Bruce G. Mason, Omaha, Neb., for defendant-appellant.

Roderic Anderson, Asst. U.S. Atty., Omaha, Neb., for plaintiff-appellee.

Before GIBSON and BRIGHT, Circuit Judges, and TALBOT SMITH,* Senior District Judge.

TALBOT SMITH, Senior District Judge.

The case before us presents as the principal issue the retroactivity of a new rule of criminal procedure relating to lesser-included offenses.

The background of facts is relatively simple. The defendant, an Indian, subsequent to a drinking fracas in which he allegedly stabbed several persons, was brought to trial under an indictment charging violation of 18 U.S.C. 1153, specifically, that he did maliciously stab (or) cut named victims with intent to kill, wound, or maim.1

At the conclusion of the trial defendant requested the following instruction, defendant's No. 17:

If you find from the evidence beyond a reasonable doubt that each of the foregoing material elements is true, it is your duty to find the defendant guilty of the crime of maliciously stabbing with intent to kill, wound or maim, and you shall not then consider the lesser included offenses hereafter set forth in this instruction. On the other hand, if you find that the state has failed to prove beyond a reasonable doubt any one or more of the foregoing elements, it is your duty to find the defendant not guilty of the crime of maliciously stabbing with intent to kill, wound or maim. You shall then proceed to consider the lesser included offense of 'assault with intent to inflict great bodily injury.' If you find from the evidence beyond a reasonable doubt that each of the foregoing material elements is true, it is your duty to find the defendant guilty of the crime of 'assault with intent to inflict great bodily injury,' and you shall not then consider the lesser indluced offense hereafter set forth in this instruction. On the other hand, if you find that the state has failed to prove beyond a reasonable doubt any one or more of the foregoing material elements, it is your duty to find the defendant not guilty of the crime of assault with intent to inflict great bodily injury. You shall then proceed to consider the lesser included offense of 'unlawfully striking or wounding another.'

As to such instruction the following colloquy occurred:

(The Court) As to Defendant's Requested Instruction 17, my understanding is that defense counsel indicates that he wants it not to be given. Mr. Mason: That is correct, your Honor. The Court: And that his motivation in presenting it was that if I had intended to give 'a lesser included offense instruction' he would like it in this language. Am I speaking correctly? Mr. Mason: That is correct, your Honor. The Court: Accordingly it will be marked refused. Mr. Mason: The only objection I would enter to the instructions that have been refused would be Instruction No. 4.2

The Court then read the instructions, excluding defendant's above-quoted Requested Instruction No. 17. Following the instructions there were no further objections by counsel.

It was the jury's verdict upon January 31, 1973, that appellant was guilty of the offense charged. Appellant's motion for judgment of acquittal notwithstanding verdict, or in the alternative for a new trial, was denied and this appeal followed.

It is the assertion of appellant upon this appeal that the court erred in refusing the lesser-included offense instruction prayed. Subsequent to trial and pending appeal the Supreme Court held on May 29, 1973, in Keeble v. United States, 412 U.S. 205, 93 S. Ct. 1993, 36 L. Ed. 2d 844 (1973) that an Indian is entitled to lesser-included offense instructions under proper circumstances, despite the fact that such lesser offense is not one of the crimes enumerated in the Indian Major Crimes Act, supra, and thus arguably remained under tribal jurisdiction.

