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"CHARGING BY AMBUSH": AN ANALYSIS OF THE LESSER INCLUDED OFFENSE DOCTRINE IN STATE V. MCCAHREN.

I. INTRODUCTION

Braiden McCahren ("McCahren"), a sixteen-year-old from Pierre, South Dakota, was convicted of second-degree murder in the shooting death of his friend, Dalton Williams ("Williams"). (1) The prosecution initially charged McCahren only with the first-degree murder of Williams. (2) During pre-trial motions, the prosecution moved to preclude the defense from a lesser offense instruction of second-degree murder. (3) The court granted the prosecution's pre-trial motion. (4) Thus, the prosecution tried the case against McCahren as a first-degree murder case. (5) Approximately 150 minutes before closing arguments were set to begin, the prosecution motioned the court to permit the charge of second-degree murder to be added to the jury instructions as a lesser included offense of first-degree murder. (6)

For 634 days, McCahren faced an indictment for first-degree murder, attempted first-degree murder, and aggravated assault. (7) At the close of trial, McCahren was found guilty of second-degree murder and aggravated assault. (8) On appeal to the South Dakota Supreme Court, McCahren argued he did not have sufficient notice that the court would instruct the jury on second-degree murder. (9) McCahren argued the lower court should not have given the jury an instruction on second-degree murder because he was not given notice that such an instruction would be sought. (10) McCahren's story is an example of how one defendant argued against the use of the lesser included offense doctrine--an argument contrary to the doctrine's normal application by defendants. (11) Instead, the prosecution's method of "charging by ambush" and applying the lesser included offense doctrine in a last-minute attempt to convict a juvenile defendant uncovers new territory that implicates constitutional rights and revisits the way in which the doctrine was applied and is currently applied today. (12)

The doctrine of lesser included offenses has evolved to accomplish a multitude of different tasks. (13) The doctrine provides notice to defendants of what crimes may be prosecuted at trial, even if those crimes are not alleged in the charging document. (14) The doctrine affords prosecutors a degree of flexibility in charging offenses because it permits them to add or substitute less serious charges without the additional cost and delay that may follow from a re-indictment or amendment to the charging document. (15) In addition, the doctrine affords defendants an opportunity to reduce the punishments they face to a less serious level. (16) The doctrine also enables jurors to exercise their right to be informed of related offenses that might apply and establishes limits on multiple prosecutions. (17) Today, the lesser included offense doctrine digresses from its historical purpose "as an aid to the prosecution when there was insufficient evidence to convict on the charged offense...." (18) Instead, the doctrine "is more often used by defendants seeking a conviction for an offense less serious than that actually charged...." (19)

This note will argue the South Dakota Supreme Court erred when it held the prosecution's request for a last-minute jury instruction on second-degree murder as a lesser included offense of first-degree murder was permissible. (20) First, this note will recount the facts and procedural history of McCahren. (21) Next, this note will discuss the historical development of the lesser included offense doctrine from its inception to its nature and use today. (22) This note will then argue that the McCahren court's decision failed to consider the constitutional implications of the prosecution's last-minute jury instruction of second-degree murder. (23) Finally, this note will argue for a change in South Dakota Codified Law to eliminate the practice of "charging by ambush." (24)

II. FACTS AND PROCEDURE

On December 18, 2012, sixteen-year-olds Braiden McCahren, Tyus Youngberg ("Youngberg"), and Dalton Williams stopped at the McCahren home in Pierre, South Dakota, to grab something to eat. (25) While the three boys were in the kitchen, McCahren snuck away to his father's gun rack and retrieved a 20-gauge shotgun. (26) McCahren returned to the kitchen and shouldered the shotgun as if to shoot something--a gesture the boys believed was merely in jest. (27) It was then that McCahren pointed the gun at Youngberg and pulled the trigger, but the gun did not fire. (28) McCahren proceeded to load a 20-gauge shotgun shell into the shotgun. (29)

In a panic, Youngberg tried to escape the house through a sliding glass door, but the door was locked. (30) While pulling at the door, Youngberg heard the loud click of the shotgun. (31) Youngberg then ran toward the garage only to find Williams blocking his path. (32) Youngberg grabbed Williams by the shoulders and tried to move him out of the way when McCahren fired the shotgun. (33) The shot missed Youngberg but hit Williams in the chest. (34) The shot proved to be fatal, and Williams died shortly thereafter on McCahren's kitchen floor. (35)

Youngberg called 911 to report the shooting. (36) When law enforcement arrived on the scene, they questioned both Youngberg and McCahren about the incident. (37) Initially, Youngberg told police that he, McCahren, and Williams were messing around and that the shooting was accidental. (38) Youngberg also told police that the boys were not mad or upset with one another that day. (39) Youngberg explained to police that the boys often argued several times a day, including that day just before the shooting, but that these arguments were never serious. (40)

When law enforcement arrived on the scene, McCahren identified himself as the shooter and was taken into custody, then transported to the police station in Pierre. (41) McCahren maintained the shooting of Williams was accidental--an allegation that reflected Youngberg's initial statement to police on the scene after the shooting. (42) On December 28, 2012, McCahren was indicted for first-degree murder, attempted first-degree murder, and aggravated assault. (43) The State did not bring any additional charges against McCahren, and defense counsel did not request any lesser homicide offenses. (44) In March 2013, pursuant to a court order, McCahren was transferred to the Pennington County Juvenile Services Center. (45) After attempts by the defense to have McCahren tried in juvenile court failed, McCahren was set to be tried as an adult for the murder of Williams. (46)

A trial was held on September 15, 2014. (47) The prosecution's case-in-chief focused on the first-degree murder charge. (48) The defense did not offer any psychiatric testimony, and McCahren did not testify in his own defense. (49) At the close of trial and during the settling of jury instructions, the State made one last request: that the court instruct the jury on second-degree murder. (50) The State urged this lesser offense instruction, despite the fact that second-degree murder was not one of the original charges included in the indictment. (51) The State's motion came just 90 minutes before closing arguments began. (52) Nevertheless, the court granted the State's request and added second-degree murder to the jury instructions over the objection of defense counsel. (53)

On September 23, 2014, a jury found McCahren guilty of the second-degree murder of Williams and guilty of the aggravated assault of Youngberg. (54) The sixteen-year-old defendant was sentenced to twenty-five years in prison with fifteen years suspended for second-degree murder, and 15 years for aggravated assault to run concurrently. (55)

On appeal to the South Dakota Supreme Court, McCahren argued that the lower court erred when it permitted the jury instruction on second-degree murder. (56) The court held, contrary to McCahren's argument, that the defendant was afforded sufficient notice that he could face a lesser offense instruction of second-degree murder. (57) The court reasoned McCahren was placed on notice of the potential for a lesser included, second-degree murder instruction when he was indicted for first-degree murder. (58) The majority opinion, authored by Justice Glen Severson, reasoned there was evidence supporting a jury instruction on second-degree murder. (59)

South Dakota Circuit Court Judge Susan Sabers concurred specially with the majority opinion. (60) Judge Sabers stated the majority set forth a technical and well-reasoned delivery of well-settled South Dakota law. (61) While South Dakota Codified Law section 22-16-20.1 provides that second-degree murder is a lesser offense of first-degree murder, Judge Sabers argued the State tried the case entirely on the theory of first-degree murder, not second-degree murder. (62) As a result, Judge Sabers determined the prosecution's last-minute jury instruction on second-degree murder surprised the defense. (63) Judge Sabers highlighted that the prosecution requested the instruction minutes before closing arguments were set to begin. (64) Moreover, Judge Sabers emphasized that the State's request followed its motion specifically precluding the defense from seeking the same instruction. (65)

Judge Sabers set the tone for her separate opinion from the start: "I write [] to discourage litigators from following this path in the future." (66) Judge Sabers advised litigators against eleventh-hour trial practices similar to those of the prosecution during trial. (67) In her opinion, Judge Sabers reasoned that the defense had no obligation to present evidence at trial. (68) Judge Sabers noted that the defense likely concluded prior to trial that the State could not satisfy the heavy burden of proof required to obtain a first-degree murder conviction. (69) Because the defense likely concluded that the prosecution could not prove first-degree murder, it did not offer any psychiatric testimony. (70) This testimony, Judge Sabers offered, would have undoubtedly supported a depraved-mind theory of the uncharged second-degree murder count. (71) In a footnote, Judge Sabers indicated psychiatric testimony was available given the expert testimony previously offered at the juvenile transfer hearing. (72) Judge Sabers also indicated that the psychiatric testimony included an opinion that McCahren's executive functioning capability was that of an eleven or twelve-year-old. (73)

III. BACKGROUND

A. HISTORY AND PURPOSE: THE LESSER INCLUDED OFFENSE DOCTRINE

At common law, a jury could convict a defendant of the charged offense or of any lesser offense necessarily included in the charged offense. (74) Since its inception, the lesser included offense doctrine has achieved numerous purposes, including providing notice to a defendant of what crimes may be prosecuted at trial. (75) In addition, the doctrine preserves both prosecutorial discretion and a defendant's right to notice and right to mount a defense. (76) The principle aims to serve both the prosecution and defense, as it affords each party flexibility at trial. (77)

The doctrine of lesser included offenses offers prosecutors flexibility when charging offenses because it permits prosecutors to add or substitute less serious offenses to the charged offenses without the delay that can result from filing a re-indictment or amending charging documents. (78) Prosecutors initially considered the lesser included offense rule to be an aid to the prosecution when available evidence failed to prove an element of the charged offense. (79) The doctrine allows defendants the opportunity to reduce the level of culpability they face to a less serious level. (80) The doctrine also recognizes the right of jurors to be informed of related offenses that could apply, and it establishes limits on multiple prosecutions and cumulative punishments. (81)

"For over a generation courts have recognized that failing to instruct juries on lesser included offenses results in wrongful convictions." (82) The United States Supreme Court has held that in capital cases, courts must instruct juries of the option to return convictions of non-capital, lesser included offenses. (83) Yet, the Supreme Court has never required under due process that lesser included offense instructions must be given in non-capital cases. (84) The Supreme Court has repeatedly emphasized that lesser offense instructions need to be given only when supported by the evidence. (85) In the State of South Dakota, the lesser included offense doctrine has also previously caused considerable confusion. (86)

Today, the lesser-included offense doctrine is set forth in the Federal Rules of Criminal Procedure. (87) Rule 31(c)(1) of the Federal Rules of Criminal Procedure provides that a "defendant may be found guilty... of an offense necessarily included in the offense charged." (88) The rule states that a defendant can be convicted of crimes supported by evidence that are less than, but included within, the offense charged. (89) The purpose of Rule 31 is to prevent juries from convicting defendants only for the sake of a conviction. (90)

