THE COURT WILL TAKE THE NE XT CASE . SANDERS VERSUS STATE.
CHIEF JUSTICE: GOOD MORNING AGAIN.MS. HOPKINS ARE YOU READY TO PROCEED?
MAY IT PLEA SE THE COURT . KIM HOP KINS FOR THE APPELLANT.THIS CASE IS BEFORE THECOURT ON A CERTIFIED QUESTION FROM THE SECOND DISTRICT COURT OF APPEAL WHICH ASKED YOU T O DET ERMINE WHETHER A LE SSER INCLUDED OFFENSE ON THE VERDICT FORM MUST BE, B OTH, LES SER IN DEGREE AND IN.
CHIEF JUSTICE: DOES IT MAT TER THAT THIS WAS DONE WITH FULL KNOWLEDGE OF THEDEFENDANT , THAT THERE WAS A DISCUSSION ABOUT WHETHER AGGRAVATED BA TTERY S HOULD BE PLACED ON THE VERD ICT FORM AND THE JUDGE DEC IDED THAT WOULD BE A SECOND BITE , THAT THERE FOR THAT IT WAS DONE WITH FULL KNOWLEDGE O F THE DEFENDANT?
WELL, IN THIS CASE THE DEFENSE ATTORNEY DID MAKE E VERY EF FORT TO AR GUE THE CONCEPT OF THE SECOND BITE. I THINK IT ALSO APPLIES TO WHAT HE WAS ULTIMATELY CONVICTED , AND THE DCA ACTUALLY FO UND WHAT YOU AREREFERRING TO , OF COURSE , THAT GRAY REQUIRES THAT THE DEFENDANT NOT GO ALONG WITH IT, AND I THINK THAT IT WAS FOUND --
CHIEF JUSTICE: I GUESS ITHOUGHT , WAY HIM SAYING IS WE WOULD HAVE TO FIND THIS AS FUNDAMENTAL ERROR, NOT JUST A SITUATION WHERE -- WHAT I AM SA YING IS WE WOULD HAVE TO FIND THIS AS FUNDAMENTAL ERROR AND NOT ASUGGESTION WHERE THEY FIND IT SPECIFICALLY , AND I SEE THOSE AS TWO DIFFERENT CIRCUMSTANCES AS TO WHETHER IT CAN B E FUNDAMENTAL E RROR TO CHARGE THEM SOMETHING THAT THAT IS CERTAINLY LESSER IN DEGREE AND LESS ARE IN POET -- LESSER IN POTENTIAL PENA LTY .
RIGHT. IT IS A FUNDAMENT ERROR REVIEW AND WE SUBMIT THAT.
CHIEF JUSTICE: THAT IS WHAT I AM TR YING TO F IND OUT WHY IN THIS CASE AS OPPOSED TO GRAY FUNDAMENTAL ERROR.
THE DIFFERENCE IS THE DCA DID NOT COM PLY THAT THEY MADE THE DE FENSE ARGUMENT ALBEIT TO THE ARGUMENT BELOW AND WAS TRYING TO PREVENT A SECOND BITE OF THE APPLE AND WHAT WAS HAPPENING IS THE STATE DID GET THAT SECOND B ITE OF APPLE.
CHIEF JUSTICE: HE DIDN'T K NOW THAT I T WOULD WORK OUT THAT THE SECOND-DEGREE MURDER, EVEN THOUGH WITH A FIREARM , COULD RESULT IN ALIFE SENTEN CE?
I AM NOT S U RE WHAT HE UNDERSTOOD.
CHIEF JUSTICE: THAT WOULDBE IN THE CASE, BUT AS FAR AS HERE , I AM TRYI NG TO UNDERSTAND. IT WAS WAIVED. WE WOULD HAVE TO DECIDE WHY --
IN THE SENSE THAT HE DID NOT RELY UPON THAT AS --
CHIEF JUSTICE: WHY, THEN , IS IT FUNDAM ENTAL ERRO R? WHAT MAKES IT FUNDAMENTALERROR?
IT IS FUNDAMENTAL ERROR BECAUSE IT WAS NOT A LESSER PENALTY AND ALSO BECAUSE HEDID NOT RELY UPON THAT CHARGE, IN THE SENSE THAT HEWAS NOT ARGUING THE U L TIMATE CONVICTED CH ARGE OF ATTEMPTED SECOND-DEGREE MURDER . FIREARM .
JUSTICE: LE T ME ASK , THE SECOND BITE OF THE APPLE , IF YOU REALLY LOOK AT ATTEMPTED MURDER REQUIRES A SPECIFIC INTENT, BAT TERY , ATTE MPTED , THE BATT ER Y IS A GENERALINTENT CRIME. THE ATTEMPTED SECOND-D EGREE MURDER IN THIS CASE IS A DIFFERENT DEGREE O F INTENT SHOWN. ISN'T THAT TYPICALLY WHAT THE JUR Y IS INSTRUCTED AND WHAT WE HAVE JURIES FOR , IS WE GIVE THEM THE LAW , AND THEY ARE SU PPOSED TO DETERMINE THOSE ELEMENTS OF THE OF FENSES , AND IN THIS CASE THE DIFFERENT DEGR EES OF INT ENT THAT THE STATE HAS TO PROVE , BETWEEN AN ATTEMPTED FIRST-DEGREE MURDER, SECOND-DEGREE M URDER AND INVOLUNTARY MANSLAUGHTER , ALL OF THOSE DIFFERENT PRIMARILY ON THE DEGREE OF INTENT , CORRECT?
RIGHT AND THAT IS CERTAINLY PART OF THE ANALYSIS.
JUSTICE: WHEN HAVE WE EVER ASKED JURI ES TO GET INVOLVED WITH DETERMININGTHE DEGREE OF PUNISHMENT OTHER THAN THE DEATHPENALTY?
I THINK IN THIS COURT AND OTHER COURTS IN THIS STATE, THE PURPOSE OF EVEN HAVING LESSER OFFENSES ON THE VERDICT FORM IS TO AL LOW FORA PAR DON PO WER OF DEGREE.
JUSTICE: WHAT IS THE LOGIC BE HIND THAT?
THE LOGIC BEHIND THAT , THERE ARE TWO THINGS , THE P ARDON POWER AND WHETHER OR NOT THE STATE HAS ACTUALLY MET THE BURDEN OF THE CHARGE SUBMITTED, AND I WOULD SUBMIT IN E ITHER CASE WHEREYOU HAVE SOMEONE THAT ULTIMATELY THE LESSER PROVIDES FOR THE SAME PENALTY, THAT YOU HAVE NOT PERMITED THAT POWER TO OCCUR.I THINK IT IS VERY COMMON SENSE THAT A JURY WOULD ASSUME IN CONVICTING SOME ONE OF A LESSER OFFE NSE THAT , THEY ARE GIVING THEM A LESSER OFFENSE .
JUSTICE: WHY ISN'T --
CHIEF JUSTICE: JUSTICE CANTERO.
IN THIS CASE DO YOU AGREETHAT THE DI STRICT COURTDETERMINED AND DO YOU AGREEWITH ITS DETERMINATION THAT, NUMBER ONE IT WAS LESSER IN DEGREE, AND NUMBER TWO, IT GAVE THE TRIAL JUDGE THE DISCRETION TO I MPOSE A LESSER PENALT Y, SO THE MINIMUM PENALTY THE JUDGE COULD HAVE I M POSED WAS LESSER, AL THOUGH THE ULTIMATE ONE WAS NOT.
