Amicus Curiae Brief — Schad v. Arizona

| Supreme Court, U.S.

: FILED

DEC 21 4959

JOSEPH F. Spa

NO. 90-5551 a" *

— =

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

EDWARD HAROLD SCHAD, Petitioner

- versus -

STATE OF ARIZONA, Respondent

On Writ Of Certiorari To The

Supreme Court Of Arizona

BRIEF OF AMICI CURIAE FOR RESPONDENT ARIZONA

BY KENTUCKY AND CALIFORNIA, CONNECTICUT,

DELAWARE, FLORIDA, GEORGIA, IDAHO, INDIANA,

MARYLAND, MISSISSIPPI, MISSOURI, MONTANA,

NEVADA, NEW JERSEY, NEW MEXICO, NORTH

CAROLINA, OHIO, OKLAHOMA, PENNSYLVANIA, SOUTH

CAROLINA, SOUTH DAKOTA, TENNESSEE, UTAH, AND

VIRGINIA

FREDERIC J. COWAN

KENTUCKY ATTORNEY GENERAL

DENISE A. GARRISON

ASSISTANT ATTORNEY GENERAL

*IAN G. SONEGO

ASSISTANT ATTORNEY GENERAL

STATE CAPITOL BUILDING

FRANKFORT, KENTUCKY 40601

(502) 564-7600

COUNSEL FOR AMICI CURIAE

*Counsel of Record

Honorable John K. Van De Kamp

Attorney General of California

Honorable John J. Kelly

Chief State's Attorney of Connecticut

Honorable Charlie M. Oberly, III

Attorney General of Delaware

Honorable Robert A. Butterworth

Attorney General of Florida

Honorable Michael J. Bowers

Attorney General of Georgia

Honorable James T. Jones

Attorney General of Idaho

Honorable Linley E. Pearson

Attorney General of Indiana

Honorable J. Joseph Curran, Jr.

Attorney General of Maryland

Honorable Michael C. Moore

Attorney General of Mississippi

Honorable William L. Webster

Attorney General of Missouri

Honorable Marc Racicot

Attorney General of Montana

Honorable Brian McKay

Attorney General of Nevada

Honorable Robert J. Del Tufo

Attorney General of New Jersey

Honorable Hal Stratton

Attorney General of New Mexico

Honorable Lacy H. Thornburg

Attorney General of North Carolina

Honorable Anthony J. Celebrezze, Jr.

Attorney General of Ohio

Honorable Robert H. Henry

Attorney General of Oklahoma

Honorable Ernest D. Preate, Jr.

Attorney General of Pennsylvania

Honorable T. Travis Medlock

Attorney General of South Carolina

Honorable Roger Tellinghuisen

Attorney General of South Dakota

Honorable Charles Burson

Attorney General of Tennessee

Honorable R. Paul Van Dam

Attorney General of Utah

Honorable Mary Sue Terry

Attorney General of Virginia

tis

QUESTIONS PRESENTED FOR REVIEW

l. Does a jury instruction combining

alternative theories of guilt, both of which are

supported by evidence, deprive the defendant of

a unmanimous verdict?

2. Do the Eighth Amendment and the

Fourteenth Amendment's Due Process Clause permit

state law to determine when a lesser-included

offense instruction should be given?

- iii -

TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE IN SUPPORT

OF RESPONDENT ARIZONA ... 2... eee eee cece

SUMMARY OF ARGUMENT ....... 2 eee eeceeceee

ARGUMENT ..cccccccccccccccccccccccscccces

I.

Il.

AN INSTRUCTION COMBINING TWO

ALTERNATIVE THEORIES OF GUILT,

BOTH OF WHICH ARE SUPPORTED

BY EVIDENCE, DOES NOT DEPRIVE

THE DEFENDANT OF A UNANIMOUS

JURY VERDICT..........4.-. eocccecccceces

A.

THE UNITED STATES CONSTITUTION

DOES NOT REQUIRE UNANIMITY OF

VERDICT IN STATE COURT CRIMINAL

PROCEEDINGS... ccccccccccccccccccce

A NUMBER OF JURISDICTIONS HOLD

THAT A DEFENDANT IS NOT ENTITLED

TO A UNANIMOUS VERDICT ON THE

PRECISE MANNER OR THEORY IN

WHICH THE OFFENSE WAS COMMITTED...

PETITIONER WAS NOT CONSTITUTIONALLY

ENTITLED TO A ROBBERY INSTRUCTION

AS A LESSER- INCLUDED OFFENSE OF

MURDER... ccc cccccccccccscccccecssscces

A. STATE LAW MUST CONTROL THE

DETERMINATION AS TO WHETHER

OR NOT A LESSER- INCLUDED

OFFENSE OF FELONY MURDER EXISTS...

ROBBERY IS NOT A LESSER- INCLUDED

OFFENSE OF FELONY MURDER UNDER

THE STATUTORY ELEMENTS TEST SINCE

FELONY MURDER MAY BE COMMITTED

WITHOUT A ROBBERY........222 ee eee

7-19

19-30

19-24

24-25

C. THE STATES MAY IMPOSE THE BURDEN

UPON THE DEFENDANT OF PRODUCING

EVIDENCE TO SUPPORT A LESSER-

INCLUDED OFFENSE INSTRUCTION;

THE EVIDENCE DOES NOT ESTABLISH

THAT PETITIONER'S TAKING OF THE

VICTIM'S PROPERTY WAS A SEPARATE

EVENT FROM THE HOMICIDE...........

CONCLUSION 2. ccccccccccccccccscccccccsccece

APPEMDIR wccccccccccccccccccccesececcscses

TABLE OF CONTENTS

Cases:

Apodaca v. Oregon,

a ie ( ME ooo gneeeeeeeesececes

Arnett v. Ricketts,

665 F.Supp. 1437 (D.Ariz. 1987)........

Beck v. Alabama,

ee Wee Ge BBO Pcccccccesceecscoeoes

Bell v. Watkins,

fs & FB. ST elf Ree ee

Bethea v. Scully,

634 F.2d 257 (2nd Cic. 1987)... cccccces

Blockburger v. United States,

a was BEE Peccecceeeeoceeesooes

Brown v. Commonwealth,

F BOD Bee Se SOS CEM ce LTT) ccccccccsecs

Brown v. State,

473 So.2d 1260 (Fla. 1985),

cert. denied, 474 U.S. 1038 (1985).....