South Dakota Codified Law section 22-16-20.1 statutorily defines the lesser offense of second-degree murder. (91) In South Dakota, second-degree murder is a lesser offense of first-degree murder. (92) Additionally, South Dakota Codified Law section 22-16-20.2 contains information about who may request lesser offenses and the circumstances in which lesser included offense instructions should be requested. (93)
A lesser included offense instruction shall be given at any homicide
trial whenever any facts are submitted to the trier of fact which
would support such an offense pursuant to this chapter. The state and
the defendant each have the separate right to request a lesser
included offense instruction. The failure to request a lesser included
offense instruction constitutes a waiver of the right to such an
instruction. (94)


This section of the South Dakota Codified Laws indicates that either the prosecution or defense may request a lesser offense, but does not state when, during trial proceedings, that request should be made. (95)

For a court to instruct jurors on a lesser included offense, the prosecution or defense must satisfy both a legal and factual test. (96) The legal test is satisfied when:
(1) [T]he elements of the included offense are [the same or] lesser in
number than the elements of the greater offense;
(2) [T]he penalty for the lesser-included offense must be less than
that of the greater offense; and
(3) [B]oth offenses must contain common elements so that the greater
offense cannot be committed without also committing the lesser
offense. (97)


Similarly, there may be evidence such that the finder of fact may deem the defendant innocent of the greater offense and guilty of the lesser offense. (98)

In addition to the legal test to determine whether an offense is necessarily included within the greater offense, there is also a factual test that must be applied. (99) The factual test requires:
Where a request has been made to charge the jury on a lesser-included
offense, the duty of the trial judge is determined by the
evidence. If evidence has been presented which would support a
conviction of a lesser charge, refusal to give the requested
instruction would be reversible error.... There must be sufficient
evidence, however, when read in the light most favorable to the
defendant, which would justify a jury in concluding that the greater
offense was not committed and that a lesser offense was, in fact,
committed. (100)


The factual test cannot be met unless a reasonable person, considering the evidence, could only conclude that the defendant has committed the greater offense or no offense at all. (101) "In order to meet the factual test, evidence must be presented which would support a conviction of a lesser charge." (102) Ultimately, "the essence of the factual test is that there must be sufficient evidence..." to allow the jury to conclude that the greater offense was not committed and that a lesser offense was committed. (103)

B. AN APPROACH OF ITS OWN: HOW A COURT DETERMINES WHETHER AN UNCHARGED OFFENSE CONSTITUTES A LESSER INCLUDED OFFENSE

American courts are split on what constitutes a lesser included offense. (104) Much of the confusion follows from the different definitions assigned to "lesser-included offense"--definitions that vary even within the same jurisdiction. (105) For much of the nineteenth century, lesser included offenses were defined on a case-by-case basis, with no set approach to follow. (106) Courts considered the manner in which a crime was committed to determine whether an uncharged offense constituted a lesser offense. (107) Standards by which courts presently define lesser included offenses are generally organized into three approaches: the pleadings approach, the evidence approach, and the statutory elements approach. (108)

1. The Pleadings Approach

The "pleadings approach" considers crimes as they are described in the indictment or other charging document. (109) Courts that have adopted this approach use the pleadings, rather than the statutory elements, to determine whether a lesser included offense charge is permissible. (110) Elements within the charging document are compared to the elements of the proposed lesser included offense. (111) The pleadings approach supplements often abstract statutory definitions by reviewing the allegations in the charging document. (112) Under this method, courts first examine the pleadings to determine what crimes constitute lesser included offenses. (113) Courts must determine whether the charge expressly states each element of the lesser offense, or if any elements not explicitly set forth in the indictment can reasonably be inferred. (114)

Proponents of the pleadings approach view it as an acceptable compromise between the evidentiary approach and the elements approach. (115) Opponents contend that it offers a greater advantage to prosecutors versus the defense because prosecutors can control whether and how many lesser included offenses are applicable. (116) These critics claim that a prosecutor may draft a pleading more broadly in anticipation that additional lesser included offenses may be offered. (117) Conversely, a prosecutor may restrict the language in the charging document to limit the number of lesser included offenses available to the defendant. (118) In effect, courts tend to favor alternative approaches, such as the evidence approach. (119)

2. The Evidence Approach

The "evidence approach" reviews the inculpatory evidence offered by the prosecution. (120) As with the pleadings approach, the evidence approach offers flexibility to both the prosecution and defense when determining which crimes to consider. (121) Courts rely on the evidence approach because it more closely resembles the actual criminal conduct as shown from the evidence introduced at trial. (122) Under this approach, a court examines all of the evidence admitted during trial to determine whether an offense constitutes a lesser offense. (123) As a result, the approach may yield a large number of potential lesser included offenses. (124) The evidence approach resembles the pleadings approach, except that courts rely on evidence submitted at trial to assess the relationship between the lesser and higher offenses. (125) "The lesser offense may have elements that are not part of the higher offense; all that is required is that some or all of the proof actually admitted to establish elements of the higher offense also establish the lesser offense." (126)

Some courts have found the evidentiary approach to be problematical. (127) The approach can sometimes make it difficult for courts to determine what evidence is necessary for a conviction. (128) Since the evidence approach is more generous than the elements or pleadings approaches, it has been criticized for not providing adequate notice to defendants. (129) Consequently, a court that relies upon the evidence approach may arrive at unpredictable and inconsistent lesser included offense inclusions. (130) Moreover, critics of the evidentiary approach find the approach opens the door to several potential lesser included offenses--offenses that are often unknown at the beginning of trial. (131) This, as critics argue, may place the defense and prosecution in an untenable position when preparing for trial. (132) Criticisms of the evidence approach have resulted in another, more widely utilized, approach--the statutory elements approach. (133)

3. Statutory Elements Approach

In contrast to the pleadings and evidence approaches, many federal and state courts have adopted the statutory elements approach, which considers the legal definition of charged and uncharged offenses. (134) Courts applied the statutory elements approach as the original common law approach. (135) Under the elements approach, "an offense is a lesser included offense only when its statutory elements form a subset of the charged offense." (136) With the elements approach, courts make a comparative analysis of the offenses, reviewing the statutory definition and elements of each crime side-by-side. (137) Courts review the statutory elements in the abstract, without regard to any allegations made in the charging document or by way of any evidence presented during trial. (138) A lesser offense instruction is given when the elements test is met and when there is some evidence in support of such instruction on the record. (139) "A lesser included offense is one where the lesser-offense elements are identical to part of the greater-offense elements...." (140)

Today, both state and federal courts, including the United States Supreme Court and the South Dakota Supreme Court, have adopted the statutory elements approach. (141) These courts rely upon the statutory elements approach to resolve which, if any, lesser included offenses may apply in a given case. (142) Proponents of the elements approach state that it is easier to apply because it is not a fact-intensive inquiry, unlike the pleadings and evidence approaches. (143) Proponents also argue that the elements approach produces answers that authoritatively resolve large classes of crimes. (144)

C. SECOND-DEGREE MURDER: A LESSER INCLUDED OFFENSE OF FIRST-DEGREE MURDER

Section 22-16-20.1 of the South Dakota Codified Laws expressly states that second-degree murder is a lesser included offense of first-degree murder. (145) South Dakota courts rely on the elements test to show that second-degree murder constitutes a lesser included offense of first-degree murder. (146) In South Dakota, murder and manslaughter are each separated into degrees, and the elements are statutorily set. (147) First-degree murder contains two elements: (1) a killing, and (2) a premeditated design to effect the death of the person killed. (148)

Few cases in South Dakota have resulted in a second-degree-murder conviction of a defendant who was only charged with first-degree murder. (149) In State v. Lohnes, (150) sixteen-year-old defendant Burton Lohnes was charged with the shooting death of Perry Mantzoros at the Ranch House Motel in Rapid City, South Dakota. (151) Lohnes was tried as an adult and charged with first-degree murder. (152) Over the defense's objection, the trial court instructed the jury on second-degree murder. (153) Lohnes was not originally charged with second-degree murder, a statutorily-defined crime with elements distinct from first-degree murder. (154) Lohnes was convicted of second-degree murder, rather than the initial charge of first-degree murder. (155) The South Dakota Supreme Court held that Lohnes had not been given adequate notice that he could be found guilty of second-degree murder. (156) The Lohnes holding was later "overruled to the extent that it determined that second-degree murder could not be a lesser-included offense of first-degree murder due to the differing mens rea elements of the two crimes." (157)

In State v. Hoadley, (158) defendant Darrell Hoadley and two co-defendants kidnapped and killed Chester Allan Poage in Spearfish, South Dakota. (159) Hoadley was convicted of first-degree murder. (160) On appeal to the South Dakota Supreme Court, Hoadley argued that he was entitled to a lesser offense instruction on the first-degree murder charge. (161) Hoadley alleged the trial court improperly denied his proposed jury instructions on second-degree murder because he never intended to kill the victim. (162) The South Dakota Supreme Court emphasized the well-settled law of the State that the statutory elements approach applied. (163) Ultimately, the court held that the evidence in the case did not support a lesser offense instruction on second-degree murder. (164) "Actions," the court said, "speak louder than words." (165)

D. CONSTITUTIONAL PROVISIONS RELATING TO THE LESSER INCLUDED OFFENSES DOCTRINE

United States Supreme Court cases have made it clear that the doctrine of lesser included offenses cannot be applied with disregard to the constitutional notice requirement. (166) Thus, from the beginning, the question has been whether every element of the lesser offense is necessarily an element of the greater offense. (167) The defense is also bound by the same test, and its selection of lesser included offenses is no wider. (168) Because of this, the defendant's ability to waive his or her right to notice never comes into play. (169)

1. The Sixth Amendment: A Right to Notice

Intertwined with the lesser included offense doctrine is the principle constitutional right of an individual to have notice of the offenses charged prior to the beginning of the trial process. (170) The Sixth Amendment of the United States Constitution states that "the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation...." (171) The purpose of this constitutional right is to ensure a defendant has the opportunity to prepare an adequate defense to the criminal charges brought against him or her. (172) A defendant has a right to notice not of the facts of his or her case, but rather what the State's accusation or the theory of the government's case is. (173)

2. The Fifth and Fourteenth Amendments: A Right to Due Process of Law

Increasingly, the lesser included offense doctrine has raised federal constitutional questions under the Due Process Clause. (174) "The Due Process Clauses of the Fifth and Fourteenth Amendments generally require that criminal proceedings satisfy those 'principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" (175) The constitutional right of an accused to testify on his or her own behalf is "essential to due process of law in a fair adversary process," and is derived from a multitude of constitutional provisions. (176) Criminal defendants have the privilege to testify in their own defense, but are not required to. (177) Included in a defendant's right to testify in his or her own defense is the right to call witnesses whose testimony is "material and favorable to his defense." (178) A defendant's opportunity to conduct his or her own defense by calling witnesses is incomplete if he or she is unable to present himself or herself as a witness. (179)

