lesser included instruction in Oregon

2015Although the core analysis of the Court of Appeals decision is sound, the court’s description of its ruling is overly broad when it suggests that a defendant is always prejudiced by trial counsel’s failure to request a lesser-included instruction when the jury “ [does] not have a complete statement of the law.” Pereida-Alba v. Coursey, 252 Or App 66, 72 , 284 P3d 1280 (2012).

2015Although the core analysis of the Court of Appeals decision is sound, the court’s description of its ruling is overly broad when it suggests that a defendant is always prejudiced by trial counsel’s failure to request a lesser-included instruction when the jury “ [does] not have a complete statement of the law.” Pereida-Alba v. Coursey, 252 Or App 66, 72 , 284 P3d 1280 (2012).

2015Cite as 356 Or 654 (2015) 655 Petitioner moved for post-conviction relief after his attorney failed to request a lesser-included instruction on third-degree robbery in his first-degree robbery trial.

2015Although the majority recognizes that a failure to request a lesser-included instruction may constitute inadequate assistance of counsel, it now creates a novel Cite as 356 Or 654 (2015) 679 requirement that a petitioner must demonstrate that the evidence relating to the commission of the lesser-included offense was strong in order to obtain post-conviction relief: “The question is not solely whether evidence that a defen- dant committed the greater crime was doubtful; rather, the other half of the question is what was the strength of the evidence that the defendant had committed a serious les

2015Trujillo, 312 Or at 435 .

2015Trujillo, 312 Or at 435 .

2015Indeed, as the second paragraph that the dissent quotes from Beck recognizes, sometimes the absence of a lesser-included instruction “may favor the defendant.” Beck, 447 US at 643 .

2015Indeed, as the second paragraph that the dissent quotes from Beck recognizes, sometimes the absence of a lesser- included instruction “may favor the defendant.” Beck, 447 US at 643 .

2015Neither opinion states that such a concern is absent where the evidence that the defendant committed the lesser offense is doubtful or not “substantial.” As noted, in Naylor , the court stated that a jury should be presented with a “third option” of a lesser-included offense “where there is evidence which would justify a verdict of guilty of a lesser offense.” 291 Or at 198 .

2015Neither opinion states that such a concern is absent where the evidence that the defendant committed the lesser offense is doubtful or not “substantial.” As noted, in Naylor, the court stated that a jury should be presented with a “third option” of a lesser included offense “where there is evidence which would justify a verdict of guilty of a lesser offense.” 291 Or at 198 .

2021In other words, in many instances, Cite as 315 Or App 178 (2021) 191 a trial court’s failure to give a lesser-included instruction, although error, may be harmless error.” 354 Or at 716, 718-19 (citation omitted).

2015The majority’s interpretation of Beck is undermined by the United States Supreme Court’s subsequent discussion of that case: “Beck held that due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction. * * * The federal rule is that a lesser included offense instruction should be given ‘if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater.’” Hopper v. Evans, 456 US 605, 611-12 , 102 S Ct 2049 , 72 L Ed 2d 367 (1982) (quoting Keeble v. United States, 412 US 205,

2015The majority’s interpretation of Beck is undermined by the United States Supreme Court’s subsequent discussion of that case: “Beck held that due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction. * * * The federal rule is that a lesser included offense instruction should be given ‘if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater.’” Hopper v. Evans, 456 US 605, 611-12 , 102 S Ct 2049 , 72 L Ed 2d 367 (1982) (quoting Keeble v. United States, 412 US 205,

2015The majority’s interpretation of Beck is undermined by the United States Supreme Court’s subsequent discussion of that case: “Beck held that due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction. * * * The federal rule is that a lesser included offense instruction should be given ‘if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater.’” Hopper v. Evans, 456 US 605, 611-12 , 102 S Ct 2049 , 72 L Ed 2d 367 (1982) (quoting Keeble v. United States, 412 US 205,

2015The majority’s interpretation of Beck is undermined by the United States Supreme Court’s subsequent discussion of that case: “Beck held that due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction. * * * The federal rule is that a lesser included offense instruction should be given ‘if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater.’” Hopper v. Evans, 456 US 605, 611-12 , 102 S Ct 2049 , 72 L Ed 2d 367 (1982) (quoting Keeble v. United States, 412 US 205,

2014“It is well established that a reviewing court will not second-guess a lawyer’s tactical decisions in the name of the constitution unless those decisions reflect an absence or suspension of professional skill and judgment.” Gorham v. Thompson, 332 Or 560, 567 , 34 P3d 161 (2001) (citing Krummacher, 290 Or at 875-77 .

