Turner v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Annunziata
Argued at Salem, Virginia

EDWIN CECIL TURNER, JR.
OPINION BY
v. Record No. 0986-94-3 JUDGE ROSEMARIE ANNUNZIATA
OCTOBER 1, 1996
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Clifford R. Weckstein, Judge
Jonathan M. Apgar (Damico & Apgar, on
briefs), for appellant.

Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Following a jury trial in the Circuit Court of the City of

Roanoke, appellant, Edwin Cecil Turner, Jr., was convicted of

first degree murder and the use of a firearm in the commission of

murder. Pursuant to the jury's recommendation, appellant was

sentenced to life imprisonment plus two years. On appeal,

appellant contends the trial court erred in refusing to instruct

the jury on voluntary manslaughter. We agree, but find the error

to be harmless; accordingly, we affirm.

I.

On April 3, 1992, appellant shot and killed William Dale

Hartman. For at least four days preceding the shooting,

appellant and Hartman were engaged in an on-going conflict.

Appellant believed Hartman had stolen some of his property. When

appellant confronted Hartman, the two fought. Appellant
eventually restrained Hartman, and Hartman admitted having the

property. Hartman escaped and, thereafter, threatened to kill

appellant. The evidence is in dispute as to whether Hartman

brandished a firearm at that time.

The two men then swore out arrest warrants for each other.

Appellant accused Hartman of burglary; Hartman accused appellant

of assault and battery. After learning of Hartman's assault on a

retarded girl and of the warrant Hartman had sworn out against

him, appellant stated to the police that "he would kill the

bastard [Hartman] and save everybody a lot of time and trouble"

and that "anyone that would take advantage of a retarded girl was

a low son-of-a-bitch that ought to die." According to appellant,

Hartman vowed to kill him if he did not drop the charges.

Appellant then swore out a warrant against Hartman for

intimidating a witness.
During the course of these events, appellant's mental state

deteriorated. Appellant claimed he could "smell" Hartman in his

home; he took measures to barricade his windows and front door,

and searched for Hartman in his home. Appellant and his

girlfriend, Regina Ferris, purchased a handgun, which they placed

in Ferris' vehicle. Appellant grew increasingly upset when he

learned that Hartman had been released on bond with respect to

the warrants appellant had sworn out.

On the evening of April 3, appellant left his mother's house

in Ferris' vehicle to pick up a pizza. On his way, appellant

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drove past his apartment to see if Hartman was around. Appellant

saw Hartman sitting in his car and pulled alongside him.

According to appellant, Hartman raised his hand, and appellant

believed he held a gun. Appellant stated that he sped away with

Hartman in pursuit.

Eventually, the two stopped at an intersection. Forensic

evidence revealed that appellant shot at Hartman's vehicle in the

intersection. The two then proceeded into an adjacent parking

lot. According to appellant, Hartman followed him into the

parking lot and pulled alongside appellant's vehicle. An

eyewitness testified that appellant pursued Hartman. Appellant

stated that Hartman kept raising his hand toward him but that he

was not sure he ever saw Hartman fire a weapon. As they

proceeded, appellant continued to shoot at Hartman. Hartman's

vehicle eventually collided with a parked van, and appellant

drove away. Hartman received five gunshot wounds, two of which

were lethal. No weapons or shell casings were found in Hartman's

vehicle.
The court instructed the jury that they could find appellant

(1) guilty of first degree murder; or (2) guilty of second degree

murder; or (3) not guilty. 1 The court refused appellant's

proffered instruction on voluntary manslaughter. The jury found

appellant guilty of first degree murder. On appeal, appellant
1
The court also instructed the jury on self-defense and
irresistible impulse, which would have resulted in a not guilty
verdict if the jury had found accordingly.

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contends that the evidence supported a voluntary manslaughter

conviction and that the court erred in refusing the proffered

instruction. We affirm the convictions for the reasons that

follow.

II.

First degree murder is defined as a malicious killing

accomplished by a willful, deliberate, and premeditated act. 2

Virginia Model Jury Instructions--Criminal 34.200 (1993 repl. ed.

with 1995 Supp.). Second degree murder does not require a

willful, deliberate, and premeditated act; it is defined simply

as a malicious killing. Id. at 34.320. Voluntary manslaughter

is defined as an intentional killing committed while in the

sudden heat of passion upon reasonable provocation. Id. at

34.500; Read v. Commonwealth, 63 Va. (22 Gratt.) 924, 937-38

(1872).