In Beck v. Alabama, (180) the Supreme Court held that a criminal defendant in a capital case is constitutionally entitled to a jury instruction on lesser included offenses. (181) According to the court in Beck, when there is questionable evidence that the defendant has committed a "serious, violent offense--but leaves some doubt with respect to an element that would justify conviction of a capital offense--the failure to give the jury the 'third option' of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction." (182) Both capital and non-capital punishment involve the deprivation of an individual's personal liberty, which cannot be encroached upon without due process of law. (183)

In some circumstances, due process guarantees a criminal defendant an instruction on a lesser included offense. (184) The importance of this instruction was discussed in Keeble v. United States. (185) In Keeble, Justice Brennan of the United States Supreme Court explained that a lesser included offense instruction safeguards the reliability of the fact-finding process:
Moreover, it is no answer to petitioner's demand for a jury instruction
on a lesser offense to argue that a defendant may be better off without
such an instruction. 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. 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. (186)


In Keeble, the Court stated that the Fifth Amendment did not guarantee a defendant a lesser included offense instruction, yet "it is nevertheless clear that a construction of the Major Crimes Act to preclude such an instruction would raise difficult constitutional questions." (187) The Supreme Court of South Dakota has further stated that "an accused must be afforded a meaningful opportunity to present a complete defense...." (188) The South Dakota Supreme Court has also recognized that a defendant's constitutional right to be informed of "the nature and cause of the accusation against him" is a basic and crucially important fundamental right. (189)

3. The Fifth and Eighth Amendments: Juveniles are Different

In addition to due process concerns, constitutional juvenile justice issues are also implicated when the defendant in a case is a juvenile. (190) In Roper v. Simmons, (91) Justice Kennedy first expressed that juveniles are different from adult offenders. (192) The Court in Roper delineated three major cognitive and developmental characteristics that are unique to juveniles--making them less culpable than adult offenders. (193) These cognitive and developmental characteristics are the juvenile offender's "objective immaturity, vulnerability, and lack of true depravity...." (194) However, in Roper, and later in Graham v. Florida, (195) the Supreme Court applied the "juveniles are different" framework only within the confines of the Eighth Amendment. (196) Later, the Court extended the framework's application to the Fifth Amendment in J.D.B. v. North Carolina} (91) In J.D.B., the Court recognized that juveniles require individualized consideration of their age to ensure adequate protection of their constitutional rights within the criminal justice system. (198)

The Supreme Court decision of In re Gault (199) represented a major shift in the procedural rights afforded to juveniles because it required that states inform juveniles of their rights and protect them from arbitrary judgments. (200) Gault altered the form and function of the juvenile justice system, changing it from one focused on the best needs of the child to one focused on the offense committed by the child. (201) In Gault, the Court established certain procedural safeguards for juveniles during the adjudication process. (202) The Court extended additional due process rights to juvenile offenders in subsequent cases. (203)

The Supreme Court has noted that both common knowledge and scientific data confirm that youths possess a lack of maturity and an underdeveloped sense of responsibility as compared to adults. (204) Developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. (205) These studies demonstrate that juveniles are more capable of change than adults, meaning that their actions are less likely to be evidence of a depraved character. (206) Moreover, the law recognizes, in a variety of forms, that juveniles are less mature than adults. (207) These laws recognize that juveniles require additional protections from consequences that could result when they make adult decisions on their own. (208) Thus, constitutional due process rights are "entangled in the selection of lesser included offenses." (209)

IV. ANALYSIS

For over 600 days, Braiden McCahren faced an indictment for only first-degree murder, attempted first-degree murder, and aggravated assault. (210) In the end, he was convicted of second-degree murder. (211) The lesser included offense doctrine permits the jury to find a defendant guilty of a less serious offense than the offense originally charged. (212) This is the point of the lesser included offense doctrine--it was not designed to allow prosecutors the chance to "charg[e] by ambush" when all other avenues of charging fail. (213)

A. THE DUE PROCESS RIGHT TO NOTICE AND THE OPPORTUNITY TO DEFEND

The due process concerns that are inherent in lesser included offenses typically arise when there is a lack of evidence in support of the offense charged. (214) There is a fear that if a trial court fails to give a lesser included offense instruction to the jury, the jury might convict a defendant on the offense charged simply because they feel that the defendant is guilty of some crime, even if it is not necessarily the one the defendant has been formally charged with. (215) Great latitude is given to a jury's discretion, and the prosecution must carry the burden to convict beyond a reasonable doubt on the offense charged or the lesser included offense. (216)

"The lesser included offense doctrine, by definition, raises a due process notice problem, because no matter which particular theory of the doctrine is applied, the defendant must raise a defense against a charge for which he has not specifically been given notice." (217) The Supreme Court in Beck v. Alabama stated that even though a defendant is not entitled to a lesser included offense instruction under due process, "the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard." (218)

While South Dakota law defines second-degree murder as a lesser offense of first-degree murder, the application of the law in McCahren was unconstitutional because it violated McCahren's due process rights. (219) Approximately two hours before closing arguments were set to begin, McCahren faced an entirely new homicide charge. (220) In the twenty-one months that led up to the beginning of trial, the prosecution did not seek or bring any other charges against McCahren. (221) South Dakota law does not automatically entitle the prosecution or defense to a lesser offense instruction. (222) A defendant, to protect his due process rights, must be afforded adequate notice that a lesser included offense may be sought. (223)

"The right of the prosecution to request a lesser included offense is confined to an offense that the defendant has received notice of by virtue of the indictment." (224) The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to be informed of the nature and cause of the accusation." (225) Because of the circumstances at trial, McCahren did not have notice that he would be charged with second-degree murder as a lesser offense of first-degree murder. (226)

In Lohnes, the South Dakota Supreme Court held defendant Lohnes was not given adequate notice that he could be found guilty of second-degree murder. (227) Like McCahren, Lohnes was never charged with second-degree murder. (228) Although Lohnes was later overturned by the South Dakota Supreme Court, the court in McCahren acknowledged that instructing a jury on second-degree murder, despite that offense not being charged, violated Lohnes' right to be informed of the nature and cause of the accusation against him. (229) The Lohnes decision was only overruled to the extent that the court determined that second-degree murder could not be a lesser included offense of first-degree murder due to the difference in mens rea of the two crimes. (230) The fact that Lohnes was not adequately informed about the possibility of a second-degree murder jury instruction was not overruled. (231)

Due process requires that a lesser included offense instruction be given only when there is evidence warranting such an instruction. (232) "If the State's evidence establishes each and every element of first-degree murder and there is no evidence to negate these elements, it is proper for the trial court to exclude second-degree murder from the jury's consideration." (233) If a lesser included offense is defined in the very broadest of terms, the defendant will undoubtedly be able to defend himself against the crime he is actually charged with, but he may not be able to foresee and prepare against a merely related lesser offense. (234) It is in those cases that courts must examine whether the defendant was provided notice sufficient to inform him of the charged offense. (235)

It was only after the close of evidence that the prosecution made it known to the defense that it had changed its theory of the case. (236) Although the notice requirement of the Due Process Clause is deemed satisfied when a defendant is charged with a greater offense but convicted of an uncharged lesser included offense, the prosecution made it clear with its motion to preclude the defense from requesting a lesser offense instruction that it was not planning on pursuing a second-degree murder charge against McCahren. (237) It is arguable that the State proved its case of second-degree murder beyond a reasonable doubt because they only put forth evidence of first-degree murder during the trial and McCahren did not have a chance to defend against the second-degree murder charge. (238)

When a defendant is denied the ability to respond to the State's case against him, he is deprived of a fundamental constitutional right to an opportunity to present a defense. (239) The South Dakota Supreme Court and the United States Supreme Court have consistently acknowledged that a criminal defendant is constitutionally entitled to a fair opportunity to defend against the charges against him. (240) All strategy decisions made by the defense, including what witnesses to call and whether McCahren would testify on his own behalf were premised on the defense to the charge of first-degree murder, not second-degree murder. (241) While the defense has no obligation to present any evidence at trial, McCahren's defense did not put forth psychiatric testimony, which would have undoubtedly been relevant to a second-degree murder charge had McCahren been informed of the prosecution's intent to charge him with second-degree murder. (242)

Because of the compulsory process of the Sixth Amendment, which grants defendants the right to call witnesses in their favor also encompasses and supports a witness' right to testify, McCahren should have been permitted the chance to call witnesses in his favor to dispute the second-degree murder charge. (243) McCahren was constitutionally permitted to testify in his own defense during his trial--something he was unable to do under the circumstances. (244) The second-degree murder instruction was requested by the prosecution only two hours before closing arguments, affording McCahren no opportunity to defend against the second-degree murder charge. (245)

In Rock v. Arkansas, the United States Supreme Court emphasized that included in a defendant's right to call witnesses whose testimony will be material and favorable to his defense is the right to testify himself should he decide to do so. (246) A defendant's opportunity to conduct his own defense by calling witnesses is incomplete if he is unable to present himself as a witness. (247) While McCahren technically would have been able to testify in his own defense during his trial for first-degree murder, he would not have been able to testify in his own defense during the same trial for second-degree murder, because he was unaware that the State would request a jury instruction on second-degree murder until after the close of evidence--by then it was too late. (248)

B. JUVENILES ARE DIFFERENT

The United States Supreme Court has repeatedly said that juveniles are different. (249) Justice Kennedy stated that juveniles are different from adults in Roper v. Simmons. (250) Braiden McCahren was a juvenile when he shot Dalton Williams. (251) In addition to due process protections that are afforded to adult defendants, McCahren deserved additional protections because he was a juvenile. (252) The Supreme Court has recognized that juveniles require an individualized consideration of their age in order to protect their constitutional rights. (253) Because of these decisions by the Supreme Court, McCahren should have been treated differently because of his age, despite the fact that he was tried in adult court. (254)

McCahren should have been informed of a possible second-degree murder charge long before the State informed him of this possibility. (255) In re Gault extended additional due process protections to juvenile offenders. (256) These protections include that the prosecution must provide juvenile offenders with written notice of the charges against them, and that such written notice be given at the earliest practicable time in advance of a hearing. (257) The State erred when it did not notify McCahren, prior to even the beginning of trial, that the prosecution would also seek a second-degree murder charge. (258) This conduct disregards the premise set forth in Gault that extends additional protections to juveniles. (259) After all, "juveniles are different." (260)

