"CHARGING BY AMBUSH": AN ANALYSIS OF THE LESSER INCLUDED OFFENSE DOCTRINE IN STATE V. MCCAHREN.

• Author: Kenyon, Loranda K.
• Position: Case overview

1. INTRODUCTION

   Braiden McCahren ("McCahren"), a sixteen-year-old from Pierre, South Dakota, was convicted of second-degree murder in the shooting death of his friend, Dalton Williams ("Williams"). (1) The prosecution initially charged McCahren only with the first-degree murder of Williams. (2) During pre-trial motions, the prosecution moved to preclude the defense from a lesser offense instruction of second-degree murder. (3) The court granted the prosecution's pre-trial motion. (4) Thus, the prosecution tried the case against McCahren as a first-degree murder case. (5) Approximately 150 minutes before closing arguments were set to begin, the prosecution motioned the court to permit the charge of second-degree murder to be added to the jury instructions as a lesser included offense of first-degree murder. (6)

   For 634 days, McCahren faced an indictment for first-degree murder, attempted first-degree murder, and aggravated assault. (7) At the close of trial, McCahren was found guilty of second-degree murder and aggravated assault. (8) On appeal to the South Dakota Supreme Court, McCahren argued he did not have sufficient notice that the court would instruct the jury on second-degree murder. (9) McCahren argued the lower court should not have given the jury an instruction on second-degree murder because he was not given notice that such an instruction would be sought. (10) McCahren's story is an example of how one defendant argued against the use of the lesser included offense doctrine--an argument contrary to the doctrine's normal application by defendants. (11) Instead, the prosecution's method of "charging by ambush" and applying the lesser included offense doctrine in a last-minute attempt to convict a juvenile defendant uncovers new territory that implicates constitutional rights and revisits the way in which the doctrine was applied and is currently applied today. (12)

   The doctrine of lesser included offenses has evolved to accomplish a multitude of different tasks. (13) The doctrine provides notice to defendants of what crimes may be prosecuted at trial, even if those crimes are not alleged in the charging document. (14) The doctrine affords prosecutors a degree of flexibility in charging offenses because it permits them to add or substitute less serious charges without the additional cost and delay that may follow from a re-indictment or amendment to the charging document. (15) In addition, the doctrine affords defendants an opportunity to reduce the punishments they face to a less serious level. (16) The doctrine also enables jurors to exercise their right to be informed of related offenses that might apply and establishes limits on multiple prosecutions. (17) Today, the lesser included offense doctrine digresses from its historical purpose "as an aid to the prosecution when there was insufficient evidence to convict on the charged offense...." (18) Instead, the doctrine "is more often used by defendants seeking a conviction for an offense less serious than that actually charged...." (19)

   This note will argue the South Dakota Supreme Court erred when it held the prosecution's request for a last-minute jury instruction on second-degree murder as a lesser included offense of first-degree murder was permissible. (20) First, this note will recount the facts and procedural history of McCahren. (21) Next, this note will discuss the historical development of the lesser included offense doctrine from its inception to its nature and use today. (22) This note will then argue that the McCahren court's decision failed to consider the constitutional implications of the prosecution's last-minute jury instruction of second-degree murder. (23) Finally, this note will argue for a change in South Dakota Codified Law to eliminate the practice of "charging by ambush." (24)

2. FACTS AND PROCEDURE

   On December 18, 2012, sixteen-year-olds Braiden McCahren, Tyus Youngberg ("Youngberg"), and Dalton Williams stopped at the McCahren home in Pierre, South Dakota, to grab something to eat. (25) While the three boys were in the kitchen, McCahren snuck away to his father's gun rack and retrieved a 20-gauge shotgun. (26) McCahren returned to the kitchen and shouldered the shotgun as if to shoot something--a gesture the boys believed was merely in jest. (27) It was then that McCahren pointed the gun at Youngberg and pulled the trigger, but the gun did not fire. (28) McCahren proceeded to load a 20-gauge shotgun shell into the shotgun. (29)

   In a panic, Youngberg tried to escape the house through a sliding glass door, but the door was locked. (30) While pulling at the door, Youngberg heard the loud click of the shotgun. (31) Youngberg then ran toward the garage only to find Williams blocking his path. (32) Youngberg grabbed Williams by the shoulders and tried to move him out of the way when McCahren fired the shotgun. (33) The shot missed Youngberg but hit Williams in the chest. (34) The shot proved to be fatal, and Williams died shortly thereafter on McCahren's kitchen floor. (35)

