A recent question prompted me to research when a superior court judge should instruct the jury on a lesser included offense. The general standard is that a judge should do so if “the evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense and acquit him of the greater.” State v. Leazer, 353 N.C. 234, 237 (2000). As explained in Hopper v. Evans, 456 U.S. 605, 611 (1982), “due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction.” However, “where the State’s evidence is positive as to each element of the offense charged and there is no contradictory evidence relating to any element, no instruction on a lesser included offense is required.” State v. Millsaps, 356 N.C. 556, 562 (2002).
The rule is straightforward enough. But what if the defendant doesn’t request the instruction? What if the defendant actually requests that the instruction not be given? What should the trial judge do then, and how will the appellate courts review the judge’s actions? I’d like to address these questions by considering three scenarios. First, where the defendant requests an instruction on a lesser included offense; second, where the defendant fails to request such an instruction; and third, where the defendant goes farther and requests that such an instruction not be given.
1. The defendant requests an instruction on a lesser included offense.
As described above, the trial judge must give the instruction if the evidence supports it. Failure to give the instruction is reviewed de novo. State v. Debiase, __ N.C. App. __, __ S.E.2d __, 2011 WL 1643629 (May 3, 2011) (“This Court reviews a defendant’s challenge to a trial court’s decision to instruct the jury on the issue of the defendant’s guilt of a lesser included offense, such as involuntary manslaughter, on a de novo basis.”).
2. The defendant fails to request an instruction on a lesser included offense.
The trial judge should give the instruction if the evidence supports it, notwithstanding the defendant’s failure to request the instruction. State v. Lowe, 150 N.C. App. 682, 686 (2002) (stating that a judge should instruct on a lesser included “even in the absence of a request by the defendant, where sufficient evidence of the lesser offense is presented at trial”). However, the defendant’s failure to request the instruction means that, if the trial judge fails to give the instruction, the issue is reviewed only for plain error. State v. Collins, 334 N.C. 54 (1993) (“As the defendant did not object to the trial court’s instructions or request an instruction on lesser-included offenses, we must review this assignment under the plain error standard.”).
3. The defendant requests that an instruction on a lesser included offense not be given.
Defendants sometimes want the jury to make an all-or-nothing decision, either convicting the defendant of the greater offense or acquitting him altogether. Existing case law suggests that a trial judge should, nonetheless, instruct on appropriate lesser included offenses. State v. Jones, 2002 WL 857383 (N.C. Ct. App. May 7, 2002) (unpublished) (rejecting the defendant’s argument that “he waived his right to have the trial court submit [certain] lesser included offenses to the jury, and that the trial court was required to honor this waiver”). However, if the trial judge abides by the defendant’s wishes and declines to instruct on the lesser included offense, the defendant is completely barred from seeking relief on appeal based on the lack of instruction. State v. Williams, 333 N.C. 719 (1993) (defendant was charged with first-degree murder and indicated to the judge that he did not want the jury instructed on second-degree murder; “any error in not instructing on the lesser-included offense was invited by defendant,” so defendant was “not entitled to any relief and will not be heard to complain on appeal”); State v. Sierra, 335 N.C. 753 (1994) (similar); G.S. 15A-1443(c) (“A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct.”). By contrast, if the defendant requests an instruction on an offense that he claims is a lesser included offense, but which, in reality, is not a lesser included, the court of appeals has held that the defendant is entitled to relief from any resulting conviction of the faux lesser included, notwithstanding his role in creating the problem. State v. Kelso, 187 N.C. App. 718 (2007); State v. Wilson, 128 N.C. App. 688 (1998).