There is a vast difference between the maturity of an adult and the maturity of a juvenile. (261) Juveniles are more capable of change than adult offenders, and their actions are less likely to be evidence of depraved character than adult offenders. (262) Because of these fundamental differences between adults and juveniles, McCahren should have been handled with much more care during his trial. (263) Because of the fact that McCahren was a juvenile, the majority in McCahren should have been much more concerned about the prosecution's "charging by ambush." (264)

C. SOUTH DAKOTA LEGISLATURE SHOULD TAKE ACTION

The South Dakota Codified Law section 22-16-20.2 should be amended to contain a provision that the prosecution or defense must request a lesser offense instruction prior to the beginning of trial. (265) South Dakota Codified Law section 22-16-20.2 provides that either the prosecution or defense may request a lesser offense instruction. (266) Section 22-16-20.2 also states that a lesser offense instruction is to be given when there are facts supporting the lesser offense. (267) However, section 22-16-20.2 does not provide information about when a lesser offense instruction should be requested by either the prosecution or the defense. (268) This section of the South Dakota Codified Laws does, however, state that "failure to request a lesser included offense instruction constitutes a waiver of the right to such an instruction." (269)

While section 22-16-20.1 of the South Dakota Codified Laws explicitly states that second-degree murder is a lesser included offense of first-degree murder, section 22-16-20.2 is more ambiguous about lesser included offense instructions. (270) Section 22-16-20.2 contains no information about when lesser offense instructions should be sought either by the prosecution or defense--only that the prosecution or defense can request a lesser offense instruction. (271) By amending current codified laws, the South Dakota Legislature would avoid further confusion about the timeliness of lesser offense instructions. (272)

IV. RECOMMENDATIONS TO THE SOUTH DAKOTA JUDICIARY AND LEGISLATURE

A. SOUTH DAKOTA SHOULD ADOPT THE EVIDENCE APPROACH

If South Dakota were to adopt the evidence approach to lesser included offenses, the prosecution may be barred from seeking a lesser included offense instruction if the accusatory pleading did not adequately inform the defendant of possible lesser included offenses. (273) In South Dakota, the lesser included offense doctrine caused considerable confusion prior to the adoption of the elements approach. (274) South Dakota currently utilizes the elements approach to determine which offenses are considered lesser offenses of others, and in order to change this approach, the South Dakota Supreme Court would need to resolve whether the lesser included offense doctrine deprives defendants of constitutional protections. (275) By adopting the evidence approach, South Dakota would provide defendants with better notice of lesser included offenses that could be sought by the prosecution. (276)

B. SOUTH DAKOTA SHOULD AMEND SOUTH DAKOTA CODIFIED LAW SECTION 22-16-20.2

While South Dakota law statutorily defines second-degree murder as a lesser offense of first-degree murder, there is nothing in that section nor any other section that requires the State to inform a defendant that it will request a lesser offense instruction. (277) Additionally, South Dakota Codified Law section 22-16-20.2 does not include information about when a lesser offense instruction should be requested. (278) The evidence approach reviews inculpatory evidence that has been offered by the prosecution. (279) Although the evidence approach has been criticized as making it difficult to determine what evidence is necessary for a conviction, this alternative to the elements approach would allow for greater notice of lesser included offenses to the defendant. (280)

Braiden McCahren was not informed until after the close of all evidence that the prosecution wished to instruct the jury on the offense of second-degree murder. (281) Because the prosecution tried its case in chief as a first-degree murder case, and because the prosecution filed a motion precluding the defense from requesting a jury instruction on second-degree murder, the application of the statute should be considered unconstitutional. (282) South Dakota's lesser included offense statute should be amended to contain the provision that prosecutors must inform defendants explicitly of all lesser offenses they wish to pursue at trial. (283)

If South Dakota's lesser included offense statutes were amended, criminal defendants would be afforded a more meaningful opportunity to be provided notice of any and all potential lesser offenses that the prosecution may pursue at trial. (284) In so doing, South Dakota would eliminate the possibility that a defendant might be blind-sided by a last-minute jury instruction on a lesser offense. (285) This could effectively prevent prosecutors in future cases from participating in the kind of "charging by ambush" conduct that occurred in McCahren. (286)

V. CONCLUSION

For years, the United States Supreme Court and the Supreme Court of South Dakota have failed to reevaluate whether a defendant's due process rights are violated by the lesser included offense doctrine. While the decision of the South Dakota Supreme Court in McCahren technically adhered to the well-settled laws of the state, Judge Sabers admonished that "[j]ust because we can do something, does not mean that we should." (287) These words from Judge Sabers highlight the failure of the South Dakota Supreme Court to consider the implications of their decision in McCahren.

The amount and cumulative nature of the constitutional violations arguably impacted the jury's verdict. Based on the facts of the case, the defense was met with a new and unexpected theory of second-degree murder only minutes before closing arguments were scheduled to begin. (288) The South Dakota Supreme Court's failure to address the prosecutorial conduct in the case serves as potentially dangerous precedent of how prosecutors will perhaps be encouraged to "charg[e] by ambush" in future cases. (289) If the Supreme Court continues to allow "charging by ambush" in similar cases where a defendant is denied notice and an opportunity to be heard, the same injustice will result. (290) Rather than risk an acquittal, the prosecution ambushed McCahren, reversing their entire theory of the case once they realized that their case was not strong enough. Furthermore, McCahren was a juvenile defendant, highlighting even more the need for the court to not permit this type of trial procedure. Ultimately, prosecutors should not only be discouraged from "charging by ambush," but prohibited completely from doing so, and South Dakota's lesser included offense statute should be amended to include a provision that prosecutors must inform defendants of any lesser included offenses they seek to pursue prior to trial. (291)

LORANDA K. KENYON ([dagger])

Copyright [c] 2017. All Rights Reserved by Loranda K. Kenyon and the South Dakota Law Review.

([dagger]) J.D. Candidate, 2018, University of South Dakota School of Law; B.A. in Criminal Justice and Sociology, 2015, University of Sioux Falls. I would like to express gratitude to my colleagues on the South Dakota Law Review, and particularly to editors Kimberly McNulty, Ashley Brost, Nicholas Koontz, and Shad Christman. I would also like to thank my friends, family, and mentors for their encouragement. Lastly, I would like to thank my husband, Chris, for being by my side and for his love and support.

(1.) State v. McCahren, 2016 SD 34, [paragraph] 1, 878 N.W.2d 586, 589; Appellant's Brief at 7, State v. McCahren, 2016 SD 34, 878 N.W.2d 586 (No. 27325) [hereinafter Appellant's Brief]. Additionally, McCahren was convicted of the aggravated assault of another friend, Tyus Youngberg, also stemming from the shooting incident at McCahren's home on December 18, 2012. McCahren, 2016 SD 34, [paragraph] 1, 878 N.W.2d at 589.

(2.) McCahren, 2016 SD 34, [paragraph] 4, 878 N.W.2d at 590.

(3.) Id. [paragraph] 45, 878 N.W.2d at 602 (Sabers, J., concurring).

(4.) Id. [paragraph] 46, 878 N.W.2d at 603.

(5.) Id. [paragraph] 45, 878 N.W.2d at 602.

(6.) Appellant's Brief, supra note 1, at 11.

(7.) Id. at 12.

(8.) Id. at 6. McCahren was acquitted of all other charged offenses. Id.

(9.) State v. McCahren, 2016 SD 34, [paragraph] 4, 878 N.W.2d 586, 590. McCahren also appealed the lower court's decision to limit the cross-examination of one of the State's witnesses, the court's refusal to suppress his statements made to a roommate at the Western Area Juvenile Services Center, and the court's refusal to suppress his statements made to a Pierre police officer after he was arrested. Id.

(10.) Id. [paragraph] 6, 878 N.W.2d at 590.

(11.) Amanda Peters, Thirty-One Years in the Making: Why the Texas Court of Criminal Appeals' New Single-Method Approach to Lesser-Included Offense Analysis is a Step in the Right Direction, 60 BAYLOR L. REV. 231, 235 (2008) (noting that many more defendants than prosecutors request lesser offense instructions in order to give the jury a chance to convict on a lesser charge with a lighter sentence).

(12.) See infra Part III (discussing the history of the lesser included offense doctrine, constitutional implications, and the relationship between the doctrine and juvenile offenders).

(13.) Michael H. Hoffheimer, The Rise and Fall of Lesser Included Offenses, 36 RUTGERS L.J. 351, 356 (2005) [hereinafter Hoffheimer I].

(14.) Id.

(15.) Id.

(16.) Id.

(17.) Id.

(18.) Christen R. Blair, Constitutional Limitations on the Lesser Included Offense Doctrine, 21 AM. CRIM. L. REV. 445, 445 (1984) (citations omitted).

(19.) Id.

(20.) See infra Part IV (discussing that the trial court should not have allowed a jury instruction on second-degree murder when the prosecution tried the entire case under the theory of first-degree murder).

(21.) See infra Part II (discussing the facts and procedural history of McCahren).

(22.) See infra Part III (discussing the history of the lesser included offense doctrine and present-day practices).

(23.) See infra Part IV (highlighting the prosecution's violation of McCahren's due process rights after the court allowed the last-minute jury instruction on second-degree murder).

(24.) See infra Part IV (discussing that South Dakota codified law should change in order to prevent future prosecutors from charging defendants by ambush); State v. McCahren, 2016 SD 34, [paragraph] 48, 878 N.W.2d 586, 603 (Sabers, J., concurring) (arguing that prosecutors should not be allowed to charge defendants "by ambush").

(25.) Appellee's Brief at 4, State v. McCahren, 2016 SD 34, 878 N.W.2d 586 (No. 27325) [hereinafter Appellee's Brief].

(26.) State v. McCahren, 2016 SD 34, [paragraph] 2, 878 N.W.2d 586, 589; Appellant's Brief, supra note 1, at 7.

(27.) McCahren, 2016 SD 34, [paragraph] 2, 878 N.W.2d at 589.

(28.) Id.; Appellee's Brief, supra note 25, at 5.

(29.) McCahren, 2016 SD 34, [paragraph] 2, 878 N.W.2d at 589.

(30.) Id.

(31.) Id.

(32.) Id.

(33.) Id.; Appellee's Brief, supra note 25, at 6.

(34.) Appellee's Brief, supra note 25, at 6.

(35.) McCahren, 2016 SD 34, [paragraph] 2, 878 N.W.2d at 589; Appellee's Brief, supra note 25, at 6.

(36.) McCahren, 2016 SD 34, [paragraph] 3, 878 N.W.2d at 589.

(37.) Id

(38.) Appellant's Brief, supra note 1, at 7.

(39.) Id.

(40.) Id.; see Appellee's Brief, supra note 25, at 4-5 (explaining that the argument that had taken place earlier in the day involved a paint gun incident where a paint gun in Braiden McCahren's vehicle had discharged, causing damage to the dashboard in the vehicle).