The government, not disputing, of course, the general applicability of the Keeble ruling, argues, however, that 'It did not say that a lesser included offense could not be waived by counsel' and that in the case before us such instruction was, as before quoted, expressly waived by counsel as part of his trial strategy. It urges, as well, the appellant's noncompliance with Fed.R.Crim.P. 30.3

This rule has been upheld by us on numerous occasions,4 and we do not depart therefrom. Moreover, strategic choices as to the conduct of a trial, deliberately made and employed by counsel, cannot, if they go awry, serve as the basis for a later appeal.5 However, in the case before us, there was recent and unequivocal authority in this circuit denying precisely the instruction sought. United States v. Keeble, 459 F.2d 757 (8th Cir. 1972); Kills Crow v. United States, 451 F.2d 323 (8th Cir. 1971). In this situation the holding in United States v. Scott, 425 F.2d 55 (9th Cir. 1970) is peculiarly appropriate:

At the time of Scott's trial, there was a solid wall of circuit court authority, including our own, sustaining the presumption against constitutional attack. (citing cases)

An exception would not have produced any results in the trial court. Under these circumstances were we to insist that an exception be taken to save the point for appeal, the unhappy result would be that we would encourage defense counsel to burden district courts with repeated assaults on then settled principles out of hope that those principles will be later overturned, or out of fear that failure to object might subject counsel to a later charge of incompetency. We conclude that Scott's failure to except did not waive the point on appeal. (425 F.2d at 57-58.)

Nor is the doctrine of waiver more helpful to the government. It is clear that the appellant did not intentionally and knowingly relinquish any then-existing right he had to the instruction here involved. See United States v. Liguori, 430 F.2d 842 (2nd Cir. 1970). Under these circumstances the failure of appellant to request the instruction or to object to its refusal does not foreclose his raising the issue on this appeal or justify our rejection of his arguments on such grounds.

It remains to examine the applicability of a lesser-included offense instruction as to the facts in the record before us. The jury problem the courts seek to ease through the employment of the lesser-included offense device is well expressed by the jury that allegedly sought to return the verdict, 'We find the defendant almost guilty.'6

In this situation, under settled law, embodying constitutional requirements, and in accordance with our repeated instructions, a jury not wholly convinced beyond a reasonable doubt of the defendant's guilt is under a duty to acquit. As the court in Keeble, supra, expressed it:

True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal.7

But a defendant is entitled to a lesser offense instruction-- in this context or any other-- precisely because he should not be exposed to the substantial risk that the jury's practice will diverge from theory. 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.8

Thus, without the lesser-included offense charge, the jury has been 'presented with only two options: convicting the defendant of assault with intent to commit great bodily injury, (the offense charged) or acquitting him outright. We cannot say that the availability of a third option-- convicting the defendant of simple assault-- could not have resulted in a different verdict.'9 The lesser-included offense doctrine, then, originally conceived and employed as a device to aid the prosecution (a fall-back position, so to speak, in event the proofs failed to live up to expectations)10 has become, through the years, a useful tool of the defense, employed as a hoped-for mitigation of punishment for the greater offense,11 and has with this case acquired possible constitutional dimensions.12

The requirements for the proper employment of the instruction are summarized in United States v. Whitaker, 144 U.S.App.D.C. 344, 447 F.2d 314 (1971):

For the defense (or prosecution) to be entitled to a lesser included offense charge five conditions must be met. First, as with most other charges, a proper request must be made. Second, the elements of the lesser offense must be identical to part of the elements of the greater offense * * * Third, there must be some evidence which would justify conviction of the lesser offense. Fourth, the proof on the element or elements differentiating the two crimes must be sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense.⁸ 8. Sansome v. United States, 380 U.S. 343, 351, 85 S. Ct. 1004, 13 L. Ed. 2d 882 (1964). Of course if there is no dispute about the additional fact or facts which, coupled with the lesser included offense, do constitute a greater offense charged originally in the indictment, then the defendant has no right to a lesser included offense charge to the jury. For the trial court to give such a charge would simply be to invite the jury to exercise a degree of mercy by finding him guilty of a lighter offense, when the proof truly justified conviction as charged. Fifth, 'in general the chargeability of lesser included offenses rests on a principle of mutuality, that if proper, a charge may be demanded by either the prosecution or defense.' (save for No.⁸ infra.) 447 F.2d at 317.

