WA Supremes held that a defense attorney’s “all or nothing” approach, in which “lesser included” jury instructions were rejected, was a legitimate trial tactic and did not constitute ineffective assistance of counsel (IAC) under the state or federal constitutions. Trial courts are not required to provide lesser included instructions in the absence of a request for such instructions.
Defendant Kristina Grier was charged with Murder in the 2nd degree following a fight she had with the victim Gregory Owen. earlier, they were drinking with a group of people at Grier’s home. Owen was alleged to have stolen several items from Grier, during the course of the evening. Some of these items included three guns. Grier and her son confronted Owen. A fight broke out. Unfortunately, a gun went off, killing Owen.
At trial, Grier’s defense attorney withdrew his earlier request for a jury instruction on the lesser offense of Assault. As a result, the jury was not instructed on those offenses. The jury convicted Grier of murder. The case went up for appeal on the issue of whether Grier’s defense attorney was ineffective. The Court of Appeals reversed Grier’s conviction. They believed Grier’s attorney was ineffective because he failed to request instructions on the lesser included offenses.
For those unfamiliar with criminal law practice, a “lesser included” offense shares some, but not all, of the elements of a greater criminal offense. Therefore, the greater offense cannot be committed without also committing the lesser offense. For example, Manslaughter is a lesser included offense of murder, assault is a lesser included offense of rape, and unlawful entry is a lesser included offense of Burglary.
The WA Supremes ruled Grier’s attorney’s decision to withdraw the lesser included offense instructions did not prevent her from raising an ineffective assistance claim. The court also held that defense counsel’s “all or nothing” approach was a legitimate trial tactic and was not IAC. The court vacated the Court of Appeals decision.
My opinion? Interesting decision. It’s difficult to play “Monday Morning Quarterback” and call a defense attorney’s trial tactics ineffective simply because the defendant lost at trial. What if the defense attorney wanted the jury instruction and Grier was convicted? Would she appeal the case anyway, and call her attorney ineffective because she was convicted on the lesser charge? Good decision, WA Supremes.