Defective Indictment and Lesser-Included Offenses
Issues: Must an indictment specify a particular predicate felony? Did the trial court commit plain error in failing to instruct the jury on a charge that was not deemed to be a lesser-included offense until after the trial?
Facts: Defendant was convicted of carjacking and employment of a firearm during the commission of a dangerous felony. The indictment did not name the underlying predicate felony for the firearm offense. The trial court did not charge the jury on possession of a firearm during the commission of a dangerous felony as a lesser-included offense of employing a firearm during the commission of a dangerous felony.
Appellate Decision: The intermediate court affirmed the convictions. With respect to the indictment, the court found no fatal defect for failure to name a predicate felony because only one felony had been charged: carjacking. Thus, there was no confusion or lack of notice. With respect to the jury charge, the court found no plain error for failure to charge “possession” at trial because such offense was not deemed to be a lesser-included of “employing” until the case was on appeal.
Review Granted: May 15, 2015.
Prediction: Ben thinks the supreme court may reverse on the jury instruction issue. As the intermediate court recognized, a prior supreme court case left “for a future case” the applicability of a United States Supreme Court holding that plain error may be established when a trial court rules on an unsettled question of law and an intervening decision by a different court settles the question prior to appeal. As for the indictment issue, this case is very similar to another case recently granted review and Ben would expect a similar result.