arguably irrelevant.
While it could indicate a placing of undue importance on the instruction, it could just as easily indicate that the instruction was very proper, and the jury was merely rendering a verdict consistent with the evidence. If no other indicia of prejudice is present, the sole fact of a lightning quick verdict after supplemental instructions should be irrelevant.
Accordingly, for a case to qualify as exceptional, consistent with the courts holding, and its citation of Welbeck with approval, three criteria must be met: (1) the jury initially raised the question of lesser-included offenses; (2) counsel is given opportunity to address the new instructions; and (3) defense counsel has not previously made concessions or otherwise made arguments, in reliance on the absence of any lesser-included instructions, which would be undermined by such instructions.
Of the three criteria, only the third is one that defense counsel concerned with the possibility of supplemental instructions can control. Counsel should search for strategic admissions that can be made in closing arguments to effectively foreclose any such instructions.
– David Ziemer
David Ziemer can be reached by email.