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]
E. Comment
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
[iv] Id.
[xiii] Id.
[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).
[liv] Id.
[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)
[lviii] Id.
[lxiv] Id.
[lxvii] Id.
[lxviii] Id. at 404.
[lxix] Id.
[lxx] Id.
[lxxii] Id.
[lxxiii] Id.
[lxxvi] Id.
[lxxvii] Id.
[lxxviii] Id.
[lxxix] Id.
