While most criminal defense lawyers will argue to have a charge reduced or dismissed entirely before trial, sometimes that isn't possible. In these situations, it may become necessary to argue for a jury instruction that includes an option for a lesser included offense.
A lesser included offense is a crime for which all of the elements necessary to impose liability are also elements found in a more serious crime. So for example, larceny is a lesser-included offense of robbery. Larceny involves taking of tangible property from another person with the intent to permanently deprive owner of said property. Robbery, meanwhile, requires all of those elements – plus the use of intimidation or force.
The reason a defense attorney might ask for a lesser-included offense in the jury instruction is because courts have discretion to allow jurors to decide between a more serious crime or a lesser crime. The idea is jurors, given the option of convicting someone who is not fully culpable or allowing him to go free entirely, might choose to convict on a more serious crime than is supported by fact if not given a third option.
This was essentially the assertion in the recent case of Morris v. Alabama, before the Alabama Court of Criminal Appeals. Here, the court reversed a first-degree burglary conviction (for which defendant was sentenced to 20 years in prison) on grounds trial court erred in refusing to issue a jury instruction on the lesser-included offense of second-degree burglary.
First-degree burglary in Alabama is codified under 13A-7-5 and provides a person who knowingly and unlawfully entered or remained in an occupied dwelling with intent to commit a crime therein and is either armed with explosives, causes physical injury to another or is armed with a deadly or dangerous instrument or threatens to use a deadly or dangerous instrument, may be convicted of the charge.
Meanwhile, our theft crime defense lawyers recognize the crime of second-degree burglary in Alabama is when a person unlawfully enters a lawfully occupied dwelling with intent to commit a theft or other felony.
According to court documents in this case, defendant and victim were reportedly dating, but broke up due to defendant's allegedly abusive tendencies. Still, the pair continued to talk. Shortly before the incident, victim was hurt in a crash, and defendant came to see how she was doing. While there, he learned other men had contacted her. He reportedly struck victim several times in the head and then left. She called police.
Three days later, in the middle of the night, defendant allegedly gained entrance to the home through an air vent. Victim awoke to defendant's presence and asked him to leave. He refused. She dialed 911, and hid the phone. The call got disconnected. A dispatcher called back. Defendant grabbed the phone, told dispatcher everything was fine. After hanging up, he became very angry, yelling and screaming at her for calling police. He grabbed a knife from the kitchen and reportedly began pointing and shaking it while cursing at her.
Police responded to the home and defendant fled out a back window, taking a knife and telephone with him. He was found by authorities nearby a few hours later.
He later told police that although he had picked up the knife from the kitchen, he never threatened his ex with it.
That became a key point in the case because that qualifier was the difference between a first-degree burglary charge and a second-degree burglary charge.
Defense attorney repeatedly argued for an instruction on the lesser-included offense of second-degree burglary, but judge repeatedly denied those requests. On appeal, this issue was again raised. Prosecutors argued the issue wasn't properly reserved for appeal.
However, appellate justices ruled otherwise. While second-degree burglary isn't necessarily a lesser-included offense of first-degree burglary, it can be, depending on the circumstances. In this case, the court found sufficient evidence for a second-degree burglary finding, and jurors should have been given that option.
Defendant's conviction was reversed and the case remanded for a new trial.
Morris v. Alabama, Nov. 21, 2014, Alabama Court of Criminal Appeals