Beware: The trial court can instruct the jury on lesser included offenses during deliberations even though the parties neither requested the instruction nor addressed it in closing arguments

Cedrick Lorenzo Shuler v. United States, No. 13-CF-107 (decided August 28, 2014)

Players:  Associate Judges Blackburne Rigsby and Fisher, Senior Judge King.  Opinion by Associate Judge Blackburne-Rigsby.  Thomas T. Heslep for appellant.  Trial Judge William M. Jackson.  

Facts:  The trial court instructed the jury on two possible theories on the charge of first degree murder while armed: that Mr. Shuler intended to kill the decedent, or that Mr. Shuler’s intent to kill a bystander transferred to the decedent.  The jury soon asked in a note whether it could consider a lesser offense.  Based on the note, the trial judge informed the parties that he was inclined to instruct the jury on the lesser included charge of second degree murder while armed.  The government agreed with that approach, while the defense objected.   

Issue: Whether the trial court may instruct the jury on a lesser included offense after closing arguments when neither party requested the instruction.

Holding:  Yes.  So long as the timing of the instruction is not unduly suggestive and the defendant is not prejudiced by failing to address the lesser included offense charge effectively, the jury may be given a post-summation supplemental instruction on lesser included offenses.

Of Note:

• If you don’t want the jury to be instructed on lesser included offenses, you’re not out of the woods just because the instruction wasn’t given before deliberations began.  This case suggests two ways to avoid an instruction on lesser included offenses: 
• Timing:  Argue that the timing of the instruction is unduly suggestive.  Here, the instruction was given in response to a question by jurors and no more than four hours into deliberations.  Distinguish your case from these facts. 
• Prejudice:  Argue that the late instruction deprives your client of the opportunity to address the charge effectively or damages arguments you made during closing.  Mr. Shuler objected to the proposed instruction by saying that he would have argued differently during closing arguments had he known the instruction would be given, but the Court found this was insufficient to establish he would be prejudiced by the late instruction.  Mr. Shuler’s defense was that he wasn’t present during the shooting, and the defense did not address the elements of first degree murder during closing arguments.  Distinguish those facts when making a record about how you are prejudiced by a late instruction.

• A reminder: the trial court is entitled to act sua sponte in giving a lesser included instruction, so long as one of the parties affirmatively agrees with the instruction when it is suggested.  Slip op. at 18 (quoting Hawthorne v. United States, 829 A.2d 948, 952 (D.C. 2003)).  NG

Read full opinion here