Brumbley v. State,

See SOcee SEB CEB. BOSE). ccccccvcccces

Burns v. State,

556 S.W.2d 270 (Tex.Cr. 1977),

eect. Ganiad, 63464 U.G. 93S. .cccccscccvescs

Commonwealth v. Evans,

454 N.E.2d 458 (Mass. 1983)..........4..

Conner v. Director of Division

of Adult Corrections,

870 F.2d 1384 (8th Cir. 1989)..........

» Wie

Conner v. State,

362 N.W.2d 449 (Iowa 1985).............

Fleener v. State,

412 N.E.2d 778 (Ind. 1980)..........45.

Grady v. Corbin,

495 U.S. » 110 S.Ct. 2084 (1990)....

Harris v. Oklahoma,

a i re Me Rs ceo eo geeeeeeseeoeses

Holland v. State,

280 N.W.2d 288 (Wis. 1979),

cert. denied, 445 U.S. 931 (1980)......

Hopper v. Evans,

SOO BeBe GOW CEORSP co ccccccccscccccecece

James v. State,

637 P.2d 862 (Okla.Cr. 1981)...........

Johnson v. Louisiana,

Bee Bebe SED CEPPSPccccecevcecevececoese

Jones v. Thigpen,

,. £2 FF Be. te). | } Pee

Jordan v. Massachusetts,

a aie i Mc e ogee eeeeeeeeoeses

Keeble v. United States,

i) ie ee 6 ) Pe eeeeeerereeree

LeVasseur v. Commonwealth,

304 $.E.2d 644 (Va. 1983)... cc cccccvccs

Lockett v. Ohio,

Sew Sete SEO CEP Ovccceeceeseeecececees

Martin v. Ohio,

SEe Seo SES COPS Pecescoeceeeeecceeces

McKoy v. North Carolina,

U.S. » 110 $.Ct. 1227 (1990).... 13

Mullaney v. Wilbur,

nn i rn UE. «6 66666666666 6666686 29

Newsted v. State,

720 P.2d 734 (Okla.Cr. 1986),

cert. denied, 479 U.S. 995 (1986)...... 14

Patterson v. New York,

De ee rE se6e666ee0eeeeeeces 6, 7

1 28

People v. Adcox,

ae ame We SUB s BOOED ce cccccecccececs ll

People v. Berzups,

402 BW.B.20 LASS (M.¥. 1980)... cccccces 23

People v. Chavez,

a ae rt en. BODE eccecceecececee 16

People v. Guerra,

Fo ee). a. ) we). ) Pe 14

People v. Milan,

a 16

People v. Nye,

403 P.2d 736 (Cal. 1965),

\ | cert. denied, 384 U.S. 1026 (1966)..... 16

‘

People v. Sullivan,

a en Mr Wis «oe o6 ebb Ce 86SEC C Ce 10, ll

12

People v. Travis,

525 N.E.2d 1137

(11L1.App. 4 Dist. 1988),

cert. denied, _—iU.S. °

oy Wemee Be CHOBE Pcccoecsecesececese 10, 12

Richmond v. State,

554 P.2d 1217 (Wyo. 1976)

Ross v. State,

717 P.2d 117 (Okl.Cr. 1986),

affirmed on other grounds,

i EEE eh occ cect cece ecco. 8, 23

Sansone v. United States,

cc ecees 27

Schmuck v. United States,

De te be ecce 25. 27

Spaziano v. Florida,

cece esces 26

State v. Arnett,

eee eee eee OO, BOOB). wccccccccces 8, 9

State v. Berndt,

en en Chi. BOORPoccccccccccecs 8

State v. Cook,

See Momeee BSP CH.VE. 1968)... ccccccececs 23

State v. Ellison,

676 P.2d 531 (Wash.App. 1984).......... 14, 15

State v. Encinas,

i Me MPR, BOORD. ccc ccccccceccs 8

State v. Ferrari,

re rei. BOP R. occcccccccces 20

State v. Frazier,

oe wom Bee GUO. BOBR). ccccccccccece 24

v. Hazelett,

501 (Or.App.

v. Hitchcock,

681 (Ariz.

James,

v. Jefferson,

1960)

1161 (Alaska 1985)

1972)

529 S.W.2d 674 (Tenn. 1975)

State v. Lamb,

497 P.2d 275 (Kan. 1972),

overruled on other grounds

State v. Jacques,

See Wome SOR GMs ROTO) a ccccccccccevse

State v. LeGrand,

Tew Pee BEe CeaRs BOOT). ccccccecceces

State v. Reeves,

W.2d 433 (Nev.

344 N. eer

State v. Rueckert,

Sn eee ee SE, BOPP Pc cccccccnseeess

State v. Schad,

Dae wauee mee Seeeum, BORD. .ciscccdcébccr

State v. Schad,

Few cee Bee CMERB. BOOS). ccccccececée

State v. Silhan,

ave Sememe See (H.C. LOBL).. ccccccceces

State v. Smith,

. BF GB. w& *3) ee } ) eee

State v. Strickland,

See Gsm. Se Sem (H.C. AGOD)..cccccececes

tate v. Williams,

285 N.W.2d 248 (Iowa 1979),

cert. denied, 486 U.S. 921 (1980)......

