447 F. 2d 314 - United States v. Whitaker

Appellant Whitaker was convicted in the court below under a one-count indictment charging first degree burglary.1 As one of his points on appeal,2 he assigns as error the trial court's refusal to instruct the jury on unlawful entry as a lesser included offense of first degree burglary. On the indictment and evidence presented at trial, we conclude that the instruction should have been given and remand for either a new trial or resentencing in accordance with the procedure and for the reasons set forth below.

At approximately 10:45 a.m. on 31 October 1968 appellant Whitaker knocked at the front door of a private home owned by Mr. and Mrs. John O. Fogg on Maryland Avenue, N.E. Mrs. Fogg, alone at the time, was using the telephone inside the house and did not respond to the knock. Whitaker waited for a short while and then threw a brick through the glass portion of the front door. He retreated to the street, walked a short distance away from the house, but then returned and entered it by forcing the front door. At this time Mrs. Fogg was inside her bedroom on the first floor of the house telephoning the police, and had chain-locked the door to the room. Appellant tried this door, but upon finding it locked proceeded up the stairs to the second floor, which included the bedrooms of the Foggs' children and one boarder.

After she heard Whitaker go upstairs, Mrs. Fogg slipped out the back and summoned help. She and her neighbor's brother returned to the front hallway of the house in time to hear Whitaker's voice on the second floor and to observe him descend the stairs. They accosted the appellant and prevented him from leaving until the police arrived shortly thereafter.

After Whitaker had been placed under arrest, Mrs. Fogg and the arresting officer investigated the second floor of the house, and, apart from finding some of the bedroom doors ajar, detected no sign that anything had been disturbed. According to the officer, Whitaker had been drinking, an observation confirmed by appellant's testimony that he had been imbibing heavily the preceding evening and had swilled at least a half pint of gin on the morning of his arrest.

At the close of all the evidence defense counsel requested that the trial court instruct the jury on unlawful entry as a lesser included offense of first degree burglary. The government successfully blocked this instruction by arguing that for an offense to be lesser included in another, its theoretical elements all must be identically reflected in the theoretical elements of the greater. It was argued that since the offense of unlawful entry required the element of entry without lawful authority and against the will of the lawful occupant, while in certain circumstances burglary could be committed even though the entry was authorized (e.g., entering a place of business open to the public or a friend's apartment with intent to steal), unlawful entry was not a lesser included offense of burglary.

This argument was not inconsistent with previous decisions of this court on fact situations not substantially different from this case.3 But on the particular circumstances here we hold that the requested charge on unlawful entry as a lesser included offense should have been given.

Rule 31(c), Fed.R.Crim.P., provides that 'the defendant may be found guilty of an offense necessarily included in the offense charged.' As the Supreme Court explained, 'in a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justified it, would no doubt be entitled to an instruction which would permit a finding of guilt of the lesser offense.'4

The National Commission on Reform of Federal Criminal Laws has recommended a comparable definition of a lesser included offense:

(3) Conviction of Included Offenses * * * An offense is so included when:

(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; * * *.5

This court has held that for the defense (or prosecution) to be entitled to a lesser included offense charge five conditions must be met. First, as with most other charges, a proper request must be made. Second, the elements of the lesser offense must be identical to part of the elements of the greater offense6 (comparable to difinition of Included Offense above). Third, there must be some evidence which would justify conviction of the lesser offense.7 Fourth, the proof on the element or elements differentiating the two crimes must be sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense.8 Fifth, 'in general the chargeability of lesser included offenses rests on a principle of mutuality, that if proper, a charge may be demanded by either the prosecution or defense.'9

On the first prerequisite, here Rule 30, Fed.R.Crim.P., was not technically complied with, but the oral request sufficed to inform the trial court clearly of the point involved, as evidenced by the ensuing argument.

As to the third, there was ample evidence to justify conviction of unlawful entry.

For the fourth, the element in addition to proof of unlawful entry which was necessary to establish burglary was entry with intent to commit a crime, and this was the principal issue in appellant's defense. The jury could have believed appellant's testimony that he entered looking for his friend Williams, and found him innocent of burglary but guilty of unlawful entry, had the lesser included offense charge been given.

