lesser included offense instruction in Indiana

2021When determining whether to give a lesser included offense instruction, trial courts apply the three-part test our supreme court set out in Wright v. State, 658 N.E.2d 563 (Ind. 1995).

2017When determining whether to give a lesser included offense instruction, trial courts apply the three-part test our supreme court set out in Wright v. State, 658 N.E.2d 563 (Ind. 1995).

2023The True court continued that, under Watts, “neither the State nor a defendant may seek to have a jury enter a ‘compromise’ verdict, based on the giving of a lesser included offense instruction that is not supported by the evidence.” Id. (emphasis added).

2023The True court echoed the Watts Court’s observations regarding the potential impact of a lesser included instruction on a defendant’s “all or nothing” strategy, stating that “such a defense can be improperly undermined by the State obtaining a lesser included offense instruction where the evidence does not warrant such an instruction[.]” Id. at 1110 (emphasis added).

2024Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).

2016See, e.g., Autrey, 700 N.E.2d at 1141 (holding that defense was not ineffective for opting for an “all or nothing” trial strategy over tendering a lesser included offense instruction); Page, 615 N.E.2d at 895-96 (holding that defense counsel’s failure to request a lesser included instruction did not constitute ineffective assistance of counsel); Brown v. State, 24 N.E.3d 529 , 535 (Ind. Ct. App. 2015) (holding that defense counsel’s failure to tender a jury instruction on Class A misdemeanor criminal conversion as a lesser-included offense of Class D felony theft was a reasonable, all-or-nothi

2013Id.

2012Id. at 417 (citing Hauk v. State, 729 N.E.2d 994, 998 (Ind. 2000).

2018See Garrett , 756 N.E.2d at 529-30 (holding that, even though State charged defendant only with murder, it was proper to instruct the jury on the lesser included offense of reckless homicide, over defendant's objection, where there was some evidence to support the lesser-included-offense instruction); cf. Watts , 885 N.E.2d at 1230 (holding that it was error to give, over defendant's objection, State's requested instruction on lesser-included offense of voluntary manslaughter where there was no evidence to support the lesser-included-offense instruction). 12 McDowell also cites Roberson v. Sta

2012Clark and the State dispute whether there was a serious evidentiary dispute regarding the element of bodily injury. “[I]t is reversible error for a trial court to give a lesser included offense instruction at the request of the State in the absence of a serious evidentiary dispute distinguishing the 8 lesser offense from the greater.” True v. State, 954 N.E.2d 1105, 1109 (Ind. Ct. App. 2011) (citing Watts v. State, 885 N.E.2d 1228, 1232-33 (Ind. 2008)).

2017Id. (citing McNary v. State, 428 N.E.2d 1248, 1252 (Ind. 1981)). [43] Here, Wells’s tendered instruction simply sets forth the elements of the crime of dealing in marijuana, which is generally a Class A misdemeanor.

2011See Wright v. State, 690 N.E.2d 1098, 1108 (Ind.1997) (holding that to give a lesser included offense instruction when there is no serious evidentiary dispute about the element distinguishing the two offenses “would be to improperly encourage the jury to reach a compromise verdict.”); Leon v. State, 525 N.E.2d 331, 332 (Ind.1988) (holding that if the evidence on an element distinguishing the greater offense from the lesser offense “is sufficient and is not in serious dispute, the trial court should refuse the lesser included instruction to avoid the possibility of a compromise verdict.”); McNa

2020Page v. State, 615 N.E.2d 894, 895 (Ind. 1993) (“[T]o submit an instruction on voluntary manslaughter would have a tendency to negate [self-] Court of Appeals of Indiana | Memorandum Decision 19A-PC-2597 | November 30, 2020 Page 12 of 15 defense and give the message to the jury that there was really no self-defense at all but a deliberate killing in the heat of passion.”).

2016See, e.g., Autrey, 700 N.E.2d at 1141 (holding that defense was not ineffective for opting for an “all or nothing” trial strategy over tendering a lesser included offense instruction); Page, 615 N.E.2d at 895-96 (holding that defense counsel’s failure to request a lesser included instruction did not constitute ineffective assistance of counsel); Brown v. State, 24 N.E.3d 529 , 535 (Ind. Ct. App. 2015) (holding that defense counsel’s failure to tender a jury instruction on Class A misdemeanor criminal conversion as a lesser-included offense of Class D felony theft was a reasonable, all-or-nothi

2017Charlton v. State, 702 N.E.2d 1045, 1048 (Ind. 1998).

