Problem when verdict form doesn't allow for acquittal

Christina Waugh won in State v. Rice, No. 103,223 (Kan. App. Sept. 9, 2011)(unpublished), obtaining a new trial for two counts of attempted aggravated criminal sodomy in a Nemaha County prosecution (the COA affirmed two counts of aggravated indecent liberties).

With regard to the criminal sodomy counts, the state charged Mr. Rice charged with aggravated criminal sodomy. The district court decided to give lesser-included offense instructions for attempted aggravated criminal sodomy. But the verdict form had some problems:

“COUNT I
“We, the jury, find the defendant, Dennis Edward Rice, not guilty of the crime of Aggravated Criminal Sodomy.
__________
Presiding Juror

“We, the jury, find the defendant, Dennis Edward Rice, guilty of the crime of Aggravated Criminal Sodomy.
__________
Presiding Juror

“We, the jury, find the defendant, Dennis Edward Rice, guilty of the lesser included
crime of Attempted Aggravated Criminal Sodomy.
__________
Presiding Juror”

As the COA recognized, the verdict form did not provide an option of finding Mr. Rice not guilty of attempted aggravated criminal sodomy or generally not guilty. The jury convicted Mr. Rice of attempted aggravated criminal sodomy. After a long review of applicable case law, the COA held that the defective verdict was clear error:

Critically, the jury was never provided a place on the verdict form to find Rice not guilty of the lesser included offense. Although the jury was told that Rice was presumed innocent and that it should find him not guilty if it had a reasonable doubt on any of the claims required to be proved by the State, the jury may have already found Rice not guilty of the charged crime on Count I. There was only one line remaining, and expecting the jury to know it could choose not guilty there as well would presume not only that the jury was capable of going beyond the form provided, it would presume the jury was capable of disregarding a reasonable interpretation of the trial court's instructions to chose only one line.

BTW, although the KSC has repeatedly disapproved separate guilty and not guilty instructions on lesser-included offenses, I still think they are a good idea. (The problem in this case is that they simply didn't give complete instructions).

Why? So that a jury could acquit on a greater offense, but hang on a lesser. For example, say a jury is considering first-degree murder, with second-degree murder as a lesser. And say six jurors have a reasonable doubt regarding premeditation and six jurors have a reasonable doubt about guilt altogether. What should be the result? There are twelve jurors that think the defendant is not guilty of first degree murder, which should be acquittal on that greater charge (and therefore retrial only on the lesser). But the pattern verdict form does not allow for that possibility. Under the pattern verdict form required by the KSC, you would simply have a hung jury.

So, if you're in this situation where the district court has given lessers (with pattern verdict form) and the jury has indicated that it reach a unanimous verdict, ask the district court to poll the jury regarding their verdict on the greater offense. It's an off chance, but it the jury unanimously found that the client was not guilty of the greater offense, it would be a pretty good issue.

[Update: Mr. Rice filed a PR from that part of the COA decision he lost on October 11, 2011.]

[Further update: the KSC denied Mr. Rice's PR and the mandate issued on May 22, 2012.]