June 24, 2014
Link to Supreme Court of Missouri Opinion
Denford Jackson was convicted by a jury of first-degree robbery and armed criminal action.[i] Jackson requested that the instruction for the lesser included offense of second degree robbery also be included in the instructions given to the jury pursuant to Section 556.046 of the Revised Statutes of Missouri.[ii] The trial court refused to give the instruction, holding there was no basis in the evidence for a reasonable juror to determine that the victim did not reasonably believe that Jackson held a gun to her back.[iii] On appeal from the Circuit court of the City of St. Louis, the Supreme Court of Missouri reversed and remanded the case, holding that a jury member can always disbelieve all or any part of the evidence and so evidence never proves any element until a jury says it does.[iv]
I. Facts and Holding
In the case of State of Missouri v. Denford Jackson, the Circuit Court of the City of St. Louis held Mr. Jackson guilty of first-degree robbery and armed criminal action.[v]
On the morning of August 27, 2009, Jackson entered a coffee shop and loitered in the store for several minutes.[vi] He entered the coffee shop through the dining area and first approached the only two people sitting in the shop.[vii] He had a short conversation with them.[viii] Neither of the two noticed if Jackson had a gun; however, one of the two noticed that Jackson kept one hand in his pocket for the duration of the conversation. [ix]
Jackson then left the dining area and made his way to the convenience store side of the shop.[x] At this point attendant spotted Jackson coming through the door behind the cash register but was not alarmed because patrons commonly wander behind the counter looking for the dining area.[xi] The attendant approached Jackson and when she neared him, he grabbed her arm and turned her around so she was heading back towards the cash register.[xii]
The two patrons in the dining room noticed Jackson standing behind the employee at the cash register.[xiii] They could only see Jackson from behind and from the waist up.[xiv] They thought the attendant was taking money from the register but could not hear what was being said.[xv] Neither customer knew anything unruly was taking place or saw Jackson leave. [xvi]
The attendant testified in court that she had felt something held against her back as Jackson told her to take him to the drawer.[xvii] When she looked down she claimed to have seen a six-inch barrel, silver revolver.[xviii] After she had emptied the drawer for Jackson, he took her back into the kitchen and made her lie down.[xix] He checked to make sure she did not have any more money on her person before leaving the shop through the door on the convenience store side. [xx]
After the attendant heard the door close she yelled for help.[xxi] The two patrons who had previously chatted with Jackson came to assistance and helped call authorities. [xxii] During Jackson’s trial, the security camera footage was shown, corroborating the attendant’s story.[xxiii] The footage also revealed that seconds before approaching the attendant Jackson looked around and took something out of his pocket for examination.[xxiv] Later in the footage there is a brief second where the attendant and Jackson’s body separate and there is an unidentified object resembling a gun in his hand.[xxv]
At trial a police detective testified that Jackson was carrying a pistol and that in the moments before approaching the attendant he had taken it out of his pocket to check the cylinder, resetting it in front of the hammer.[xxvi]
After presenting evidence, the defense counsel requested that the jury be instructed on both first-degree and second-degree robbery.[xxvii] The only difference between the two charges is the element of a deadly weapon or dangerous instrument.[xxviii]
During the trial, Jackson requested that the jury be instructed on both first-degree and second-degree robbery.[xxix] The trial court refused, explaining that the only difference between first and second degree robbery is the use of a weapon, and stated there was no basis in the evidence for a reasonable juror to determine that the victim did not reasonably believe that Jackson held a gun to her back.[xxx] Jackson moved for a new trial, on the court’s failure to instruct on second-degree robbery.[xxxi]
The motion was overruled and Jackson was sentenced to 30 and 10-year sentences for the robbery and armed criminal action convictions. Jackson timely filed an appeal with the Supreme Court of Missouri.[xxxii]
On appeal, Jackson did not argue that there was insufficient evidence to convict him of first-degree robbery; instead, he argued the evidence also was sufficient to convict him of second-degree robbery.[xxxiii] Therefore, on appeal, the Supreme Court of Missouri vacated and remanded the first-degree robbery count.[xxxiv] Because the armed criminal action conviction was predicated on the first-degree robbery, it too was vacated and remanded.[xxxv]
The Supreme Court held that a jury can always disbelieve evidence and the trial court cannot refuse a defendant’s request for a lesser offense instruction based solely on its view of what evidence a reasonable juror must believe.[xxxvi]
II. Legal Background
A. Statutory Language
Jackson did not claim that there was insufficient evidence to convict him of first-degree robbery.[xxxvii] Instead, he argued that the evidence was sufficient to convict him of second-degree robbery and should therefor be included pursuant to Section 556.046 of the Missouri Revised Statutes.[xxxviii]
This statute was amended in 2001 to include an entirely new subsection also addressing the issue of lesser included offense instructions.[xxxix] Although the new instructions include that the instruction must be justified by a “basis in the evidence”, the courts interpretation of it did not change after the 2001 amendment.[xl] The courts use the two provisions interchangeably, holding that for a lesser included offense to be included there must be 1) a party timely requests the instruction 2) there is a basis in the evidence for acquitting the defendant of the charged offense and 3) there is a basis in the evidence for convicting the defendant of the lesser included offense for which the instruction is requested.[xli] In Jackson’s case, the first and third elements are satisfied. Jackson’s appeal now depends on the second element- whether there is a basis in evidence for acquitting him of first-degree robbery.[xlii] It must be determined whether the state failed to prove the one element separating the two crimes: whether the employee reasonably believed the object held against her back was a gun. [xliii]
