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Wine and trial strategy

Your client was involved in a bar fight, and he came out of it with a charge of felonious assault.  His defense is simple:  he didn't do it.  Unfortunately, the evidence of that is more, shall we say, ambiguous than he believes it to be.  But there's some good evidence of provocation, and so the question is whether you should ask for a charge-down to aggravated assault.  You mull it over, talk to him, and decide that you're going to go all or nothing.  The jury can either convict him of felonious assault, or acquit him; there's no possibility of a compromise verdict.

Well, that's not going to happen after last week's decision by the Ohio Supreme Court in State v. Wine.  

Wine had been charged with raping his mother-in-law - I don't imagine there are many porn sites catering to that particular fantasy - and the evidence was as unseemly as you might guess:  it centered on her allegation that he'd placed his fingers in her vagina while she was asleep.  While Wine acknowledged in interviews with an investigator and the Sheriff's office that he remembered being in bed with the mother-in-law, his defense at trial was unequivocal:  he'd never been in the room with her.

Although neither party had requested it, the judge proposed to charge the jury on the lesser offenses of sexual battery and gross sexual imposition.  Rape requires sexual conduct by force, while sexual battery requires only coercion; the judge felt that the jury could find that Wine hadn't used force, but had used coercion.  As for gross sexual imposition, the difference between that and rape is that the latter requires sexual conduct - penetration - while the former requires only sexual contact, the touching of an erogenous zone.  The judge believed the jury could have found, based on Wine's statements to the investigators in which he acknowledged that he might have touched the victim's vagina, that there hadn't been penetration, but there had been sexual contact. 

Wine's attorney bitched up a storm about the proposed instruction, arguing that he'd based his entire case on defending against the rape charge.   To no avail, and sure enough, the jury acquitted Wine of rape and sexual battery, but convicted him of gross sexual imposition.

The issue Wine presented to the Supreme Court was simple:  "A Defendant in a criminal trial, as a matter of trial strategy, has a right to present an 'all or nothing defense' and refuse any lesser-included offenses instructions."  The law on when to charge on lesser included offenses is also pretty clear:

If the trier of fact could reasonably find against the state and for the accused upon one or more of the elements of the crime charged and for the state on the remaining elements, which by themselves would sustain a conviction on a lesser-included offense, then a charge on the lesser-included offense is required.

Conversely, if the jury could not reasonably find against the state on an element of the crime, then a charge on a lesser-included offense is not only not required, but is also improper.

The court unanimously decided that the court's duty to give the instruction on lesser offenses when the evidence warranted trumped Wine's right to preclude instructions on lesser offenses as a matter of trial strategy.

It's not quite that simple, of course.  Go back to that issue on trial strategy.  Wine relied on numerous cases which have held that a lawyer didn't provide ineffective assistance by not seeking a charge on lesser offenses.  The courts in those cases concluded that not requesting the instruction was a matter of trial strategy, which is generally immune from review on an ineffective assistance claim.

I think Wine creates some problems in that respect.  You could make a decent argument that if the lawyer no longer has the right to forego instructions on lesser offenses as a matter of trial strategy, that takes trial strategy off the table on an IAC claim.  To be sure, the judge not giving the instructions would have to clear the plain error hurdle, and that's tough, but the standard for ineffective assistance of counsel is much more forgiving:  all a defendant has to show is that the attorney's error undermines confidence in the verdict.  The issue then becomes whether the attorney should have realized that a lesser offense instruction was warranted, not whether his not requesting one was "trial strategy."

And this may even affect plain error review.  While there's language in Wine about the judge's "discretion" to give a lesser offense instruction, the court's conclusion is pretty adamant:

The trial court must [my emphasis ] give an instruction on a lesser included offense if under any reasonable view of the evidence it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense.

The trial judge's refusal to give an instruction on the lesser offense where it's warranted will almost always be found to be error.  True, the judge's simple failure to give the instruction has to meet the plain error requirement of preventing a manifest injustice, but if there's decent evidence warranting the instruction, that's not an impossible hurdle to overcome.  In the past, courts have chalked up the failure to give an instruction on the possibility that counsel decided not to request one as a matter of trial strategy.  Wine says that a counsel no longer has that right.  

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