I AGR EE THAT IT IS LESSNER DEGREE. I WOULD DISAGREE WITH THE ANALYSIS OF THE ABILITY OF THE JUDGE TO GIVE A RANGE. PRIMARILY BECAUSE THIS IS THE D UTY OF THE JURY, ANDWHAT WE ARE LOOKING AT IS HOW THE PENALTY IS DEFINED . AND --
JUSTICE: WHAT IS THE DUTY OF THE JU RY?
THE DUTY OF THE JURY IN TERMS OF FINDING OUT WHETHER IT ANSWERS THE CR IME . BATTERY WITH A FIREARM , AND ALLOWING THE JU DGE TO INCREASE SENT ENCE LATER ON , SENTENCING , SUCH AS WAS DONE IN THIS CASE SUBJECT TO HFO OR HABITUAL FELONY OFFENDER VIOLENT, THAT IS NOT THE QUESTION OF THE AN ALYSIS.
JUSTICE: MY QUESTION IS THE WAY THE PENALTIES ARE D ONE ON THE JURY FORM, IT SEEMS LIKE THEY GO IN DESCENDING ORDER I F YOU LOO K AT THE MINIMUMS AND THE DISCRETION THAT THE JUDGEHAS AS TO THE MINIMUM SENTENCE. IT MAY NOT GOING IN DESCENDING ORDER AS TO THE MAXIMUMS.
I THIN K THERE ARE TWODIFFERENT WAY TO SAY LOOK AT IT. YOU CAN ARGUE THAT IT HAS TO ULTIMATELY GUARANTEE OR THE DCA'S DECISION THAT , IF IT IS A RANG E THAT ALLOWS FOR A SENTENCE THEN IT IS OK AY. I SUGGEST THERE IS A THIRD CATEGORY WHERE YOU LOOK TO THE MINI MUM MANDATORY , BECAUSE YOU HAVE TO GIVE THE JURY THE POWER TO GIVE SOMETHING THAT IS POTENTIALLY LESS AND THAT IS WHAT IS WRONG HERE.
JUSTICE: IT MAY BE A GREAT ARGUMENT WHEN THERE HAS BEEN AN OBJECTION BUT WHY IS THAT THE SAME ARGUMENT WHEN WE ARE TALKING ABOUT FUNDAMENTAL ERROR?
IT IS FUNDAMENTA L ERROR WHEN YOU YOU ARE NOT GIVING SOMETHING THAT IS LESS NER DEGREE AND PENALT Y AND THE DEFENSE DOES N'T RELY ON IT , AND I THINK THAT I S WHAT HAPPENED HERE.
JUSTICE: LET ME ASK YOU HERE, THIS S EEMS TO ME THAT COULD BE A VERY SI MPLE SITUATION AS OPPOSED TO WORRYING ABOUT WHETHER THETRIAL JUDGE IS GOING TO ENHANCE , WHE THER OR NOT THERE IS GOIN G TO AND MANDATORY MINIMUM. WHEN YOU ARE LOOKING AT LESSER INCLUDED OFFENSES , WHY NOT SIM PLY LOOK AT SUCH AS IN THIS CASE HE WAS CHARGED WITH A FEL ONY, CORRECT , AND THE SECOND-DEGREE ATTEMPTEDMURDER, HE WAS CONV ICTED OF IS A FIRST-DEGREE FELONY , CORRECT ?
FIRST- DEGREE --
JUSTICE: IT IS CLASSIFIED AS A FIRST-DEGREE FELONY, RIGHT?
UNTIL THE ENHANCEMENT , YES.
JUSTICE: WITH NO ENHANCEMENT, IT IS A FIR ST-DEGREE FELONY.
CORRECT.
JUSTICE: SO YOU WOULD AGREE THAT A FIRST-DEGREE FELONY IS LESSER THAN A --
WITH THE ENHANCEMENT --
JUSTICE: WITHOUT CONSIDERATION OF THE ENHANCEMENT OF THE LESSER OFFENSE.
LESSER .
JUSTICE: AND A LIFE FELONY HAS A PARTICULAR , UNDER 77 5 YOU CAN GET A CERTAIN SENTENCE FOR LIFE FELONY. WE ARE NOT TA LKING ABOUT ENHANCEMENT.WE ARE NOT TALKING ABOUT MANDATORY MINIMUM, AND UNDER 775 , Y OU CAN GET A PARTICULAR SENTENCE FOR A FIRST-DEGREE FELONY. CORRECT? WHY NOT, WHEN WE ARE LOOKING AT WHETHER OR NOT AN OFFENSEIS A LESSER OFFENSE, WE SIMPLY LOOK AT HO W THE OFFENSE IS CLASSIFIED , AND WHAT UNDER 775 , YOU CAN GET FOR THAT, AND WITHOUT CONSIDERATIONS OF ENHANCEMENT , BECAUSE OTHERWISE WE ARE ASKING JURIES, AND WE ARE ASKING T RIAL JUDGES T O GO TH ROUGH A LOT OF IN FORMATION BEFOR E THEY CAN EVEN DO A VERDICT FORM .
CORRECT , AND THE NUMBER ONE OPTION WOULD BE THAT HE COULD GET , IF THE FIRSTWOULD BE THE CHARGE OF ATTEMPTED FIRST-DEGREE FIREARM, DISCHARGING A FIREARM AS WAS CHARGED IN THE INFORMATION , THE NEXT WOULD HAVE TO S KIP DOWN TO ATTEMPTED SECOND-DEGREE MURDER . THAT IS AN OPTION , BUT ACCORDING TO APPRENDI IF YOU MAKE THESE FINDINGS, IT BECOMES ENH ERNT IN THEIR POWER AND IF YOU EXERCISE THAT POWER, YOU DON'T END UP WITH THE SAME SENTENCE OR EVEN THE SAME RANK.
JUSTICE: THE JURY DOES N OT HAVE TO DEPART . IN THIS SITUATION THERE WERE HOW MANY OFFENSES LISTED ON THE VERDICT FORM , ELEVEN?
SOMETHING LIKE THAT.
JUSTICE: AND THERE WERE,IN FACT, OTHER OFFENSES LISTED ON THIS VERDICT FORM THAT THIS THE JURY COULD HAVE CH OSEN .
CO RRECT.
JUSTICE: THAT WOULD HAVE UNDER ANY CIRCUMSTANCES, ENDED UP WITH A LESSER OFFENSE.
CORRECT.
JUSTICE: SO THE JURY HA D THE OPPORTUNITY TO IN FACT PARDON THIS JURY.
BUT THEY WERE CONFUSED . THAT OPPORTUN ITY WAS TAKEN A WAY FR OM THEM , IN THE SENSE THAT THEY WERE GIVEN AN OPPOSITE THAT DI DN'T DO THAT , AND WHAT WE ARE SAYING ISTHAT THE OPTION HAS TO DESEND IN SOME MEANINGFUL WAY , WHETHER IT BE AN ABSOLUTE DIMINISHMENT LIKE YOUR EXAM PLE IF YOU WENT F ROM FIRST-DEGREE , A LIF E TO FIRST-DEGREE AND ALL YOU COULD GET WAS UP TO 30 Y EARS IN A SECOND-DEGREE, OR WHETHER IT BE LOOKIN G AT THE MANDATORY MINIMUM THAT THIS COURT DID IN S TATE VERSUS WELLER , AND IN THAT CASE WE STILL HAVE A PROBLEM IN THIS PARTICULAR END.