State v. Zeimet,

348 N.W.2d 338 (Minn. 1984)............

Tison v. Arizona,

Ds Tr SEDs sce epee eeeeeeeeeoses

Twining v. New Jersey,

a ie we SEE occdeueeccoecesoeseese

United States v. Acosta,

746 F.26 S77 (LICH Cie. 1984)... cece

| United States v. Benton,

852 F.2d 1456 (6th Cir. 1988),

ns Gees Ge Was BOOcd ec cccccccces

United States v. Bouguett,

Saw Cees BOS CECH CEE. BOST). ccccccceces

United States v. Gipson,

See Coen See CECE Sabe CASTT). ccccccccs

United States v. McPherson,

= oe Be ee EE eS eee

United States v. White,

879 F.2d 1509 (7th Cir. 1989),

cert. denied, U.S. °

en «cee ce sees eeees

Washington v. Watkins,

655 F.2d 1346, n.39 (5th Cir. 1981)....

——E——— Oe Clr CeCe Oe

- XP -

Williams v. Florida,

Dts Si ne. . «6s 606966068 e0ee8% 4

Woodkins v. State,

542 S.W.2d 855 (Tex.Cr. 1976).......... 23

Woratzeck v. Ricketts,

820 F.2d 1450 (9th Cir. 1987),

vacated on other grounds,

ee Wes BE SHEE Fees Ses cceceseoes 21

Constitution, Statutes, Rules:

Fourteenth Amendment 7

United States Constitution............. passim

Sixth Amendment

United States Constitution...... ~eteeae passim

Rule 3l(a) of the

Federal Rules of Criminal Procedure.... 4

Rule 3l(c) of the

Federal Rules of Criminal Procedure.... 27

TT SS Oe 8, 19

Miscellaneous:

Annot.. 75 A.L.R. 4th 92 (1990)........ 9

Torcia, Wharton's Criminal Law,

14th Ed., Vo. II, §145-150,

pp. 201-230,

Bee Geen sg Be FORM e cceccccsceeees 21

- xii

INTERESTS OF AMICI CURIAE

IN SUPPORT OF RES NT ARIZONA

The amici curiae represented here are States

interested in whether or not the Sixth, Eighth

and Fourteenth Amendments require a unanimous

verdict on the manner in which the offense of

first-degree murder was committed, and the

circumstances under which jury instructions on

lesser degrees of the charged offense must be

given.

Amici submit this brief te Support of

Respondent, the State of Arizona, through their

Attorneys General or Chief Stat#* Attorneys

pursuant to United States Supreme Court

Rule 37.3.

SUMMARY OF ARGUMENT

l.

The courts below correctly held that the

Sixth and Fourteenth Amendments do not require a

unanimous jury verdict on the manner in which a

defendant committed first-degree murder. To

rule otherwise would substantially depart from

the premise of this Court that jury unanimity is

not a constitutional right. It would also

—

——

interfere with the prerogative of State

legislatures whose function is to determine

public policy concerning crimes and punishments.

A plurality of state and federal courts have

held that juries need not unanimously agree on

the manner in which the crime was committed when

the statute permits conviction under either one

of two theories so long as the evidence supports

the existence of either.

Il.

The United States Constitution permits each

State to define the elements of a criminal

offense. Whether one offense constitutes a

lesser-included offense of a second offense

which imposes a greater punishment must be

determined as a matter of State law. The fact

that two offenses are the "same offense" for

purposes of collateral estoppel (prosecution

preclusion) under the Double Jeopardy Clause

does not necessarily establish that one offense

is a lesser-included offense of the other.

Since it is possible to commit felony murder

without committing a robbery and possible to

commit robbery without committing felony murder,

robbery is not a lesser-included offense of

felony murder under the statutory elements

test. Even when one offense (robbery) is a

lesser-included offense of another offense

(felony murder), neither the Eighth Amendment

nor the Due Process Clause requires that the

jury be instructed on the lesser offense unless

there is evidence which woutd rationally permit

a jury to find a defendant guilty of the lesser

offense and acquit him of the greater offense.

The States may constitutionally impose upon the

defendant the burden of producing evidence to

support a lesser-included offense instruction by

creating a factual dispute on the element or

elements differentiating the lesser offense from

the greater offense.

ARGUMENT

1. AN INSTRUCTION COMBINING TWO ALTERNATIVE

THEORIES OF GUILT, BOTH OF WHICH ARE

SUPPORTED BY EVIDENCE, DOES NOT DEPRIVE

THE DEFENDANT OF A UNANIMOUS JURY VERDICT.

A. THE UNITED STATES CONSTITUTION DOES

NOT REQUIRE UNANIMITY OF VERDICT IN

STATE COURT CRIMINAL PROCEEDINGS.

Petitioner argues that the Sixth Amendment

—. we

and the Due Process Clause of the Fourteenth

-

:

. Amendment require a unanimous verdict in state

court criminal proceedings as to the manner in

which a crime was committed. Petitioner alleges

that unanimous agreement on the manner in which

-

| the crime was committed is required to give

| effect to the reasonable doubt standard. The

requirement of unanimity, however, can be found

nowhere within the Constitution. The Court has

held that a state court conviction by less than

a unmanimous jury does not violate the Sixth

Amendment right to a trial by jury. Apodaca v.

Oregon, 406 U.S. 404 (1972). The Court reached

this holding after reviewing the constitutional

history of the Sixth Amendment discussed in

Williams v. Florida, 399 U.S. 78 (1970). The

legislative history indicates the language of

the Sixth Amendment was altered from the

Original form introduced by James Madison. The

wording of the amendment that merged from the

House Committee no longer contained the phrase,

“unanimity for conviction." The Court opined

that, “The deletion was intended to have some

substantive effect." Apodaca, 406 U.S. at 410.

*See Williams, 399 U.S. at 96-97. Therefore, the

Court focused on the function the jury serves in

| contemporary society and noted:

i (T)he essential feature of a jury

4 obviously lies in the interposition

: between the accused and his accuser of

| the commonsense judgment of a group of

laymen.

Apodaca, 406 U.S. at 410, quoting Williams, 399

U.S. at 100. The unanimity requirement,

however, “does not materially contribute to the

exercise of this commonsense judgment."

Apodaca, 406 U.S. at 410. Thus, "The Sixth

Amendment does not require proof beyond a

reasonable doubt at all." Apodaca, 406 U.S. at

412. The Court has expressly stated that due

process of law does not require jury unanimity.

Johnson v. Louisiana, 406 U.S. 356, 360 (1972).

