On petition for writ of certiorari to the District Court of
Appeal of Florida for the Third District.
The petition for a writ of certiorari is denied.
Justice BLACKMUN, with whom Justice BRENNAN and Justice MARSHALL
join, dissenting.
The Court in this case denies certiorari to review what I
believe is an important due process question requiring
interpretation of our decisions in Keeble v. United States,
412 U.S. 205d 844
(1973), and Beck v. Alabama,
447 U.S. 625d 392
(1980).
Page 449 U.S.
905 , 906
The facts, taken from the state court-opinion and the undisputed
allegations of the petition, may be summarized briefly. On November
7, 1972, a man was killed in Dade County, Fla. Five days later,
petitioner voluntarily turned himself over to the Miami police in
connection with the killing. After issuing Miranda warnings, the
police took two separate statements from petitioner concerning the
victim's death. Petitioner was then released. On November 29, he
communicated with one of the police detectives and furnished a
third statement.
About three and one-half years later, on June 23, 1976,
petitioner and a codefendant were indicted for the capital felony
of first-degree murder based on the 1972 killing. Following
presentation of all the evidence, the trial court decided over
petitioner's objection that it would not instruct the jury on the
lesser included state offenses of second-degree murder,
third-degree murder, and manslaughter, on the ground that the
Florida statute of limitations had run on these lesser offenses.
[
Footnote 1] The jury was
instructed solely as to first-degree murder. Petitioner was
convicted and sentenced to life imprisonment.
On appeal, the Florida District Court of Appeal affirmed the
conviction. 362 So. 2d 333 (1978). The appellate court concluded
that a defendant has no state or federal constitutional right to
have a court instruct on lesser offenses where "any conviction
returned as to such offense would be a nullity." Id., at 335. After
accepting jurisdiction and hearing argument, the Supreme Court of
Florida, with one dissent, denied certiorari.
379 So. 2d 953
(1980).
This Court's decision in Keeble v. United States, supra, casts
doubt on the validity of the state court's analysis. In Keeble, the
Court held that an Indian charged with a federal
Page 449 U.S.
905 , 907
crime under the Major Crimes Act was entitled to an instruction
on a lesser included offense even though the Act did not confer
federal jurisdiction over the defendant for the lesser crime. The
Court explained the value of such a safeguard:
"[I]f the prosecution has not
established beyond a reasonable doubt every element of the offense
charged, and if no lesser offense instruction is offered, the jury
must, as a theoretical matter, return a verdict of acquittal. But a
defendant is entitled to a lesser offense instruction-in this
context or any other-precisely because he should not be exposed to
the substantial risk that the jury's practice will diverge from
theory. Where one of the elements of the offense charged remains in
doubt, but the defendant is plainly guilty of some offense, the
jury is likely to resolve its doubts in favor of conviction."
(Emphasis in original). 412 U.S., at 212-213, 93 S. Ct. at
1997-1998.
More recently, in Beck v. Alabama, supra, the Court held that
the death sentence may not constitutionally be imposed after a jury
verdict of guilt of a capital offense if the jury has not been
permitted to consider an alternative verdict of guilt of a lesser
included offense. In reaffirming the Court's commitment to the
lesser-offense doctrine, the Court observed that "the nearly
universal acceptance of the rule in both state and federal courts
establishes the value to the defendant of this procedural
safeguard." 447 U.S., at 637.
Thus the Court more than once has expressed the understanding
that a lesser-included-offense option minimizes the risk of
undermining the reasonable-doubt standard. Florida, whose laws here
apply, apparently has reached the same understanding, and requires
that any person indicted for a "degree crime" such as first-degree
murder 2 is entitled to
Page 449 U.S.
905 , 908
have the jury instructed on all degrees of the offense.
[
Footnote 3] It is not disputed
that, absent the running of the statute of limitations, petitioner
would have been so entitled in this case.
On the record presented, it appears that the State's own delay
in bringing an indictment against petitioner may have caused the
statute of limitations to run. Serious due process concerns are
raised if the State through prosecutorial inaction can avoid its
own mandate to instruct on lesser degrees of an offense. Assuming
that petitioner's uncontested version of the facts is accurate, I
believe such conduct merits plenary review.
Even if we were to find, upon a fuller development of the
record, that the State bears no onus for the delay in securing an
indictment, I am inclined to the view that petitioner retains his
right to a lesser-offense instruction. The Court's decisions in
both Keeble and Beck imply that affording jurors a less drastic
alternative may be constitutionally necessary to enhance or
preserve their essential factfinding function. [
Footnote 4] Whether the trial court properly may
enter a judgment of guilt should the jury convict for a lesser
included offense seems to me a separate, legal matter with which
the factfinder need have no concern. [
Footnote 5] Because I believe that a trial
Page 449 U.S.
905 , 909
court's asserted lack of jurisdiction may not be dispositive of
the due process concerns here invoked, I would grant the petition
for certiorari.
Footnotes
Footnote 1 At the time of
the killing, the statute of limitations for each of the lesser
offenses was two years. Fla.Stat. 932.465 (1972). There was no
period of limitations for the crime of first-degree murder.
Ibid.
Footnote 2 See Fla.Stat.
782.04 (1976 and Supp.1980) (defining murder as a degree
crime).
Footnote 3 Florida Rules of
Criminal Procedure 3.490 reads as follows:
"Determination of Degree of Offense
If the indictment or information charges an offense which is
divided into degrees, without specifying the degree, the jurors may
find the defendant guilty of any degree of the offense charged; if
the indictment or information charges a particular degree the
jurors may find the defendant guilty of the degree charged or of
any lesser degree. The court shall in all such cases charge the
jury as to the degrees of the offense."
Footnote 4 Both Keeble and
Beck stop short of explicitly holding that a defendant is entitled
to a lesser-included-offense instruction as a matter of due
process. In the circumstances of those cases, however, such a
holding was not necessary in order to prescribe the lesser-offense
instruction.
Footnote 5 The legal
question may be determined by whether the defendant himself chooses
to invoke a statute of limitations defense. At least two Circuits
have held that a defendant can effectively waive this defense.
United States v. Wild, 179 U.S.App.D.C. 232, 236-238,
551 F.2d
418, 422- 424, cert. denied, 431 U.S. 916 (1977); United States
v. Doyle,
348 F.2d
715, 718-719, and n. 3 (CA2), cert. denied, 382 U.S. 843 (1965)
(waiver by guilty plea); United States v. Parrino,
212 F.2d
919, 922 (CA2), cert. denied, 348 U.S. 840 (1954) (same). The
court in Wild, in concluding that the statute of limitations
constitutes an affirmative defense to be raised by the defendant
rather than a jurisdictional bar to prosecution, relied heavily on
this Court's prior statement to that effect in United States v.
Cook, 17 Wall. 168, 179 (1872). See also Biddinger v. Commissioner
of Police,
245 U.S.
128, 135, 43 (1917). There is no indication in the record
before us as to how petitioner acted in this regard, or even
whether he was presented with a choice.
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