context: (Vol. 8 at 1932-33 requesting instructions under OUJI-CR 449, 450 & 451.) The trial court declined the instructions, finding insufficient evidence to support a verdict of second-degree murder. On direct appeal to the OCCA, Welch argued the trial court committed constitutional error in failing to instruct on this lesser included offense.
citation_a.signal: see also
citation_a.parenthetical: jury must be permitted to consider a lesser included non-capital offense when the evidence would have supported such a verdict
citation_a.sentence: See Schad v. Arizona, 501 U.S. 624, 647-48, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (while a jury need not be instructed on every lesser-included offense that may be supported, the jury must not be faced with an all (death) or nothing approach); see also Beck v. Alabama, 447 U.S. 625, 627, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (jury must be permitted to consider a lesser included non-capital offense when the evidence would have supported such a verdict). The OCCA held that because second degree murder is not a “lesser included offense of first degree malice murder” and the jury had been instructed on the lesser offense of first degree manslaughter, “the trial court did not err in refusing to give the instruction.”
citation_b.signal: see
citation_b.identifier: 501 U.S. 624, 647-48
citation_b.parenthetical: while a jury need not be instructed on every lesser-included offense that may be supported, the jury must not be faced with an all (death) or nothing approach
citation_b.sentence: See Schad v. Arizona, 501 U.S. 624, 647-48, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (while a jury need not be instructed on every lesser-included offense that may be supported, the jury must not be faced with an all (death) or nothing approach); see also Beck v. Alabama, 447 U.S. 625, 627, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (jury must be permitted to consider a lesser included non-capital offense when the evidence would have supported such a verdict). The OCCA held that because second degree murder is not a “lesser included offense of first degree malice murder” and the jury had been instructed on the lesser offense of first degree manslaughter, “the trial court did not err in refusing to give the instruction.”