Jury unanimity is a right flowing from federal

statute, ! not the Constitution. United States

v. Gipson, 553 F.2d 453, 457 (5th Cir. (1977),

lRule 31(a) of the Federal Rules of

Criminal Procedure requires a unanimous jury

verdict in a federal criminal trial.

— a

. cited by Petitioner, acknowledges that there is

no unanimous verdict requirement in state

criminal proceedings.

In criminal cases due process of law is

not denied by a state law which

dispenses with a grand jury indictment

and permits prosecution upon

q information, nor by law which dispenses

with the necessity of a jury of twelve,

Or unanimity in the verdict.

Jordan v. Massachusetts, 255 U.S. 167, 176

——

(1912) (dictim) (emphasis added). See Johnson,

406 U.S. at 359. The decision as to unanimity

of verdict is properly left to the state

| legislatures.

We are not invested with the

jurisdiction to pass upon the

expediency, wisdom, or justice of the

laws of the states as declared by their

courts, but only to determine their

conformity with the Federal

Constitution and the paramount laws

enacted pursuant to it. Under the

gauge of interpreting the Constitution

we must take care that we do not import

_ into the discussion our own personal

views of what would be wise, just, and

fitting rules of government to be

adopted by a free people, and confound

them with constitutional limitations.

Twining v. New Jersey, 211 U.S. 78 (1908). This

view was reaffirmed in Patterson v. New York,

432 U.S. 197, 201 (1977):

me Fe

tt | ;

: SS a ee ee ee

Preventing and dealing with crime is

much more the business of the States

than it is of the Federal Government

. «- we should not lightly construe

the Constitution so as to intrude upon

the administration of justice by the

individual States. [Citation

omitted].

The concurrence in Johnson echoes the Court's

| opinions in Twining and Patterson:

- - « I do not imply that I regard a

State's split-verdict system as a wise

one. My vote means only that I cannot

conclude that the system is

constitutionally offensive. Were I a

legislator, I would disfavor it as a

matter of policy. Our task here,

however, is not to pursue and strike

down what happens to impress us as

undesirable legislative policy.

Johnson, 406 U.S. at 365, (Blackmun, J.,

concurring). The Arizona system which permits a

jury to convict of first-degree murder by

finding premeditation or felony murder does not

violate any federal constitutional right.

“™ B. A NUMBER OF JURISDICTIONS HOLD THAT

A DEFENDANT IS NOT ENTITLED TO A

UNANIMOUS VERDICT ON THE PRECISE

MANNER OR THEORY IN WHICH THE

OFFENSE WAS COMMITTED.

The Arizona Legislature has chosen to

Classify murder into first and second degrees.

First-degree murder is committed by

premeditation or in the course of a felony.

Ariz.Rev.Stat. §13-1105 (Appendix). It is only

one crime, however, and this protects a

Gcefendant against double jeopardy. State v.

Encinas, 647 P.2d 624, 627 (Ariz. 1982).

Because murder is a single offense, the

State is ordinarily required to proceed

upon all available theories in a single

prosecution, and it may not bring

seriatim prosecutions for the same

offense by alleging separate legal

theories.

State v. Arnett, 760 P.2d 1064, 1069 (Ariz.

1988) quoting Ross v. State, 519 A.2d 735, 739

(Md. 1987). The defendant is entitled only to a

unanimous verdict on whether first-degree murder

was in fact committed, not to a unanimous

verdict on the precise manner in which the crime

was committed. Arnett, 760 P.2d at 1069. See

State v. Smith, 665 P.2d 995, 999 (Ariz. 1983);

State v. Berndt, 672 P.2d 1311 (Ariz. 1983).

See generally United States v. Bouquett, 820

F.2d 165 (6th Cir. 1987) (drug prosecution);

United States v. McPherson, 782 F.2d 66 (6th

Cir. 1986) (embezzlement) (per curiam): United

States v. Acosta, 748 F.2d 577 (llth Cir. 1984)

(embezzlement or misapplication). Arnett

concluded that the jury could have found the

defendant guilty of first-degree murder based on

any of three theories.

Because the verdict need not specify

under which theory the defendant was

convicted, and because we find ample

evidence to support each theory, we

affirm the defendant's conviction of

first-degree murder.

Arnett, 760 P.2d at 1069. Arnett v. Ricketts,

665 F.Supp. 1437, 1441 (D.Ariz. 1987), upheld

State v. Arnett, 760 P.2d 1064 (Ariz. 1988).

The defendant asserted Sixth and Fourteenth

Amendment challenges claiming the jurors may not

have unanimously agreed on the manner in which

he committed first-degree murder. The federal

district court rejected these constitutional

claims holding that a person is "not entitled to

a unanimous verdict on the precise manner in

which the act was committed." Arnett, 665

F.Supp. at 1441.

Support for Arizona's approach“ is

“See Annotation, “Requirement of Jury

Unanimity as to Mode of Committing Crime Under

Statute Setting Forth the Various Modes by Which

Offense may be Committed," 75 ALR 4th 92 (1990).

— -

found as early as 1903 in the case of People v.

| Sullivan, 65 N.E. 989 (1903). Sullivan has been

| quoted at length in Holland v. State, 280 N.W.2d

288, 292 (Wis. 1979), cert. denied, 445 U.S. 931

(1980) and in People v. Travis, 525 N.E.2d 1137,

1147 (111.App. 4 Dist. 1988), cert. denied,

U.S. __ , 109 S.Ct. 1149 (1989).