CHIEF JUSTICE: YOU DON'T SEE ANY DIFFEREN CE IN THE ANALYSIS, DEP ENDING ON WHETHER IT IS SOMETHING THAT THE DEFENDANT AFFIRMATIVELY REJECTS OR JUST IS SI LENT ABOUT. IN OTHER WORDS YOU DON'T SEE THAT THE ANALYSIS TO THE COURT SHOULD BE SORT OF A GOTCHA THING, WHERE THE JUDGE IS T RYING TO DO HIS OR HER BEST TO GO I N DESCENDING ORDER OF DEGREE , AND AS FAR AS WHAT THE JURY KNOWS OR DOESN'T KNOW , DOESN'T, I MEAN I DON'T KNOW WHERE THIS FITS IN , BUT 1 020 -- -- 10-20-LIFE I S CERTAINLY ONE OF THE MOST VISIBLE SENTENCING STRUCTURES OF THE STATE. IT HAS CERTAINLY BEEN THECALL OF THE GOVERNMENT TO KNOW THAT WHEN YOU U SE A G UNYOU WILL GET LIFE , SO TO K NOW WHAT THE JURY KN EW OR DIDN'T KNOW , SO WHY ISN'T IT DIFFERENT FOR THE ANALYSIS, WHETHER THE DEFE NDANT HAS AFFIRMATIVELY REQUESTED IT OR THE DEFENDANT REMAINS SILENT OR DOESN'T O BJECT ?
THAT IS HOW THE CASE HAS PURPOSE.
CHIEF JUSTICE: I AM TRYING TO FIGURE OUT THE LOGIC OF IT , BECAUSE GRAY WAS DE ALING WITH SOMETHING THAT CL EARLY WAS AN IMPROPER LESSER SENTENCE.
IF YOU ARE GOING TO AFFIRMATIVELY ASK FOR THE LESSER OFFENSE AND AFFIRMATIVELY RELY ON THE OFFENSE IN CL OSING ARGUMENT, THEN YOU CERTAINLY CAN'TCHANGE THAT LA TER.
JUSTICE: THE CONSTITUTIONAL PARDON IS NOT CONSTITUTION -- THE JURY PARDON IS NOT CONSTITUTIONALLY BASE D IS IT? IT IS SOMETHING THAT WE HAVE SORT OF M A DE A GI FT IN THAT SITUATION HERE.
CORRECT.
JUSTICE: MY CONCERN IS THAT, IF WE MA KE THIS SO COMPLICATED AND WE PUSH THE ENVELOPE SO FAR , THAT NOW WE GETTING DOWN , PERHAPS THE N EXT ST EP FROM WHERE YOU ARE NOW IS THAT WE WOULD BE DOWN TO HABITUALIZATION OR OTHERTHINGS THAT REACH OUT THAT HAVE TO DO WITH THE DEFENDANT'S PR IOR RECORD OR WHATEVER . AT SOME P O INT , THERE IS A DISTINCT POSSIBILITY THAT WECOULD THROW OUR HANDS UP AND S AY THIS IS NOT A CONSTITUTIONALLY BASED RIGHT THAT WE HAVE GIVEN TO DEFENDANTS TO HAVE JURIES INSTRUCTED ON THE LESSER INCLUDED, AND IT HAS BECOME TOO COMPLICATED , AND WE ARE JUST GOING TO REMOVE THAT , AND I A M SERIOUS ABOUT THAT , IN TERMS OF WHAT HAS OCCURRED HERE , THAT THE CHIEF HAS POINTED OUT THAT ALL OF THIS WAS DISCUSSED. THERE WAS ABSOLUTELY NO OBJECTION TO THE WAY THAT THIS WAS DONE. THE T R IAL JUDGE WAS OBVIOUSLY BE NDING OVER BACKWARDS TO BE SURE , AND IN FACT IN ONE INSTANCE , SAID I AM NOT GOING TO LE T THE STATE GET AWAY , REALLY , WITH A SECOND BITE AT THE APPLE , SO REPRESENTING DEFENDANTS AS YOU DO, DON' T YOU HAVE A CONCERN THAT IN SITUATIONS LIKE THIS , THAT WE REALLY ARE , WE REALLY ARE P USHING THE EN VELOPE S O FAR THAT THE PRACTICALITY OF CONTINUING TO RECOGNIZE THIS JURY PARDON CONC EPT IS GOING TO BE EXHAUSTED?
WELL , I WOULD RESPECTFULLY DISAGREE. I SPOKE WITH THE DCA ABOUT THAT ANALYSIS IN THE SENSE OF WHAT IS ACCOMPLISHED . CLEARLY THE SENTENCING HAS BECOME COMPLEX. NO ONE WOULD DISAGREE WITH THAT , BUT APP RENDI SETS FORTH THAT YOU ARE NOT GOING TO ASK THE JURY TO LOOK A T PRIOR CRIMES. THAT IS THE DISTINCTION. WE ARE ASKING THEM T O ENHANCE ON DISCHARGING OF A FIREARM AND VI OLENT CR IME. IT HAS BECOME AN ELEMENT OF THE OFFENSE AND THAT IS WITHIN THE PURVIEW OF THE JURY. BUT ULTIMATELY --
JUSTICE: TELL ME SOMETHING THAT WAS FUNDAMENTALLY UNFAIR ABOUT THE TRIAL AND THE INSTRUCTIONS WITH REFERENCETO THIS DEFEN DANT.
WHAT IS FUNDAMENTALLY UNFAIR IS THAT THE JURY HAD NO OPTIONS TO GIVE HIM A LESSER SENTENCE, AND I THINKTHAT IF YOU ASK THE PERSO N ON THE STR EET WHY THOSE ARE E VEN THERE AS AN OPTION,CLEARLY THEY CAN'T POSSIBLY IMAGINE THAT THEY DON'T EV ENHAVE THE POTENTIAL FOR A LOWER SENTENCE. I THINK WHEN THE DCA --
JUSTICE: WAIT A MINUTE. THE JURY COULD HAVE SAID THERE WAS NO FIREARM INVOLVED. THAT WOULD HAVE GIVEN A LESSER SENTENCE , WOULDN'T I T ? AND THE JURY CLE ARLY HAD AN OPPORTUNITY TO GIVE A LESSER SENTENCE.
YES. THEY HAD AN OPPORTUNITY TO PICK ONE OF THE OTHER OPTIONS, BUT YOU HAVE TO LOOK AT IT AS A W H OLE AND IF IT DOES NOT DESCEND , TH EN I THINK THAT IS ILLOGICAL , ANDI THINK THAT W HEN YOU TRY TO ARGUE --
JUSTICE: YOU ARE SA YINGTHAT, WHEN THE JUDGE INSTRUCT ODD FIRST-DEGREE ATTEMPTED M URDER , HE SHOULD NOT HAVE INSTRUCTED ON SECOND-DEGREE, CO RRECT?
I THINK HE SHOULD NOT HAVE INSTRUCT ED ON ATTEMPTED SECOND-DEGREE WITH A FIRE ARM .
JUSTICE: SO IF THE ELEMENTS OF FIRST-DEGREE MURDER LIKE PREMEDITATIONARE NOT PRESEN T, THE JURY FIND THEY ARE NOT PRES ENT, WHY DOESN'T THE STATE HAVE THE RIGHT TO HAVE THE JURY DETERMINE THAT EVEN THOUGH THERE WAS NO PREMEDITATION , THAT THE E L EMENTS OF ATTEMPTED SECOND-DEGREE MURDER WERE PRESENT , EVEN THOUGH THAT WOULD GIVE THE DEFENDANT THE SAME SENTENCE? WHY DOESN'T THE STATE HAVE THE RIGHT TO SAY EVEN IF YOU FIND NO PREMED ITATION, YOU SHOULD FIND ATTEMPTED SECOND-DEGREE MURDER?
