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265.3 Impact Of Counsel’s Request, Objection Or Silence On Duty To Give Lesser Offense Instruction

    265.3.1 Whether Defendant Or Counsel Should Make The Ultimate Decision To Request A Lesser Included Offense
                  265.3.1.1    Time-Barred Lesser: Request For Instruction Waives Statute Of Limitation
    265.3.2 Whether Personal Waiver By The Defendant Should Be Required Before Omitting Lesser Included Offense Instruction
    265.3.3 Whether Lesser Included Offense Should Be Given Sua Sponte Or Only On Request
    265.3.4 Whether Court Has Duty To Instruct On Lesser Included Offense Over Defense Objection
    265.3.5 Whether Court Has Duty To Instruct On Lesser Included Offense Over Objection Of Both Prosecution And Defense
    265.3.6 Right To Lesser Included Offense Even If Inconsistent With Defendant’s Testimony
    265.3.7 Lesser Included Offense: Objection As Invited Error
    265.3.8 Defendant Must Object To Instruction On Nonincluded Lesser Offense
    265.3.9 Appellate Counsel Has Duty To Raise Failure Of Trial Court To Sua Sponte Instruct On Lesser Included Offense

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PRACTICE NOTE: The majority of trial decisions regarding strategy are ultimately the responsibility of counsel.  However, because the client may be able to overrule his or her attorney regarding lesser included offenses it is important for this matter to be settled early on.  For example, the ABA Standards for Criminal Justice provide as follows:

    "It is also important in a jury trial for the defense lawyer to consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury. Indeed, because the decision is so important as well as so similar to the defendant’s decision about the charge to which to plead, the defendant should be the one to decide whether to seek submission to the jury of lesser included offenses...." (American Bar Association, ABA Standards for Criminal Justice Discovery and Trial by Jury (ABA, 2nd ed., 1980), Standard 4-5.2, commentary; see also Johnson v. Duckworth (7th Cir. 1986) 793 F2d 898, 900 [the client must participate in the decision-making process when important decisions are concerned or fundamental rights are at issue]; People v. Brocksmith (IL 1994) 642 NE2d 1230, 1232-33 [because it is defendant's decision whether to initially plead guilty to a lesser charge, it should also be defendant's decision to submit an instruction on a lesser charge at the conclusion of the evidence]; In re Trombly (VT 1993) 627 A2d 855, 856 [once defense counsel consults fully with client about lesser included offenses, defendant should be one to decide whether to seek submission to jury of those offenses]; State v. Ambuehl (WI 1988) 425 NW2d 649, 654; but see Hill v. State (GA 1997) 492 SE2d 5, 6 [although it is critically important for defense counsel in a jury trial to consult fully with the defendant before deciding whether to request a charge on lesser included offenses, counsel's failure to so consult does not necessarily constitute ineffective assistance].)

    For example, in People v. Brocksmith (IL 1994) 604 NE2d 1059, 1066, a majority of the Illinois Supreme Court held that the decision whether to request a jury instruction on a lesser included offense rests with the defendant and not his or her attorney. The Illinois Supreme Court concluded that the decision to tender a lesser included offense is analogous to the decision of what plea to enter and that the two decisions should both be made by the defendant. (Brocksmith, 604 NE2d at 1066.) Based on this reasoning, the defendant, rather than defense counsel, should make the ultimate decision as to whether to present a lesser included offense instruction to the jury. (See also People v. Frierson (CA 1985) 39 C3d 803, 816, fn 5 [218 CR 73]; In re Trombly (VT 1993) 627 A2d 855, 857 [many trial tactics are ultimately defense counsel's call, but those that directly relate to the crime upon which the jury may rest its verdict generally are within the defendant's decisional control]; but see People v. Thompson (MI 1976) 245 NW2d 93, 94.)

See generally, NCJIC 305.12.2 [Lesser Included Offenses].

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

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PRACTICE NOTE: See People v. Mills (NY 2002) 750 NYS2d 230.

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PRACTICE NOTE: In some jurisdictions a lesser included cannot be waived. (See NCJIC 265.3.5 [Whether Court Has Duty To Instruct On Lesser Included Offense Over Objection Of Both Prosecution And Defense].)