(41.) Appellee's Brief, supra note 25, at 7.

(42.) State v. McCahren, 2016 SD 34, [paragraph] 3, 878 N.W.2d at 589; Appellant's Brief, supra note 1, at 7.

(43.) Appellant's Brief, supra note 1, at 4.

(44.) Id. at 6, 11.

(45.) McCahren, 2016 SD 34, [paragraph] 19, 878 N.W.2d at 595 (adding that while at the Pennington County Juvenile Services Center, psychologist Dr. Kari Scovel conducted a psychological evaluation of McCahren, pursuant to a court order).

(46.) Appellant's Brief, supra note 1, at 4-5.

(47.) Id. at 6.

(48.) Id.

(49.) State v. McCahren, 2016 SD 34, [paragraph] 47, 878 N.W.2d 586, 603 (Sabers, J., concurring).

(50.) Appellant's Brief, supra note 1, at 6.

(51.) McCahren, 2016 SD 34, [paragraph] 4, 878 N.W.2d at 590.

(52.) Id.

(53.) Id.

(54.) Id.; Appellant's Brief, supra note 1, at 6. McCahren was found not guilty of first-degree murder and attempted first-degree murder. Id.

(55.) State v. McCahren, 2016 SD 34, [paragraph] 4, 878 N.W.2d 586, 590.

(56.) Id.

(57.) Id. [paragraph] 38, 878 N.W.2d at 602.

(58.) Id.

(59.) Id. [paragraph] 16, 878 N.W.2d at 595. The court stated:
In this case, Youngberg testified that after the gun, which McCahren
shouldered and pointed at Youngberg, failed to discharge, McCahren took
a shell from a drawer and loaded the shotgun. Once again, McCahren
pulled the trigger with the shotgun shouldered and pointed in the
direction of Youngberg and Williams. This type of conduct supports the
court's decision that the evidence supported instructing the jury on
second-degree murder.


Id.

(60.) Id. [paragraph] 43, 878 N.W.2d at 602 (Sabers, J, concurring).

(61.) Id. [paragraph] 48, 878 N.W.2d at 603.

(62.) State v. McCahren, [paragraph] 45, 878 N.W.2d 586, 602; see S.D.C.L. [section] 22-16-20.1 (2006 & Supp. 2016) (providing that second-degree murder is a lesser included offense of first-degree murder).

(63.) McCahren, 2016 SD 34, 1J 45, 878 N.W.2d at 602-03.

(64.) Id. In her opinion, Judge Sabers stated.
Before trial began, the prosecution even filed a motion to preclude the
defense from asking for an instruction on second-degree manslaughter
arguing, in part, that there was no basis for such an instruction
because the evidence of premeditation was so strong. As a result, no
one can fault the defense for being surprised at the prosecution's
eleventh-hour request for an instruction on second-degree murder.


Id.

(65.) Id. [paragraph] 45, 878 N.W.2d at 602.

(66.) Id. [paragraph] 44, 878 N.W.2d at 602.

(67.) Id. [paragraph] 45, 878 N.W.2d at 602-03.

(68.) Id. [paragraph] 47, 878 N.W.2d at 603.

(69.) State v. McCahren, 2016 SD 35, [paragraph] 47, 878 N.W.2d 586, 603

(70.) Id.

(71.) Id.

(72.) Id. at 603 n.12.

(73.) Id.

(74.) David F. Abele, Jury Deliberations and the Lesser Included Offense Rule: Getting the Courts Back in Step, 23 U.C. DAVIS L. REV. 375, 375 (1990). See also Deanna Hall, The "Third Option": Extending the Lesser Included Offense Doctrine to the Non-Capital Context, 29 HOFSTRA L. REV. 1333, 1335 (2001) (explaining that traditionally, the right to a lesser included offense instruction originated at common law as a tool of the prosecution in cases where the available evidence failed to show some element of the crime charged).

(75.) See Blair, supra note 18, at 445, 453 (explaining that the doctrine of lesser included offenses can be used as either an aid to the prosecution or defense).

(76.) See Kyron Huigens, The Doctrine of Lesser Included Offenses, 16 U. PUGET SOUND L. REV. 185, 187 (1992) (noting that when properly formulated, the lesser included offense doctrine not only serves the rights and interests of each respective party, but also maintains them in an "equitable balance").

(77.) Id.

(78.) Hoffheimer I, supra note 13, at 356. See also Jane A. Minerly, The Interplay of Double Jeopardy, the Doctrine of Lesser Included Offenses, and the Substantive Crimes of Forcible Rape and Statutory Rape, 82 TEMP. L. REV. 1103, 1109-10 (2009) (noting the prosecution may want an instruction on any applicable lesser included offenses to save time and resources by avoiding the need to bring another prosecution as well as to avoid potential double jeopardy problems).

(79.) Abele, supra note 74, at 375; see also Peters, supra note 11, at 235 (explaining that over the years, the lesser included offense doctrine has become arguably more beneficial in aiding the defense than helping the prosecution in obtaining a conviction in cases with insufficient evidence of the charged offense). See also Huigens, supra note 76, at 197 (explaining that historically the doctrine of lesser included offenses developed as a tool of the prosecution to insure against acquittal when proof in a case did not come in as expected).

(80.) Hoffheimer I, supra note 13, at 356. See also Abele, supra note 74, at 375-76 (explaining that the lesser included offense doctrine "created more options for juries to consider during deliberations"); Peters, supra note 11, at 235 (stating that the United States Supreme Court has provided that the lesser included offense doctrine allows a jury to consider a less drastic alternative than the choice between a conviction or outright acquittal).

(81.) Hoffheimer I, supra note 13, at 356.

(82.) Michael H. Hoffheimer, The Future of Constitutionally Required Lesser Included Offenses, 67 U. PITT. L. REV. 585, 585 (2006) [hereinafter Hoffheimer II] (citations omitted).

(83.) See Beck v. Alabama, 447 U.S. 625, 644-45 (1980) (stating that this right prevents juries from being forced to make all-or-nothing choices between the guilt and innocence of an individual in cases where serious crimes have been committed and pressures to convict are great).

(84.) See Draper-El v. Doom, No. 09-6289, 09-6290, 2012 WL 806198, at *1 (6th Cir. Mar. 13, 2012) (noting that even in capital cases, the requirement of a lesser included offense instruction is grounded in the Eighth Amendment, not due process); see also Tim Dallas Tucker, State v. Black: Confusion in South Dakota's Determination of Lesser Included Offenses in Homicide Cases, 41 S.D. L. REV. 465, 489-90 (1996) (noting that "[w]hile the Supreme Court has not extended due process considerations to non-capital cases, it has not excluded that possibility" from occurring should the appropriate case come up).

(85.) See Beck, 447 U.S. at 634-35 (stating that a defendant is entitled to a lesser offense instruction if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit of the greater offense); see also Keeble v. United States, 412 U.S. 205, 214 (1973) ("We hold only that where an Indian is prosecuted in federal court under the provisions of the Act, the Act does not require that he be deprived of the protection afforded by an instruction on a lesser included offense, assuming of course that the evidence warrants such an instruction.").

(86.) See Tucker, supra note 84, at 475 ("The determination of lesser included offenses is certainly not a new problem in South Dakota. The first recorded case dealing with lesser included offenses in this jurisdiction dates back to 1877 in the case of Territory v. Bannigan").

(87.) FED R.CRIM. P. 31(c).

(88.) FED. R CRIM. P. 31(c)(1).

(89.) Hall, supra note 74, at 1335.

(90.) Id.

(91.) S.D.C.L. [section] 22-16-20.1 (2006 & Supp. 2016).

(92.) State v. McCahren, 2016 SD 34, [paragraph] 45, 878 N.W.2d 586, 602 (Sabers, J., concurring). South Dakota Codified Law states:
Murder in the second degree is a lesser included offense of murder in
the first degree. Manslaughter in the first degree is a lesser included
offense of murder in the first degree and murder in the second degree.
Manslaughter in the second degree is a lesser included offense of
murder in the first degree, murder in the second degree, and
manslaughter in the first degree.


S.D.C.L. [section]22-16-20.1.

(93.) S.D.C.L. [section] 22-16-20.2 (2006 & Supp. 2016).

(94.) Id.

(95.) Id.

(96.) State v. Andrews, 2001 SD 31, [paragraph] 23, 623 N.W.2d 78, 84; see also State v. Black (Black I), 494 N.W.2d 377, 379 (S.D. 1992) (explaining that if a lesser offense passes both the legal and factual tests, lesser included offense instructions must be given); State v. Tammi, 520 N.W.2d 619, 621 (S.D. 1994) (explaining "that where the legal test for submission of a lesser included offense instruction is not satisfied, it is not necessary to address the factual test and there is no error in failing to give the requested lesser included offense instruction").

(97.) State v. Hoadley, 2002 SD 109, [paragraph] 49, 651 N.W.2d 249, 260 (quoting Tammi, 520 N.W.2d at 621-22). The court in State v. Waff explained the three conditions of the legal test:
[F]irst, the elements of the included offense must be fewer in number
than the elements of the greater charged offense. Second, the penalty
for the included offense must be less than the greater charged offense
in terms of the maximum punishment attached to each offense. Third, []
the two offenses must contain common elements so that the lesser
included offense must be such that the greater offense cannot be
committed without also committing the lesser.


State v. Waff, 373 N.W.2d 18, 22 (S.D. 1985). See also State v. Black (Black II), 506 N.W.2d 738, 742 (S.D. 1993) (holding that as a matter of law, manslaughter, whether first-degree or second-degree, always meets the legal prong of the two-part test).

(98.) United States v. J.D.P., 909 F. Supp. 2d 1136, 1146 (D.S.D. 2012).

(99.) Waff, 373 N.W.2d at 22.

(100.) Id. (quoting State v. Kafka, 264 N.W.2d 702, 706 (S.D. 1978)). In State v. Tammi, the court stated that "[i]n order to meet the factual test, evidence must be presented which would support a conviction of a lesser charge." Tammi, 520 N.W.2d at 623. See also Iowa v. Royer, 436 N.W.2d 637, 639 (Iowa 1989) (explaining that the factual test requires a court to determine whether there is a sufficient factual basis on record for submitting a lesser offense).

(101.) Royer, 436 N.W.2d at 639.

(102.) Black II, 506 N.W.2d at 744 (citations omitted).

(103.) Id. (citations omitted). See also State v. O'Connor, 194 N.W.2d 246, 299 (1972) (stating that "the trial court is not required to instruct the jury even as to those offenses which might be included but which the evidence would not warrant).

