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 [...]
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