On April 30, 2018, Justice Timpone wrote for a unanimous New Jersey Supreme Court in the Essex County case of State v. Allen Alexander. The principal issue before the Court was whether the trial court was obligated to charge the jury with aggravated assault as a lesser-included offense of robbery when the defendant made no such request at trial.
In relevant part the Court held as follows. As a preliminary matter, we review the appropriate standard for assessing a trial court’s obligation to give unrequested instructions on lesser-included offenses. The appellate panel noted the clearly indicated standard applies to cases of unrequested jury instructions but improperly applied the rational basis test in its analysis. The panel ultimately concluded, after reviewing the trial evidence, that “there is a rational basis in the evidence for the jury to acquit defendant of robbery and conspiracy to commit robbery, as well as to convict defendant of aggravated assault.”
Yet, just because a charge meets the rational basis test does not mean it meets the clearly indicated standard. As we explained earlier, when a defendant fails to request a lesser-included charge or object to its omission at trial, the need for that charge is subject to a higher threshold. In that scenario, unless that need is clearly indicated from the evidence, we will not find plain error.
The facts of this case call for review under the higher, clearly indicated standard. Defendant had several opportunities to request an aggravated assault charge before the trial court but failed to do so. At a pretrial conference, the parties and the trial court discussed the jury instructions to be charged, which did not include aggravated assault. Defense counsel noted his objection only to the court’s accomplice liability charge. Similarly, at a conference before closing arguments, the trial court specifically asked counsel if they had any additional requests after it read the charges to counsel on the record. Defense counsel again failed to request an aggravated assault charge or to object to its omission at a charge conference before closing arguments. Defense counsel likewise did not submit a proposed aggravated assault instruction after closing arguments and before the court charged the jury.
The decision by defense counsel not to request an instruction on the lesser-included aggravated assault charge does not mean that s/he was ineffective. The related question that can only be answered at a post-conviction relief proceeding, as opposed to on direct appeal, is whether counsel’s decision was based on trial strategy. A possible strategic explanation is that s/he was concerned that the jury would reach a compromise verdict instead of an acquittal if they were given too many charges to consider.