(104.) See e.g., Connecticut v. Tomlin, 835 A.2d 12, 21 (Conn. 2003) (applying the pleadings approach); Illinois v. Miller, 938 N.E.2d 498, 507 (Ill. 2010) (applying the elements approach); Nebraska v. Williams, 503 N.W.2d 561, 565 (Neb.1993) (applying the elements approach); Pennsylvania v. Stots, 324 A.2d 480, 482 (Pa. 1974) (applying the pleadings approach); Pennsylvania v. Nace, 295 A.2d 87, 90 (Pa. 1972) (applying the evidence approach); Tennessee v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999) (applying the elements approach); Cavazos v. Texas, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012) (applying the cognate pleadings approach); Hall v. Texas, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007) (stating that "the pleadings approach is the sole test for determining in the first step whether a party may be entitled to a lesser-included-offense instruction"); Wyoming v. Keffer, 860 P.2d 1118, 1140 (Wyo. 1993) (applying the statutory elements approach).

(105.) WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE [section] 24.8(e) (6th ed. 2017) (citations omitted). See also Blair, supra note 18, at 446 (explaining that much of the confusion over the lesser included offense doctrine is due to the existence of several definitions of a lesser included offense, sometimes even in the same jurisdiction).

(106.) Hoffheimer I, supra note 13, at 364.

(107.) Id.

(108.) LAFAVE ET AL., supra note 105.

(109.) Hoffheimer I, supra note 13, at 364. See also United States v. Browner, 937 F.2d 165, 168 (5th Cir. 1991) (explaining that the pleadings approach allows a jury to consider a lesser offense if that offense is contained in the language of the indictment or information).

(110.) Peters, supra note 11, at 240.

(111.) Id.

(112.) James A. Shellenberger & James A. Strazzella, The Lesser Included Offense Doctrine and the Constitution: The Development of Due Process and Double Jeopardy Remedies, 79 MARQ. L. REV. 1, 11 (1995).

(113.) Id.

(114.) LAFAVE ET AL., supra note 105. "Unlike the elements approach which requires only a comparison of the statutory definitions of the greater and lesser offenses, under the pleadings approach a court must examine the charging document with an eye to what offenses are hidden within its allegations and seek as well to separate those allegations." Id. See also Illinois v. Kolton, 848 N.E.2d 950, 958 (Ill. 2006) (explaining that under the pleadings approach, an offense can be deemed a lesser offense even if every element is not explicitly contained in the indictment, so long as the missing element can reasonably be inferred).

(115.) LAFAVE ET AL., supra note 105.

(116.) Peters, supra note 11, at 240.

(117.) Id. at 240-41.

(118.) Id. (stating that some critics assert that the evidence approach defeats the purpose of a lesser included offense, which is to give the jury the option of conviction based on the evidence that is produced at trial rather than what is contained in the charging document).

(119.) Hoffheimer I, supra note 13, at 364.

(120.) Id. See also Shellenberger & Strazzella, supra note 112, at 12. "Under the evidence approach, the examination expands still further to include the evidence actually presented at trial. Thus, the examination is not simply of abstract statutory elements or even crimes suggested by the pleadings, but the crimes that the trial evidence tends to prove." Id. See also Chris Hutton, The "New" Federal Habeas: Implications for State Standards of Review, 40 S.D. L. REV. 442, 463 (1995) (stating that for the most part, states have established some type of elements or evidence approach for determining when a lesser offense instruction should be given).

(121.) Shellenberger & Strazzella, supra note 112, at 12.

(122.) Id. at 12-13.

(123.) Peters, supra note 11, at 241.

(124.) Id.

(125.) LAFAVE ET AL., supra note 105.

(126.) Id.

(127.) Hoffheimer I, supra note 13, at 364.

(128.) Id.

(129.) Peters, supra note 11, at 241.

(130.) Id. at 241-42.

(131.) LAFAVE ET AL., supra note 105.

(132.) Id.

(133.) Hoffheimer I, supra note 13, at 364-65.

(134.) Id.; see Catherine L. Carpenter, The All-Or-Nothing Doctrine in Criminal Cases: Independent Trial Strategy or Gamesmanship Gone Awry?, 26 AM. J. CRIM. L. 257, 265 (1999) (stating that because a bright line test was needed in considering whether a defendant has been given notice of all crimes charged, the statutory elements test is narrowly drawn, and that only those offenses containing the same elements as the greater charge will be deemed to be lesser included offenses).

(135.) See State v. Hoadley, 2002 SD 109, [paragraph] 49, 651 N.W.2d 249, 260 (explaining that the legal test also requires that the essential elements of the lesser offense must be incorporated into the corpus delicti of the greater offense); State v. Giroux, 2004 SD 24, [paragraph] 6, 676 N.W.2d 139, 141 (noting that the South Dakota Supreme Court has abandoned its prior tests in favor of the elements test).

(136.) Hoffheimer I, supra note 13, at 365. See also Shellenberger & Strazzella, supra note 112, at 10 (noting the elements approach considers only elements of the crimes set forth in the criminal statutes); Schmuck v. United States, 489 U.S. 705, 706 (1989) (holding that the elements test must be used in determining when a lesser included offense instruction is appropriate under Rule 31(c) because the elements approach is grounded in the Rule's history, which demonstrates that the approach was settled doctrine at the time of the promulgation of the Rule). LaFave states:
[T]he trial court must break down each offense by reference to its
elements, without looking to how the offense may have been committed in
the particular case, and ask whether it would be impossible to commit
the higher offense without also committing the lesser offense. Only if
that is the case can the offense be considered as the possible basis
for a charge under the lesser-offense doctrine.


LAFAVE ET AL., supra note 105. See also United States v. Browner, 937 F.2d 165, 167-68 (5th Cir. 1991). "The most restrictive approach is the 'statutory elements' test. Under this test, an offense is not lesser included unless each statutory element of the lesser offense is also present in the greater offense." Id.

(137.) Shellenberger & Strazzella, supra note 112, at 10.

(138.) Id.

(139.) State v. Giroux, 2004 SD 24, [paragraph] 5, 676 N.W.2d 139, 141. See also Black I, 494 N.W.2d 377, 382 (S.D. 1992) (encouraging "trial courts to give lesser-included instructions, even though not 'necessarily' or technically included, where a common sense review of the facts indicates that it would be difficult to commit the greater offense without committing the lesser offense"); Christy Molzen, Lesser Included Offenses: An End to the Second Prong of the Fike Test, 67 J. KAN. B.A. 30, 32 (1998) (explaining that in cases where there is evidence that would justify a conviction of a lesser crime, the judge should instruct the jury on the crime charged as well as the lesser crime).

(140.) United States v. J.D.P., 909 F. Supp. 2d 1136, 1146 (D.S.D. 2012). See also Chris Hutton, The "New" Federal Habeas: Implications for State Standards of Review, 40 S.D. L. REV. 442, 464 (1995) (explaining that a lesser offense exists even if only some of the elements of the greater are present and it is not possible to commit the greater offense without first committing the lesser offense).

(141.) See Hoadley, 2002 SD 109, [paragraph] 64, 651 N.W.2d at 264 (stating that "[a] lesser-included-offense instruction should be given when (1) the elements test is met and (2) some evidence in support of such instructions exists in the record"); Peters, supra note 11, at 238 (explaining that the elements approach has been adopted, though not mandated, by the United States Supreme Court and is also used in Federal criminal cases).

(142.) State v. Waloke, 2013 SD 55, [paragraph] 29, 835 N.W.2d 105, 113.

(143.) Hoffheimer I, supra note 13, at 365.

(144.) Id.

(145.) S.D.C.L. [section] 22-16-20.1 (2006 & Supp. 2016).

(146.) State v. McCahren, 2016 SD 34, [paragraph] 45, 878 N.W.2d 586, 602 (Sabers, J., concurring). See also State v. Giroux, 2004 SD 24, [paragraph] 5, 676 N.W.2d 139, 141. "Although in Hoadley the court affirmed the trial court's refusal to give the lesser-included-offense instructions because of lack of some evidence, the Court did determine that the offenses of Second Degree Murder and Manslaughter met the elements test as lesser-included-offenses of First Degree Murder." Id. See State v. Waff, 373 N.W.2d 18, 21 (S.D. 1985) (explaining that the South Dakota Supreme Court has consistently held that crimes of first and second-degree manslaughter are lesser included offenses included within the crime of murder and that the jury must be so instructed). The South Dakota Supreme Court has consistently used the elements approach in determining whether a lesser offense instruction should be given. See, e.g., Giroux, 2004 SD 24, [paragraph] 12, 676 N.W.2d at 144 (utilizing the elements approach in determining lesser offenses of aggravated assault); State v. Wall, 481 N.W.2d 259, 261-63 (S.D. 1992) (utilizing the elements approach in determining lesser offenses of second-degree manslaughter); State v. Gillespie, 445 N.W.2d 661, 662-64 (S.D. 1989) (utilizing the elements approach in determining whether simple assault is a lesser offense of aggravated assault); Waff, 373 N.W.2d at 22 (utilizing the elements approach for conspiracy to commit first-degree murder and first-degree murder); State v. Strumbaugh, 132 N.W. 666, 670 (S.D. 1911) (utilizing the elements approach for homicides).

(147.) Black I, 494 N.W.2d 377, 380 (S.D. 1993); see also Black II, 506 N.W.2d 738, 742 (S.D. 1993) ("It is not significant that the legislature has divided murder into the offenses of first and second degree murder or that it has divided manslaughter into the offenses of first and second degree manslaughter as the corpus delicti of all four offenses remains the same.'").

(148.) S.D.C.L. [section] 22-16-4 (2006 & Supp. 2016).

(149.) See State v. Lohnes (Lohnes I), 324 N.W.2d 409, 410 (S.D. 1982) (convicting defendant of second-degree murder after he was charged only with first-degree murder).

(150.) 324 N.W.2d 409 (S.D. 1982).

(151.) Lohnes I, 324 N.W.2d at 410; State v. Lohnes (Lohnes II), 432 N.W.2d 77, 80 (S.D. 1988).

(152.) Lohnes I, 324 N.W.2d at 410.

(153.) Id. at 412.

(154.) Id.

(155.) Id. at 411.

(156.) Id. at 414-15; Tucker, supra note 84, at 474.

(157.) State v. McCahren, 2016 SD 34, [paragraph] 10, 878 N.W.2d 586, 592. See also State v. Waff, 373 N.W.2d 18, 22 (S.D. 1985) (holding that Lohnes I was overruled by the Waff decision).

(158.) 2002 SD 109, 651 N.W.2d 249.

(159.) Id. [paragraph] 3, 651 N.W.2d at 252.

(160.) Id.

(161.) Id. [paragraph] 45, 651 N.W.2d at 259.