BECAUSE I THINK THAT IGNORES THE COU RT'S AND OTHER COURT 'S UNDERSTANDINGOF WHY THE LESSERS ARE EVEN THERE.THE COURTS HAVE SAID THE LESSERS EVEN EXIST FOR THE PURPOSES OF A PARDON .
JUSTICE: W HAT HA PPENS WHEN THE TWO CRIMES ARE NOT NECESSARILY LESSER.THEY ARE EQUAL. WHE RE DO YOU PUT THAT ON THE VERDICT FORM? DO YOU HAVE TO REMOVE ONE TOTALLY FROM THE VERDICTFORM, EVEN THOUGH IT HAS DIFFERENT ELEMENTS? LET'S SAY FIRST-DEGREE ATTEMPT -- ATTEMPTED MURDER AND SECOND-DEGREE WERE EQUALLIKE YOU ARE SAYING , BECAUSE THEY WOULD BOTH RESULT IN LIFE SENTENCES , YOUR POSITION IS THAT THE JURY CAN ONLY BE INSTRUCT O DD ONE OF THOSE?
RIGHT. IF IT IS THE SAME SENTENCING RANK , I WOULD THINK THAT IS EQUAL TO THE ELEM ENTS. WE ARE TALKING ABOUT IT HAS TO BE DIFFERENT IN DEGREE AND PENALTY.
JUSTICE: BUT ARE YOU ARGUING THAT THE ELEMENTS OF FIRST-DEGREE ATTEMPTED MURDER AND SECOND-DEGREE ARE THE SAME?
NO.
JUSTICE: SO IF WE ACCEPT YOUR ARGUMENT , ISN'T THE EASY WAY AR OUND IT FOR THE STATE, EVEN I F WE WERE TO A CCEPT YOUR ARGUMENT THAT COUNT ONE IS ATTEMPTED FIRST-DEGREE MURDER AND COUNT TWO IS AGGRAVATED BATTERY , THEY COULD NOT BE SENTENCED ON BOTH BUT THEY COULD BE CON VICTED OF EITHER. COULD N'T THE STATE SIMPLY DO THAT?
I AM NOT SURE I UNDERSTAND.
JUSTICE: THE SECOND BIT E AT THE APPLE ARGUME NT.
RIGHT.
JUSTICE: WHAT YOU ARE SAYING IS THAT THE STATE, IT IS NOT TR ULY A LESSER-INCLUDED OFFENSE. IF IT IS NOT A LESSER-INCLUDED OFFENSE , THEN CAN IT NOT BE CHARGED AS A SECOND COUNT?
NO.NO.
JUSTICE: WHY NOT?
BECAUSE IT IS BOTH. IT IS NOT ONE OR THE OTHER. THE ELEMENTS HAVE , IT H AS TO BE DIFFERENT IN DEGREE AND OBVIOUSLY YOU CAN'T C H ARGE SOMEONE WITH THE SAME ACT , WITH TWO SEPARATE OFFENSES .
CHIEF JUSTICE: IT DEPENDS IF IT IS DOUBLE JEOPARDY ISSUES OR NOT .
DOUBLE JEOPARDY.
CHIEF JUSTICE: I MEAN, THAT IS A WHOLE OTHER I S SUE. YOU MIGHT WANT TO SAVE THEREST OF YOUR T IME FOR REBUTTAL.
I WILL RESERVE .
MAY IT PLEASE THE COURT. GOOD MORNING. MY NAME IS SUZANNE BEC HARD AND I AM HER E FOR THE STATE. THERE ARE A COUPLE OF THINGS WE NEED TO CLARIFY RIGHT OFF THE BAT AND NUMBER ONE IS LOOKING AT WHAT PETITIONERS ARGUE HERE. PETITIONER IS ARGUING THAT BY DEFINITION A LESSER INCLUDED OFFENSE MUST CA RRY A LESSER PENALT Y THAN THE CHARGED OFFENSE. THE CERTIFIED QUESTION IN THIS CASE IS , IN ORDER FOR AN OFFENSE TO BE A LESSER-INCLUDED OFFENSE,MUST IT NECESSARILY RESULT IN A LESSER PENALTY THAN EITHER THE PENALTY OF THE MAIN OFFENSE OR THE NE XT GREATER OFFENSE ON THE VERDICT FORM. NOW, AS A PR ACTICAL MATTER, THE ANSWER TO THAT ISALREADY KNOW . ESPECIALLY IF YOU LOOK AT THIS STATUTE. A DEFENDANT CAN GET LI FE FOR , AND IT WAS APPOINTED OUT FOR FIRST-DEGREE MURD ER AND FOR SECOND-DEGREE MURDER , SO THAT IS UNQUESTIONABLY A LESSER -INCLUDED OFFENSE. SECOND-DEGREE MURDER I S UNQUESTIONABLY A LESSER-INCLUDED OFFENSE.
CHIEF JUSTICE: I THOUGHTTHAT WAS THE QUESTION. IT ISN'T. IT U SED TO BE BUT NOW, WITH 10-20-LIFE -- .
THIS IS J UST IN THE ABSTRACT. WE ARE JUST TALKING ABOUT HOMICIDE.
CHIEF JUSTICE: I THINK WHAT THE DEFENDANT IS INTERESTED IN IS THE REAL WORLD OF WHAT HE OR SHE GETS SENTENCED TO. IT SORT OF --
EXACTLY BUT I WOULD LIKE TO DRAW THE COURT'S ATTENTION BA CK TO, OKAY,HERE IS WHAT THE CERT IFIED QUESTIONS IS, AND I WANT TOPOINT OUT THE DIFFERENCE BETWEEN THIS CASE AND THE RAY CASE WHICH IS BEING RELIED U PON IN THE PETITION .
CHIEF JUSTICE: LET'S STAY WITH THE FIRST POINT, W HICH IS THAT HISTORICALLY IT WOULD BE VERY FU LL OF THE COMPLEXITY OF THE SENTENCING LAW. PEOPLE GET FIRST-DEGREE PREMEDITATED MURDER. THAT IS THE WO RST .
RIGHT.
CHIEF JUSTICE: SECOND-DEGREE, THEN WHAT IS IT, WHAT IS THE NEXT ONE?
A LESSER.
CHIEF JUSTICE: AND THEREIS A PSYCHOLOGICAL THING. Y ES, AS WE GO DOWN, THAT DEFENDANT IS GOING TO HAVE LESSER.
LESSER CULPABILITY.
CHIEF JUSTICE: OF A PUNISH MENT.
WE LL.
CHIEF JUSTICE: NOW, WHAT IS WRONG WITH THAT PARADIGM , AS FAR AS WHAT REALLY THE SIMPLICITY IS OF THAT, AS YOU GO DOWN , THE PUNISHMENT ISN'T AS GREAT?
WELL, WHAT WE ARE TALKING ABOUT HERE IS , YOU KNOW , WEHAVE GOT SITUATIONS AL READY IN THE REAL WORLD , AND THE EXAMPLE IS THE HOMICIDE STATUTE. WHERE A PERSON CAN IN FACT , GET THE SAME PENALTY FOR A TRADITIONAL LESSER-INCLUDED OFFENSE.