2014“It is well established that a reviewing court will not second-guess a lawyer’s tactical decisions in the name of the constitution unless those decisions reflect an absence or suspension of professional skill and judgment.” Gorham v. Thompson, 332 Or 560, 567 , 34 P3d 161 (2001) (citing Krummacher, 290 Or at 875-77 .

2014“It is well established that a reviewing court will not second-guess a lawyer’s tactical decisions in the name of the constitution unless those decisions reflect an absence or suspension of professional skill and judgment.” Gorham v. Thompson, 332 Or 560, 567 , 34 P3d 161 (2001) (citing Krummacher, 290 Or at 875-77 .

2011Swanson, 237 Or App at 511 . *290 Defendant concedes that, if those definitions of “violation” and “crime” apply, then ORS 136.465 did not permit the jury to consider a charge of careless driving in this case.

2009In Torres , for example, the trial court asked defense counsel directly if the defendant wanted the court to consider a lesser-included instruction. 1 Id. at 158-59 .

2000Defendant objected, asserting that the state’s proffered instruction mandated by ORS 136.460(2) was an “acquittal first” instruction disapproved in State v. Ogden, 35 Or App 91 , 580 P2d 1049 (1978), and State v. Allen, 301 Or 35 , 717 P2d 1178 (1986), and that to give such an instruction violated defendant’s constitutional right to due process of law and a fair trial.

2000Defendant objected, asserting that the state’s proffered instruction mandated by ORS 136.460(2) was an “acquittal first” instruction disapproved in State v. Ogden, 35 Or App 91 , 580 P2d 1049 (1978), and State v. Allen, 301 Or 35 , 717 P2d 1178 (1986), and that to give such an instruction violated defendant’s constitutional right to due process of law and a fair trial.

2000Defendant objected, asserting that the state’s proffered instruction mandated by ORS 136.460(2) was an “acquittal first” instruction disapproved in State v. Ogden, 35 Or App 91 , 580 P2d 1049 (1978), and State v. Allen, 301 Or 35 , 717 P2d 1178 (1986), and that to give such an instruction violated defendant’s constitutional right to due process of law and a fair trial.

2000Defendant objected, asserting that the state’s proffered instruction mandated by ORS 136.460(2) was an “acquittal first” instruction disapproved in State v. Ogden, 35 Or App 91 , 580 P2d 1049 (1978), and State v. Allen, 301 Or 35 , 717 P2d 1178 (1986), and that to give such an instruction violated defendant’s constitutional right to due process of law and a fair trial.

1994ORS 138.230 provides: "After hearing the appeal, the court shall give judgment, without regard to the decision of questions which were in the discretion of the court below or to technical errors, defects or exceptions which do not affect substantial rights of the parties." This court has stated that a substantial right of a party is not affected if there is (1) "substantial and convincing evidence of guilt" and (2) "little, if any, likelihood that the error affected the verdict." State v. Miller, 300 Or. 203, 220-21 , 709 P.2d 225 (1985).

1994ORS 138.230 provides: "After hearing the appeal, the court shall give judgment, without regard to the decision of questions which were in the discretion of the court below or to technical errors, defects or exceptions which do not affect substantial rights of the parties." This court has stated that a substantial right of a party is not affected if there is (1) "substantial and convincing evidence of guilt" and (2) "little, if any, likelihood that the error affected the verdict." State v. Miller, 300 Or. 203, 220-21 , 709 P.2d 225 (1985).

1990In State v. Nodine, 198 Or 679 , 259 P2d 1056 (1953), the court said: “An instruction on a lesser and included offense is not given as a matter of course in every criminal case, but its propriety depends upon the state of the evidence, and it is not infrequently a matter of difficulty to determine whether the evidence is such as to justify the instruction.

1990In State v. Nodine, 198 Or 679 , 259 P2d 1056 (1953), the court said: “An instruction on a lesser and included offense is not given as a matter of course in every criminal case, but its propriety depends upon the state of the evidence, and it is not infrequently a matter of difficulty to determine whether the evidence is such as to justify the instruction.

1981It relies on State v. Attebery, 39 Or App 141 , 591 P2d 409 , rev den 286 Or 449 (1979), in which this court held that a curative instruction similar to the one given in this case was adequate when the prosecution informed the jury that the defendant had requested a lesser-included instruction.

1981It relies on State v. Attebery, 39 Or App 141 , 591 P2d 409 , rev den 286 Or 449 (1979), in which this court held that a curative instruction similar to the one given in this case was adequate when the prosecution informed the jury that the defendant had requested a lesser-included instruction.