lesser included offense instruction in North Carolina

2023It then made this observation: “As the State has conceded, absent the statutory prohibition on such instructions, this testimony would have entitled petitioner to a lesser included offense instruction on felony murder as a matter of state law.” Id. at 630 , 100 S. Ct. at 2386 (emphasis added); see also id. at 630 n.5, 100 S. Ct. at 2386 n.5.

2023It then made this observation: “As the State has conceded, absent the statutory prohibition on such instructions, this testimony would have entitled petitioner to a lesser included offense instruction on felony murder as a matter of state law.” Id. at 630 , 100 S. Ct. at 2386 (emphasis added); see also id. at 630 n.5, 100 S. Ct. at 2386 n.5.

2014“Under North Carolina and federal law a lesser included offense instruction is required 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. Thomas, 325 N.C. 583, 594 , 386 S.E.2d 555, 561 (1989) (quoting State v. Strickland, 307 N.C. 274, 286 , 298 S.E.2d 645, 654 (1983), overruled in part on other grounds in State v. Johnson, 317 N.C. 193, 203 , 344 S.E.2d 775, 781 (1986)).

2014“Under North Carolina and federal law a lesser included offense instruction is required 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. Thomas, 325 N.C. 583, 594 , 386 S.E.2d 555, 561 (1989) (quoting State v. Strickland, 307 N.C. 274, 286 , 298 S.E.2d 645, 654 (1983), overruled in part on other grounds in State v. Johnson, 317 N.C. 193, 203 , 344 S.E.2d 775, 781 (1986)).

2011As our Supreme Court has explained, trial courts must not give a lesser-included offense instruction unless the instruction is supported by the evidence: Principles of due process “require[] that a lesser included offense instruction be given only when the evidence warrants such an instruction.” Hopper v. Evans, 456 U.S. 605, 611 , 72 L.

2011As our Supreme Court has explained, trial courts must not give a lesser-included offense instruction unless the instruction is supported by the evidence: Principles of due process “require[] that a lesser included offense instruction be given only when the evidence warrants such an instruction.” Hopper v. Evans, 456 U.S. 605, 611 , 72 L.

2024In other words, the lesser included offense instruction is appropriate when “the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 561 , 572 S.E.2d 767, 771 (2002) (citations omitted).

2024In other words, the lesser included offense instruction is appropriate when “the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 561 , 572 S.E.2d 767, 771 (2002) (citations omitted).

2026When determining whether to give a lesser-included offense instruction, a judge must consider whether there is “the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.” State v. Wright, 304 N.C. 349, 351 , 283 S.E.2d 502, 503 (1981).

2026When determining whether to give a lesser-included offense instruction, a judge must consider whether there is “the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.” State v. Wright, 304 N.C. 349, 351 , 283 S.E.2d 502, 503 (1981).

2023Time and again, this Court has recognized a defendant’s right “to have all lesser degrees of offenses supported by the evidence submitted to the jury as possible alternate verdicts.” Palmer, 293 N.C. at 643–44; State v. Thomas, 325 N.C. 583, 594 (1989) (explaining that a lesser-included offense instruction is required if the evidence “would permit a jury rationally to find defendant guilty of the lesser offense and acquit him of the greater” (cleaned up)).

2014“Under North Carolina and federal law a lesser included offense instruction is required 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. Thomas, 325 N.C. 583, 594 , 386 S.E.2d 555, 561 (1989) (quoting State v. Strickland, 307 N.C. 274, 286 , 298 S.E.2d 645, 654 (1983), overruled in part on other grounds in State v. Johnson, 317 N.C. 193, 203 , 344 S.E.2d 775, 781 (1986)).

2023Conaway, 339 N.C. at 514 ; see also Beck, 447 U.S. at 634–36.

2023See id.; see also Conaway, 339 N.C. at 515 (declining to require a second-degree murder instruction when defendant pointed to no evidence negating premeditation and deliberation aside from his testimony “that he did not commit the murders”).

