The Oklahoma Bar Journal March 2023

that the State’s case raised lesser related offenses that should be deemed included.” 34 It appears in this second scenario that the defen dant does not have a veto power on a requested jury instruction as long as they had sufficient notice of a lesser related offense before the beginning of the jury trial. The third scenario given was if either the trial court or the prose cution offers a jury instruction on a lesser offense and the defendant does not object. 35 In this scenario, the defendant might actually want the jury instruction on the lesser crime but not quite enough to ask for it themselves. In such a case, the court is allowed to “presume the defendant desired the lesser included offense instruction as a benefit.” 36 Let the defendant beware: If you do not object imme diately, you generally lose the ability to object later. The moral of the story for defense attorneys was to object to any substantive jury instructions that you do not request, and care fully discuss the pros and cons of jury instructions for lesser related crimes with your clients before the jury trial ever starts. The moral of the story for prosecutors was that you should ask many questions at the preliminary hearing (in felony cases) and make sure you provide everything in your file relating to lesser crimes to the defense – just in case the court evaluates whether the defendant had notice of the lesser related crime or not. The moral of the story for judges was to avoid any jury instructions that the defendant objected to, unless the prosecutor asked for the instruction specifically and there was enough evidence to show the defendant had notice that they might be on trial for a lesser related crime.

the jury instruction on the lesser offense, and the defendant did not object. 28 A central issue was whether the defendant acted with malice in a heat of passion or out of self-defense. 29 Applying the evidence test, the Shrum court concluded that all lesser forms of homicide were “necessarily included,” and the court could instruct the jury on them if they were supported by the evidence. 30 The Shrum court then walked through three scenarios of how to apply this test. THREE VIGNETTES The first scenario given was if the trial court sua sponte proposes to instruct the jury on a lesser offense that was supported by the evidence. 31 If the defendant objects, that preference must be respected, and the “defendant shall have the right to affirma tively waive any lesser included offense instruction that the evi dence supports and proceed on an ‘all or nothing approach.’” 32 In other words, a defendant can choose to submit the case to the jury on the greater offense only and not allow the jury to consider any lesser offenses. If the jury con cludes that the state did not quite prove its case as to the greater offense, the defendant would have to be acquitted. A criminal defense attorney is well advised to discuss the pros and cons of this decision with each client before it ever comes up at a jury trial. The second scenario given was if the prosecution requested a lesser offense instruction, and the defendant objects. 33 In that situation, “[T]he trial court should review the Information together with all material that was made available to the defendant at pre liminary hearing and through dis covery to determine whether the defendant received adequate notice

notice of the charges against which he must defend.” 17 Ultimately, the Shrum court took “this opportunity to formally adopt ... the evidence test to determine what constitutes a lesser included offense of any charged crime.” 18 According to the evidence test, there is a two-step analysis. The first step “requires courts to make a legal determination about whether a crime constitutes a lesser included offense of the charged crime or whether it is legally possible for the charged crime to include a lesser included offense.” 19 The lesser-offense jury instruction is appropriate in situations “where the lesser and the greater offense are in the same class of offenses and are closely or inherently related, but the elements do not satisfy the strict statutory elements test.” 20 Shrum did not define how close the offenses need to be or how inherently related. The court in Shrum was presented with two different theories of homicide offenses. It concluded that all homi cides are inherently related, and a jury instruction as to any lesser form is appropriate. 21 The second step is “whether the trial evidence warrants instruc tion.” 22 In other words, the court “looks to the crimes the trial evi dence tends to prove” to see if the lesser charge was supported by some of the evidence at trial. 23 If the elements of the two crimes are related and the evidence tends to establish the lesser crime, the evi dence test is satisfied, and the jury instruction may be given – even over the defendant’s objection. 24 Shrum involved a defendant who shot and killed his stepfa ther after a heated argument. 25 The defendant was charged with first-degree malice murder, 26 but he was ultimately convicted of first-degree heat of passion man slaughter. 27 The state requested

20 | MARCH 2023

THE OKLAHOMA BAR JOURNAL