(162.) Id.

(163.) Id. [paragraph] 49, 651 N.W.2d at 260.

(164.) Id. [paragraph] 52, 651 N.W.2d at 261.

(165.) Id.

(166.) See Washington v. Ackles, 36 P. 597, 598 (Wash. 1894) (holding that although the lesser included offenses statute applied, the doctrine was nonetheless subject to the constitutional requirement of notice).

(167.) Huigens, supra note 76, at 193 (explaining that "[t]he elements test... is an elegant response to the constitutional command; it is a guarantee that, in charging the greater offense, the government will give notice, implicit but constitutionally sufficient, that the defendant also is accused of committing the lesser offense").

(168.) Id. at 198.

(169.) Id.

(170.) Peters, supra note 11, at 236. It has also been said that:
If the facts are such that the lesser offense is a lesser included
offense under the very fact-specific inherent relationship standard, it
is extremely unlikely the defendant will not have "timely actual notice
of the facts constituting the lesser charge of which he is convicted."
Whether the defendant has had notice of the legal theory the government
will use to shape those facts in instructions and closing argument is,
of course, a very different question. And, not only is it a different
question, it is the only pertinent question. The Sixth Amendment
guarantees notice of the elements of the offense precisely so that the
defendant can mount an effective defense.


Huigens, supra note 76, at 201 (quoting United States v. Martin, 783 F.2d 1449, 1453 (9th Cir. 1986)).

(171.) U.S. CONST. amend. VI.

(172.) Peters, supra note 11, at 236-37.

(173.) Huigens, supra note 76, at 197.

(174.) See Shellenberger & Strazzella, supra note 112, at 3 (explaining that the doctrine has also raised federal constitutional questions under the Double Jeopardy Clause as well as the Cruel and Unusual Punishment Clause); James Benzoni, Criminal Law--Courts Most Instruct on Lesser-Included Offenses that Fit Within the Elements of the Greater Charged Offense, Regardless of the Evidence--State v. Jeffries, 430 N.W.2d 728 (Iowa 1988), 39 DRAKE L. REV. 549, 556 (1990) (noting that lesser-included offenses implicate three separate constitutional issues: the right to notice of charges, the prohibition against double jeopardy, and the due process right to an accurate verdict based on the evidence); see also Alan L. Adlestein, Conflict of the Criminal Statute of Limitations with Lesser Offenses at Trial, 37 WM. & MARY L. REV. 199, 205 (1995) (noting that the Supreme Court has indicated that a failure to give a jury the appropriate lesser included offense instruction may raise due process concerns).

(175.) Shellenberger & Strazzella, supra note 112, at 14 (citations omitted). The South Dakota Supreme Court in State v. McCahren stated that:
Due process is fulfilled under our approach to lesser-included homicide
offenses because each lesser offense has lesser elements, either in
number or degree of culpability, than the greater offense. The greater
offense cannot be committed without also committing the lesser offense.
Thus, a defendant will be able to anticipate and defend against
lesser-included offenses during preparation and trial on the greater
offense because the lesser-included is "already included in the offense
charged."


State v. McCahren, 2016 SD 34, [paragraph] 11, 878 N.W.2d 586, 593 (citations omitted).

(176.) Rock v. Arkansas, 483 U.S. 44, 51 (1987) (citations omitted). See also In re Gault, 387 U.S. 1, 20 (1967) (explaining that the Due Process Clause "is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise").

(177.) Appellant's Brief, supra note 7, at 14-15.

(178.) Rock, 483 U.S. at 52 (citations omitted).

(179.) Appellant's Brief, supra note 7, at 14. The Supreme Court in Rock v. Arkansas said:
Even more fundamental to a personal defense than the right of
self-representation, which was found to be "necessarily implied by the
structure of the Amendment," is an accused's right to present his own
version of events in his own words. A defendant's opportunity to
conduct his own defense by calling witnesses is incomplete if he may
not present himself as a witness.


Rock, 483 U.S. at 52 (quoting Faretta v. California, 422 U.S. 806, 819 (1975)).

(180.) 447 U.S. 625 (1980).

(181.) Id. at 627. See also Hall, supra note 74, 1338 (explaining that the decision in Beck v. Alabama was limited only to capital cases, leaving the door open for circuit courts to decide on their own whether Beck also applied to non-capital offenses).

(182.) Beck, 447 U.S. at 637. See also Hall, supra note 74, at 1339-40 (noting that by allowing a jury in a capital case to consider all offenses that are consistent with the evidence, rather than just the offense the defendant has been charged with, ensures accuracy in the fact-finding process).

(183.) Hall, supra note 74, at 1360-361. See In re Gault, 387 U.S. 1, 20 (1967) (noting that due process of law--including the ability to prepare and present a defense appropriate to the crime of which one stands to be convicted--"is the primary and indispensable foundation of individual freedom").

(184.) Keeble v. United States, 412 U.S. 205, 213 (1973).

(185.) 412 U.S. 205(1973).

(186.) Id. at 212-13.

(187.) Id. at 213.

(188.) State v. Waloke, 2013 SD 55, [paragraph]28, 835 N.W.2d 105, 113.

(189.) S.D. CONST. art. VI, [section] 7. See also Lohnes I, 324 N.W.2d 409, 412 (S.D. 1982) (recognizing a defendant's right to be informed of the nature of the accusations against him).

(190.) See Brandon Weston, Balancing Rehabilitation and Punishment: Combining Juvenile Court Waiver Mechanisms to Create a Balanced Justice System, 53 AM. CRIM. L. REV. 235, 237-38 (2015) (discussing the differences between adult and juvenile courts and that juveniles are more amenable to rehabilitation).

(191.) 543 U.S. 551(2005).

(192.) See id. at 553 (citations omitted) (explaining that juveniles are different from adults because their conduct is not as bad as adults, they have a lack of control over their immediate surroundings, they have a claim to be forgiven, and if they do something bad, it does not necessarily mean they are of bad character).

(193.) Id. at 572-73. See also Brice Hamack, Go Directly to Jail, Do Not Pass Juvenile Court, Do Not Collect Due Process: Why Waiving Juveniles Into Adult Court Without a Fitness Hearing is a Denial of Their Basic Due Process Rights, 14 WYO. L. REV. 775, 791 (2014) (noting that Supreme Court in Roper v. Simmons delineated these characteristics which are unique to juvenile offenders).

(194.) Roper v. Simmons, 543 U.S. 551, 572-73 (2005).

(195.) 560 U.S. 48(2010).

(196.) See Roper, 543 U.S. at 568 (2005) (explaining that the Eighth Amendment does not require a juvenile offender under age eighteen to be sentenced to death); Graham v. Florida, 560 U.S. 48, 79 (2010) (noting that the Eighth Amendment does not permit sentencing a juvenile to life imprisonment without considering the age of the defendant when the crime was committed).

(197.) See J.D.B. v. North Carolina, 564 U.S. 261, 297-98 (2011) (holding that juvenile defendants require additional Fifth Amendment protections against coercion to ensure that their rights are protected when in custody for Miranda purposes).

(198.) Id.; Hamack, supra note 193, at 801.

(199.) 387 U.S. 1(1967).

(200.) See id. at 55-57 (holding that the constitutional privilege against self-incrimination is applicable to juveniles as it is with adults); Matthew Thomas Wagman, Note, Innocence Lost in the Wake of Green: The Trend is Clear--If You Are Old Enough to Do the Crime, Then You Are Old Enough to Do the Time, 49 CATH. U. L. REV. 643, 653 (2000) (noting that In Re Gault indicated a shift in the constitutional rights afforded to juveniles).

(201.) See In re Gault, 387 U.S. 1, 30-31 (1967) (holding that due process rights must be afforded to juveniles during the adjudication process); Holly Beatty, Comment, Is the Trend to Expand Juvenile Transfer Statutes Just an Easy Answer to Complex Problem?, 26 U. TOL. L. REV. 979, 984-85 (1996) (citations omitted) (noting that In re Gault altered the procedural safeguards during adjudication and transfer hearings).

(202.) See Gault, 387 U.S. at 59-60 (Black, J., concurring) (holding that the Bill of Rights safeguards should fully apply in juvenile court cases). Justice Black, in his concurrence, succinctly summarized these safeguards as "including notice as provided in the Sixth Amendment, the right to counsel guaranteed by the Sixth, the right against self-incrimination guaranteed by the Fifth, and the right to confrontation guaranteed by the Sixth." Id.

(203.) See In re Winship, 397 U.S. 358, 368 (1970) (extending the requirement of proof beyond a reasonable doubt from adult proceedings to juvenile proceedings); Breed v. Jones, 421 U.S. 519, 531 (1975) (holding that the double jeopardy clause of the Fifth Amendment applied to juveniles).

(204.) Roper v. Simmons, 543 U.S. 551, 569 (2005) (citations omitted).

(205.) Id. at 617-18 (citations omitted); see also Linda F. Giardino, Note, Statutory Rhetoric: The Reality Behind Juvenile Justice Policies in America, 5 J. L. & POL'Y 223, 230-31 (1996) (citations omitted) (noting that the probability that an individual who was never arrested as a juvenile will be an adult chronic offender is very remote, and that it is imperative that serious juvenile offenders receive rehabilitative treatment in order to diminish their chances of becoming adult offenders).

(206.) Roper, 543 U.S. at 570.

(207.) See id. at 569 (citations omitted) (explaining that "almost every State prohibits those under eighteen from voting, serving on juries, or marrying without parental consent"); Wendy N. Hess, Kids Can Change: Reforming South Dakota 's Juvenile Transfer Law to Rehabilitate Children and Protect Public Safety, 59 S.D. L. REV. 312, 312 (2014) (citations omitted) (noting that both federal and South Dakota state statutes "restrict minors' abilities to enlist in the military, vote, marry, get a driver's license, enter into a contract, obtain an abortion, or get a tattoo").

(208.) Hess, supra note 207, at 312.

(209.) Tucker, supra note 84, at 489.

(210.) Appellant's Brief, supra note 1, at 12.

(211.) State v. McCahren, 2016 SD 34, [paragraph] 2, 878 N.W.2d 586, 589.

(212.) Peters, supra note 11, at 235 (citations omitted).

(213.) McCahren, 2016 SD 34, 148, 878 N.W.2d at 603 (Sabers, J., concurring).

(214.) Benzoni, supra note 174, at 558.

(215.) Id.

(216.) Edward G. Mascolo, Procedural Due Process and the Lesser-Included Offense Doctrine, 50 ALB. L. REV. 263, 285-93 (1985-86).

(217.) Blair, supra note 18, at 451-52.

(218.) Beck v. Alabama, 447 U.S. 625, 637 (1980).