    In jurisdictions where the lesser can be waived there may be an issue as to whether the waiver must be on the record. (See NCJIC 265.3.5 [Whether Court Has Duty To Instruct On Lesser Included Offense Over Objection Of Both Prosecution And Defense -- CAVEAT].)

    In capital cases, the case for requiring on the record waiver is even stronger. The right to instruction on lesser offense is sufficiently integral to due process in the capital context to require a personal, as well as knowing and intelligent waiver established on the record. (Jones v. State (FL 1986) 484 So2d 577, 579; see also generally, Beck v. Alabama (1980) 447 US 625 [100 SCt 2363; 65 LEd2d 392].)

    For an effective waiver, there must be more than just a request from counsel that these instructions not be given. (Mosley v. State (FL 1986) 482 So2d 530, 531.) There must be an express waiver of the right to these instructions by the defendant, and the record must reflect that it was knowingly and intelligently made. (Ibid.)

See generally, NCJIC 305.12.2 [Lesser Included Offenses].

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

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PRACTICE NOTE: Courts disagree as to whether the trial court should, sua sponte, give a jury instruction on an uncharged lesser included offense. (See BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.401[4], [5].) For example, People v. Barton (CA 1995) 12 C4th 186, 195-96 [47 CR2d 569] held that lesser included instruction must be given sua sponte, even if the defendant objects. (See also U.S. v. Cooper (10th Cir. 1987) 812 F2d 1283, 1287-98; People v. Johnson (MI 1980) 297 NW2d 115, 120; State v. Williams (NC 1969) 165 SE2d 481, 488.)

    Other courts take the position that it is more appropriate for the parties to decide whether an instruction should be given. (See e.g., Walker v. U.S. (DC Cir. 1969) 418 F2d 1116, 1119 ["In general the trial judge should withhold charging on lesser included offense unless one of the parties requests it, since that charge is not inevitably required in our trials, but is an issue best resolved, in our adversary system, by permitting counsel to decide on tactics"; State v. Arena (CT 1995) 663 A2d 972, 974-77 [defendant’s requested instruction was sufficient]; People v. Gramc (IL 1995) 647 NE2d 1052, 1057-58 [judge does not have sua sponte obligation to charge on lesser included offense]; Hagans v. State (MD 1989) 559 A2d 792, 804 ["When counsel for both sides consider it to be in the best interests of their clients not to have an instruction, the court should not override their judgment and instruct on the lesser included offense"]; State v. Sheppard (MT 1992) 832 P2d 370 ["the prosecution and defense must have the option of foregoing a lesser charge instruction for strategic reasons"].)

    In the federal system the trial judge may, with notice to the parties, instruct on a lesser included offense even in the absence of a request. (Cissell, Federal Criminal Trials (Lexis, 5th ed. 1996) §12-7(a)(1), p. 324.) However, there is no obligation to give a lesser included offense instruction unless a request is received either from the defense or the prosecution. (Ibid.).

APPELLATE PRACTICE NOTE: Even in states which do not have a sua sponte requirement for lesser included offense instructions, there may be rules of appellate procedure such as "plain error", which make the failure to instruct reviewable anyway. (See Wray v. State (WI 1978) 275 NW2d 731, 734; see also NCJIC 295.3 [Cognizability Of Instructional Error On Appeal: Raising Issues That Have Not Been Preserved Below].)

    Additionally, ineffective assistance of counsel may be a potential vehicle for raising, on appeal, an issue regarding the failure to instruct. (See NCJIC 295.3.2 [Ineffective Assistance Of Counsel At Trial].)

See generally, NCJIC 305.12.2 [Lesser Included Offenses].

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

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    See NCJIC 3.2.16 [Instruction on Lesser Included Offense Over Defense Objection].

See generally, NCJIC 305.12.2 [Lesser Included Offenses].

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

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PRACTICE NOTE: In California, People v. Barton (CA 1995) 12 C4th 186, 193-94, 201-02 [47 CR2d 569] held that instruction on a lesser included offense is required even over defense objection when the prosecution requests such instruction. However, if both the prosecution and defense object to the lesser included offense instruction there may be an issue as to whether the trial court's sua sponte obligation would still require instruction on the lesser included offense.