Upon the facts before us all of the above enumerated conditions are met. We have therefore ruled on the element of proper request for such instruction. The lesser crime of assault is part of the elements of the larger crime charged13 and the record is clear with respect thereto. The element or elements differentiating the two crimes, malice and specific intent, are, due to the drinking involved, sufficiently in dispute so that the jury might consistently find the defendant innocent of the greater crime and guilty of the lesser-included. It is thus our conclusion that a lesser-included offense instruction is warranted upon the evidence presented.14

Appellant urges to us that the 'new' criminal procedure enunciated in Keeble be applied with full retrospective effect. We need not, in the resolution of this issue, re-examine the considerations leading to the Supreme Court's decision in Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965) that the traditional concept of retroactivity15 might, in appropriate cases and in the interests of justice, give way to a concept of prospective limitation,16 in whole or in part.17 Our problem is the application of the doctrine to the facts here presented.

The contours of our inquiry, the test we apply to ascertain whether 'new' constitutional protections in the area of criminal procedure are to be applied retroactively, is enunciated in Michigan v. Payne,18 and calls for the application of a three-pronged test:

'(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.' Stovall v. Denno, 388 U.S. 293, 297 (87 S. Ct. 1967, 1970, 18 L. Ed. 2d 1199) (1967). See also Linkletter v. Walker, 381 U.S. 618, 629, 636 (85 S. Ct. 1731, 1737, 1741, 14 L. Ed. 2d 601) (1965); Tehan v. Shott, 382 U.S. 406, 410-418 (86 S. Ct. 459, 461-466, 15 L. Ed. 2d 453) (1966); Johnson v. New Jersey, 384 U.S. 719, 726-727 (86 S. Ct. 1772, 1777-1778, 16 L. Ed. 2d 882) (1966). 412 U.S. at 51, 93 S.Ct. at 1969.

'Foremost among these factors,' it was held in Desist v. United States, 394 U.S. 244, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (1969), 'is the purpose to be served by the new constitutional rule.'

The purpose here to be served, that of offering to the jury the option to convict, should the facts warrant, of a less serious offense, obviously does not bear upon the integrity and fairness of the jury's fact-finding function,19 a factor heavily weighted by the courts in deciding for or against retroactivity.20 Here the determination of whatever of the facts that may remain in doubt, as hypothesized in the Keeble rationale, will neither be aided nor hampered by the instruction under consideration. Such determination will, however, affect the verdict and to this extent may fairly be construed as going to the 'fairness of the trial'21 in its broadest sense, or, alternatively, as 'touching on the 'integrity' of one aspect of the judicial process.'22 Here, in attempting to assess the jury's possible exercise of its "mercydispensing power"23 with respect to a lesser-included offense, we are in the realm of the sheerest speculation. The best we can do is to weigh probabilities, for, as was made clear in Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966) 'the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree.' 384 U.S. at 728-729, 86 S.Ct. at 1778.

In this situation, on balance, we consider the factors of, primarily, a procedural change that has no bearing on the fact-finding process, one that is based upon the premise that the 'defendant is plainly guilty of some offense' (Keeble, supra), and one effecting an unheralded change in procedures relied upon by law enforcement officials for many years.24 It is our judgment upon these and other factors we have examined that full retroactive application would have a deleterious effect upon the administration of justice,25 and that, by no standards heretofore enunciated, can we give the new procedure full retroactive application.

To the above, however, there is a caveat, namely, that in a situation where a defendant's case has not reached final judgment at the time of the rendition of the new rule, the plainest considerations of justice and equity require that the rule apply to such pending case. Linkletter v. Walker, supra.26 See, also, Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963); Pendergrast v. United States, 135 U.S.App.D.C. 20, 416 F.2d 776 (1969), cert. denied 395 U.S. 926, 89 S. Ct. 1782, 23 L. Ed. 2d 243 (1969). Such, as will be seen from the dates heretofore listed, is the situation here. Accordingly, the case is

Reversed and remanded for new trial.