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State v. Russo10/8/2004
argued that we should require lesser-related offenses. Without totally rejecting recognition of lesser-related offenses in appropriate cases, we held in Corliss that defendant would not be entitled to a lesser-related offense instruction on the facts of that case. 168 Vt. at 340, 721 A.2d at 443. Defendant argues that this case is particularly appropriate for a lesser-related offense instruction, as demonstrated by a jury question that showed they wanted to convict defendant of only a lesser offense. We agree that if we recognized an obligation to charge lesser-related offenses, this case would be an appropriate candidate for such an instruction. We hold that the trial court has no obligation to instruct on lesser offenses that are only related to the offense charged by the prosecution.
20. In Corliss, we employed the definition of a lesser-related offense from People v. Geiger, 674 P.2d 1303, 1304 (Cal.1984) (overruled by People v. Birks, 960 P.2d 1073 (Cal.1998)): a lesser-related offense is any offense where "the lesser offense is closely related to that charged, there is evidence of its commission, and defendant's theory of defense is consistent with such a finding." Corliss, 168 Vt. at 339-40, 721 A.2d at 443. We noted in Corliss that only a relatively small number of jurisdictions had recognized an obligation to charge lesser-related offenses, and the doctrine had been rejected for the federal system by the U.S. Supreme Court decision in Schmuck v. United States, 489 U.S. 705, 716 (1989). See 168 Vt. at 339 n. 4, 721 A.2d at 443 n. 4. We find the latter decision particularly important because it interprets Federal Rule of Criminal Procedure 31(c) and we have adopted an identical version of that rule as V.R.Cr.P. 31(c).
21. Rule 31(c) provides:
(c) Conviction of Lesser Offense. The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.
As we observed above, the rule language is taken verbatim from the federal rule and codifies the preexisting law. See Reporter's Notes, V.R.Cr.P. 31. The rule is interpreted to require a comparison of statutory elements to determine whether a lesser offense will be charged, so that any element in the lesser offense not contained in the greater offense defeats the obligation to instruct the jury on the lesser offense. See In re Nash, 149 Vt. 63, 66, 539 A.2d 989, 991 (1987); State v. Bourn, 139 Vt. 14, 15-16, 421 A.2d 1281, 1282 (1980). That is exactly the holding of Schmuck, 489 U.S. at 716-17.
22. That decision adds two policy reasons why the elements comparison test is the most appropriate. First, it enables mutuality of access to instructions between the defense and prosecution. Id. at 718. Since the lesser-related offense has elements outside those charged in the information, neither the prosecution nor the court can impose such an instruction on the defendant without his or her consent. Id. On the other hand, if lesser-related offense instructions were available, the defendant could insist on such an instruction when it appeared to be tactically beneficial and waive any notice defect. Id.
23. Second, the elements comparison test is predictable and easy to administer, whereas recognition of lesser offenses is neither. Id. at 720- 21. This consideration was particularly significant in persuading the California court to overrule Geiger unanimously and reject the obligation to instruct the jury on lesser-related offenses. Birks noted that the result of Geiger has been that "the courts are cast adrift in a trackless sea" because "no clear standards" had emerged to determine when a lesser offense is sufficiently related. B
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