"To speak of a homicide as having been committed with malice

aforethought and in sudden passion, upon reasonable provocation

is a legal solecism." Belton v. Commonwealth, 200 Va. 5, 9, 104

S.E.2d 1, 4 (1958). Malice and passion cannot co-exist. E.g.,

id. at 10, 104 S.E.2d at 5. Likewise,
if an unlawful homicide be committed in
pursuance of a preconceived purpose, the
offence will be murder, no matter how great
sudden provocation may have immediately
preceded the act. The provocation may have
been brought about or sought by the
perpetrator; or he may have availed himself
of it to give color of justification or
excuse to his act, done in execution of his
deliberate purpose.

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Read, 63 Va. (22 Gratt.) at 938.

The determination of whether a killing is committed in

pursuit of a continuing animus or upon reasonable provocation or

whether it was accomplished maliciously or in the heat of passion

is a jury question. See id. at 939; Moxley v. Commonwealth, 195

Va. 151, 160, 77 S.E.2d 389, 394 (1953). Accordingly, a trial

court must instruct the jury on the lesser-included offense of

voluntary manslaughter if the evidence of heat of passion and

reasonable provocation amounts to "more than a scintilla." See,

e.g., Buchanan v. Commonwealth, 238 Va. 389, 409, 384 S.E.2d 757,

769 (1989), cert. denied, 493 U.S. 1063 (1990).

Although the Commonwealth prevailed at trial, we must view

the evidence with respect to the refused instruction in the light

most favorable to the defendant. E.g., Boone v. Commonwealth, 14

Va. App. 130, 131, 415 S.E.2d 250, 251 (1992). Doing so, we find

that the evidence in this case supported a voluntary manslaughter

instruction and that the trial court's failure to instruct the

jury on that offense was error.

It remains only to determine whether that error was

harmless. An error is harmless "`if a reviewing court can

conclude, without usurping the jury's fact finding function,

that, had the error not occurred, the verdict would have been the

same.'" Davies v. Commonwealth, 15 Va. App. 350, 353, 423 S.E.2d

839, 840 (1992) (quoting Lavinder v. Commonwealth, 12 Va. App.

1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc)).

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 Thus, where the reviewing court is able to determine that

the trial court's error in failing to instruct the jury could not

have affected the verdict, that error is harmless. Morse v.

Commonwealth, 17 Va. App. 627, 638, 440 S.E.2d 145, 152 (1994).

Such a determination can be made where it is evident from the

verdict that the jury would have necessarily rejected the

lesser-included offense on which it was not instructed. See

LeVasseur v. Commonwealth, 225 Va. 564, 592 n.3, 304 S.E.2d 644,

659 n.3 (1983), cert. denied, 464 U.S. 1063 (1984) (jury's
conviction of capital murder to the exclusion of first degree

murder was necessarily a rejection of second degree murder);

State v. Bunnell, 455 S.E.2d 426, 430 (N.C. 1995) (jury's

conviction of first degree murder to the exclusion of second

degree murder was necessarily a rejection of voluntary

manslaughter); State v. Mendez, 599 A.2d 565, 570-72 (N.J. Super.

Ct. App. Div. 1991) (jury's conviction of purposeful or knowing

murder to the exclusion of aggravated manslaughter was

necessarily a rejection of reckless manslaughter); cf. Schad v.
Arizona, 501 U.S. 624, 645-48 (1991) (defendant not entitled to

new trial where trial court failed to instruct jury on

lesser-included offense if jury not compelled to choose between

offense of conviction and acquittal).

By contrast, where it is impossible to determine from the

verdict whether the jury would have necessarily rejected a

lesser-included offense on which it was not instructed, error in

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refusing to instruct on that offense is not harmless. See Boone

14 Va. App. at 132-33, 415 S.E.2d at 251-52 (conviction of

malicious wounding reversed where assault and battery

instruction, supported by evidence, refused; jury's rejection of

lesser-included offense of unlawful wounding not necessarily a

rejection of assault and battery); Barrett v. Commonwealth, 231

Va. 102, 106-07, 341 S.E.2d 190, 192-93 (1986) (conviction on

malicious wounding reversed where unlawful wounding instruction,

supported by evidence, refused); McClung v. Commonwealth, 215 Va.
654, 657, 212 S.E.2d 290, 292-93 (1975) (conviction on second

degree murder reversed where voluntary manslaughter instruction,

supported by evidence, refused).