There was only an error if there was a basis in the evidence to show the employee had no such reasonable belief.[xliv] It is immaterial as to whether evidence shows there was actually a gun, what matters is whether the object used in the robbery was- subjectively, but reasonably- believed by the attendant, to be a gun.[xlv] Defense did not have evidence to refute this reasonable belief by the attendant, but instead relied on the fact that the jury could choose to believe that the attendant was completely mistaken and therefore had no reasonable belief.[xlvi] The state responded that the jury’s right to disbelieve evidence does not constitute a “basis in the evidence” for purposes of section 556.046. [xlvii] However, the court disagreed held that the state’s argument was immaterial according to case law.[xlviii]
B. Case Law
The combination of Santillan, Pond, and Williams hold that a jury has a right to disbelieve all or any evidence, and the jury’s right to refuse to draw any needed inference, is a sufficient basis in the evidence to justify a lesser included offense instruction being given when the offenses are separated by one differential element for which the state bears the burden of proof.[xlix]
In State v Santillan, the Supreme Court of Missouri held that a defendant is not required to put on affirmative evidence to justify the lesser included instruction, partially overturning the previous leading case, Olson.[l] However, the holding in Santillan was so narrow that many subsequent cases continued to rely on Olson.[li]
There were also arguments brought by the state in Pond, which argued for an interpretation of Section 556.046 that had been previously overruled in Olson.[lii] The court in Pond recognized that the state’s argument relied on the authority of lower courts that had relied on Olson and were therefore no longer applicable. [liii] However, like in Santillan, the holding in Pond again did not overturn Olson completely.[liv] The Pond Court held that, “like Olson, the cases cited by the State are overruled, to the extent they require affirmative evidence from the defendant.”[lv] This narrow holding allowed for another Olson argument to make its appearance in State v. Williams..[lvi] However, again the argument was rejected.
In Williams, the Court referenced that Santillan overruled Olson only to the extent that requires the affirmative evidence.[lvii] Now, in State v. Jackson, this Court holds, “neither Pond nor Williams expressly overrules the remainder of Olson on which the state repeatedly- but unsuccessfully- relies. The Court now does so.”[lviii] The Jackson court overruled Olson’s holding that there must be affirmative evidence put on by the defense and explained that, “the jury’s right to disbelieve all or any part of the evidence and its right to refuse to draw needed inferences is a sufficient basis in the evidence – by itself”.[lix] And therefore, there was a “basis in the evidence” as required by the statute to include the lesser-included offense.[lx]
D. Concurring Opinion
The majority does not accept the argument that this holding misinterprets the intent of Section 556.046.[lxi] The Court recognizes that this decision will make it so lesser included offense instructions will be given practically every time they are requested.[lxii] The Court believes this interpretation of the statute along side constitutional imperatives will ensure the guaranteed presumption of innocence and the right to a trial by jury.[lxiii] The holding aligns with the language of Section 556.046, but also does not construe “a basis in the evidence to acquit the defendant” in a way that undermines the values embodied in the presumption of innocence and the right to a jury trial.[lxiv] However, there is a divide in this holding among the majority and the concurring opinion. The difference is narrow and can be easily explained:
“[i]f the defendant requests that the jury be instructed on a lesser included offense consisting of all but one of the elements required for greater offense, is the trial court allowed to refuse to give that instruction solely because it determines that no reasonable juror could refuse to fine that the differential element had proved beyond a reasonably doubt? The answer is no. Unless waived the right to trial by jury means that the jury – and only the jury- will decide what the evidence does and does not prove beyond a reasonable doubt”[lxv]
The concurring opinion notes however, that the majority opinion is a double-edged sword.[lxvi] The Court holds that no affirmative evidence is required and that a jury may believe or disbelieve whatever evidence it so choses.[lxvii] So how can the defendant have no obligation to put on affirmative evidence but the Court also accepts the proposed limitation that the second element in the statute, the differential element, must be put in dispute by making a credible argument.[lxviii]
Also, this holding accepts that the jury can believe all, part, or none of the evidence, “but only if it believes all of the evidence that a reasonable juror must believe and down not believe any of the evidence a reasonable juror must disbelieve”.[lxix] However, the real question of evidence, whether a jury may find guilt beyond a reasonable doubt, should be a question for the trial and appellate courts.[lxx] The question of what the jury must find has no place in a criminal trial or appeal.[lxxi] So, the court should not continue to suggest that a requested lesser included offense instruction need not be given if the trail court finds that all reasonable jurors must find that the differential element was proved.[lxxii] It goes against the accepted holding that jurors can find anything in the evidence to be true or false.[lxxiii]
The Supreme Court of Missouri made the right decision by finally overturning all of Olson. With bits and pieces being overturned in different cases, the standard for including lesser-included offense instructions became unclear. By drawing a hard line and accepting that a defendant does not need to present affirmative evidence, the Court makes the standard clear.