The New York Court of Appeals in Sullivan

reviewed the defendant's claim that his right to

a umanimous verdict was violated because the

jury was permitted to convict him by concluding

he committed premeditated or felony murder. The

court affirmed the conviction stating:

There was but a single crime charged in

the indictment against the defendant --

that of murder in the first-degree; and

the only issue to be determined by the

jury was whether the defendant had been

guilty of that crime. Under our

Statute .. . so far as applicable to

the case before us, proof either that

the defendant killed'the deceased with

a deliberate and premeditated design to

affect his death, or while the

defendant was engaged in the commission

of a felony, or an attempt to commit a

felony, though without any design to

take life, established his guilt of the

crime narged. ‘It is not necessary

that a jury, in order to find a

verdict, should concur in a single view

of the transaction disclosed by the

evidence. If the conclusion may be

- 10-4

tte ee

5

justified upon either of two

interpretations of the evidence, the

verdict cannot be impeached by showing

that a part of the jury proceeded upon

one interpretation and part upon the

other.' Murray v. Insurance Co., 96

N.Y. 614, 48 Am.Rep. 658. So, in this

case, it was not necessary that all the

jurors should agree in the

determination that there was a

deliberate and premeditated design to

take the life of the deceased, or in

the conclusion that the defendant was

at the time engaged in the commission

of a felony, or in an attempt to commit

one. It was sufficient that each juror

Was convinced beyond a reasonable doubt

that the defendant had committed the

crime of murder in the first-degree as

that offense is defined by the statute.

Sullivan, 65 N.E. at 989-990. See People v.

Adcox, 763 P.2d 906 (Cal. 1988).

‘Holland, supra, reviewed a second-degree

murder conviction where the defendant claimed

| the jury should have agreed unanimously as to

the manner of participation in the crime.

Holland distinguished the holding in United

States v. Gipson, 553 F.2d 453 (5th Cir. 1977)

by noting that the six acts prohibited in the

Gipson statute fell into two different

conceptual groupings. Within each grouping the

acts were similar enough to allow a finding of

the actus reus element of the offense despite

“= oe

De ee a

. differences among jurors as to which of the

; intragroup acts the defendant committed. "[Tjhe

two groups, however, were conceptually distinct

such that a jury finding the actus reus element

of the offense would not be unanimous." Gipson,

553 F.2d at 548. The court held, however, that

unanimity was required only on the ultimate

issue on the guilt of the crime charged.

Unanimity was not required on the three

alternative theories (direct commission, aiding

and abetting and conspiracy) upon which the

second-degree murder could have been

accomplished. Holland, 280 N.W.2d at 292. In

essence, these three theories were in the same

conceptual grouping and therefore did not

violate the state constitutional right to

unanimous verdict. See, e.g., Travis, supra,

(quoting Sullivan and Holland in holding that

jury verdict need not be unanimous on alternate

ways in which crime can be committed); State v.

Williams, 285 N.W.2d 248, 270 (lowa 1979), cert.

denied, 486 U.S. 921 (1980) (holding the actus

reus is identical for either premeditated murder

. es

ee Lk so

or felony murder). See also United States v.

McPherson, 782 F.2d 66 (6th Cir. 19'6) (per

curiam); State v. James, 698 P.2d 1161 (Alaska

~=1985).

Juries are typically called upon to

render unanimous verdicts on the

ultimate issues of a given case. But

it is understood that different jurors

may be persuaded by different pieces of

evidence, even when they agree on the

bottom line. Plainly there is no

general requirement that the jury reach

agreement on the preliminary factual

issues which underlie the verdict.

McKoy v. North Carolina, U.S. » 110 S.Ct.

1227 (1990) (Blackmun, J., concurring).

1. Jurisdictions Rejecting Instructions

Requiring Jury Unanimity On Manner In

Which First-Degree Murder Occurred.

The Oklahoma Court of Criminal Appeals

specifically addressed claims of due process

violations regarding jury unanimity in James v.

State, 637 P.2d 862 (Okla.Cr. 1981). The

defendant claimed his due process rights were

violated because the jury was not instructed to

unanimously find either that he committed murder

with malice aforethought or while committing

robbery with a dangerous weapon. The court

acknowledged that due process required each

‘2

element of a crime to be proven but concluded

that this had been accomplished.

The State established a prima facie

case of murder in the first-degree by

proving first, that the homicide

occurred during an armed robbery, and

therefore, fell within felony murder;

and second, that the appellant had

committed the homicide with

premeditation. No violation of due

process occurred.

win ee ted tnt acne a

~~

James, 637 P.2d at 865. To the same effect is

-

.

Cie

| the holding in Newsted v. State, 720 P.2d 734

| (Okla.Cr. 1986), cert. denied, 479 U.S. 995

(1986). Newsted claimed his due process rights

. were violated because the court had not

| | sastcucted the jury to unanimously find guilt on

the two theories comprising first-degree

murder: malice aforethought or while committing

robbery with a dangerous weapon. The court

ruled no violation of due process occurred and

based its decision on the holding in James,

- Supra. Newsted, 720 P.2d at 737. See also

People v. Guerra, 708 P.2d 1252 (Cal. 1985).

The Washington Court of Appeals examined

this issue in State v. Ellison, 676 P.2d 531

(Wash.App. 1984). The court stated that the

| | - 14 -

1

determining factor was whether the criminal

statute describes a single offense which can be

committed in more than one way rather than

separate and distinct offenses. To determine if

the statute describes multiple offenses or a

single offense committable in different ways the

court used the following criteria:

{1] the title of the act; [2] whether

there is a readily perceivable

connection between the various acts set

forth; [3] whether the acts are

consistent with and not repugnant to

each other; [4] and whether the acts

may inhere in the same transaction.

Ellison, 676 P.2d at 537. Comparing these

factors to first-degree murder and felony

murder, the court concluded they met the above

Criteria. Thus, an instruction was not required

on unanimity as to the means by which the

defendant committed murder where both theories

were supported by sufficient evidence. Ellison,

676 P.2d at 538. See also Brown v. State, 473

So.2d 1260 (Fla. 1985), cert. denied, 474 U.S.

1038 (1985) (Rejecting request for special

verdict forms which would have indicated whether

first-degree murder conviction was based upon

o i «

premeditation or felony murder).

;

~ 2, et i tee ES . <A

2. Jurisdictions Upholding Instructions

Informing Jury That Verdict Need Only

Be Unanimous As To First-Degree Murder

And Not As To The Manner In Which The

First-Degree Murder Occurred.

In People v. Milan, 507 P.2d 956, 961 (Cal.