CHIEF JUSTICE: BUT THE QUESTION I WOULD HAVE , IS IF YOU HAVE FIRST-DEGREE MURDER , SECOND-DEGREE MURDER AND YOU WENT DOWN AND THEORETICALLY , BECAUSE EACH ONE OF THOSE INVOLVED DISCHARGE OF A G UN, THE STATE , REALLY , WOULD HAVE FIVE BITES AT THE APPLE, BECAUSE IT IS ALWAYS GOIN G TO END UP WITH LIFE IN PRISON, SO WHY ARE WE GOING TO GO THROUGH , YOU REALLY DON'T EVEN HAVE TO WORRYABOUT THE PREMEDITATED MURDER, UNLESS YOU ARE TRYING TO GET THE DEATH PENALTY, BECAUSE YOU HAVE GOT THE , AS LONG AS YOU HAVE THE USE OF THE GUN , Y OU HAVE GOT LIFE IN PR ISM . WHICH IS -- I N PRISON, WHICH IS WHAT THE LEGISLATUREINTENDS, BUT THEN WHY ARE WE WORRYING ABOUT LESSERS ANYMORE?
WELL , I THINK THAT GETS U S TO THE ULTIMATE QUESTION OF WHAT DO WE DO WITH LESSER ED WHEN WE HAVE GOT RECLASSIFICATION OF ENHANCEMENT IN THE REAL WORLD.THE STATE SHOULD ADOPT ASTA NDARD TEST TO DETERMINEWHAT IS AN APPROPRIATE LESSER-INCLUDED OFFENSE. LOOK AT THE OFFENSE ITSELF. LOOK AT THE OFFENSE THAT PRO SCRIBES THE BEHAVIOR , WITHOUT RE GARD TO --
JUSTICE: WHAT I S THE JURY LED TO B E LIEVE BY GIVING THEM A VERDICT FORM WITH A L L OF THESE VARIOUS IT EMS ?
WELL , FIRST OF ALL THE JURY DOES NOT HAVE , JURIES ARE NOT TOLD ABOUT SENTENCES. JURIES ARE NOT INVOLVED IN THE SENTENCING PROCESS. THE FACT THAT JURI ES HAVE T O FIND FACTUAL MATTERS THAT HAVE TO DO WITH THE CRIMINAL EPISODE , DOES NOT TRANSFORM THOSE FACTS INTO ELEMENTS OF THE OFFENSE.
JUSTICE: I S THAT WHAT THE JURY IS TOLD AS TO WHY THEY HAVE THIS A , B, C, D , E , F THROUGH K TO CHECK OFF?
NO.THEY ARE NOT TOLD ANYTHING ABOUT THE SENTENCE, YOUR HONOR, AND JURIES ARE NOT --
JUSTICE: THAT IS JUST A MATTER THAT THEY ARE NOT TOLD ANYTHING AS TO WHY , WHAT THE VERDICT FORM IS ABOUT?
JURIES ARE EXPLAINED THE VERDICT FORM , YES , YOURHONOR , AS TO MUST FIND MAIN OFFENSE IF YOU FIND ALL THEELEMENTS THERE, AND IF YOUDON'T, YOU NEED TO DETERMINE IF ONE OF THE LESSER OFFENSES FIT?
CHIEF JUSTICE: DOESN'T LESSER, WHAT IS THE LESSER TO THE JURY MEAN , AND DO YOU AT LE AST A GREE HISTORICALLY THE LESSERS WERE THERE TO GIVE THE JURY THE OPTION TO CON VICT THE DEFENDANT OF A LESSER CRIME?
I THINK TRADITIONALLY , AND EVEN NOW , THE LESSERSARE THERE TO GIVE THE JURY A C HANCE TO DETERMINE WHETHER THE STATE HAS PRO VEN CERT AIN ELEMENTS , AND AS JUSTICE BELL POINTED OUT , YOU HAVE GOT THE ISSUE OF INTENT INVOLVED, AND I THINK JURIES ARE , THAT IS THE REASON FOR HAVING THE JURY , OPPORTUNITYFOR A JURY PARDON . JURIES ARE NOT TOLD ABOUT SENTENCES .
JUSTICE: BUT IN ESSENCEWHAT YOU ARE SA YING IS THAT THIS VERDICT FORM THAT WAS USED IN THIS CASE, WAS ESSENTIALLY AN INTERROGATORY VERDICT. IT DOESN'T READ LIKE IT , BUT IT SAYS BECAUSE IT SAYS WE THE JURY FIND AS FOLLOWS , AS TO COUNT ONE OF THE CHARGE. CHECK ONLY ONE COUNT . BUT WHAT YOU ARE SAYING IS THAT, WHAT T HIS IS REALLY WORTH , IS THAT THESE ARE THE JURY'S FACT UAL DETERMINATIONS AS TO EACH OF THESE ITEMS.
WELL , IF I UNDERSTAND --
JUSTICE: A M I UNDERSTANDING YOU CORREC TLY ?
WELL , I GUESS THE ANSWER TO THAT WOULD BE YES , BUT IF I UNDE RSTAND YOUR QUESTION CORRECTLY , THEY ARE MAKING A F ACTUAL DETERMIN ATION , A LONG WITH DISCUS SING WHAT , WHICH OFFENSE THE DEFENDANT COMMITTED.
CHIEF JUSTICE: WOULD IT BE CONSTITUTIONAL , AND JUST FOLLOWING UP WITH WHAT JUSTICE WELLS WAS SAYING , WHY DOESN'T THE JURY NEED TO KNOW WHETHER IT IS FIRST-DEGREE OR SECOND-DEGREE MURDER? WHY WOULDN'T IT JUST B E THE FIRST THING YOU NEED TO FIND OUT IS WHETHER THIS CRIME WAS COMMITTED WITH PREMEDITATION OR WITH RECKLESS DISREGARD, AND THEY JUST FIND THAT. THEN THE NEX T THING YOU NEED TO FIND IS WAS A FIREARM USE D? IN OTHER WORDS WOULD IT BE CONSTITUTIONAL FOR THE JURY NOT TO BE TOLD, THEN , WHAT THE CRIMES WOULD BE THAT WOULD END UP BE ING, THE DEFENDANT WOULD BE CONVICTED OF , B ASED ON WHAT THEY CHE CKON THE VERDICT FORM .
I GUESS WHAT YOU ARE ANTICIPATING THERE IS A VERDICT FORM THAT HAS EACH SEPARATE ELEMENT LI STED , AND THEY HAVE TO GO THROUGH IT.
CHIEF JUSTICE: I AM JUST ASKING YOU WOULD THAT BE OKAY, SO WE WOULDN'T HAVE TO WORRY ABOUT 25 OR HOWEVER MANY CRIMES.WE WOULD JUST TRY TO DECIDE,WELL, WHAT IS THE COM MON ELEMENT AND THEN WE WOULD JUST NOT TELL THE JURY. WHAT IS THE CRIME. RIGHT. WOU LD THAT BE O KAY , CONSTITUTIONALLY?
I DON'T REALLY KNOW THE ANSWER TO.THAT I MEAN, I DON'T SEE HOW IT WOULD BEND THE CONSTITUTION. I THINK IT WOULD MAKE IT EXTREMELY COMPLICATED , AND --
JUSTICE: THE WAY IT IS NORMALLY DONE IS YOU HAVE ALL OF THE ELEMENTS OF THE PRIMARY CHARGED OFFENSE AND THEN YOU HAVE THE INSTRUCTION ON THE LESSER OFFENSES, AND THEN THE JURY'S INST RUCTION ON EACH OF THE ELEMENTS IN CLUDED IN EACH OF THE LESSER -INCLUDED OFFENSES.
CORRE CT.