    It is true that Barton relied on the need for reliable jury verdicts as a basis for imposing the sua sponte duty to instruct. (See Barton, 12 C4th at 194-95.) On the other hand, it is an extreme rule that would require compliance of both parties over their objection. (Compare People v. Birks (CA 1998) 19 C4th 108, 136 [77 CR2d 848] [parties may agree that defendant may be convicted of a lesser offense not necessarily included in the original charge]; State v. Caprio (HI 1997) 937 P2d 933, 938 [lesser included offense instruction required unless (1) the prosecution does not request that the instruction be given; and (2) the defendant specifically objects to the instructions for tactical reasons]; Hagans v. State (MD 1989) 559 A2d 792, 804 ["When counsel for both sides consider it to be in the best interests of their clients not to have an instruction, the court should not override their judgment and instruct on the lesser included offense"]; State v. Sheppard (MT 1992) 832 P2d 370, 373 ["the prosecution and defense must have the option of foregoing a lesser charge instruction for strategic reasons"].)

CAVEAT: Before declining to instruct on a lesser included offense at the request of the defendant, it may be necessary for the judge to ensure that the defendant understands the potential consequences of waiving the right to have the jury instructed regarding lesser-included offenses. (State v. Ito (HI 1997) 936 P2d 1292, 1295; see also NCJIC 265.3.1 [Whether Defendant Or Counsel Should Make The Ultimate Decision To Request A Lesser Included Offense Instruction]; NCJIC 265.3.2 [Whether Personal Waiver By The Defendant Should Be Required Before Omitting Lesser Included Offense Instruction].)

See generally, NCJIC 305.12.2 [Lesser Included Offenses].

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

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PRACTICE NOTE: Generally, the defense has the right to rely on inconsistent defense theories. (See e.g., Mathews v. U.S. (1988) 485 US 58, 63-64 [108 SCt 883; 99 LEd2d 54]; Harris v. Scully (2nd Cir. 1985) 779 F2d 875, 879 ["a defendant does not concede the intent to kill by asserting the defense of self defense"]; United States v. Harrison (5th Cir. 1995) 55 F3d 163, 167; United States v. Miguel (9th Cir. 2003) 338 F3d 995 [admission of participation at transfer hearing did not preclude third party defense at guilt trial]; People v. Atchison (CA 1978) 22 C3d 181, 182-83 [148 CR 881]; see also People v. Elize (CA 1999) 71 CA4th 605, 610 [84 CR2d 35] [trial court erred in refusing self defense instruction when defendant testified that gun fired accidentally during the struggle]; People v. Middleton (CA 1997) 52 CA4th 19, 33-34 [60 CR2d 366] [defense's theory of accident did not free the court from the duty of instructing on the partial defense of provocation]; People v. Glenn (CA 1991) 229 CA3d 1461, 1467 [280 CR 609] [defendant testified he intended to stab victim in self defense but later said victim "accidentally" "got stuck" by defendant's knife; defendant said he had no intent to kill; error not to instruct on involuntary manslaughter]; State v. Lira (HI 1988) 759 P2d 869, 873 [defendant may raise defense of consent even though it is inconsistent with other defenses, such as denial that the conduct occurred]; Wilson v. Commonwealth (KY 1994) 880 SW2d 877, 878 [sufficient evidence for initial aggressor qualification of self defense instruction even though it conflicted with the defendant’s own testimony]; Brown v. Commonwealth (KY 1948) 214 SW2d 1018, 1019 [defensive alibi does not preclude instructions on mitigation or justification]; State v. Knowles (ME 1985) 495 A2d 335, 339 [not inconsistent for defendant to deny operating vehicle while intoxicated and under license suspension and also assert that operation of the vehicle under doctrine of duress was necessary to avoid imminent physical harm to himself or another]; State v. Randolph (MO 1973) 496 SW2d 257, 262; People v. Butz (NY 1988) 533 NE2d 660, 662 ["...defendant's entitlement to a charge on a claimed defense is not defeated solely by reason of its inconsistency with some other defense raised or even with the defendant's outright denial that he was involved in the crime"]; Musick v. State (TX 1993) 862 SW2d 794, 797; Booth v. State (TX 1984) 679 SW2d 498, 501 [permissible for accused to have jury decide inconsistent defense theories even when they might directly contradict one another]; State v. Callahan (WA 1997) 943 P2d 676, 680 [error to refuse instruction on both self defense and accident]; HAWAII PATTERN JURY INSTRUCTIONS - CRIMINAL, HAWJIC, specific defenses, introductory comment 7.01 [Self-Defense] p.647 (West, 1998); see also Cooper, KENTUCKY INSTRUCTIONS TO JURIES 1.04 [Affirmative Instructions On Theory Of Defense] p. 11 (Anderson, 4th ed. 1999); MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG § 11.05, comment [Murder In The First Degree- Premeditation- Issue Of Heat Of Passion- Elements] (West, 4th ed. 1999) ["An instruction on manslaughter in the first degree may be required even though there is no direct evidence of a heat of passion and the defendant’s own testimony is inconsistent with such a factor. [Citation]"]; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5.01 [Defenses-Generally] (West, 1999); McClung, & Carpenter, TEXAS CRIMINAL JURY CHARGES 1:130 [Defensive Issues] (James Publishing, 2000); see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 5.01, note [Defendant’s Theory Of Case-Note] p. 542 (Bar Association of the District of Columbia, 4th ed. 1993) [defense entitled to an instruction on any issue fairly raised by the evidence regardless of whether the requested instruction is inconsistent with the defendant’s testimony or with the defense theory].)  Hence, even if a defense theory is inconsistent with the defendant's testimony, instructions should be given on any lesser offenses stemming from the inconsistent theory. (See e.g., UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI User’s Guide VII, G-18 [User’s Guide] (Oregon State Bar, 1998) ["Under appropriate circumstances a defendant may request a lesser included offense instruction even though the defendant denies that he or she ever committed the act"].)