This leaves the second, partial identity of elements of the offenses, and the fifth, mutuality, to be analyzed at some length.

II. Identical Elements Necessary in the Two Offenses

To determine that two offenses in a given case are in the relation of greater offense and lesser included offense is not as simple as defening the elements of the two offenses separately and laying them side by side, for this area of law is encrusted with much ancient lore. In our own jurisdiction we have cases apparently speaking as if the elements of the two offenses were to be determined in the abstract solely by the indictment without recourse to the proof adduced at trial,10 and other opinions pointing out that in the context of particularized offenses an exact replica of the lesser included offense need not be contained in the greater.11

Rule 31(c) uses the phrase 'necessarily included' to describe the relationship of the elements. 'Necessarily included' as of what time? By a comparison of what? The indictment with another indictment (necessarily a theoretical indictment and charge, because the lesser included offense question only arises when no charge of it has been drafted)? The proved elements of each offense actually adduced at trial? The Supreme Court quotation above speaks both of 'the crime charged' and 'the Draft Federal Criminal Code speaks of Draft Federal C riminal Code speaks of 'established by proof' and 'the facts required.'

Merely because a burglary can in rare circumstances be accomplished by means of an entry which is 'permitted,' does it follow that unlawful entry connot be considered a lesser included offense of burglary in the usual case, as is this one, where the entry is undeniably unauthorized? On the above authorities it would seem that Rule 31(c) should not be so strictly construed.

A more natural, realistic and sound interpretation of the scope of 'lesser included offense,' in line with our own views on the subject, is that defendant is entitled to invoke Rule 31(c) when a lesser offense is established by the evidence adduced at trial in proof of the greater offense, with the caveat that there must also be an 'inherent' relationship between the greater and lesser offenses, i.e., they must relate to the protection of the same interests, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense.12 This latter stipulation is prudently required to foreclose a tendency which might otherwise develop towards misuse by the defense of such rule. In the absence of such restraint defense counsel might be tempted to press the jury for leniency by requesting lesser included offense instructions on every lesser crime that could arguably be made out from any evidence that happened to be introduced at trial. 'An element of the mercy-dispensing power is doubtless inherent in the jury system, and may well be a reason why a defendant seeks a lesser included offense instruction, but it is not by itself a permissible basis to justify such an instruction.'13

Turning to the case at bar, appellant Whitaker was originally charged only with first degree burglary. Not only is the offense of burglary usually accompanied by a trespass and hence the offense of unlawful entry, but the criminal activity proscribed by the two offenses violates the same interest-- that of the property owner in protecting the integrity of his premises. Considering the proof adduced at trial in support of the charged offense, Whitaker was shown to have battered down the door of a dwelling house in order to gain entry. His entry was by force and was therefore unauthorized and unlawful. All of the elements of unlawful entry were clearly established. To prove burglary, the prosecution had only to establish the additional element of entry with the intent to commit a crime therein.14

We think it is unrealistic and artificial, on the statute involved, the indictment, and the proof in this case to deny a lesser included offense instruction on unlawful entry. The statute15 includes as first degree burglary a breaking and entering without permission; the fact that a 'permitted' entry can also serve as the basis for burglary is immaterial here. The indictment was couched in terms16 under which proof of breaking and entering could be proved as part of the burglary. It was so proved, and there can be absolutely no doubt that the defense was aware that the prosecution would attempt to show breaking and entering as part of its case (a point developed more fully infra).

We therefore hold that the test of a lesser included offense was met; in this case unlawful entry was a lesser included offense of the greater offense of burglary.

III. Mutuality and Notice of the Lesser Included Offense

It does not necessarily follow, however, in this case or any other case where the lesser offense had not been formally charged in the original indictment, that either the prosecution or the defense is entitled to a lesser included offense charge on the basis of identical elements brought out in the proof justified by the indictment. There is another strand of traditional doctrine present in lesser included offense law, of common law and constitutional origin, that the nature of the charge in the indictment must be such as to give the defendant notice that he could at the same time face the lesser included offense charge.