   Youngberg called 911 to report the shooting. (36) When law enforcement arrived on the scene, they questioned both Youngberg and McCahren about the incident. (37) Initially, Youngberg told police that he, McCahren, and Williams were messing around and that the shooting was accidental. (38) Youngberg also told police that the boys were not mad or upset with one another that day. (39) Youngberg explained to police that the boys often argued several times a day, including that day just before the shooting, but that these arguments were never serious. (40)

   When law enforcement arrived on the scene, McCahren identified himself as the shooter and was taken into custody, then transported to the police station in Pierre. (41) McCahren maintained the shooting of Williams was accidental--an allegation that reflected Youngberg's initial statement to police on the scene after the shooting. (42) On December 28, 2012, McCahren was indicted for first-degree murder, attempted first-degree murder, and aggravated assault. (43) The State did not bring any additional charges against McCahren, and defense counsel did not request any lesser homicide offenses. (44) In March 2013, pursuant to a court order, McCahren was transferred to the Pennington County Juvenile Services Center. (45) After attempts by the defense to have McCahren tried in juvenile court failed, McCahren was set to be tried as an adult for the murder of Williams. (46)

   A trial was held on September 15, 2014. (47) The prosecution's case-in-chief focused on the first-degree murder charge. (48) The defense did not offer any psychiatric testimony, and McCahren did not testify in his own defense. (49) At the close of trial and during the settling of jury instructions, the State made one last request: that the court instruct the jury on second-degree murder. (50) The State urged this lesser offense instruction, despite the fact that second-degree murder was not one of the original charges included in the indictment. (51) The State's motion came just 90 minutes before closing arguments began. (52) Nevertheless, the court granted the State's request and added second-degree murder to the jury instructions over the objection of defense counsel. (53)

   On September 23, 2014, a jury found McCahren guilty of the second-degree murder of Williams and guilty of the aggravated assault of Youngberg. (54) The sixteen-year-old defendant was sentenced to twenty-five years in prison with fifteen years suspended for second-degree murder, and 15 years for aggravated assault to run concurrently. (55)

   On appeal to the South Dakota Supreme Court, McCahren argued that the lower court erred when it permitted the jury instruction on second-degree murder. (56) The court held, contrary to McCahren's argument, that the defendant was afforded sufficient notice that he could face a lesser offense instruction of second-degree murder. (57) The court reasoned McCahren was placed on notice of the potential for a lesser included, second-degree murder instruction when he was indicted for first-degree murder. (58) The majority opinion, authored by Justice Glen Severson, reasoned there was evidence supporting a jury instruction on second-degree murder. (59)

   South Dakota Circuit Court Judge Susan Sabers concurred specially with the majority opinion. (60) Judge Sabers stated the majority set forth a technical and well-reasoned delivery of well-settled South Dakota law. (61) While South Dakota Codified Law section 22-16-20.1 provides that second-degree murder is a lesser offense of first-degree murder, Judge Sabers argued the State tried the case entirely on the theory of first-degree murder, not second-degree murder. (62) As a result, Judge Sabers determined the prosecution's last-minute jury instruction on second-degree murder surprised the defense. (63) Judge Sabers highlighted that the prosecution requested the instruction minutes before closing arguments were set to begin. (64) Moreover, Judge Sabers emphasized that the State's request followed its motion specifically precluding the defense from seeking the same instruction. (65)

   Judge Sabers set the tone for her separate opinion from the start: "I write [] to discourage litigators from following this path in the future." (66) Judge Sabers advised litigators against eleventh-hour trial practices similar to those of the prosecution during trial. (67) In her opinion, Judge Sabers reasoned that the defense had no obligation to present evidence at trial. (68) Judge Sabers noted that the defense likely concluded prior to trial that the State could not satisfy the heavy burden of proof required to obtain a first-degree murder conviction. (69) Because the defense likely concluded that the prosecution could not prove first-degree murder, it did not offer any psychiatric testimony. (70) This testimony, Judge Sabers offered, would have undoubtedly supported a depraved-mind theory of the uncharged...