To instruct, or not to instruct, that is the question: State v. Jackson.

• Author: Guemmer, Jared

1. INTRODUCTION

   A criminal trial is an arduous process. By the end of this process, the fact-finder--often a jury--makes a determination regarding the defendant's culpability for the crimes with which she is charged. Sometimes, the State's evidence is insufficient to prove guilt of the charged offense beyond a reasonable doubt. In such cases, the jury may also consider the defendant's guilt as to a lesser charge that is included within the charged offense. The jury's job is to ensure justice is done, and the defendant is convicted on the correct charge or acquitted entirely.

   However, judges do not always provide juries with the opportunity to consider all possible options. Sometimes, judges deny juries the ability to consider a lesser included offense. They do this by refusing to instruct the jury that it may consider the lesser offense, and what must be proven in order to determine guilt for that offense. As a result, guilt becomes an all-or- nothing proposition. Some guilty defendants may escape punishment entirely, while those guilty of a lesser crime may be punished more severely than their actions deserve.

   In State v. Jackson, the Supreme Court of Missouri considered whether a trial court must instruct the jury regarding a lesser included offense. (1) Specifically, it confronted this question in the context of a "nested" lesser included offense: an offense whose elements are entirely subsumed by the greater offense, and the greater offense has some "differential element" that the State bears the burden to prove. (2) The court ultimately concluded that a jury instruction on such a lesser included offense, when requested by the defendant, must always be granted. (3) A judge's refusal to grant the requested instruction jeopardizes the defendant's right to a trial by jury. (4) Thus, the court ensured that juries would have the opportunity to consider a lesser degree of liability for the defendant's actions.

2. FACTS AND HOLDING

   A jury found that Denford Jackson walked into a coffee shop/convenience store the morning of August 29, 2009, and robbed the store's cash register while holding a gun on an employee. (5) Jackson was convicted of robbery in the first degree and armed criminal action. (6)

   Only three people were in the store at the time of the robbery, two customers and the employee. (7) The customers testified that Jackson entered the coffee shop side of the store and spoke with one of them for a short time. (8) Neither customer saw a gun in Jackson's possession, but Jackson kept one of his hands in his pocket during the entire conversation. (9) After the conversation ended, Jackson went to the other side of the store, where the cash register was located. (10) When the customers next saw Jackson, he was standing at the cash register, behind the store's employee. (11) Neither customer saw whether Jackson had a gun, and neither knew a robbery occurred until the employee ran out of the kitchen to say she had been robbed. (12)

   The employee testified she was in the kitchen when Jackson entered the door behind the cash register. (13) As she approached him, Jackson grabbed her arm and turned her toward the door and the cash register. (14) She said she "felt something in [her] back," and that she "[l]ooked down and it was a gun." (15) She testified that she "could see it after [she] had looked down and he guided [her] forward," (16) and she noted that it had a "six-inch barrel," was "silverish," and "was a revolver." (17) After he took the money from the register, Jackson took the employee back to the kitchen, made her lie down, and checked her pockets for more money. (18) He then left through a door on the shop's convenience store side. (19)

   The State introduced video surveillance tapes from the shop into evidence, which showed Jackson entering the shop and standing near the customers while always keeping one hand in his pocket. (20) The video shows Jackson taking something out of his pocket and examining it after walking away from the customers. (21) He then entered the kitchen area where the employee was working. (22) The video shows the two of them coming out of the kitchen, with Jackson behind the employee, holding something to her back. (23) As they exit from behind the register, the employee turns and the object in Jackson's hand is briefly visible. (24) Jackson then grabs the employee and leads her back to the kitchen. (25)

   A detective testified for the State regarding the videos. (26) He testified that Jackson could be seen holding a small dark blue or black pistol to the employee's back, and that Jackson's movements prior to entering the kitchen were the movements one would see from someone checking to make sure a revolver is loaded. (27) On cross-examination, the detective agreed that a blurry video might show an object that looked like a gun, when it might actually be something like a cell phone. (28) The detective refused to say this object could be a cell phone because "people do not check to see if their cell phone is loaded right before committing a crime." (29)