(219.) See S.D.C.L. [section] 22-16-20.1 (2006 & Supp. 2016) (stating that second-degree murder is a lesser offense of first-degree murder).

(220.) Appellant's Brief, supra note 1, at 13.

(221.) Id. at 23.

(222.) Id. See S.D.C.L. [section] 22-16-20.2 (2006 & Supp. 2016) (noting that the State and the defendant each have a chance to request lesser offenses, but that lesser included offenses will be waived if they are not requested).

(223.) Tucker, supra note 84, at 490.

(224.) Id.

(225.) U.S. CONST. amend. VI.

(226.) See State v. McCahren, 2016 SD 34, [paragraph] 47, 878 N.W.2d 586, 603 (Sabers, J., concurring) (noting that the State charged the defendant with first-degree murder and tried the entire case as a first-degree murder case, not a second-degree murder case).

(227.) Lohnes I, 324 N.W.2d 409,414-15 (S.D. 1982).

(228.) Id. at 410.

(229.) McCahren, 2016 SD 34, [paragraph] 6, 878 N.W.2d at 590.

(230.) Id. [paragraph] 10, 878 N.W.2d at 592.

(231.) Id.

(232.) North Carolina v. Leazer, 539 S.E.2d 922, 924 (N.C. 2000).

(233.) North Carolina v. Flowers, 489 S.E.2d 391,407 (N.C. 1997).

(234.) Peters, supra note 11, at 237.

(235.) Id.

(236.) State v. McCahren, 2016 SD 34, [paragraph] 46, 878 N.W.2d 586, 603 (Sabers, J., concurring).

(237.) In re T.P.B., 441 S.W.3d 177, 181 (Mo. Ct. App. 2014); McCahren, 2016 SD 34, [paragraph] 45, 878 N.W.2d at 602-03.

(238.) McCahren, 2016 SD 34, [paragraph]45, 878 N.W.2d at 602-03.

(239.) In re Gault, 387 U.S. 1, 20 (1967).

(240.) See Tucker, supra note 84, at 490 (stating that the Sixth Amendment provides that "[I]n all criminal prosecutions, the accused shall enjoy the right... to be informed of the nature and cause of the accusation"); see, e.g., Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (noting that the right to due process is the right to a fair opportunity to defend against the State's accusations); In re Oliver, 333 U.S. 257, 278 (1948) (holding that failure to afford a defendant the opportunity to defend himself was a denial of due process of law); State v. Anderson, 2013 SD 36, [paragraph] 12, 831 N.W.2d 54, 57 (noting that due process requires that a defendant have the opportunity to defend himself in the prosecution); Kost v. State, 344 N.W.2d 83, 84 (S.D. 1984) (recognizing the right of a defendant to defend against charges brought against him).

(241.) Appellant's Brief, supra note 1, at 13.

(242.) McCahren, 2016 SD 34, [paragraph] 47, 878 N.W.2d at 603 (Sabers, J., concurring).

(243.) Appellant's Brief, supra note 1, at 14; see also Rock v. Arkansas, 483 U.S. 44, 52 (1987) (citations omitted) ("The right to testify is also found in the Compulsory Process Clause of the Sixth Amendment, which grants a defendant the right to call 'witnesses in his favor,' a right that is guaranteed in the criminal courts of the States by the Fourteenth Amendment."); Alexander J. Stock, Note, A Criminal Defendant's Right to Testify: Constitutional Implications of Presuming Waiver From a Silent Record, 89 N.D. L. REV. 709, 711 (2013) (quoting Rock, 483 U.S. at 49-53) ("In Rock v. Arkansas... the Supreme Court held that the Fourteenth Amendment guaranteed a criminal defendant the right to testify at trial on his own behalf, holding '[t]here is no justification today for a rule that denies an accused the opportunity to offer his own testimony.'").

(244.) Appellant's Brief, supra note 1, at 14.

(245.) Id. at 9.

(246.) Rock, 483 U.S. at 52; see also Louis M. Holscher, The Legacy of Rock v. Arkansas: Protecting Criminal Defendants' Right to Testify in Their Own Behalf, 19 NEW ENG. J. ON CR1M. & CIV. CONFINEMENT 223, 229 (1993) (noting that it is clear from the United States Supreme Court's decision in Rock that the decision to testify on one's own behalf is personal and not within the realm of defense counsel's decision-making power).

(247.) See Rock, 483 U.S. at 52 (quoting Faretta v. California, 422 U.S. 806, 819 (1975)) ("Even more fundamental to a personal defense than the right of self-representation, which was found to be 'necessarily implied by the structure of the Amendment,' is an accused's right to present his own version of events in his own words.").

(248.) Appellant's Brief, supra note 1, at 5-6; see State v. McCahren, 2016 SD 34, [paragraph] 47, 878 N.W.2d at 603 (Sabers, J., concurring) (noting that the defense was struck with an entirely new theory of the case only after the close of all evidence).

(249.) Michael Barbee, Juveniles are Different: Juvenile Life without Parole after Graham v. Florida, 81 MISS. L.J. 299, 302 (2011). Professor Lahny R. Silva said:
Mounting physiological and biological research suggests that juveniles
are biologically different from adults. Recent neuro-scientific
research in the brain development of pre-teens and teenagers
demonstrate that there are real and substantial distinctions in the
capacities between juveniles and adults that are related to the
determination of criminal culpability. Such date [sic] has been used as
the primary reasoning underlying recent United State Supreme Court
decisions treating juveniles different than adults in criminal
investigation and prosecution. With these developments in science and
law comes the responsibility of lawmakers to examine the data and
fashion juvenile justice policy accordingly.


Lahny R. Silva, The Best Interests is the Child: A Historical Philosophy for Modern Issues, 28 BYU J. PUB. L. 415, 445 (2014) (citations omitted).

(250.) Roper v. Simmons, 543 U.S. 551, 602 (2005); see also Silva, supra note 249, at 449 (noting that the United States Supreme Court in Roper also recognized that juveniles are more susceptible to peer pressure than adults).

(251.) See State v. McCahren, 2016 SD 34, [paragraph] 19, 878 N.W.2d 586, 595 (noting that McCahren had been transferred to the Pennington County Juvenile Services Center because he was a juvenile at the time of the shooting).

(252.) See In re Gault, 387 U.S. 1, 33-34 (1967) (holding that due process for a juvenile requires notice).

(253.) See Roper, 543 U.S. at 578-79 (holding that the Eighth and Fourteen Amendments both forbid the imposition of the death penalty on offenders who were under age eighteen when their crimes were committed).

(254.) See, e.g., id. at 572-73 (noting that the differences between juvenile offenders and adult offenders are marked and well-understood).

(255.) See McCahren, 2016 SD 34, [paragraph] 48, 878 N.W.2d at 603 (Sabers, J., concurring) (positing that prosecutors should not be allowed to charge defendants "by ambush").

(256.) Gault, 387 U.S. at 33-34.

(257.) Id. at 33.

(258.) See McCahren, 2016 SD 34, [paragraph] 4, 878 N.W.2d at 590 (stating that McCahren was indicted for first-degree murder, and the jury received an instruction on second-degree murder after the close of all evidence).

(259.) Gault, 387 U.S. at 33-34.

(260.) Barbee, supra note 249, at 302.

(261.) Weston, supra note 190, at 241.

(262.) Id.

(263.) Id. Professor Lahny R. Silva explained:
Approximately 250,000 juveniles are prosecuted and incarcerated as
adults annually. While juvenile detention itself is fraught with
physical and sexual violence, those juveniles transferred and
adjudicated in adult court face more severe challenges. Juveniles
incarcerated in adult facilities are more likely to be sexually abused
and face physical violence. This in turn has damaging effects on the
individual's psychosocial development.


Silva, supra note 249, at 437 (citations omitted).

(264.) State v. McCahren, 2016 SD 34, 148, 878 N.W.2d 586, 603 (Sabers, J., concurring).

(265.) See S.D.C.L. [section] 22-16-20.2 (2006 & Supp. 2016) (containing no information presently about when lesser offense instructions should be requested during adversarial proceedings).

(266.) Id.

(267.) Id.

(268.) Id.

(269.) Id.

(270.) S.D.C.L. [section] 22-16-20.1 (2006 & Supp. 2016); S.D.C.L. [section] 22-16-20.2 (2006 & Supp. 2016).

(271.) [section]22-16-20.2.

(272.) See id.; S.D.C.L. [section] 22-16-20.1 (containing no information about when lesser offense instruction requests should be made).

(273.) See Blair, supra note 18, at 455 (noting that the evidence approach would prevent a prosecutor from seeking lesser offense instructions if the pleading does not adequately inform the defendant about the possibility of a lesser offense instruction being sought).

(274.) See Tucker, supra note 84, at 475 (noting that the lesser included offense doctrine is not a new problem in South Dakota, and that it has caused confusion since the first case dealing with the doctrine in 1877).

(275.) State v. Hoadley, 2002 SD 109, [paragraph] 49, 651 N.W.2d 249, 260.

(276.) See, e.g., Blair, supra note 18, at 455 (explaining that the evidence approach provides defendants with notice about whether a lesser offense instruction will be sought).

(277.) S.D.C.L. [section] 22-16-20.1 (2006 & Supp. 2016).

(278.) S.D.C.L. [section] 22-16-20.2 (2006 & Supp. 2016).

(279.) Hoffheimer I, supra note 13, at 364.

(280.) Id.

(281.) State v. McCahren, 2016 SD 34, [paragraph] 46, 878 N.W.2d 586, 603 (Sabers, J., concurring).

(282.) S.D.C.L. [section]22-16-20.1.

(283.) See id. (explaining that second-degree murder is a lesser offense of first-degree murder, but not when a defendant should be notified that a lesser offense instruction will be sought); S.D.C.L. [section] 22-16-20.2 (2006 & Supp. 2016) (explaining that a lesser included offense instruction should be given at any homicide trial when facts support the instruction, but not when a defendant should be notified of the lesser offense instruction possibility).

(284.) See S.D.C.L. [section] 22-16-20.1 (providing no information about when lesser offense instructions should be requested); S.D.C.L. [section] 22-16-20.2 (2006 & Supp. 2016) (stating no specific time when lesser offense instructions should be requested).

(285.) See S.D.C.L. [section] 22-16-20.2 (explaining that either the prosecution or defense may request a lesser offense instruction, but not when this instruction should be requested during trial).

(286.) State v. McCahren, 2016 SD 34, [paragraph] 48, 878 N.W.2d 586, 603 (Sabers, J., concurring).

(287.) Id.

(288.) Id. [paragraph] 46,878 N.W.2d at 603.

(289.) Id. [paragraph] 48, 878 N.W.2d at 603.

(290.) Id.

(291.) Id.
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