MARQUETTE LAW REVIEW Volume 79 Fall 1995 Number 1 THE LESSER INCLUDED OFFENSE DOCTRINE AND THE CONSTITUTION: THE DEVELOPMENT OF DUE PROCESS AND DOUBLE JEOPARDY REMEDIES JAMES A. SHELLENBERGER JAMES A. STRAZZELLA* I. Introduction ................................... 3 II. Background of the Lesser Included Offense Doctrine: Definitions, Tests, and Approaches .................. 6 III. Due Process and the LIO Doctrine ................. 14 A. The Supreme Court's LIO Due Process Decisions ... 15 B. The Reach of the Beck Cases as Suggested by Other Supreme Court Opinions ................. 30 C. The LIO Due Process Question in the State and Federal Courts ........................... 39 1. State Court Cases ......................... 39 2. Federal Circuit Court View of the Reach of Beck's Rationale ........................ 42 a. Federal Circuit Court Cases Summarized ..... 43 b. Circuit Court Decisions Refusing to Extend Beck ........................ 46 c. Circuit Courts' Further Limitation of Beck by Limiting the Definition of "Capital" Case . 56 * Associate Professor of Law, Temple University School of Law. A.B. 1969, Lafayette College; J.D. 1972, Villanova University. James G. Schmidt Chair in Law, Temple University School of Law. A.B. 1961, Villanova University; J.D. 1964, University of Pennsylvania. The authors appreciate the research support made possible by Temple University School of Law. MARQUETTE LAW REVIEW [Vol. 79:1 d. The View that Beck Extends to Noncapital Cases ....................... 63 3. The Impact of Federal Habeas Corpus on the LIO Question ....................... 69 a. Hill v. United States . ..................... 73 b. "Hill Analysis" to Determine Availability of LIO on Federal Habeas under § 2254 ..... 76 c. Further Reflections on the "Hill Analysis"; Reed v. Farley .......................... 85 D. Due Process Analysis Generally ................. 89 1. The Current Due Process Approach; Medina and Patterson ....................... 89 2. Supreme Court Decisions on State Court Jury Instructions and Due Process ............. 92 3. Beck v. Alabama and Noncapital Cases Under the Medina-PattersonAnalysis ................ 96 a. Historical Pedigree of the LIO Doctrine ...... 97 b. Contemporary State and Federal LIO Practice . 108 c. Summary of Due Process LIO Doctrine under Medina-PattersonAnalysis ................ 111 E. Due Process Summary ........................ 112 IV. Double Jeopardy and the LIO Doctrine .............. 114 A. Procedural Variations on LIO Problems ........... 115 B. Background of Double Jeopardy as it Relates to LIO s ................................... 117 1. Original Meaning and the Increasing Complexity of Double Jeopardy Law ...................... 117 2. Purposes of the Double Jeopardy Protection ..... 120 3. The "Same Offense" Limitation .............. 121 C. Convictions Followed by Successive Prosecutions .... 126 1. The Greater Offense-LIO Sequence ........... 126 a. Conviction of the Greater Offense Charged and Its Implications for Subsequent LIOs Prosecutions ...................... 126 b. Conviction of the Greater Offense Charged, Reversal on Appeal, and Attempted Retrial for LIO .............................. 137 2. The LIO-Greater Offense Sequence: Conviction of the LIO Followed by Prosecution , for the Greater Offense ..................... 140 D. Acquittals Followed by Successive Prosecutions ..... 152 1995] LESSER INCLUDED OFFENSE DOCTRINE 1. The Greater Offense-LIO Sequence: Acquittal of the Greater Offense Followed by Prosecution for the LIO .............................. 152 a. Acquittals and "Finality" in General ........ 152 b. Express Acquittals in LIOs Submissions ...... 164 c. Implied Acquittals and the Opportunity to Convict ............................ 166 2. The LIO-Greater Offense Sequence: Acquittal of the LIO Followed by Prosecution for the Greater Offense ....................... 171 E. The Interaction Between Double Jeopardy and State Law LIO Approaches ........................ 171 F. The Double Jeopardy Impact on LIO Procedural Choices and Remedies ........................ 177 1. Charging and Severance .................... 179 2. Submitting and Receiving Verdicts ............ 180 3. Appellate Choices and Modification of Verdicts .. 183 V. Conclusion .................................... 