2011Charlton v. State, 702 N.E.2d 1045, 1048 (Ind.1998).

2012Miller v. State, 720 N.E.2d 696, 702 (Ind. 1999) (citation omitted).

2006Miller v. State, 720 N.E.2d 696, 702 (Ind.1999) (citing Wright v. State, 658 N.E.2d 563, 566-67 (Ind.1995)).

2003Wilson v. State, 765 N.E.2d 1265, 1271 (Ind.2002).

2003Wilson v. State, 765 N.E.2d 1265, 1271 (Ind.2002).

1989See also Maisonet v. State (1983), Ind., 448 N.E.2d 1052, 1055 (where there was substantial uncontested evidence of defendant's intentional acts, there was no error in refusing to give a tendered instruction on conversion); Holland v. State (1983), Ind., 444 N.E.2d 1190, 1192 (where defendant was charged with felony murder and interposed defense of self defense and State's evidence pointed to the accused's guilt, there was no evidence to which the lesser included offense instruction was applicable).

1986See Holland v. State (1983), Ind., 444 N.E.2d 1190 .

2011See Wright v. State, 690 N.E.2d 1098, 1108 (Ind.1997) (holding that to give a lesser included offense instruction when there is no serious evidentiary dispute about the element distinguishing the two offenses “would be to improperly encourage the jury to reach a compromise verdict.”); Leon v. State, 525 N.E.2d 331, 332 (Ind.1988) (holding that if the evidence on an element distinguishing the greater offense from the lesser offense “is sufficient and is not in serious dispute, the trial court should refuse the lesser included instruction to avoid the possibility of a compromise verdict.”); McNa

2008The State points to Harris v. State, 617 N.E.2d 912, 915 (Ind.1993), overruled on other groivnds by Wright, 690 N.E.2d at 1109 , wherein the Indiana Supreme Court acknowledged that, “It is entirely possible for a person to be guilty of assisting a criminal under circumstances which are not inherently included in the offense of murder.” Yet the case the Harris court *530 cites for this proposition addresses the question in the context of whether a defendant is entitled to a lesser-included-offense instruction.

2020Appellee’s Br. p. 24 n.3 (citing Bush v. State, 772 N.E.2d 1020, 1024 (Ind. Ct. App. 2002)).

2020We “will not speculate as to what may have been counsel’s most advantageous strategy, and isolated poor strategy, bad tactics, or inexperience does not necessarily amount to ineffective assistance.” Sarwacinski v. State, 564 N.E.2d 950, 951 (Ind. Ct. App. 1991) (citation omitted). [15] Further, our supreme court has held that a tactical decision not to tender a lesser included offense instruction does not constitute ineffective assistance of counsel, even where the lesser included offense is inherently included in the greater offense.

2018See Garrett , 756 N.E.2d at 529-30 (holding that, even though State charged defendant only with murder, it was proper to instruct the jury on the lesser included offense of reckless homicide, over defendant's objection, where there was some evidence to support the lesser-included-offense instruction); cf. Watts , 885 N.E.2d at 1230 (holding that it was error to give, over defendant's objection, State's requested instruction on lesser-included offense of voluntary manslaughter where there was no evidence to support the lesser-included-offense instruction). 12 McDowell also cites Roberson v. Sta

2018Trial courts are provided broad discretion when instructing juries, and we review a trial court’s decision with regard to jury instructions only for an abuse of that discretion.3 Harrison v. State, 32 N.E.3d 240, 251 (Ind. Ct. App. 2015), trans. denied. [11] When determining whether to give a lesser included offense instruction, trial courts apply the three-part test our supreme court set out in Wright v. State, 658 2 We acknowledge that Smith alleges that the trial court abused its discretion when it failed to instruct the jury on both sudden heat and voluntary manslaughter, however, if the t

2016Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007).

2016He relies upon Wilson v. State, 697 N.E.2d 466, 474 (Ind. 1998), to support his proposition that “an instruction on voluntary manslaughter is supported when there is evidence of sufficient provocation to induce passion that renders a reasonable person incapable of cool reflection.” (Appellant’s Br. at 17.) However, to the extent that Martinez develops an argument with regard to supporting evidence, he asserts only that the victim, who had undefined “body language” indicating that he was upset, “was instigating the argument” and Martinez was trying to ignore him.

2015Hamilton v. State, 783 N.E.2d 1266, 1268 (Ind. Ct. App. 2003), trans. denied.