This stricture has developed from numerous decisions of the Supreme Court emphasizing the restrictions that both the common law and the Constitution have placed upon the power of court and prosecution to change the charging part of the indictment to the jeopardy of the defendant.17 Since the prosecutor as well as the defense has recourse to the doctrine of lesser included offenses, and 'the right of the prosecutor is limited to the offense of which defendant has been given notice by the indictment,'18 the right of the defense to the instruction has by a principle of mutuality also been made subject to this notice requirement.19

We do not consider or determine whether there was the requisite mutuality by the traditional test, i.e., whether the prosecutor could have rightfully requested the lesser included offense charge; therefore, whether the defense was entitled to it on request. We could say that the prosecutor was entitled to the charge because the indictment charged under the statute all of the theoretical elements of first degree burglary, and thus gave notice to appellant that the facts required to show his entry into the dwelling would be brought out at trial in proof of the charged greater offense. The facts actually required to establish the entry unequivocally established that it was forceful and hence unauthorized. Appellant never denied entry; his whole testimony was a rationale of why he was in the house. Thus statute, charge, and the only to be anticipated proof gave ample notice to the defense, or so it can be argued. But the question is not without difficulty, and we think it unnecessary to determine in the case before us.

We can, and do, rest this decision on a different ground, one which may be of easier applicability in future cases than making a somewhat hindsight determination that the defense received adequate notice of an included lesser offense charge. And that is simply to say that, despite the patina of antiquity, considerations of justice and good judicial administration warrant dispensing with mutuality as an essential prerequisite to the defense's right to a lesser included offense charge.

The defense ought not to be restricted by the stringent constitutional limits upon the prosecutor's right. If the proof at trial would support a jury finding of guilt on a lesser included offense in accordance with the usual criteria, then doubt as to whether the prosecutor could rightfully have requested such a charge should not bar the charge being given at the request of the defense. This gives no unfair option to the defense over the prosecution. In most cases the prosecution can foresee whether the proof is likely to develop strongly favoring a verdict on a lesser included offense, in which event the indictment should so charge, which is the prosecutor's option. If the evidence is such that a jury can rationally-- and is likely-- to choose the lesser offense, then the interests of justice call for the defense to have the option of the lesser included offense-- whether the prosecution chose to put it in the indictment or has the right later to request it or not. This recognizes 'the jury's central role in our jurisprudence,'20 and if the jury errs too obviously on the side of mercy instead of justice in determining the offense, the trial judge may be in position to restore some balance at the time of sentencing.21 The proved facts of the crime remain the same, and may be taken into account by the judge along with all other information available to him concerning the defendant.

The Supreme Court's recent decision in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation,22 rendered on a point which it initiated suasponte, establishes that an abstract insistence on 'mutuality' is a concept of justice that has limited strength and must yield to practicalities of administration. In that case such realities supported the wisdom of a doctrine whereby a person who brings litigation ot enforce a patent must appreciate that a judgment in his favor may not be binding on others, but a judgment that is adverse may bind him not to sue others. That principle, while not exactly apposite, has elements inherent in the problem before us.

Not only justice but the administration of justice will benefit from adandoning any insistence on mutuality as one essential condiation of the defense's right to a lesser included offense charge. A final verdict on all possible charges against the defendant in one trial is to be encoruaged.23 As this case is an example, the number of appeals on this and related points will be reduced.

We conclude that the trial court should have given an instruction on unlawful entry as a lesser included offense, and therefore follow the same procedure as in our recent similar cases of United States v. Huff,24 United States v. Roy L. Thomas25 and United States v. Seegers.26

The 'trier of fact necessarily found every fact required for conviction' of the sesser included offense; hence, after hearing both parties and obtaining the Government's consent, the verdict of first degree burglary may be set aside 'and a judgment of conviction entered for the included offense.'27 Alternatively, if the District Court considers it in the interests of justice, it may order a new trial. For these purposes the cause is

Remanded.

ROBB, Circuit Judge, concurs in the result only.