When the evidence permits a finding of a lesser included offense, a judge must, upon request, instruct the jury on the possibility of conviction of the lesser crime. This rule is not limited to requests made by the defendant. The commonwealth is entitled, evidence permitting, to such an instruction on request.
An eight-month old infant died after a severe head injury. The infant was in the sole care of defendant who worked as au pair for the family. Following a trial, a jury found defendant guilty of second degree murder and imposed a life sentence. The trial court reduced the verdict to involuntary manslaughter and vacated sentence. The prosecution and defendant challenged the judgment. The prosecution sought reinstatement of the jury's verdict of murder in the second degree or in the alternative resentencing of defendant by the court or remand for resentencing by another trial judge. Defendant appealed from the trial court's refusal to dismiss the indictment and the denial of her motion for a required finding of not guilty. The prosecution argued that the trial court abused its discretion in reducing the jury's verdict and erred in refusing to issue a jury instruction on the lesser included offense of manslaughter. The court affirmed the judgment and denied the prosecution's motion for resentencing. It also denied defendant's motion to dismiss and her motion for a required finding of not guilty.
Whether the trial court committed error by not including the lesser included offense in the jury instructions.
The court held that the trial court should have included the lesser included offense upon the request of the prosecution, despite defendant's objection, because the evidence permitted such a finding. However, jury verdict of second degree murder rendered the error harmless. Rule 25 authorized the trial court to enter a finding of guilty of any included offense upon a motion for a directed verdict and thus, there was no error in the reduction of the verdict. Further, the trial court was responsible for sentencing and the court had no authority to review an otherwise lawful sentence, i.e., within the statutory limits.