AND THEN FOR APPR ENDI PURPOSES OR WHATEVER , THE SEPARATE INTERROGATORIES THAT JUSTICE PARIENTE WAS TALKING ABOUT , REG ARDING POSSESSION OF A FIREARM, DISCHARGING I N PUBLIC OR WHATEVER OR G REAT BODILY HARM, WHATEVER THE ELEMENTS MAY BE. BUT DO YOU SEE , THO UGH, A DIFFERENCE BET WEEN AN ENHANCEMENT AND A RECLASSIFICATION? MY CONCERN IS , I F YOU HAVE A REKFERX THAT TAKES WHAT WAS -- RECLASSICS THAT TA KES WHAT WAS A FIRST -- -A RECLASSIFICATION THAT TAKESWHAT WAS A FIRST-DEGREE N IL AND MAKES IT A LIFE. HOW DO YOU ADVOCATE OR DEAL WITH THAT , WHAT MAY HAVE BEEN A LESSER INC LUDED OFFENSE BY ELEMENT BUT BY THE CASE BEC OMES A SAME LEVEL FELO NY?
MY POSITION IS THAT THE COURT NEEDS TO DE VELOP THE DEVELOPMENT TEST T O DETERMINE IT , BY LOOKING AT THE SUBSTANTIVE CRIME WITHOUT REGARD TO RECLASSIFICATION AND ENHANCEMENT , BECAUSE THOSE ARE NOT ELEM ENTS OF THE CRIME.
CHIEF JUSTICE: I SN'T THAT JUST THEN WOULD BE LI MITED TO NECESSARILY LESSER-INCLUDED OFFENSES VER SUS PERMISSIVE?
I DON'T SEE HOW IT WOULD CHANGE.
CHIEF JUSTICE: BUT IT WOULD ONLY BE THAT THE ONLY LESSERS WOULD BE ONES THAT ARE NECESS ARILY --
I REALLY DON'T SEE HOW --
CHIEF JUSTICE: YOU SAID YOU WOULD JUST ADOPT THE SUBSTANTIVE ELEMENT TEST , WITHOUT REGARD TO THE FACTSOF THE CRIME . DIDN'T YOU SAY THAT?
NO. NOT WITHOUT REGARD TO THEFACTS OF THE CRIME . WITHOUT REGARD TO WHETHER THE DEFENDANT WOULD GET A RECLASSIFICATION ENHANCEMENT. JUST BECAUSE ONE OF THESE FACTORS MAY OR MAY NOT HAVE TO BE FOUND BY THE JURY , IT DOESN'T MEAN THAT IT IS TRANSFORMED INTO AN ELEMENT OF THE CRIME.
CHIEF JUSTICE: LE T ME ASKYOU THIS WAY , WHICH JUSTICE ANSTEAD ASKED WHETHER THE JURY PARDON WASN'T CONSTITUTIONALLY BASE D. THE FLIP S IDE I AM ASKING YOU IS DOES , IF THEDEFENDANT HAD OBJECTED TO THE SECOND-DEGREE MURDER CHARGE, BECAUSE THEY SAID IT IS GOIN G TO END UP WITH THE SAME PENALTY, WOULD THESTATE HAVE HAD A RIGH T TO HAVE THE JURY DECIDE IT, BECAUSE IN DEGREE IT WAS LESSER? DO YOU THINK THE STATE WOULD HAVE HAD A RIGHT FOR POTENTIALLY THE SECOND BITE , THIRD BITE , FOURTH BIT E?
IF YOU WANT T O TA LK ABOUT SECOND BITES, THIS ALSO GIVES THE DEFENDANT A SECOND B ITE AT THE POSSIBILIT Y OF A LESSER SENTENCE.
CHIEF JUSTICE: BUT I AM ASKING IF THE STATE HADREQUESTED IT, WITH A JUDGEWHO HAD TO GIVE THE SECOND-DEGREE ANYWAY , EVEN OVER THE DEFENDANT'S OBJECTION ? WHAT IS THE CORRESPONDENCING RIGHT OF THE STATE, IF ANY? ON THESE LESSERS.
WELL, I MEAN , I THINK THE ALTERNATIVE WOULD BE THAT THE DEFENDANT MIGHT HAVE AN E ITHER /OR O R AN ALL OR NOTHING VERDICT FORM. I AM NOT SU RE AND I DON'T WANT TO MAKE A PRONOUNCEMENT HERE, BUT I AM NOT SURE THATTHE STATE WOULD HAVE A RIGHT TO SAY WE MUST HAVE LESSERS. I THINK THAT, IF ANYTHING , LESSERS ON A VERDICT FORM ISAN OPPORTUNITY FOR THE DEFENDANT MORE THAN ANYTHING. I MEAN, LOOK AT THE, AND I DON'T WA NT TO GET TOO FAR OFF TRACK BECAUSE THERE ARE A COUPLE OF OTHER POINTS I WANT TO MAKE, BUT LOOK AT THE SITUATION IN THIS CASE. THIS COULD HAVE BEEN AN EITHER /OR VERDICT FORM , PA PS PRACTICE, IF THAT IS -- PERHAPS , IF THAT IS WHAT THE DEFENDANT HAD WANTED , AND INSTEAD OF THE POSSIBILITY OF SECOND-DEGREE OR VOLUNTARY MANSLAUGHTER , HEWOULD HAVE HAD E ITHER ATTEMPTED FIRST-DEGREE MURDER OR NOTHING ON THE VERDICT FORM, THE JURY MIGHT HAVE LOOKED AT THIS, AND WE DON'T KNOW WHY THE JURY CAME B ACK THE WAY THEY DID WITH ATTEMPTED SECOND-DEGREE MURDER INST EAD O F ATTEMPTED FIRST-DEGREE MURDER , BUT THEY MIGHT HAVE LOOKED AT THE FACTS OF THIS CASE ANDSAID THIS IS SO BAD , EVEN THOUGH WE MIGH T NOT FIND PREMEDITATION OR WHATEVER IT IS THEY DIDN'T FIND HERE , WE ARE GOING TO GO AHEAD AND FIND HIM GU ILTY ANYWAY BECAUSE WE KNOW HE DID SOMETHING AND WE WANT TO KEEP HI M OFF THE STREETS.
JUSTICE: BUT YOU SAID EARLIER THAT THE PURPOSE OF THESE LESSER -INCLUDED OFFENSES , IF I UNDERSTOOD YOU CORRECTLY , ALSO ONE OF THE PURP OSES IS SO THAT IF THE STATE , IN FACT, HAS NOT PROVEN ONE OF THE ELEMENT OF THE CHARGED CRIME , BUT HASIN FACT , PROVED ALL THE ELEMENTS OF SOME OTHER CRIME , THE STATE , A LSO , H AS AN OPPORTUNITY FOR CON VICTION , WHEREAS IF THE DEFENDANT SAID, THE RE IS NO PREMEDITATION AND NO OTHER OPTION, THEN THE DEFENDANT IS CONV ICTED OF EVE RYTHING .
CHIEF JUSTICE: THE QUESTION A MINUTE O R TWO AGO , I ASKE D IF THE STATE HAD A CORRESPONDING RIGHT , YOU YOU SAID, NO, THE JURY --
I UNDERSTOOD YOUR QUESTION TO BE DID THE STATE HAVE AN ABSO LUTE CONSTITUTIONAL RIGHT.
CHIEF JUSTICE: THE JURY , WE ARE APPARENTLY NOT DEALING WITH CONSTITUTIONAL RIG HTS ON EITHER SI DE , WHICHMAKES IT VERY , WE ARE TRYING TO UNDERSTAND THE , THERE FOR THERE AREN'T CONSTITUTIONAL VALUES INVOLVED , AT LEASTFROM THE MY POINT OF VIEW, I AM TRYING TO T HINK OF WHAT THE POLI CY VALUES INVOLVED ARE.
