People v. Colville
20 N.Y.3d 20
NY Court of Appeals
Decided on October 23, 2012
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Issue:
Trial Court Defers to Defendant’s Decision to Not Seek Lesser-Included Jury Charge
Whether the trial court erred in declining to submit the lesser-included offenses of first- and second-degree manslaughter per defense counsel’s request, as defendant did not wish to do so.
Holding:
Trial Court Erred as Decision to Seek Jury Charge Rests with Counsel, Not Defendant
The Court of Appeals held that the trial court erred in deferring to the defendant as the decision to seek a jury charge on lesser included offenses “is a matter of strategy and tactics which ultimately rests with defense counsel.”
Facts:
Defendant Delroy Colville stabbed and killed a victim with a chef’s knife, and cut open the lip of another man in a confrontation in their living quarters. Defendant claimed the violence erupted when he was attacked by the victim who repeatedly pummeled him in the head with a heavy glass ashtray and left the defendant bloodied, nearly unconscious, and fearing for his life. Accounts of the confrontation varied markedly, with some witnesses saying defendant was the aggressor, that Colville set upon the victim with the knife as the victim walked peacefully down the hallway.
Defendant was indicted and tried before a jury for second-degree murder and second-degree assault. During trial, defense counsel sought a jury charge on the lesser-included offenses of first- and second-degree manslaughter. The trial judge agreed with defense counsel’s request, but he deferred the decision to Colville, who did not want the jury to consider the lesser offenses. The judge questioned the defendant directly and confirmed that he did not want the jury to consider manslaughter. Colville stated, “if the jury feels that I intentionally caused the death of [the victim] there is nothing I can do about it.” The jury found defendant guilty of second-degree murder, and the Supreme Court sentenced him to an indeterminate term of 22 years to life. The Appellate Division affirmed.
Analysis:
Fundamental v. Strategic Decisions
At issue in this appeal is whether the submission of lesser-included offenses is a fundamental decision—comparable to how to plead or whether to waive a jury, take the stand or appeal—and therefore reserved for the accused, or whether it is a matter of strategy and tactics, and therefore reserved for the defense attorney to decide.
In 1980, the second edition of the America Bar Associations (ABA) norms of practice for criminal defense counsel advised that it was, “important in a jury trial for the defense lawyer to consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury. Indeed, because this decision is so important as well as so similar to the defendant’s decision about the charges to which to plead, the defendant should be the one to decide whether to seek submission to the jury of lesser included offenses. For instance, in a murder prosecution, the defendant, rather than the defense attorney, should determine whether the court should be asked to submit to the jury the lesser included offense of manslaughter” (ABA Standards for Criminal Justice, The Defense Function, standard 4-5.2, Commentary at 4.68 [2d ed 1980]).
In 1993 however, with the third edition of the Commentary, the ABA signaled an about face by omitting the last two sentences in above paragraph. Indeed, following the issuance of the 1993 ABA Commentary, courts have uniformly decided that whether or not to ask the trial judge to instruct the jury on lesser-included offenses is a matter of strategy and tactics ceded by a defendant to his lawyer.
CPL 300.50[1] & 300.50[2]
Furthermore, in New York a trial court may “in its discretion” submit a lesser-included offense “if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater” (CPL 300.50[1]). Where a reasonable view of the evidence supports submission of a lesser-included offense, the courts “must do so” if “requested by either party” (CPL 300.50[2]). In People v. Davis, (13 NY3d 17, 30 [2009]), the Court held that “the decision whether to agree to JHO adjudication of a petty criminal case represents the sort of ‘tactical decision’ best left to the determination of counsel.”
Defendant argued that in light of CPL 300.50, the decision to defer to the defendant makes little sense, as the statute requires the parties’ agreement rather than defendant’s personal consent. The Court of Appeals agreed, holding that the trial court’s decision was error. The trial judge concluded that there was a reasonable view of the evidence to support a conviction for manslaughter but not murder, and the defense attorney repeatedly asked the judge to submit the lesser-included charges, explaining that it was in the client’s best interests for the jury to be instructed on these lesser-included offense. But the judge main plain he would be guided solely by the defendant’s choice in the matter, and this was error. By deferring to defendant, the judge denied him the expert judgment of counsel to which the Sixth Amendment entitles him. The order of the Appellate Division was reversed.
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