¶1Specially Concur.
¶2¶ 1 In my separate writing to Shrum, I expressed concerns regarding this Court’s approach to determining when jury instructions on lesser included offenses are necessary. 991 P.2d at 1037. The current opinion begins to correct the confusion created by Shrum. While this opinion still leaves a lot to rectify from Shrum, it is a good first step. It is my belief that if trials are to seek truth and justice, then they are not a place for mere gamesmanship. The trial judge should instruct on the law that is applicable in the ease, and that includes lesser included offenses, i.e. “..., the commission of which is included in that with which he is charged, or of an attempt to commit the offense”. 22 O.S.2001, § 916. See also Shrum, 991 P.2d at 1038. By doing so the judge not only follows the law but also fulfills the judge’s oath of office.
¶3Dissent.
¶4¶ 1 Because I find merit in Proposition 2,1 respectfully dissent. The trial court exceeded its authority when it circumvented the defendant’s “all or nothing” trial strategy by instructing on the lesser-related offense, over defense counsel’s objection and without request from the prosecution.
¶5¶ 2 Had the prosecution requested or indicated that it also wanted the jury instructed on the lesser-related offense, my opinion would be different. In Shrum, this Court recognized that a defendant could assert an “all or nothing” strategy. Shrum v. State, 1999 OK CR 41, ¶ 11, 991 P.2d 1032, 1036. This Court also recognized that the State may request instructions on lesser-related offenses. Id.A prosecutor must be an administrator of justice with the duty to seek justice, not just convictions. See ABA Standards for Criminal Justice, The Prosecution Function, § 3-1.2 (1992). With this duty comes the responsibility to ensure that a defendant is charged and tried with the goal of seeking justice.
¶6¶ 3 During trial) circumstances may arise which require the prosecution to reevaluate its evidence and conclude that instructions on lesser related offenses are warranted, in the interest of seeing that justice is served. This duty should be on the prosecution, not on the trial court. Here, the prosecution wholly failed in its duty to give voice to justice, and it allowed the trial court to usurp the prosecution function.
¶7¶ 4 I am of the opinion that the prosecution should be required to object to the all or nothing approach, swallow its pride, and ask that the trial court instruct on a lesser form of homicide, where the evidence supports the instructions. Otherwise, a defendant should be convicted of the crime for which he is being tried, or he should be acquitted.