2009Upon a motion to dismiss for failure to instruct the jury on a lesser included offense "a defendant may not decline an opportunity for instructions on a lesser included offense and then claim on appeal that failure to instruct on the lesser included offense was error." State v. Gay, 334 N.C. 467, 489 , 434 S.E.2d 840, 852 (1993).

2009Upon a motion to dismiss for failure to instruct the jury on a lesser included offense "a defendant may not decline an opportunity for instructions on a lesser included offense and then claim on appeal that failure to instruct on the lesser included offense was error." State v. Gay, 334 N.C. 467, 489 , 434 S.E.2d 840, 852 (1993).

2007"A trial court must submit a lesser included offense instruction if the evidence would permit a jury rationally to find defendant guilty of the lesser offense and acquit him of the greater." State v. Johnson, 317 N.C. 417, 436 , 347 S.E.2d 7, 18 (1986), superseded by statute on other grounds as stated by State v. Moore, 335 N.C. 567 , 440 S.E.2d 797 , cert. denied, 513 U.S. 898 , 115 S.Ct. 253 , 130 L.Ed.2d 174 (1994).

2007"A trial court must submit a lesser included offense instruction if the evidence would permit a jury rationally to find defendant guilty of the lesser offense and acquit him of the greater." State v. Johnson, 317 N.C. 417, 436 , 347 S.E.2d 7, 18 (1986), superseded by statute on other grounds as stated by State v. Moore, 335 N.C. 567 , 440 S.E.2d 797 , cert. denied, 513 U.S. 898 , 115 S.Ct. 253 , 130 L.Ed.2d 174 (1994).

2014“Under North Carolina and federal law a lesser included offense instruction is required 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. Thomas, 325 N.C. 583, 594 , 386 S.E.2d 555, 561 (1989) (quoting State v. Strickland, 307 N.C. 274, 286 , 298 S.E.2d 645, 654 (1983), overruled in part on other grounds in State v. Johnson, 317 N.C. 193, 203 , 344 S.E.2d 775, 781 (1986)).

2014“Under North Carolina and federal law a lesser included offense instruction is required 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. Thomas, 325 N.C. 583, 594 , 386 S.E.2d 555, 561 (1989) (quoting State v. Strickland, 307 N.C. 274, 286 , 298 S.E.2d 645, 654 (1983), overruled in part on other grounds in State v. Johnson, 317 N.C. 193, 203 , 344 S.E.2d 775, 781 (1986)).

2020To determine if the lesser-included offense instruction is necessary, the test is “whether the State’s evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements.” State v. Chaves, 246 N.C.

2020To determine if the lesser-included offense instruction is necessary, the test is “whether the State’s evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements.” State v. Chaves, 246 N.C.

2008"Where no lesser included offense exists, a lesser included offense instruction detracts from, rather than enhances, the rationality of the process." Spaziano v. Florida, 468 U.S. 447, 455 , 82 L.

2008"Where no lesser included offense exists, a lesser included offense instruction detracts from, rather than enhances, the rationality of the process." Spaziano v. Florida, 468 U.S. 447, 455 , 82 L.

2006The jury’s discretion is thus channeled so that it may convict a defendant of any crime fairly supported by the evidence.”); State v. Arnold, 329 N.C. 128, 139 , 404 S.E.2d 822, 829 (1991) (finding error to have given instruction on second-degree murder because of clear and overwhelming evidence of premeditation and deliberation).

2006The jury’s discretion is thus channeled so that it may convict a defendant of any crime fairly supported by the evidence.”); State v. Arnold, 329 N.C. 128, 139 , 404 S.E.2d 822, 829 (1991) (finding error to have given instruction on second-degree murder because of clear and overwhelming evidence of premeditation and deliberation).

1994“A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.” Sansone v. United States, 380 U.S. 343, 350 , 13 L.Ed.2d 882, 888 (1965).