1973) the California Supreme Court reviewed a

claimed error in the following jury instruction:

It is not necessary that all jurors

agree in the determination that there

was a deliberate and premeditated

design to take the life of the

deceased, or in the conclusion that the

defendant was at the time engaged in

the commission of robbery, or in an

attempt to commit one; it is sufficient

that each juror is convinced beyond a

reasonable doubt that the defendant

committed the crime of murder in the

first-degree as that offense is defined.

The court upheld the giving of this instruction

citing previous caselaw and the general premise

that it was not necessary that all jurors

unanimously agree on the theory in which the

first-degree murder occurred. Milan, 507 P.2d

3

{

at 962. See also People v. Nye, 403 P.2d 736

(Cal. 1965), cert. denied, 384 U.S. 1026-1027

(1966); People v. Chavez, 234 P.2d 632 (Cal.

1951).

Similarly, in State v. Hazelett, 492 P.2d

501 (Or.App. 1972) the defendant claimed the

court erred in instructing the jury it need not

unanimously agree on whether the killing was

premeditated or felony murder as long as they

unanimously agreed on guilt for first-degree

murder. While acknowledging that in some cases

this type of instruction would be error if the

state's case included evidence of numerous acts,

the Oregon Court of Appeals concluded:

Here, there was only one act charged

and proved -- the act of taking the

life of the victim. Whether this was

done with premeditation or while

attempting rape related to the

defendant's mental state, and did not

relate in any way to the act charged.

Since the legal effect of committing

the act is the same whether done with

premeditation or while attempting rape,

there is no reason to require the jury

to unanimously agree on which of the

two possible mental states, both

equally culpable, defendant possessed

at the time of the murder charged.

Hazelett, 492 P.2d at 503.

3. Jurisdictions Rejecting Defendant's

Motion That At Close Of Evidence The

State Elect Which Theory Of First-

Degree Murder Would Be Submitted To

The Jury.

State v. Silhan, 275 S.E.2d 450 (N.C. 1981)

=

reviewed a claim of error that at the close of

evidence the prosecutor was required to elect

which theory of first-degree murder (felony

murder or murder with premeditation and

deliberation) would be submitted to the jury.

The North Carolina Supreme Court rejected this

argument stating the evidence was sufficient to

establish a prima facie case on either theory.

“[1]t became the responsibility of the jury to

weigh the evidence to see if it warranted a

finding that defendant was guilty of murder in

the first-degree upon either or both theories."

Silhan, 275 S.E.2d at 462. To the same effect

see State v. Lamb, 497 P.2d 275, 290 (Kan. 1972)

overruled on other grounds State v. Jacques, 587

P.2d 861 (Kan. 1978) (upholding information

charging premeditated and felony murder as

sufficiently apprising defendant that state

would proceed on both theories); State v.

Jefferson, 529 S.W.2d 674, 678 (Tenn. 1975)

(upholding indictment charging first-degree

murder based on different “means and intents");

-gee also United States v. White, 879 F.2d 1509

—_ =

(7th Cir. 1989), cert. denied, __—-U.S. __Ss«,:~1210

S.Ct. 1471 (1990) (every theory of bankruptcy

fraud need not be placed in separate count of

indictment).

Il. PETITIONER WAS NOT CONSTITUTIONALLY ENTITLED

TO A ROBBERY INSTRUCTION AS A LESSER-

INCLUDED OFFENSE OF MURDER.

A. STATE LAW MUST CONTROL THE

DETERMINATION AS TO WHETHER OR NOT A

LESSER-INCLUDED OFFENSE OF FELONY

MURDER EXISTS.

In this case, the Arizona Supreme Court

explained its ruling that robbery is not a

lesser-included offense of felony murder:

However, in Arizona there is no

lesser-included offense to felony

murder. Although we agree with the

defendant that the evidence supported

an instruction and conviction for

robbery, we disagree that the

underlying felony supporting a felony

murder conviction requires a lesser-

included offense instruction and form

of verdict. [Citations omitted. ]

State v. Schad, 788 P.2d 1162 at 1168 (Ariz.

1989).

Felony murder is defined as first-degree

murder under Ariz.Rev.Stat. §13-1105 (Appendix).

State v. LeGrand, 734 P.2d 563 at 572 (Ariz.

1987), explained why no lesser-included offense

to felony murder existed:

=

It is well established that no lesser

included offense to felony murder

exists because the mens rea necessary

to satisfy the premeditation element of

first-degree murder is supplied by the

specific intent required for the

felony. Where no lesser included

offense exists, it is not error to

refuse the instruction. [Citations

omitted. }

Under Arizona law, felony murder is a strict

liability offense, as noted in State v. Ferrari,

541 P.2d 921 at 925 (Ariz. 1975) (opinion by

Justice O'Connor).

State v. Hitchcock, 350 P.2d 681 at 687

(Ariz. 1960), explained the strict liability

rationale for felony murder and upheld the jury

instructions given by the trial court. The jury

instructions stated in part:

The defendant is charged in count one

of the information with the crime of

murder in the first-degree[.]) ... If

you determine that the defendant was

not engaged in the commission of a

robbery at the time Ernest DeVito was

Killed, then you have no alternative

but to acquit the defendant on count

one of the information.

Thus, Arizona law has long provided that if

the jury concludes that a defendant is not

guilty of felony murder, the defendant may not

be convicted of the underlying felony offense.

—

See also Woratzeck v. Ricketts, 820 F.2d 1450 at

1457 (9th Cir. 1987), vacated on other grounds,

486 U.S. 1051 (1988). The Fifth Circuit has

also upheld a similar rule in Mississippi death

penalty cases. Jones v. Thigpen, 741 F.2d 805

at 815-816 (5th Cir. 1984). The United States

Constitution clearly permits the States to

impose criminal liability under a felony murder

rule. Lockett v. Ohio, 438 U.S. 586 at 602

(1978); Tison v. Arizona, 481 U.S. 137 (1987);

Bethea v. Scully, 834 F.2d 257 (2nd Cir. 1987)

{upholding felony murder conviction for reckless

conduct causing death); Conner v. Director of

Division of Adult Corrections, 870 F.2d 1384 at

1387-1388 (8th Cir. 1989) [under lowa felony

murder rule it was unnecessary to prove that the

defendant actually participated in the homicide

but only that he participated in the underlying

felony); Washington v. Watkins, 655 F.2d 1346 at

1366, n.39 (5th Cir. 1981) [accident is not a

defense to homicide committed in the

perpetration or attempt to perpetrate a

felony]. See also Torcia, Wharton's Criminal

o Mh «

Law, 14th Ed., Vol. II, §145-150, pp. 201-230,

1989 Cum.Sup., pp. 78-90.

In Bell v. Watkins, 692 F.2d 999 at

1004-1005 (5th Cir. 1982), the Fifth Circuit

explained why the Court's opinion in Beck v.

