Improper lesser-included offense instruction and verdict form

Adam D. Stolte won in State v. Allen, No. 111,021 (Kan. App. May 29, 2015)(unpublished), obtaining a new trial in a Sedgwick County battery of a LEO prosecution. Mr. Allen argued on appeal that the district court improperly set out a lesser-included offense instruction by allowing the jury to choose a type of battery in the verdict form. The COA agreed that the instruction was improper:

The problem in this case was compounded in several respects. First, the jurors were not given PIK Crim. 4th 68.080 that identifies the principal offense, here aggravated battery of a law enforcement officer, and then states each of the lesser included offenses. The PIK instruction also informs the jurors if they have a reasonable doubt as to which of two offenses a defendant is guilty, they should “convict[ ] of the lesser offense only.” PIK Crim. 4th 68.080. In Parker, the court emphasized the importance of that consideration in how jurors properly should consider lesser included offenses. At the point the jurors actively considered the lesser offenses against Allen, the omission of that guidance compromised the deliberations.

Consistent with those directives, the district court should have identified each of the lesser offenses and provided a separate elements instruction for each with appropriate transitional language comparable to the opening paragraph of the instruction it did give.

Second, in combination with the undifferentiated instruction on lesser offenses, the verdict form amounted to an impermissible special interrogatory regarding those offenses. The verdict form effectively asked the jury to indicate whether it found the facts to be that Allen recklessly caused bodily injury to Reichengerger or whether it found she intentionally caused physical contact with him in a rude, insolent, or angry manner. Based on that indication on the verdict form, the district court then entered judgment against Allen for the particular lesser offense. The jurors did not functionally render a general verdict of guilty with respect to that offense. Indeed, as we have explained, the jurors were never even informed there were two lesser offenses to the charged crime.

The COA went on to apply a clearly erroneous reversal standard and held that Mr. Allen had met that standard. As a result, the COA reversed and remanded for a new trial.

[Update: the state did not file a PR and the mandate issued on July 2, 2015.]