PERHAPS I MISUNDERSTOOD YOUR QUESTION.I UNDERSTOOD YOU ASKING WOULD THE STATE HAVE A CONSTITUTIONAL RIGHT TO DEMAND THAT LESSER INCLUDED BE ON VERDICT FORMS, SO IF INEED TO CLARIF Y. BUT I WANT TO GET BACK TO THE FACTS OF THIS CASE ANDHOW THIS DIFFERS FROM R AY. FIRST OF ALL THIS IS A FUNDAMENTAL E RROR ANALYSIS THAT WE HAVE GOT HERE.THERE WAS NO OBJECTION TO THE GIVING OF ATTEMPTED SECOND-DEGREE MURDER IN THE WAY IT WAS GIVEN . RAY WAS ALSO --
JUSTICE: WAS THEREAGREEMENT , THERE WAS NO OBJECTION.WE KNOW THAT, BUT WASN'T THERE AGREEMENT TO THE LESSER-INCLUDED THAT WASGIVEN?
YES.
JUSTICE: THEY STA RTED OUT WANTING AGGRAV ATED BATTERY. AND EVER YONE AGREED NOT TO DO THE AGGRAVATED BATTERY .
THE STATE OBJECTED TO THAT.
JUSTICE: BUT THEN, O KAY , THERE WAS A DISCUSSION OF ALL OF THE OTHER LESSERS THAT COULD BE THERE, AND THE DEFENDANT WAS THERE, AGREE ING THAT THESE WERE THE LESSER-INCLUDED THAT COULD BE GIVE N.
YES .
JUSTICE: SO ISN'T IT REALLY NOT ONLY A FAILURE TO OBJECT, ISN'T THIS AGREEMENT WITH WHAT WAS IN FACT GIVEN?
L E T'S TALK ABOUT RAY FORA MI NUTE AND HOW THIS CASE IS LIKE RAY AND HOW IT IS NOT LIKE RAY. IN RE, THE DEFENDANT WAS CONVICTED OF A CRIME THAT WAS NEITHE R A CATEGORY ONE OR A CATEG ORY TWO LESSER INCLUDED. IN FACT HE WAS CONVICTED OF A CRIME THAT WAS CHARGED. THAT IS NOT WHAT HAPPENED HERE. IN RE THE COURT WAS LOOKING FOR FUNDAMENTAL ER ROR ANALYSIS. WHAT TO DO IF A DEFENDANT IS CONVICTED O F A CRIME NOT CHARGED.IN THAT VERY PARTICULAR NARROW CIRCUMSTANCE, THE COURT SAID, OKAY, IT IS NOT GOING TO BE FUNDAM ENTAL ERROR, i. e. NOT A DUE PROCESS VIOL ATION, IF THE CHARGE AND CONVICTION WAS , BOTH, LESSER IN DEGREE AND PENALTY , OR THE DEFENSEREQUESTED THAT CHARGE O R RELIED ON IT , LIKE IN AN ARGUMENT. IN THIS CASE WE HAVE AN APPROPRIATE CATE GORY ONE LESSER-INCLUDED OFFENSE. I DON'T THINK THERE IS ANYQUESTION THAT SUBSTANTIVELY THIS WAS A LESSER-INCLUDED OFFENSE.
JUSTICE: SO IS IT THE STATE'S POSITION, THEN , THAT WHEN IT WAS A LESSER-INCLUDED OFFENSE, T HAT IT ONLY HAS TO REALLY BE A CH RE S -- A LESSER INCLUDED DOESN'T REALLY HAVETO HAVE A LESSER PENALTY?
THAT'S CORRECT. THAT IS NOT WHAT RAY SAID.
CHIEF JUSTICE: COULD IT HAVE A GREATER PENALTY? ISN'T THERE A CONSTITUTIONAL ISSUE IF THERE WAS A GR EATER PENALTY?
THERE MIGHT BE , BUT THAT IS REALLY NOT WHAT WE AREDEALING WITH HERE ANYWAY. WE ARE DE ALING WITH SOMETHING WHERE HE HAD THE POSSIBILITY OF GETTING THE SAME SENTENCE. AND I DON'T THINK RAY EVER SAID THAT IN EVERY SINGLE CIRCUMSTANCE , IT MUST BE LESSNER DEGREE AND PENALTY , IN ORDER FOR IT TO BE AN APPROPRIATE LESSER . AND THE OTHER THING IS THAT RAY DIDN'T DEAL WITH WHAT WEHAVE GOT HERE, WHICH IS RECLASSIFICATION ENHANCEMENT , AND WHEN THIS COURT FORMULATED THE SCHEDULE OF LESSER-INCLUDED OFFENSES , IT ALSO DIDN'T APPEAR TO TAKE INTO CONSIDERATION WHAT DO WE DO WHEN THERE IS RECLASSIFICATION S AND ENHANCEMENT S?
CHIEF JUSTICE: WELL, THAT DOESN'T SAY THAT THAT WAS FROM SOME INTELLIGENT DESIGN , SO TO SPEAK , OF, I GUESS THAT I S NOT A GOOD WORD TO USE , BUT SOME ST UDY OF THIS TO REALLY LOOK AT THE PENALTY PART OF THE LESSERS. DO YOU KNOW IF T HERE WAS , IN OTHER WORDS, AN ATTEMPT TO NOW , WITH ALL OF THE DIFFERENT ENHANCEMENTS AND RECLASSIFICATIONS TO GIVE GUIDANCE TO THE TR IAL JUDGES WITH THAT IN MIN D?
I DON'T THINK SO , YOURHONOR.I D ON'T THINK THAT THE SCHEDULE OF LESSER-I NCLUDED , THE SCHE DULE OF STA NDARD JURY INSTRUCTIONS REALLY --
CHIEF JUSTICE: IT PROBABLY WAS FR OM THE GOOD OLD DAYS WHEN SENTENCING WAS --
-- SO SIMPLE AND E ASY.
JUSTICE: AND NOW IT EVOLVED , RIGHT?
PARDON ME?
JUSTICE: IN OTHER WORDS IT EV OLVED.
IT STARTED OUT AS INTELLIGENT DESIGN AND THEN IT EVOLVED. Y ES, YES IN DEED. ULTIMATELY, IT IS THE STATE'S POSITION THAT THE COURT SHOULD EXAMINE WHAT IS A APPROP RIATE LESSER INCLUDED OFFENSE , BY LOOK ING AT IT, LOOKING AT THE SUBSTANTIVE ELEMEN TS OF THECRIME , BECAUSE FIRST OF ALL , THE REASON FOR LESSERS IS TO PRO VIDE TO A JURY PARD ON. JURIES ARE NOT TOLD ABOUT SENTENCING, SO THE JURY PARDON, REALLY, IS NOT INVOLVED IN THE SENTENCING . THE LEGISLATURE FORMULATES APPROPRIATE CRIMES OR PARDON ME , APPROPRIATE PENALTIES FOR VAR IOUS CRIMES , AND IF YOU LOOK AT, FOR EXAMPLE 10-20-LIFE WHICH IS WHAT WE HAVE GOT HERE , THE LEGISLATURE PROVIDED FOR A S ITUATION WHERE THE MINIMUM MANDATORY IS GREATER THAN THE STAT UTORY MAXIMUM , AND THE LEG ISLATION HAS SAID WE WANT THE MINI MUM MANDATORY. IT MUST BE IMPOSED IN THAT CIRCUMSTANCE. THE LEGISLATURE DID NOT , A LSO , SAY , O H, BUT IF IT IS A LESSER-INCLUDED OFFENSE , WE HAVE GOT TO DO SOMETHING ABOUT THAT, AND MAKE IT LESSER IN SOME WAY O R ANOTHER PIECE OF THE BY. SOUGHT LEGISLATURE WAS CLEARABOUT WHAT IT WANTED , AND IT DIDN'T SAY AN YTHING ABOUT LESSER-INCLUDED OFFENSES THERE .
