Observations about today's concurrence opinion from the OSC
by: Ryan • December 12, 2013 • no comments
Lots of interesting stuff to be pulled from today's OSC opinion, State v. Pipkin, which addresses whether a defendant is entitled to a concurrence instruction in a burglary case. That is, do ten jurors have to agree that the defendant unlawfully entered or that he unlawfully remained? And the answer is . . . no.
A few largely random observations:
Pipkin was argued about 18 months ago. At the same time, the OSC heard argument in a case with a similar issue. That issue was whether a concurrence instruction needed to be given which would require the jury to agree whether the defendant was an accomplice or a principal. The 18 months it took to decide Pipkin is itself longer than normal (even longer than it normally takes this particular justice to write an opinion). The absence today of an opinion in the other case suggests to me the strong possibility of a dissent or maybe even a different result. It's the other case that I think has the potential to be quite significant. The fact that it wasn't issued at the same time as Pipkin, despite joint argument, may mean that Kistler isn't the author of the other opinion. Pure speculation there.
Today's opinion seems to overrule the great St v JNS. Or does it? Guess we won't know until we see what the OSC does with any petition for review the state might have filed.
There is some offhand language about election that makes me think we aren't asking the state to elect often enough.
The Court affirms that the aggravating factors that elevate murder to aggravated murder are elements. I think it's time for attorneys to challenge the current rule that the predicate felony in a case of aggravated felony murder doesn't merge with the aggravated felony murder. An old, poorly reasoned case says otherwise. But stare decisis isn't what it used to be. And for that matter, why the hell not?
We should be asking for concurrence instructions far more often than we are. Yes, the defendant lost here. But there are a lot of statutes where the element/theory distinction is very muddled. The difference may hinge on whether the two theories are mutually exclusive (as in, say, accomplices and principals, hint, hint.)
