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VOLUME 12 - CHAPTER 265
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265.10 Lesser Included Offenses: Appeal

    265.10.1 Lesser Offenses: Analysis Of Prejudice On Appeal
    265.10.2 Lesser Included Offenses: Standard Of Prejudice On Appeal

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VOLUME 12 - CHAPTER 265

    See FORECITE National™ 296.2.6 [Lesser Offenses: Analysis Of Prejudice On Appeal].

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 VOLUME 12 - CHAPTER 265

     265.10.2    Lesser Included Offenses: Standard Of Prejudice On Appeal

PRACTICE NOTE: When the court fails to instruct upon a lesser included offense, the jury is left with an "unwarranted all-or-nothing choice." (People v. Ramkeesoon (CA 1985) 39 C3d 346, 350 [216 CR 455].) By providing the jury with an all-or-nothing choice, the failure to instruct on the lesser included offense makes it likely that "'the jury ... resolve[d] its doubts in favor of conviction.'"  (Beck v. Alabama (1980) 447 US 625, 634 [100 SCt 2382; 65 LEd2d 392]; see also Keeble v. U.S. (1973) 412 US 205, 208 [93 SCt 1993; 36 LEd2d 844]; People v. Wickersham (CA 1982) 32 C3d 307, 324 [185 CR 436].)

    Accordingly, courts have held that when the evidence would have permitted a verdict of the lesser charge, failure to instruct jury in capital murder trial on lesser included offense of felony-murder was reversible error, where evidence clearly raised issue of felony-murder. (Ross v. State (TX 1992) 861 SW2d 870, 877; see also Brown v. State (FL 1997) 689 So2d 1280, 1281; State v. Ochoa (KS 1995) 895 P2d 198, 204; State v. Easterling (NC 1995) 457 SE2d 913, 919; State v. Garner (NC 1991) 410 SE2d 861, 872; but see People v. Breverman (CA 1998) 19 C4th 142, 172-178 [177 CR2d 870] [harmless error analysis applies].)

    Absent a reversal per se rule either the state standard of prejudice or the federal Chapman (Chapman v. California (1967) 386 US 18 [87 SCt 824; 17 LEd2d 705) standard would apply depending on whether or not the failure to instruct is construed as a federal constitutional violation. (See FORECITE National™ 296.2.6.1 [Failure To Instruct Sua Sponte On Lesser Included Offense As Violation Of Federal Due Process].)

See generally, FORECITE National™ 305.12.2 [Lesser Included Offenses].

See generally, FORECITE National™ 265.1.4 [Lesser Included Offenses: Federal Circuit Model Instructions And Notes].