Arko v. People, 183 P.3d 555 (Colo. 2008)

Brief Summary
The decision in a criminal case to request a jury instruction including a lesser non-charged offense rests with defense counsel because the decision is a tactical one that does not implicate a defendant’s fundamental rights.

Complete Summary
Criminal defendant Arko was charged, inter alia, with attempted second-degree murder and attempted reckless manslaughter. Arko’s counsel sought a jury instruction including the lesser offense of third degree assault even though Arko had not been charged with assault. Colorado law allows defendants to request lesser, non-included offenses. Arko objected to the assault instruction, and the trial court heeded Arko’s wish. Arko was found guilty of attempted reckless manslaughter and Arko appealed, arguing that the trial court should have included the assault charge despite his objection.

The appellate court upheld the trial court’s decision because the request for a non-included charge implicates a defendant’s fundamental rights. The court noted that when defendants request non-included charges, they may be convicted of both the greater and lesser charge—a possibility that would be barred by the doctrine of merger if the prosecution had brought both charges.

The Colorado Supreme Court reversed, holding that the authority to request lesser non-included offenses in jury instructions rests with defense counsel, albeit only after consultation with the defendant. The court first differentiated the decision to plead guilty, which does implicate a fundamental right. That decision waives all rights attendant to trial by jury, but the request for a lesser non-included defense waives no such rights.

The court further noted that the decision at issue was not among the decisions widely recognized as implicating fundamental rights. For example, the court pointed to Colorado Rules of Professional Conduct, Rule 1.2(a), which lists fundamental rights decisions, but does not include the decision to request a lesser non-included offense. Similarly, the third edition of the American Bar Association’s Standards for Criminal Justice, in a change from the second edition, no longer vests the decision to request lesser included offenses with defendants. The court, in line with caselaw from other jurisdictions, interpreted this omission to mean that this decision now rests with defense counsel. More generally, the court noted that the decision at issue required “sophisticated training and skill which attorneys possess and defendants do not . . . .” Id. at 559.

Finally, the court addressed the secondary issue of the effect of Arko’s initial objection to the instruction on his ability to appeal. The court denied that Arko’s objection judicially estopped him from appealing because judicial estoppel requires an “intentional effort to mislead the court[,]” which Arko lacked. Id. at 560. Further, the court held that Arko was not barred from appealing by the doctrine of invited error because it was the trial court, not Arko, who injected error into the proceeding. The court therefore ordered a new trial.

Two justices dissented. The dissent asserted that the authorities on which the majority relied—the ABA Standards, caselaw from other jurisdictions, and Rule 1.2(a), which was adopted verbatim from the model rule, likely failed to take into account Colorado’s uncommon allowance of lesser non-included offenses. Because requesting a non-included offense could lead to harsher punishment, the dissent thought that this decision implicated a fundamental right that should be left with the defendant.

Significance of Opinion
Ironically, the court here held in favor of the criminal defendant because the trial court had done what the defendant asked.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.

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