   After the close of evidence, Jackson's attorney requested a jury instruction for the lesser included offense of second-degree robbery. (30) Jackson's attorney argued that the jury could look at the video and determine that a gun was not used, and that the employee was not reasonable in her belief that Jackson had a gun. (31) The trial judge refused to grant the instruction, stating, "[I]f I were to submit it here then I'd have to submit it every time there's a robbery first brought, and I don't think that's the law." (32) Jackson was convicted of first-degree robbery (33) and armed criminal action. (34) Jackson appealed. (35)

   The Missouri Court of Appeals for the Eastern District affirmed Jackson's conviction, finding no error in the trial court's refusal to grant the jury instruction for the lesser included offense. (36) The court declined to provide a written opinion because there would be no jurisprudential value in doing so. (37)

   On transfer to the Supreme Court of Missouri, Jackson argued there was a sufficient basis in the evidence to support an acquittal for first-degree robbery, and that he was, therefore, entitled to a jury instruction on second-degree robbery. (38) Jackson argued that the surveillance video in the shop, combined with the discrepancy between the detective's and employee's testimony regarding the gun's appearance, established a basis in the evidence to acquit him of first-degree robbery. (39)

   The State said this evidence only disputed whether Jackson actually used a gun, not whether the employee's belief that Jackson had a gun was reasonable. (40) Additionally, the State argued that the jury's right to disbelieve evidence submitted by the State did not, by itself, establish a sufficient basis in the evidence to acquit Jackson of the charged offense. (41) There must be a sufficient basis in the evidence in order to trigger the statute governing when a trial court is required to grant a jury instruction for a lesser included offense. (42)

   In a 4-3 decision, the Supreme Court of Missouri reversed the trial court's refusal to grant Jackson's request to instruct the jury on the lesser included offense of second-degree robbery. (43) The court vacated his conviction and remanded for a new trial. (44) It held that a trial court may not refuse to grant a jury instruction for a lesser included offense requested by a defendant under Missouri Revised Statutes Section 556.046 when the elements of the lesser included offense are entirely subsumed by the charged offense, and the differential element is one on which the State bears the burden of proof. (45)

3. LEGAL BACKGROUND

   This Part will discuss three primary aspects of the law related to the holding in Jackson. First, it will provide an explanation of the statutory language analyzed by the Jackson court. Second, it will explore the case law that establishes a direct precedential lineage for lesser included offense instructions. Finally, it will note the methods by which a defendant is granted the right to a trial by jury.

   1. The Statutory Law

      Lesser included offenses are governed by Section 556.046. (46) Under Section 556.046, there are three circumstances when an offense may be a lesser included offense, but the only circumstance relevant to this case is when the offense "is established by proof of the same or less than all of the facts required to establish the commission of the offense charged." (47) In essence, "An offense is a lesser included offense if it is impossible to commit the greater without necessarily committing the lesser." (48)

      For example, a defendant commits first-degree robbery when he "forcibly steals property and in the course thereof he ... displays or threatens the use of what appears to be a deadly weapon or a dangerous instrument." (49) A defendant commits second-degree robbery "when he forcibly steals property." (50) The differential element between these two crimes is the use of "what appears to be a deadly weapon or dangerous instrument" during the commission of the crime. (51) A person is incapable of committing first-degree robbery without also committing second-degree robbery. A defendant commits second-degree robbery when she forcibly steals property, and she commits first-degree robbery when she forcibly steals property while displaying or threatening the use of what appears to be a dangerous instrument. 2 Therefore, second-degree robbery is a lesser included offense of first-degree robbery.

      Under Section 556.046.2, a trial court is not required to instruct the jury regarding a lesser included offense "unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense." (53) However, Section 556.046.3, added to Section 556.046 in 2001, (54) states that a trial court shall instruct the jury for an included offense "only if there is a basis in the evidence for...