189 I. INTRODUCTION The lesser included offense doctrine is important and pervasive. Its involvement in criminal cases is incalculable because of its potential to play some role in the vast majority of both state and federal prosecutions. Constitutional developments of uncertain reach have accentuated the doctrine's importance. From its emergence at common law, the lesser included offense (LIO) principle developed as a doctrine codified by statutes and rules for the benefit of both prosecution and defense. Increasingly, the doctrine has raised federal constitutional questions under the Due Process and Double Jeopardy Clauses, as well as under the Cruel and Unusual Punishment Clause. These constitutionai developments have important procedural ramifications, and remedies constructed to effectuate the constitutional provisions have important pragmatic consequences. In turn, these pragmatic consequences may play a large part in inhibiting how far the courts will go in constitutionalizing aspects of the'LIO doctrine. The general notion that the LIO concept can breed double jeopardy implications is a longstanding one. The double jeopardy proscription traces back to common law and was broadly asserted in early constitutional cases as a given principle. What followed was the tortuous development of the concept's application, in particular, the development of exceptions to the broadly stated double jeopardy principles. By contrast, case law suggesting MARQUETTE LAW REVIEW [Vol. 79:1 that the LIO doctrine may also raise general due process issues is a relatively current development. Recent holdings that the failure to give an LIO instruction was constitutional error were delivered explicitly in the narrow context of capital cases, but the rationale underlying these holdings conceivably has a much wider application. As a result, the courts are struggling to discern how far to extend the Supreme Court's constitutional LIO holdings. The ubiquitous nature and importance of the LIO doctrine calls for an exploration of its increasing federal constitutional overtones. The development of these overtones is the subject of this Article.' It also discusses the evolving remedies used to effectuate these rights, the implications of those remedies, and ways in which underlying problems can be avoided. Overall, this Article examines a number of related constitu- tional issues through the unique prism of the LIO doctrine. In doing so, the authors have attempted to explore the juxtaposition of related issues not extensively dealt with elsewhere in the literature. 1. Analysis of a particular state's law may yield a different result compared with the federal clauses. The state provision may be deemed to afford the same, greater, or lesser protection than does the Federal Constitution. Ultimately, of course, the defendant must be accorded at least the minimum protection given by the federal clause, but a state provision may extend more protection as a matter of state law. See, e.g., California v. Ramos, 463 U.S. 992, 1013-14 (1983) (recognizing that states are free to provide greater protections to defendants than U.S. Constitution). See generally Robert F. Williams, In the Supreme Court's Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result, 35 S.C. L. REV. 353, 354 n.2 (1984) (collecting authorities). Regarding state law and due process LIO issues, see, e.g., People v. Geiger, 674 P.2d 1303, 1307 (Cal. 1984) (en banc) (collecting cases for proposition that California due process provision requires appropriately requested lesser included offense instructions whether or not required by federal due process, and extending principle to cover "related" lesser offenses, even if not necessarily included offenses); cases cited infra notes 125-31 (affording defendants greater protection under state law than required by federal due process). Regarding state law and double jeopardy protection, see, e.g., State v. Lessary, 865 P.2d 150, 157 (Haw. 1994) (finding double jeopardy violation under state, but not federal, constitution); Stephens v. State, 806 S.W.2d 812, 815 (Tex. Crim. App. 1990) (en banc), cert. denied, 502 U.S. 929 (1991) (noting that federal and Texas double jeopardy provisions are conceptually identical); Bennett v. State, 182 A.2d 815, 817 (Md. 1962) (noting that former jeopardy defense, although not provided for in state constitution, is firmly established as part of state common law except as altered by statute); cases cited infra note 555 (affording defendant greater protection than required by federal Double Jeopardy Clause). For various purposes, references to state law appear throughout the Article, but it does not deal directly with state constitutional provisions or state statutes, rules, or case law. See, e.g., MODEL PENAL CODE § 1.08 (Official Draft 1985)(when prosecution barred by former prosecution for the same offense); 18 PA. CONS. STAT. § 109(1) (1983 & 1994 Supp.) (when prosecution statutorily barred by former prosecution for same offense). See also MODEL PENAL CODE § 1.09 (Official Draft 1985) (when prosecution barred by former prosecution for different offense). 1995] LESSER INCLUDED OFFENSE DOCTRINE Section II of this Article briefly discusses the background of the