Alabama, 447 U.S. 625 (1980), did not require

that Bell receive a jury instruction on lesser

included offenses in a trial under the felony

murder rule. The Court stated:

The due process clause of the

fourteenth amendment requires a trial

judge to give a lesser included offense

instruction to the jury "if the

evidence would permit a jury rationally

to find [the defendant] guilty of the

lesser offense and acquit him of the

greater." Beck v. Alabama, [supra]

(quoting Keeble v. United States, 412

U.S. 205, 2086, (1973)).... There is

no due process violation, however,

unless there is some evidence to

support an instruction on the lesser

included offense. Hopper v. Evans, 465

U.S. 605 (1982); Roberts v. Louisiana,

428 U.S. 325 (1976).

* *« *«

The Alabama statute in question in Beck

required a finding of intent to kill

before a defendant could be convicted

of capital murder. Since there was

conflicting evidence on the issue of

intent at trial, the State conceded

that there was evidence to support a

lesser included offense of "simple"

felony murder. In contrast, any murder

committed during the course of a

robbery is capital under Mississippi

— oe

law. Therefore, the trial court's

refusal to give a lesser included

offense instruction at Bell's request

was proper, since there was no evidence

to support the lesser charge.

{Citations and footnotes omitted. ]

Other States have held that the felony

murder offense may not be split off to justify

an instruction on the underlying felony as a

lesser included offense. State v. Zeimet, 348

N.W.2d 338 at 342 (Minn. 1984); People v.

Berzups, 402 N.E.2d 1155 at 1160 (N.Y. 1980);

Ross v. State, 717 P.2d 117 at 121 (OK1.Cr.

1986), affirmed on other grounds, 487 U.S. 81

(1988); Woodkins v. State, 542 S.W.2d 855 at 858

(Tex.Cr. 1976), and Burns v. State, 556 S.W.2d

270 at 286 (Tex.Cr. 1977), cert. denied, 434

U.S. 935; State v. Cook, 332 S.E.2d 147 at

159-160 (W.Va. 1985).

A substantial number of States have held

that in a felony murder case, a defendant is not

entitled to instructions on lower degrees of

homicide as lesser-included offenses. Brumbley

v. State, 453 So.2d 381 at 386 (Fla. 1984);

Conner v. State, 362 N.W.2d 449 at 454-457 (lowa

1985); State v. Rueckert, 561 P.2d 850 at

- 23 «=

855-858 (Kan. 1977); Commonwealth v. Evans, 454

N.E.2d 458 at 462-463 (Mass. 1983); State v.

Reeves, 344 N.W.2d 433 at 442 (Nev. 1984); State

v. Strickland, 298 S.E.2d 645 at 652-659 (N.C.

1983), and at 664-666 (Martin, J., and Mitchell,

J., concurring); LeVasseur v. Commonwealth, 304

S.E.2d 644 at 657-659 (Va. 1983); State v.

Frazier, 661 P.2d 126 at 132-133 (Wash. 1983);

Richmond v. State, 554 P.2d 1217 at 1230-1233

(Wyo. 1976).

B. ROBBERY 1S NOT A LESSER- INCLUDED

OFFENSE OF FELONY MURDER UNDER THE

STATUTORY ELEMENTS TEST SINCE FELONY

MURDER MAY BE COMMITTED WITHOUT A

ROBBERY.

Although as Petitioner has suggested, Harris

v. Oklahoma, 433 U.S. 682 (1977), seems to hold

that robbery is a lesser-included offense of

felony murder, Harris was actually a case of

successive prosecutions barred under the

collateral estoppel rule (prosecution

preclusion) defined by the Court in Grady v.

Corbin, 495 U.S. __, 110 §.Ct. 2084 (1990). As

the Court explained in Corbin, Harris

established a second test in successive

a «

prosecutions to bar a second prosecution in

addition to the Blockburger v. United States,

284 U.S. 299 (1932), statutory elements test.

Grady v. Corbin, 110 S.Ct. at 2092-2093. See

United States v. Benton, 852 F.2d 1456 at

1464-1465 (6th Cir. 1988), cert. denied, 488

U.S. 993, rejecting the argument that the

elements test requires narrowing the elements of

“the applicable statutes to be analyzed until

they include only the alternatives [specific

facts] relevant to the case at hand." Robbery

may be committed without committing murder;

felony murder may be committed without

committing a robbery. Hence robbery is not a

lesser-included offense of felony murder as

defined by this Court in Schmuck v. United

States, 489 U.S. 705 at 719 (1989):

To be necessarily included in the

greater offense the lesser must be such

that it is impossible to commit the

greater without first having committed

the lesser.

— oe

C. THE STATES MAY IMPOSE THE BURDEN

UPON THE DEFENDANT OF PRODUCING

EVIDENCE TO SUPPORT A LESSER-

INCLUDED OFFENSE INSTRUCTION; THE

EVIDENCE DOES NOT ESTABLISH THAT

PETITIONER'S TAKING OF THE VICTIM'S

PROPERTY WAS A SEPARATE EVENT FROM

THE HOMICIDE.

This Court has previously acknowledged the

authority of the States to define the elements

of criminal offenses. Martin v. Ohio, 480 U.S.

228 at 232 (1987). In Spaziano v. Florida, 468

U.S. 447 at 455-456 (1984), the Court noted:

Where no lesser included offense

exists, a lesser included offense

instruction detracts from, rather than

enhances, the rationality of the

{jury's factfinding]) process. Beck

dees not require that result. .

