The Oklahoma Bar Journal March 2023

The moral of the story for defense attorneys was to object to any substantive jury instructions that you do not request, and carefully discuss the pros and cons of jury instructions for lesser related crimes with your clients before the jury trial ever starts.

the particular facts of each sep arate case.” 42 He went on to say, “The offenses that comprise lesser included offenses do not change from case to case [and that] [t]he only change is whether the evidence in each particular case is sufficient to warrant a jury instruction.” 43 He concluded by saying, “It is for these reasons I must object to the Court’s embark ing on an adoption of a policy regarding lesser included offenses that I believe disregards the doc trine of stare decisis and the plain language of [22 O.S.] Section 916.” 44 PANDEMONIUM The concept of “lesser related” crimes blossomed after Shrum . In one first-degree murder case, the defendant was entitled to a second-degree felony murder jury instruction because, “A trial court is required to instruct on all lesser included or lesser related offenses warranted by the evidence.” 45 In another first-degree murder case, Glossip v. State , the court held that being an accessory after the fact was a lesser related offense to first-degree murder because

relevant evidence had been pre sented at trial and because it was the defense’s theory of the case. 46 But in yet another first-degree murder case, Miller v. State , the court upheld a trial court’s deci sion to decline an accessory-after- the-fact jury instruction when the defense’s theory was total innocence, and the evidence on the issue was conflicting. 47 In McHam v. State , the defen dant’s right to choose an all-or nothing strategy was taken away, and courts were then allowed to instruct sua sponte on any lesser related crimes shown by the evi dence. 48 A few years later, in Barnett v. State , giving a lesser related instruction was no longer merely an option for the court, it became a duty: “The district court has a duty to instruct on lesser included or lesser related offenses which are supported by the evidence.” 49 Then, in State v. Tubby , the court was presented with a sit uation where it was “unable to determine whether Accessory to First Degree Felony Murder was a legally recognized lesser included offense” due to an insufficient

PREDICTION

Judge Lumpkin wrote a con curring opinion in Shrum to “separately ... address the issue of lesser included offenses.” 37 It appears he foresaw problems with the “evidence” test because he warned, “Imprecise writing in appellate opinions can later be the basis to disregard the plain language of a statutory rule and expand a legal concept beyond its legislative intent.” 38 He noted, “The law must provide a steady plumb line if the rule of law is to prevail.” 39 He observed that, “[T]he discomfort of ... legal challenge[s] should not be allowed to be the catalyst to discard objective legal standards.” 40 Then he reviewed the history of 22 O.S. §916 and noted, “[P]rior case law ... has remained largely (albeit not entirely) con sistent through the years.” 41 He explained, “Regardless of the shortcuts or difference in writing styles in prior opinions, the cases are all based on the underlying premise that the alternate charge must be a lesser included offense of the primary charge and that determination is not based upon

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THE OKLAHOMA BAR JOURNAL