Couple of reversals for failure to give lesser

Michelle Davis won in State v. Plummer, No. 101,684 (Kan. Aug. 24, 2012), obtaining a new trial in a Reno County aggravated robbery prosecution.  And Shawn Minihan won in State v. Simmons, No. 102,715 (Kan. Aug. 24, 2012), obtaining a new trial in a Sedgwick County aggravated battery prosecution.  Both cases involved district court denial of requested lesser-included offense instructions.  The KSC reviewed its analytical framework for consideration of instructional issues, summarizing it as follows:

In summary, for instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in Ward.

Applying this framework, the KSC held in each case that the district court erred by refusing the requested lessers (theft as a lesser of aggravated robbery and simple battery as a lesser of aggravated battery).  The KSC went on to hold that the error required reversal.

There are several good points in these cases, but one in particular worth noting is found in Simmons:

Accordingly, we disagree with the State's premise that a theory of defense can negate the trial court's obligation to instruct on a lesser included offense, where the evidence was sufficient to require such an instruction under K.S.A. 22-3414(3). That is not to say that the defense theory has no bearing on instructions. One might well envision a circumstance in which the defendant's theory of defense could have a bearing upon whether an instructional error was harmless. But the defendant's theory of defense does not trump the requirements of K.S.A. 22-3414(3).

The scenario this addresses is where a client's theory of defense is "I didn't do it."  Like misidentification or something like that.  The question would be, could that client be entitled to a lesser.  We have had several decisions that have implied (or expressed) that if you said you weren't there, you couldn't argue for a lesser.  But that idea is pretty illogical.  In any case where there is some gradiation of severity (like theft or battery), once a jury finds that your client did do it, there still can be significant questions of how sever.  This quote makes it pretty clear that we will still allow the jury to make that determination, even if the theory of defense is "I didn't do it."