Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

Jury Instructions

New York Court of Appeals Says Judge Cannot Instruct on Lesser Included Offense Over Defense Objection

On October 23, 2012, New York’s highest court held that defense counsel has the ultimate authority in making the strategic decision whether the request lesser-included-offense jury instructions, and that the trial judge’s decision not to give lesser include offense instructions that defense counsel requested because the defendant objected was error requiring a new trial.  People v. Colville, No. 161, 2012 NY Slip Op 07047.  The appellate court refused to find the error harmless. The Court held that "that the decision whether to seek a jury charge on lesser-included offenses is a matter of strategy and tactics which ultimately rests with defense counsel." Thus, the Court held it was reversible error for the trial court to refuse to charge lesser offenses as requested by counsel " because defendant objected." The majority, noting that this was the near unanimous position of other courts, rejected the District Attorney's argument that the decision as to whether to request a lesser offense was a fundamental one to be made by the defendant, such as the decision as to whether to enter a guilty plea , or to request consideration of an affirmative defense.

Mich. Sup. Ct. Weakens Castle Doctrine

Jury instructions are a jury’s “how too guide.” They tell the jurors what law to apply to given facts. Courts, however, make mistakes about jury instructions way too often. The Michigan Supreme Court in People v Richardson held that giving a duty to retreat instruction in a self-defense case where the Defendant did not have a duty to retreat wasn’t error. The Castle Doctrine says that an individual does not have to retreat in their own home or within the curtilage of that home. The curtilage is the outbound area directly attached to the home. In a modern urban or suburban house, this would mean the porch, front lawn, and backlawn. It could also include some out buildings. In the case of a farm, it would be the land that functioned as part of the residential complex, rather than the land that was farmed.

Donald Richardson and his wife had a poor relationship with his neighbors including the Abrams and their friends the Mores. In 2008, the Abrams boy and some of his friends started insulting the Defendant, while throwing rocks, and eggs at the Defendant’s home. Defendant’s wife responded in kind and hit the Abrams boy in the chest. Mrs. Abrams arrived at the Defendant’s home with a baseball bat and struck the door of the Richardson home. Mrs. Richardson went inside after a further altercation. Mrs. Abrams then threatened the Defendant soon to be joined by Dennis Dinwiddie. At this point, the Defendant pulled out three loaded hand guns and fired six times. Bothy Abrams and Dinwiddie were injured. Defendant was charged with assault with intent to murder.

Even though the Defendant had no duty to retreat, one instruction given by the Court told the jury that the jury could consider whether the Defendant retreated, CJI2d 7.16. A majority of the Court found that while the instruction was erroneous, the Court did not need to reverse the Defendant’s conviction. The Court stated that it viewed jury instructions as a whole. The Court found that the duty to retreat instruction was disclaimed by the language which subsequently said that “however“ there was duty to retreat. The Court further said that the error was not harmful because the prosecutor never argued the position to the jury.

Justice Markman dissented. He first pointed out that the Defendant was a law abiding citizen who lived in the same home for more than thirty-four years. Justice Markman pointed out that the “victims” were both under the influence of alcohol and drugs when they came to his front porch yielding a baseball bat. Defendant continuously maintained that he acted in self defense from the first day. Justice Markman found that the Court’s ruling was a repudiation of the Michigan Supreme Court’s ruling Pond v People -- a Michigan case adopted throughout the nation. Justice Markman stated that self-defense instructions must be clear and unambiguous. Justice Mary Beth Kelly concurred in Justice Markman’s dissent. The briefs on this case can be found

Michigan Court of Appeals Reverses Conviction of Detroit Area Artist

The Michigan Court of Appeals has reversed the conviction of a Detroit area artist who got into trouble over a mural on the exterior wall of his studio. The mural was a parody of Michelangelo’s “Creation of Man.” It depicted Eve with a bare breast and had the word “love” written on it. Stross was charged under a local ordinance barring indecent displays. The Court previously rejected defendant’s assertion that the genitalia restriction infringed on his First Amendment-protected exercise of free speech, but found that the lettering ban did amount to “an unconstitutional regulation of speech, infringing on defendant’s First Amendment protections.” On remand from the Supreme Court, the Court of Appeals ordered a new trial because it was unclear whether the jury convicted Stross of writing the word “love” or painting the breast. The Court found that because the conviction could have rested on the unconstitutional theory of prosecution, the case had to reversed. To read the decision, click here. Read More...