As appellant and the dissent note, "[i]t is immaterial that

the jury might have rejected the lesser-included offense" where a

lesser-included offense instruction supported by the evidence is

refused. Barrett, 231 Va. at 107, 341 S.E.2d at 193 (emphasis

added); McClung, 215 Va. at 657, 212 S.E.2d at 292-93; Boone, 14

Va. App. at 132-33, 415 S.E.2d at 251-52. Rather, such error is

harmless only where the jury's resolution of disputed facts

compels the conclusion that it necessarily excluded an
alternative resolution of fact that would have supported the

lesser-included offense on which it was not instructed. Such is

the case here.

In convicting appellant of first degree murder, the jury

rejected the lesser-included offense of second degree murder. In

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so doing, the jury found beyond a reasonable doubt that appellant

acted not only maliciously, but also willfully, deliberately, and

premeditatedly. Homicide committed pursuant to a preconceived

plan is not voluntary manslaughter; premeditation and reasonable

provocation cannot co-exist. Read, 63 Va. (22 Gratt.) at 938;

see also Jenkins v. Commonwealth, 244 Va. 445, 457-58, 423 S.E.2d

360, 368 (1992), cert. denied, 507 U.S. 1036 (1993) (voluntary

manslaughter instruction properly refused where evidence clearly

showed killing premeditated). The verdict reached by the jury

here compels the conclusion that it would never have reached a

voluntary manslaughter verdict. Bunnell, 455 S.E.2d at 426;

State v. Shoemaker, 432 S.E.2d 314 (N.C. 1993); State v. Freeman,

170 S.E.2d 461, 465 (N.C. 1969). 2 Therefore, we conclude that
2
The dissent cites the following four cases in support of
its conclusion that the error in refusing the instruction was not
harmless: (1) United States ex rel Matthews v. Johnson, 503 F.2d
339, 346 (3d Cir. 1974) (en banc), cert. denied, 420 U.S. 952
(1975); (2) Commonwealth v. Covil, 378 A.2d 841 (Pa. 1977); (3)
State v. Benavidez, 616 P.2d 419 (N.M. 1980); and (4) People v.
Hansma, 269 N.W.2d 504 (Mich. Ct. App. 1978).

The decision in Matthews is no longer the law in the Third
Circuit. See Geschwendt v. Ryan, 967 F.2d 877, 885 n.13 (3rd
Cir.), cert. denied, 506 U.S. 977 (1992) (declining to apply
Matthews, recognizing that Schad v. Arizona, 501 U.S. 624 (1991),
had overruled it).

The Covil court adopted the Matthews reasoning in reaching
its decision. Since Matthews has been overruled, the import of
Covil is problematic.

The decision in State v. Benavidez, 616 P.2d 419 (N.M.
1980), is based on Keeble v. United States, 412 U.S. 205 (1973),
which addressed a different issue than the one presented here.
In Keeble, the only choices afforded the jury were conviction of
the greater offense and acquittal; the trial court refused to
instruct the jury on a lesser-included offense. Accordingly, the

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the jury in this case, by rejecting the lesser-included offense

of second degree murder, necessarily rejected the factual basis

upon which it might have rendered a verdict on the

lesser-included offense of voluntary manslaughter. 3

Accordingly, the court's error was harmless, and appellant's

convictions are affirmed.

Affirmed.

(..continued)
Supreme Court could not say "that the availability of a third
option--convicting the defendant of [the lesser-included offense
on which it was not instructed]--could not have resulted in a
different verdict." Keeble, 412 U.S. at 213. The jury in this
case, however, was afforded a third option--to convict on second
degree murder. Cf. Schad, 501 U.S. at 645-48 (defendant not
entitled to new trial where lesser-included offense instruction
is refused if jury is given three options--conviction of a
greater offense, conviction of a lesser offense, and acquittal--
and chooses to convict on greater offense; jury not faced with
the "all-or-nothing" choice between conviction and acquittal).

Finally, the court in People v. Hansma, 269 N.W.2d 504
(Mich. App. 1978), did not adopt a harmless error analysis which
is well-established as the standard of review in such cases under
Virginia law. See, e.g., Davies, 15 Va. App. at 353, 423 S.E.2d
at 840.
3
This finding is further supported by the fact that the jury
was instructed that "[e]xpress malice exists when a person acts
with a deliberate mind and formed design." When the jury found
that appellant acted premeditatedly, it was compelled to find
malice. Again, since malice and passion cannot co-exist, see
Belton, 200 Va. at 10, 104 S.E.2d at 5, it is clear the jury
would never have reached a voluntary manslaughter verdict. To
suggest the converse is a legal non sequitur.

