At trial, the government proceeded under a felony-murder theory, alleging that Appellant committed the murder in the course of a robbery. However, some evidence was presented that Appellant did not decide to rob the victim until after she killed him, which would make it murder and not capital murder. Accordingly, the State requested a jury instruction on the LIO of murder, a request which the trial judge denied. When asked, Appellant stated "no objection" to charging the jury on capital murder only - otherwise known as the "all-or-nothing" tactic. The jury found Appellant guilty of capital murder and she was sentenced to life. (State did not seek the death penalty).
On appeal to the 5th District Court of Appeals, Appellant apparently changed her mind regarding whether the trial judge should have charged the jury on the LIO of murder. Irrespective of the State's request for the LIO instruction, the 5th Court held that by not sua sponte instructing the jury on the LIO, Appellant was "egregiously harmed" under the Almanza (686 S.W.2d 157) factors and reversed (5th Ct. opinion HERE).
REVERSING the 5th Court's decision, the CCA stated:
Because of the strategic nature of the decision, it is appropriate for the trial court to defer to the implied strategic decisions of the parties by refraining from submitting lesser offense instructions without a party’s request. It is clear that the defense may not claim error successfully on appeal due to the omission of a lesser included offense if the defense refrained from requesting one.
We, therefore, decide that the trial court had no duty to sua sponte instruct the jury on the lesser-included offense of murder and that a jury instruction on this lesser-included offense was not 'applicable to the case' absent a request by the defense for its inclusion in the jury charge.Judges Johnson and Holcomb dissented, believing that the instruction on the LIO was not an issue that must be requested by the defense, but was part of the "law applicable to the case" which would require a corresponding jury instruction. Judge Price dissented without opinion.
My thoughts: Our trial judges are supposed to instruct the jury on the "law applicable to the case." With this decision, the Court departs from years of precedent and would require the defense to specifically request instructions on a LIO. So now, this is a "defensive issue." There are definite tactical advantages that can be gained by using the "all-or-nothing" technique of not requesting an LIO instruction, namely the fact that you force a jury of average citizens to make a tough decision on whether to convict for the greater offense rather than letting them essentially "split the baby" with an LIO. In this case, it simply didn't work and the CCA was not going to correct Appellant's "tactical error" after it proved unwise. (I say "tactical error" simply because it didn't work in this case, not because it should never be done).