JUSTICE: I YOU MEAN ST ILL CONFUSED. IF AS YOU SAY THE JURY PARDON IS P URELY A PRIVILEGEOF THE DEFENDANT , WHY DOE SN'T THE TRIAL COURT JUST SAY, DEFENDANT , GIVE ME WHATEVER LESSERS YOU WANT ME TO INSTRU CT ON AND THE DEFENDANT IS STU CK TO THOSE , B ECAUSE THE DEFE NDANT HAS SPECIFICALLY REQUESTED THAT THESE LESSER-INCLUDED OFFENSES BE GIVEN, AND THE COURT GIVES THEM , AND THEN THEY HAVE NO RIGHT TO CON TEST IT, BECAUSE THEY SPECIFICALLY REQUESTED IT . BUT IT SEEMS TO ME IN MANY C ASES, THE STATE IS INTIMATELY INVOLV ED IN DETERMINING WHAT THE LESSER-INCLUDED OFFENSES ARE. WHICH --
CERTAINLY THERE IS A LOT OF NEGOTIATION THAT GOES ON.
JUSTICE: WHICH LED ME TO BELIEVE THAT IT IS NOT JUST A PRIVILEGE OF THE DEFENDANT BUT THAT THE STATE HAS SOME STAKE IN THE LESSER-INCLUDED OFFENSES AS WELL.
I DON'T DE NY THAT , BUT I AM SIM PLY SAYING THAT WE HAVE GOT LESSER-INCLUDED OFFENSES. WE HAVE THAT , AS WE BASICALLY ALWAYS HAVE HAD, BUT NOW WE HAVE GOT OTHER THING THAT IS BEAR O N SENTENCING THAT ARE NOT ELEMENTS OF THE CRIME, EVEN THOUGH IN SOME CIRCUMSTANCES, THE JURY HAS TO MAKE FACTSOF THE CRIME --
CHIEF JUSTICE: COULDN'T WE IN THIS CASE D E CIDE THEISH OF WHERE THE -- WHERE THE IS SUE OF WHERE THE STATESAYS COMP ETING ELEMENTS OF THE STATE SAYS I WANT THISAND THE DEFENDANT SAYS I DON'T , BECAUSE IN THIS CASE IT WAS NOT OBJECTED TO AND APPARENTLY AGREED TO , THAT AT LE AST WE CAN CA LL THAT IT IS NOT FUNDAMENTAL ERROR IN A WAY , AND WE DON' T HAVE TO MAYBE GO TO THE NEXT STEP OF WHAT HAPPENS WHEN THE STATE WANTS IT AND THE DEFENDANTDOESN'T.
RIGH T, IN THIS CASE THIS IS NOT HAD, THIS IS NOT A FUNDAMENTAL ERROR SITU ATION. THIS WAS A CATE GORY.
CHIEF JUSTICE: WE REALLY N EED TO REPH RASE THE CERTIFIED QUESTION, IF WE WANT TO KEEP IT NARROW.
IF YOU WANT TO ONLY DEAL WITH THIS CASE.
CHIEF JUSTICE: WELL, THE IDEA OF WHEN IT IS NOT OBJECTED TO .
YES. WELL , THE STATE WOULD SUBMIT THAT IT WOULD BE APPROPRIATEFOR THE COURT TO GO FA RTHER AND DECIDE THAT THEY ARE GOING TO ADO PT A SUBSTANTIVE ELEMENTS TEST , AND DECIDE THAT YOU ARE ONLY GOING TO LOOK AT THE ELEMENTS OF THE C RIME AND FORMULATING APPROPRIATE LESSER-INCLUDED OFFENSES. THE OTHER THING IS THAT THE DEFENDANT CAN STILL BE FOUND GUILTY OF THE SUBSTANTIVECRIME , W ITHOUT ANY PROOF OR WITHOUT ANY FINDINGS BY THE JURY THAT ARE FACTS THAT LEDTO THE ENHAN CEMENT WERE THERE IN THE FIRST P LACE . AND THESE FACT ORS , THESE DO NOT PROVIDE FOR DO UBLE JEOPARDY. WE SEE THAT , SO THE STATE'S POSITION IS THAT A FACTOR THAT IS NOT AN ELEMENT, A SUBSTANTIVE ELEMENT OF THECRIME FOR DOUBLE JEOPARDY PURPOSES, DOESN'T HAVE ANY PLACE IN THE AN ALYSIS OF WHETHER OR NOT IT IS A APPROPRIATE LESSER OFFENSE. SO THE STATE WOULD RESPECTFULLY, FIRST OF ALL , REQUEST THAT THIS COURT FIND THAT THIS WAS NOT FUNDAMENTAL ERROR IN THIS CASE AND AD OPT A SUBSTANTIVE ELEMENT S .
CHIEF JUSTICE: THE ONLY THING THAT WOULD MAKE THIS CASE MORE INTERESTING IS I F WE HAD TO LOOK A T DOUBLE JEOPARDY AS WELL AS LESSER-INCLUDED OFFENSES ATTHE SAME TIME.THANK YOU.
THANK YOU.
CHIEF JUSTICE: MS . HOPKINS . EYE ARGUE THAT IT S FUND AMOUNT --.
I ARG UE THAT IT SFUND AMOUNTAL ERROR .
CHIEF JUSTICE: YOU DON'T HAVE TO ARGU E.
I AM PAID TO DO SO BUT RAY SUPP ORTS ME. RAY SPECIFICALLY SAYS NOT WHETHER DEFENSE COUNSELOBJECTED TO IT OUTRIGHT BUT WHETHER HE REQUESTED IT OR RELIED ON THE CHARGE , AND THAT IS NOT WHAT HAPPENED HERE.
JUSTICE: DO YOU AGREEWITH THE STATE THAT RAY INVOLVED THE SITUATION WHERE THE DEFENDANT WAS NOT CONVICTED OF E ITHER A REQUIRED OR PERMISSIVE LESSER-INCLUDED OFFENSE?
YES .
JUSTICE: IT WAS SIMP LY A DIFFERENT CRIME.
YES.
JUSTICE: WHY WAS RAY NOT COMPLETELY --
RAY HAS BEEN USED IN THIS INCIDENT. RAY HAS BEEN USED BY MANY COURTS IN THE SAME TYPE OF ARGUMENT AS WE ARE DOINGTODAY.
JUSTICE: YOU COULD HOLD THAT IT IS A COMPLETELY DIFFERENT SITUATION.
I WOULD URGE YOU NOT TO BUT YOU COULD. THE PO INT I WANT TO MAKE IS TWOFOLD. A QUICK POINT IS IN THIS CASE THE JURY WAS NEVER TOLD THAT ENHANCEMENT COULD INCREASE THE PENALT Y H THAT IS POSSI BLY A REMEDY IN THESENSE THAT IT WOULD MAKE THEIR PARDON P O WER MORE INFORMED .
JUSTICE: WELL, DO WE EVER TELL THE JURY ABOUT THE SENTENCING OPTION?
NOT SENTENCING OPTION. I AM MAKING A DISTINCTION BETWEEN ENHANCEMENTS IN THIS CASE AND SENTENCING OPT IONS , A ND THAT HAS TO BE DISTINGUISHED THROUGHOUT THE ARGUMENT IN THIS CASE T O DAY. BECAUSE THE JURY HAS TO FIND THESE ENHANCEMENT S.
JUSTICE: THE IN FORMATION ABOUT SENTENCING , W HY WOULD WE MAKE THE EXCEPTION FOR ENHANCEMENT S T HEN?