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Benton, J., dissenting.

When reviewing whether the trial judge properly refused an

instruction proffered by the accused, we must view the evidence

in the light most favorable to the accused. Martin v.

Commonwealth, 13 Va. App. 524, 526, 414 S.E.2d 401, 401 (1992).

If the record contains more than a scintilla of evidence to

support a proffered instruction on a lesser included offense, the

trial judge's "failure to give the instruction is reversible

error." Boone v. Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d

250, 251 (1992). I agree with the majority that the trial judge

erred in refusing the voluntary manslaughter instruction. I

disagree with the majority's finding that the error was harmless.

In my opinion, this Court cannot reasonably conclude upon

this record that the error did not affect the jury's verdict.

See Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d

910, 911 (1991)(en banc). "As a general rule, whether

provocation, shown by credible evidence, is sufficient to

engender the furor brevis necessary to rebut the presumption of
malice arising from a homicide is a question of fact." McClung

v. Commonwealth, 215 Va. 654, 656, 212 S.E.2d 290, 292 (1975).

Viewed in the light most favorable to Turner, the evidence

provided a sufficient basis to support giving the instruction

and, thus, a finding by the jury, so instructed, that he was

guilty of voluntary manslaughter.

The issue whether Turner acted maliciously was disputed.

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Turner's statement to the police provided evidence that supported

the hypothesis that Turner acted out of passion and not with

malicious intent. The evidence proved that Turner thought the

victim was "pointing a firearm at [him]." Thus, the jury had

more than sufficient evidence from which it could have found, if

properly instructed, a non-malicious killing.

Because the error in refusing the instruction deprived the

jury of the opportunity to find facts and apply those facts to

the law, this case is not one in which "the other evidence of

guilt was so overwhelming and the error so insignificant by

comparison that the error could not have affected the verdict."

Hooker v. Commonwealth, 14 Va. App. 454, 457 n.2, 418 S.E.2d 343,

345 n.2 (1992). We do not find the facts, the jury does. The

trial judge's error in failing to give the instruction is not

rendered harmless merely because we believe that the jury had

before it sufficient evidence to support its verdict.
Other evidence of a disputed fact, standing
alone, does not establish that an error is
harmless . . . . [A] harmless error analysis
. . . [is not] simply a sufficiency of the
evidence analysis.

Id. at 458, 418 S.E.2d at 345.

Moreover, because the harmless error analysis is not a

sufficiency of the evidence analysis, "[i]t is immaterial that

the jury could have reached [the] contrary conclusions [that it

reached]." McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d

290, 293 (1975). Based on the evidence at trial, the jury could

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have found Turner guilty of voluntary manslaughter.
The jury is not required to accept, in
toto, either the theory of the Commonwealth
or that of an accused. They have the right
to reject that part of the evidence believed
by them to be untrue and to accept that found
by them to be true. In so doing, they have
broad discretion in applying the law to the
facts and in fixing the degree of guilt, if
any, of a person charged with a crime.

Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958).

The decision in LeVasseur v. Commonwealth, 225 Va. 564, 304

S.E.2d 644 (1983), cert. denied, 464 U.S. 1063 (1984), is not
controlling on the facts of this case. "[I]n the circumstances

of [that] case," the Supreme Court found that the refusal of a

second degree murder instruction was harmless error. Id. at 592,

304 S.E.2d at 659. There, however, the jury convicted the

defendant of capital murder only after rejecting a finding of

first degree murder, which it was instructed to render if it

believed that the defendant was voluntarily intoxicated. Id.

Clearly, under those circumstances, any instruction on second

degree murder, which is a malicious killing, as are first degree

murder and capital murder, would have necessarily required the

jury to find voluntary intoxication, a factual finding the Court

concluded the jury had rejected when it did not convict of first

degree murder. Those circumstances are not present in this case.

Although the evidence could have supported a finding of

non-malicious homicide, the trial judge only instructed the jury

on degrees of homicide that involved malice. A jury's decision

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to select culpability from one of the malicious homicides on

which it was instructed does not manifest beyond a reasonable

doubt that the jury would not have found a non-malicious killing

if properly instructed. As the LeVasseur Court observed, the

jury's rejection of one theory of the case does not necessarily

indicate that it would have rejected another theory of the case

that was supported by evidence. Id. at 592 n.3, 304 S.E.2d at

659 n.3. See also Potter v. Commonwealth, 222 Va. 606, 611, 283

S.E.2d 448, 451 (1981); McClung, 215 Va. at 657, 212 S.E.2d at
292-93; Martin, 13 Va. App. at 528, 414 S.E.2d at 403-04.