This decision will do far more good than harm. By being aware of what instructions will be given to the jurors, all parties can better prepare for a fair trial. This also reduces the chances of confusing jurors with extraneous information that may not even be relevant under the old standard. Under the old standard a defendant may present a case supporting a lesser instruction and then if the evidence does not meet the standard, be left with only the more severe offense instructions. These extra unnecessary arguments will be of no benefit to the jurors, the opposing side, or the court.
Under the new standard there will be lesser-included instructions given at times when the evidence is obviously in favor of the more severe offense. The dissent opines that this will lead to arbitrary decision-making and will invite due process scrutiny. However, the majority opinion makes important arguments disqualifying these issues. When examining the consequences of this decision, there is far more harm done by not including the lesser-included instruction than by including it. If the state is confident that the debated element is proved without a doubt than the reasonable juror they speak of will find the element satisfied.[lxxiv] Then the defendant will be convicted for the greater offense whether the lesser included offense instruction is given or not.[lxxv] Therefore, there is no harm by giving the instruction.[lxxvi]
However by not giving the instruction you may allow for a juror to either acquit the defendant completely, or convict him of a crime the juror believes the defendant did not commit.[lxxvii] The Court agrees there is no harm in giving a lesser included offense instruction that allows for the jury to convict a defendant of the offense the evidence actually proves.[lxxviii]
The Court also discusses the harm eliminated by this holding.[lxxix] By requiring a certain amount of evidence in order to obtain a lesser included offense instruction, the court forces the defendant to prepare and try his case not knowing whether the trial court will give the lesser included offense. This holding will allow the defendant to prepare his case knowing prior to presenting all the evidence what instructions will be presented. This certainty will have a positive effect on not only the defendants, but the state and the trial courts as well. Overall, this holding was necessary and will benefit greatly Missouri’s criminal justice system.
- Kristen Wagner
[i] State v. Jackson, 433 S.W.3d 390 (Mo. 2014).
[ii] Id.; Mo. Ann. Stat. § 556.046 (West 2012).
[iii] State v. Jackson, 433 S.W.3d 390 (Mo. 2014).
[v] Id. at 392.
[vi] Id. at 392.
[vii] Id. at 394.
[viii] Id. at 394.
[ix] Id. at 393.
[x] Id. at 392.
[xiii] Id. at 393.
[xvii] Id. at 393.
[xx] Id. at 394
[xxxii] Id. at 390.
[xxxiii] Id. at 392
[xxxvii] Id. at 390.
[xxxviii] Id.; Mo. Ann. Stat. § 556.046 (West 2012).
[xxxix] State v. Jackson, 433 S.W.3d 390, 396 (Mo. 2014).
[xliii] Id. at 397
[xlvii] Id.; Mo. Ann. Stat. § 556.046 (West 2012).
[xlviii] State v. Jackson, 433 S.W.3d 390, 397 (Mo. 2014).
[xlix] State v. Pond, 131 S.W.3d 792 (Mo. 2004); State v. Santillan, 948 S.W.2d 574 (Mo. banc 1997); State v. Williams, 857 S.W.2d 530 at 559 (Mo. App. S.D. 1993).
[l] State v. Santillan, 948 S.W.2d 574, 576 (Mo. banc 1997).
[li] 948 S.W.2d 574 at 576 (Mo. Banc 1997); State v. Olson, 636 S.W.2d 318 (Mo. banc 1982).
[lii] State v. Pond, 131 S.W.3d 792, 794 (Mo. 2004); State v. Olson, 636 S.W.2d 318 (Mo. banc 1982).
[liii] State v. Pond, 131 S.W.3d 792, 794 (Mo. 2004);
[lv] State v. Santillan, 948 S.W.2d 574, 576 (Mo. banc 1997).
[lvi] State v. Williams, 857 S.W.2d 530, 532-33 (Mo. App. S.D. 1993)
[lvii] State v. Jackson, 433 S.W.3d 390, 402 (Mo. 2014).
[lix] State v. Jackson, 433 S.W.3d 390, 399 (Mo. 2014).
[lx] Id.; Mo. Ann. Stat. § 556.046 (West 2012).
[lxi] State v. Jackson, 433 S.W.3d 390, 399 (Mo. 2014).
[lxii] Id. at 402.
[lxiii] Id. at 401.
[lxv] Id. at 402.
[lxviii] Id. at 404.
[lxxiv] Id. at 403.