Arevalo v. State should be overruled.
Grey was charged with aggravated assault by strangling Heather Dukes. Specifically, the indictment alleged that he caused bodily injury, but this misdemeanor assault was aggravated by his use of his hand as a deadly weapon. The jury charge authorized the jury to convict him of the lesser-included offense of misdemeanor assault if they just wanted to compromise and convict him of something. I mean, if they did not believe he used his hand as a deadly weapon. And while you'd think this was going to be another Hall v. State case, it's really about whether there was any evidence to suggest that Grey did not use his hand as a deadly weapon. The court of appeals held there was not. (In a published opinion.)
According to the court of appeals, Grey's statement indicated he used his hand to put pressure on the pulse points in Duke's neck with the intent to make her dizzy so she would be knocked off balance. [Thank you WWE for your enduring contribution to criminal law.] The paramedic testified that this manner of choking could cause death from asphyxiation in three to four minutes. And whie Grey's complaint about the lesser-incuded wasn't that the evidence didn't raise it, the court of appeals held it was enough to suggest he was opposed to it being in the charge.
So what's this about Arevalo v. State? [Sorry, I can't link to the Arevalo opinion.] Well, the court of apeals cites to it, but doesn't really discuss it. This case applied the "valid rational alternative" requirement of lesser-included offenses even when the State requests them. In otherwords, if the State requests a lesser (as in this case) the State feels it should not have to show hat there's some evidence negating the greater offense. The rationale argued in Arevalo was that not requiring the lesser to be a valid rational alternatie invited the jury to return a compromise or unwarranted verdict (which is kind of what they did in this case). The dissenters in that case argued that the two-pronged test for lessers came out of federal law and only applied to situations when the trial court must instruct on a lesser. But that doesn't mean the state statute does not authorize the inclusion of lessers even in situations where the trial court isn't authorized to do so. In short, the "guilty only" aspect of the test is the minimum, not the maximum.
Of course, getting rid of the second prong would certainly make it harder to keep out lessers in those really difficult case. Is the State sure it wants to do that?
Here's a link to the court of appeals case info.
