Failure to Instruct a Lesser-Included Offense Is Subject to Harmless Error Review
In State v. Middleton, the supreme court held that (1) the offense of assault and battery in the first degree does not require physical harm; and (2) a judge’s failure to instruct a jury on a lesser-included offense is subject to harmless error review.
Middleton owned a moped and decided to use it for a drive-by shooting. He pulled up to a vehicle driven by Mack and with Stephens in the passenger seat; Mack’s vehicle was stopped for a school bus stop sign. Middleton unloaded five bullets into the vehicle. Mack and Stephens, however, laid back in their seats and were not hit. Stephens took control of the vehicle and rammed Middleton. The only injuries that Mack and Stephens suffered were a few cuts from broken glass.
A jury convicted Middleton on two counts of attempted murder and one count of possession of a weapon during the commission of a violent crime. Middleton requested that the judge instruct the jury on the lesser-included offense of assault and battery in the first degree for the attempted murder charges. The judge did not charge assault and battery because neither Mack nor Stephens were physically injured.
On appeal, the supreme court held that the trial court erred by not charging the jury with assault and battery. The court examined the language of Section 16-3-600(C) of the South Carolina Code of Laws, which states that a person could be convicted of assault and battery in the first degree even if there is no physical injury so long as the person “offers or attempts to injure another person with the present ability to do so, and the act . . . is accomplished by means likely to produce death or great bodily injury.” Id. (b). Based on that language, the court held that the jury should have been instructed on the lesser-included offense of assault and battery in the first degree.
Nonetheless, the court held that the error was harmless beyond a reasonable doubt. The court determined that harmless error analysis applies to situations where a court fails to charge lesser-included offenses. The court then examined the facts and found that Middleton was attempting to kill Stephens and Mack, and, thus, the error was harmless.
Justice Pleicones dissented as to the harmless error portion of the opinion. He would have held hat “the refusal to give a jury charge on a lesser-included offense that is supported by the evidence is always reversible error and not subject to harmless error analysis.”