In failing to instruct the jury that it could convict Turner

of a homicide of a lesser grade than first or second degree

murder, the trial judge misdirected the jury by limiting the

jury's options to a finding of a malicious killing or a not

guilty verdict. "The central point is that the jury might have

decided to convict [Turner] of murder because the State proved

that [he] intentionally killed another without a reasonable

belief that [he] acted in self defense -- despite clear proof

that [Turner] was provoked to murderous passion by the victim."
Falconer v. Lane, 905 F.2d 1129, 1136 (8th Cir. 1990).

Cases from North Carolina and New Jersey are no more

persuasive regarding the law in Virginia than cases from other

jurisdictions holding that the error in refusing a similar

instruction was not harmless. See, e.g., United States ex rel
Matthews v. Johnson, 503 F.2d 339, 346 (3d Cir. 1974)(en banc),

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cert. denied, 420 U.S. 952 (1975); People v. Hansma, 269 N.W.2d

504, 506 (Mich. Ct. App. 1978); State v. Benavidez, 616 P.2d 419,

421 (N.M. 1980); Commonwealth v. Covil, 378 A.2d 841, 843-44 (Pa.

1977).
It is basic that a defendant is entitled
to have his theory of the case submitted to
the jury under proper instructions where the
evidence supports it. We cannot conclude
that it was harmless error not to give an
instruction which is supported by
evidence. . . . Here, assuming there was
evidence of provocation, the jury was not
given the choice of finding that the
defendant committed voluntary manslaughter.
To argue that a finding by the jury that the
defendant acted with deliberate intention
precludes any possibility that they could
have found sufficient provocation begs the
question. The jury was simply not given the
choice. We do not consider this to be
harmless and non-prejudicial where the
evidence would support such a choice by the
jury.

Benavidez, 616 P.2d at 421 (citations omitted).

In footnote two, the majority explains why it considers

unpersuasive the decisions from other jurisdictions that are

contrary to the majority's holding. I find the majority's

discussion equally unpersuasive. The nub of the majority's

analysis begins with its misplaced reliance upon the Third

Circuit's discussion of Schad v. Arizona, 501 U.S. 624 (1991).
The majority fails to note that in Schad, where the defendant was

indicted and tried only for first degree capital murder, the

Supreme Court rejected the defendant's due process argument and

held that the trial judge did not err in failing to instruct the

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jury on the offense of robbery. 501 U.S. at 647. Unlike Schad,

we all agree that the trial judge did err in Turner's case. The

disagreement in Turner's case centers upon whether the error was

harmless.

Moreover, nothing in Schad purports to address the

requirement to give an instruction on a lesser included homicide

offense, when sufficient evidence supports an instruction on the

lesser included offense and the only distinction between the

homicides involves the jury's resolution of conflicting evidence

to determine the mens rea of the defendant. In Schad, the trial

judge granted instructions for the offenses of first-degree and

second-degree murder and refused instructions only on the

separate and distinct offenses of theft and robbery. 501 U.S. at

629. Therefore, Schad involved whether due process required

instructing the jury on an entirely different substantive

offense, which was not charged in the indictment. Unlike

Turner's case, in which the jury was not instructed on different

degrees of homicide, in Schad, the jury was instructed on all
degrees of homicide proved by the evidence. 501 U.S. at 629.

Indeed, the Court in Schad suggests that the issue raised by the

defendant was not viable because robbery was not a lesser

included offense of the charge of murder. Compare 501 U.S. at

647-48 with 501 U.S. at 661-62 (White, J., dissenting). Thus,

the Court rejected the defendant's contention of error in

refusing the robbery instruction because it was not a lesser

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included offense of the homicide charge.

In Geschwendt v. Ryan, 967 F.2d 877 (3d Cir. 1992), which

discussed Schad, the jury found the defendant guilty of

first-degree murder. However, the similarity of Geschwendt to

Turner's appeal ends there. Finding that "when the instructions

are viewed as a whole, the trial court did instruct the jury that

it could find [the defendant] not guilty by reason of insanity,"

id. at 883, the Third Circuit found that the trial judge

committed no error. Thus, like Schad, the Third Circuit in
Geschwendt was not required to conduct a harmless error analysis.

