Who Decides Whether the Jurors Consider the Lesser-Included Offenses: Trial Judge or Defendant?

On March 19, 2014, the South Carolina Court of Appeals decided Abney v. State, holding trial counsel employed a legitimate trial strategy by not requesting the trial court judge instruct the jurors about the lesser-included offense.  The all-or-nothing approach failed, and the jurors convicted Abney of armed robbery without ever having the opportunity to consider the less serious offense of strong arm robber (also called common law robbery).  The trial judge sentenced Abney to twenty-six (26) years imprisonment.  The most the judge could have imposed for strong armed robbery would have been fifteen (15) years.

Abney is an unusual case because all three of the judges considering the case wrote separate opinions.  Judge Konduros wrote for the majority.  After observing this issue to be a matter of first impression in South Carolina, she held that our state should join Alabama, Georgia, and Utah recognizing the all-or-nothing strategy as a valid strategic decision.

Judge Pieper concurred in Judge Konduros’ opinion but wrote separately to express his view that the decision whether to ask the jurors to consider a lesser-included offense “is a strategic decision to be made ultimately by trial counsel after consultation with the defendant.”

Chief Judge Few dissented.  He “agree[d] with the majority that the decision to request a jury charge on a lesser-included offense can be a valid trail strategy” (emphasis original).  In Abney’s case, however, Judge Few would have held that “the decision was based on a critical misunderstanding of the law,” thereby entitling Abney to post-conviction relief.

Abney, thus, suggests that the trial judge is powerless to instruct the jurors on the lesser-included offense in the absence of a request by the defendant.  This result would be at odds with other cases affirming the trial court judge submitting the lesser-included charge to the jurors over the defendant’s objection.  For example, in State v. Wiggins, 330 S.C. 538, 540, 500 S.E.2d 489, 490 (1998), “[a]t the close of the State’s case, the trial judge directed a verdict of acquittal on the murder charge, but submitted this lesser-included offense to the jury.”  Wiggins, however, had objected to the trial judge charging the lesser-included offense of voluntary manslaughter.  Our Supreme Court affirmed the voluntary manslaughter conviction.  Had the Wiggins trial judge followed the same approach approved by the Court of Appeals in Abney, then Wiggins would have been acquitted.

As a side note, the prosecution very arguably should not have any say whatsoever regarding whether the trial court judge instructs the jurors about the lesser-included offense.  The prosecutor, after all, completely controls the criminal charge submitted to the grand jury for possible indictment.

Our Supreme Court is very likely to grant further review of Abney for two reasons.  First, the Court might consider the concerns raised by Judge Few in his dissent.  Second, our Supreme Court might want to intervene to clarify the respective roles of the trial judge and the defendant in the decision whether to request the lesser-included offense.  Until our Supreme Court provides further direction, defense counsel should consult with the client regarding whether to request the lesser-included offense.  If the all-or-nothing approach is adopted, then counsel should object to the prosecutor and even the judge if either wants to allow the jurors to consider the lesser-included offense.

Please click this link to read the Court of Appeals Opinion in Abney v. State.

Additional Information: Charles Grose was quoted in an article in South Carolina Lawyers Weekly by Phillip Bantz, entitled “Muddying the Waters on Ineffective Assistance,” analyzing the implications of Abney v. State.