1994“A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.” Sansone v. United States, 380 U.S. 343, 350 , 13 L.Ed.2d 882, 888 (1965).

1996App. 389 , 455 S.E.2d 666 (1995), this Court held that “a trial court must submit a lesser included offense instruction if the evidence would permit a jury rationally to find defendant guilty of the lesser included offense and acquit him of the greater.” Id. at 398 , 455 S.E.2d at 671 (quoting State v. Johnson, 317 N.C. 417, 436 , 347 S.E.2d 7, 18 (1986)).

1996App. 389 , 455 S.E.2d 666 (1995), this Court held that “a trial court must submit a lesser included offense instruction if the evidence would permit a jury rationally to find defendant guilty of the lesser included offense and acquit him of the greater.” Id. at 398 , 455 S.E.2d at 671 (quoting State v. Johnson, 317 N.C. 417, 436 , 347 S.E.2d 7, 18 (1986)).

1980Thus the general rule that an erroneous charge on a lesser included offense is error favorable to the defendant "when all of the evidence tends to support a greater offense," see State v. Vestal, supra, 283 N.C. at 252 , 195 S.E.2d at 299 (emphasis supplied), is inapplicable to the facts of this case.

1980Thus the general rule that an erroneous charge on a lesser included offense is error favorable to the defendant "when all of the evidence tends to support a greater offense," see State v. Vestal, supra, 283 N.C. at 252 , 195 S.E.2d at 299 (emphasis supplied), is inapplicable to the facts of this case.

2026“Where the State’s evidence is clear and positive as to each element of the offense charged and there is no evidence showing the commission of a lesser included offense, it is not error for the judge to refuse to instruct on the lesser offense.” State v. Peacock, 313 N.C. 554, 558 , 330 S.E.2d 190, 193 (1985). -4- STATE V.

2026“Where the State’s evidence is clear and positive as to each element of the offense charged and there is no evidence showing the commission of a lesser included offense, it is not error for the judge to refuse to instruct on the lesser offense.” State v. Peacock, 313 N.C. 554, 558 , 330 S.E.2d 190, 193 (1985). -4- STATE V.

2026See State v. Annadale, 329 N.C. 557, 568 , 406 S.E.2d 837, 844 (1991) (“If the evidence is sufficient to fully satisfy the State’s burden of proving each and every element of the offense . . . , and there is no evidence to negate these elements other than [the] defendant’s denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of [a lesser included offense].”).

2026See State v. Annadale, 329 N.C. 557, 568 , 406 S.E.2d 837, 844 (1991) (“If the evidence is sufficient to fully satisfy the State’s burden of proving each and every element of the offense . . . , and there is no evidence to negate these elements other than [the] defendant’s denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of [a lesser included offense].”).

2025App. at 396, 895 S.E.2d at 902 (cleaned up); see also State v. Liggons, 194 N.C.

2025On the other hand, a lesser-included offense instruction is not warranted when “the evidence is clear and positive as to each element of the offense charged and no evidence supports a lesser- included offense.” State v. Norman, 227 N.C.

2025App. 162, 169 , 741 S.E.2d 683, 687 (2013) (citation omitted).

2025Clevenger, 249 N.C.

2023When the State charges first-degree murder but proceeds only under the felony-murder theory, the “defendant is entitled to a second-degree murder instruction only if evidence also tend[s] to show that the murder was not committed in the course of the commission of a felony.” State v. Wilson, 354 N.C. 493, 506 , 556 S.E.2d 272, 281 (2001), overruled on other grounds, 356 N.C. at 567 , 572 S.E.2d at 775 .

2023When the State charges first-degree murder but proceeds only under the felony-murder theory, the “defendant is entitled to a second-degree murder instruction only if evidence also tend[s] to show that the murder was not committed in the course of the commission of a felony.” State v. Wilson, 354 N.C. 493, 506 , 556 S.E.2d 272, 281 (2001), overruled on other grounds, 356 N.C. at 567 , 572 S.E.2d at 775 .