Requiring that the jury be instructed

on a lesser included offense for which

the defendant may not be convicted,

however, would simply introduce another

type of distortion into the factfinding

process.

In Hopper v. Evans, 456 U.S. 605 at 611-612

(1982), the Court explained the ruling in Beck

v. Alabama, supra, in part as follows:

Due process requires that a lesser

included offense instruction be given

only when the evidence warrants such an

instruction. A jury's discretion is

thus channeled so that it may convict a

defendant of any crime fairly supported

by the evidence. .. . The federal

rule is that a lesser included offense

e 96 «

instruction should be given "if the

evidence would permit a jury rationally

to find [a defendant) guilty of the

lesser offense and acquit him of the

greater." Keeble v. United States, 412

U.S. 205, 208 (1973).

In Schmuck v. United States, supra, the Court

revisited Keeble to determine the proper

definition for a lesser included offense under

F.R.Cr.P. 31(c), and concluded that the correct

test was the statutory elements test. The Court

Stated in part, 489 U.S. 717:

The Court recognized in Keeble v.

United States, supra, that where the

jury suspects that the defendant is

plainly guilty of some offense, but

one of the elements of the charged

offense remains in doubt, in the

absence of a lesser included offense

instruction, the jury will likely fail

to give full effect to the reasonable

doubt standard, resolving its doubts in

favor of conviction. [Emphasis added. }

Prior to the formulation of the test

established in Keeble, the Court in Sansone v.

United States, 380 U.S. 343 at 350 (1965),

explained the test for a lesser-included offense

instruction:

In other words, the lesser offense must

be included within but not, on the

facts of the case, be completely

encompassed by the greater. A

lesser-included offense instruction is

» 27 «

only proper where the charged greater

offense requires the jury to find a

disputed factual element which is not

required for conviction of the

lesser-included offense. [Emphasis

added. }

Although in this case Petitioner argued

before the jury that the robbery or theft of the

stolen property found in his possession could

have been a separate transaction from the

homicide, he presented no evidence to support

his argument that the homicide was unrelated to

the theft of the stolen property which was

ultimately found in his possession. The Due

Process Clause permits the States to impose the

burden upon the defendant of producing evidence

to support a claim of fact made by the defendant

during the jury trial so long as the prosecution

bears the ultimate burden of proving the

Statutory elements beyond a reasonable doubt.

Patterson v. New York, 432 U.S. 197 at 230-231

and at n.18 (1977) (Powell, Brennan and

Marshall, J.J., dissenting):

The State normally may shift to the

defendant the burden of production,

that is, the burden of going forward

with sufficient evidence "to justify [a

reasonable] doubt upon the issue." If

—

" eer se ree

the defendant's evidence does not cross

this threshold, the issue ... will

not be submitted to the jury.

[Citations and footnote omitted. ]

As the Kentucky Supreme Court observed in

Brown v. Commonwealth, 555 S.W.2d 252 at 257

(Ky.

» 1977):

Whether one is referring to one of

these affirmative "defenses" or to a

lesser offense, the evidentiary

Situation and burden of proof are the

same. Evidence suggesting that a

defendant was guilty of a lesser

offense is, in fact and in principle, a

defense against the higher charge,

though it is not a "defense" within the

technical meaning of that term as used

in the Kentucky Penal Code, cf. KRS

500.070. . . . Whatever may be its

other infirmities, Mullaney v. Wilbur,

421 U.S. 684 (1975), does not stand for

the proposition that the prosecution is

required to produce evidence in

negating every fact and circumstance

that could serve either to reduce the

degree of or to raise an absolute

defense to the crime charged. Once

there is evidence sufficient to create

a doubt, yes -- then the state has a

burden of proof and there must be an

imstruction so casting it. ...

The facts found by the Arizona Supreme Court

in this case do not support the Petitioner's

suggestion that his theft of the deceased's

victim's property was a separate event from the

Killing of the victim. The victim's death

« Shs

permitted the victim's property (in particular

the motor vehicle found in Petitioner's

possession) to be stolen from the deceased

victim's possession. See State v. Schad, supra,

788 P.2d at 1164; State v. Schad, 633 P.2d 366

at 370-373 and 381 (Ariz. 1981).

The States may impose a burden on the

defendant in a criminal case of producing

evidence to justify a lesser-included offense

instruction. This burden is constitutionally

permissible. Petitioner failed to produce

evidence to support his contention that the

homicide was a separate transaction or should be

disassociated from the theft of the stolen

property found in his possession. See Fleener

v. State, 412 N.E.2d 778 at 782 (Ind. 1980).

CONCLUSION

WHEREFORE, the opinion below should be

affirmed.

Respectfully submitted,

FREDERIC J. COWAN

KENTUCKY ATTORNEY GENERAL

DENISE A. GARRISON

Von af GENERAL

IAN G. SONE

ASSISTANT ATTORNEY GENERAL

—

Arizona Revised Statute §13-1105.

First degree murder; classification

A.

A person commits first-degree murder

if:

Intending or knowing that his conduct

will cause death, such person causes

the death of another with

premeditation; or

Acting either alone or with one or

more other persons such person commits

Or attempts to commit sexual conduct

with a minor under §13-1405, sexual

assault under §13-1406, molestation of

a child under §13-1410, narcotics

offenses under §13-3408, subsection A,

paragraph 7 or §13-3409, kidnapping

under §13-1304, burglary under

13-1506, 13-1507 or 13-1508, arson of

an occupied structure under §13-1704,

robbery under §13-1902, 13-1903 or

13-1904, escape under §13-2503 or

13-2504 or child abuse under §13-3623,

Subsection B, paragraph 1, and in the

course of and in furtherance of such

offense or immediate flight from such

offense, such person or another person

causes the death of any person.

Homicide, as defined in subsection A,

paragraph 2 of this section, requires

no specific mental state other than

what is required for the commission of

any of the enumerated felonies.

First degree murder is a class l

felony and is punishable by death or

life imprisonment as provided by

§13-703.