    For example, in State v. Thayer (OR 1978) 573 P2d 758, 760 the defendant was charged with murder and claimed not to have done it. The defense, however, requested lesser offense instructions on manslaughter and criminally negligent homicide based on the defendant’s consumption of large amounts of alcohol. The trial court’s refusal of the lesser included offense instructions was held to be reversible error.

    See also NCJIC 250.2.5 [Right To Instruction On Inconsistent Defenses].

See generally, NCJIC 305.12.2 [Lesser Included Offenses].

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

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    265.3.7    Lesser Included Offense: Objection As Invited Error

PRACTICE NOTE: See State v. Coffman (KS 1996) 925 P2d 419, 421.

    See NCJIC 295.3.3 [Overcoming Invited Error].

See generally, NCJIC 305.12.2 [Lesser Included Offenses].

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

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PRACTICE NOTE: When the jury is instructed on an uncharged nonincluded lesser offense without objection by the defendant, the defendant may be held to have "impliedly consented" to the jury's consideration of the offense and the matter may not be considered on appeal. (See e.g., People v. Daly (CA 1992) 8 CA4th 47, 58 [10 CR2d 23]; see also People v. Toro (CA 1989) 47 C3d 966, 969-70 [254 CR 811]; People v. Gragg (CA 1989) 216 CA3d 32, 42 [264 CR 765].)

    An exception to the requirement that defendant object applies when the defendant has been convicted at a court trial and thus did not have an opportunity to object to jury instructions on the lesser related offense. (See People v. Delahoussaye (CA 1989) 213 CA3d 1, 12-13 [261 CR 287].)

    Once a trial court refuses a requested nonincluded lesser offense instruction, defendant's failure to renew the request, or to aggressively argue a theory consistent with the requested lesser offense, will not necessarily waive defendant's subsequent right to appeal. (People v. Woods (CA 1991) 226 CA3d 1037, 1051, fn 1 [277 CR 269].) Similarly, one court has held that, although defendant failed to object to findings of guilt on a nonincluded lesser offense announced by the court after it found defendant not guilty of the only offense with which he was charged, he did not waive his right to review on appeal. (In Re Alberto S. (CA 1991) 226 CA3d 1459, 1462-63, 1465 [277 CR 475]; see also People v. Delgado (CA 1989) 210 CA3d 458, 460-65 [258 CR 365] [objection to the lesser related offense was not necessary in such circumstances].)

    See NCJIC 267.2 [Instruction On Uncharged Nonincluded Lesser Offense Violates Due Process].

See generally, NCJIC 305.12.2 [Lesser Included Offenses].

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