Although the trial judge in Geschwendt refused to grant the

defendant's instruction that he could be found not guilty by

reason of insanity, 967 F.2d at 882, the trial judge (1) granted

an instruction allowing the jury to convict the defendant of

third-degree murder if it found that he suffered from a mental

defect rendering him incapable of forming the intent for

first-degree murder, (2) granted other "detailed instructions on

the insanity defense," and (3) granted an instruction on

voluntary manslaughter. Id. at 880. Thus, in Geschwendt, where

the indictment charged a homicide, the trial judge instructed the

jury on all the degrees of homicide.

In an alternative holding, the Third Circuit reasoned that

if the jury believed the defendant was insane, it would have

convicted him of third-degree murder instead of first-degree

murder. Id. at 885-86. The court ruled that it could affirm the

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conviction on this alternative ground. In analyzing this

alternative, the court discussed Schad because the defendant had

raised a constitutional issue similar to the issue raised in

Schad, i.e., whether the failure to give the instruction violated

due process. Id. However, the issue the defendant raised in

Geschwendt, like Schad, did not involve a failure to give an

instruction on a lesser included offense. Id. at 885. Even

though the instruction the trial judge gave explaining
third-degree murder and the instruction he denied regarding the

defense of insanity alternatively defined the defendant's

possible mental state, obviously neither instruction was a lesser

included offense of murder. Consequently, the alternative

holding in Geschwendt involves a different factual scenario than

Turner's case.

Most significantly, however, the portions of the Geschwendt

decision that discuss Schad and lesser included offense

instructions are dicta and are of dubious value because the Third

Circuit lacked jurisdiction over the issue posed by the

defendant. The Third Circuit dispositively decided that whether

the trial judge erred in refusing the instruction was a matter

that could not be reached under its habeas corpus jurisdiction

"for, if there was an error at all at his trial, it was solely

one of state law" that did not implicate either federal or

constitutional law. Id. at 890. Simply put, the Third Circuit's

discussion of Schad is dicta because it ruled that it had no

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jurisdiction to decide the issue.

In rejecting Benavidez, the majority also misreads the

import of Keeble v. United States, 412 U.S. 205 (1973), and

decides that Keeble "addressed a different issue than the one

presented here." The majority recognizes that in Keeble, "the

only choices afforded the jury were conviction . . . and

acquittal." However, the majority fails to recognize that the

jury in Turner's case faced a functionally equivalent dilemma: a

finding of malice or acquittal. Although the trial judge did

provide a third alternative, second degree murder, the

alternative did not remedy the dilemma because the jury was still

deprived of an opportunity to convict without finding malice.
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. In the case before us, for
example, an intent to commit serious bodily
injury is a necessary element of the crime
with which petitioner was charged, but not of
the crime of simple assault. Since the
nature of petitioner's intent was very much
in dispute at trial, the jury could
rationally have convicted him of simple
assault if that option had been presented.
But the jury was presented with only two
options: convicting the defendant of assault
with intent to commit great bodily injury, or
acquitting him outright.

Keeble, 412 U.S. at 212-13.

A careful review of the Supreme Court's reasoning reveals

that Keeble is, in fact, directly on point because the reversible

error in Keeble was exactly the same as the reversible error in

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Turner's case: the trial court deprived the jury of a choice

between different kinds of mens rea, all of which were supported

by the evidence. Specifically, the trial court committed

reversible error by limiting the jury's options to finding malice

or acquitting the defendant. As the Supreme Court stated in

Keeble, "it is now beyond dispute that the defendant is entitled

to an instruction on a lesser included offense if the evidence

would permit a jury rationally to find him guilty of the lesser

offense and acquit him of the greater." 412 U.S. at 208.
Finally, the majority asserts that the court in Hansma did

not conduct a harmless error analysis. Although it is true that

no harmless error analysis is expressly included in the relevant

portion of the opinion, the fact that the court found another

error harmless, 269 N.W. 2d at 509, leads to the conclusion that

the court found the relevant error prejudicial. That is, the

court was familiar with the analysis and if it had found this

error to be harmless, it would have said so. Rather, it reversed

because it did not find the error to be harmless. Therefore,

Hansma does support the assertion that failure to instruct on

voluntary manslaughter is reversible error.

For these reasons, I would hold that the error was not

harmless, reverse the convictions, and remand for a new trial.

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