Issue: Was trial counsel ineffective for failing to request a jury instruction for the lesser included offense of facilitation?
Facts: Defendant was charged with several felony drug offenses. His defense was, in part, that a third party brought the drugs and he did not profit from the transaction, such that he was only guilty of casual exchange. At trial, his trial counsel did not move for an instruction on facilitation. He was convicted of most of the charges. On direct appeal, the CCA “decline[d] to notice plain error because it is not clear that the defendant did not waive the issue for tactical reasons,” namely because his defense was that he was only guilty of casual exchange. The post-conviction court denied the petition for relief on ineffective assistance grounds.
Appellate Decision: The intermediate affirmed the denial of post-conviction relief on the basis that the failure to request the instruction was a tactical decision to obtain an acquittal on the greater felony charges. Moreover, facilitation would have been “wholly inconsistent” with the defendant’s case theory. Finally, “the evidence does not support a facilitation instruction.” The court also found that the defendant was not prejudiced because his conviction on the greater offense would have precluded review of the lesser.
Review Granted: December 10, 2013.
Prediction: Ben thinks the Supreme Court will affirm, but may provide addition guidance on consideration of the prejudice analysis for the absence of a lesser included offense instruction. David disagrees because he thinks the Court may be considering adoption of a rule requiring lesser offenses in the absence of an affirmative waiver rather than in implicit waiver.