State v. Miller ( 1997 )

LANSING, Chief Judge,

specially concurring.

I write separately with respect to Section 11(C) of the Court’s opinion. In State v. Curtis, 130 Idaho 525, 944 P.2d 122 (Ct.App.1996), and State v. Rosencrantz (Ct. App. No. 21848, slip op. November 8,1996), I dissented from the majority’s holding that an erroneous rejection of a lesser included offense instruction is inevitably harmless error if the jury finds the defendant guilty of a greater offense. The Idaho Supreme Court accepted review in Curtis and Rosencrantz, but did not reach this issue in either case. State v. Curtis, 130 Idaho 522, 944 P.2d 119 (1997); State v. Rosencrantz, 130 Idaho 666, 946 P.2d 628 (1997). Although I adhere to the view expressed in my dissents in Curtis and Rosencrantz, I am obligated by principles of stare decisis to follow the precedent set by the majority opinions in those cases unless and until the Idaho Supreme Court holds to the contrary. For that reason, I concur in the foregoing opinion of the Court, including Section 11(C).