Cited by

¶ 15 (2012) (“‘In general the trial judge should withhold charging on lesser included offense[s] unless one of the parties requests it.’”) (citation omitted).

¶ 15 (2012) (“[T]he trial judge should withhold charging on lesser included offense[s] unless one of the parties requests it.”) (citation modified).

-87, ¶¶ 13, 15-16 (2012).

.”) (emphasis added); ¶ 15 (2012) (“In general the trial judge should withhold charging on lesser included offenses unless one of the parties requests it .

¶ 9 (2012) (explaining the duty of a trial court presiding over a capital case to sua sponte instruct on all lesser-included offenses supported by the evidence does not preclude the defendant from objecting and waiving any right to the lesser-included instruction).

–87, ¶ 14 (2012) (“[T]he defendant is on notice from the beginning of the proceedings against him that the jury may be asked to consider any lesser included offenses.”).

Looking to lesser included offense instructions as a proxy, the Arizona Supreme Court has cautioned that a “trial court should be loath” to give such an instruction over objection “absent compelling circumstances to the contrary.” ¶ 17 (2012).

As the Arizona Supreme Court stated: “When both parties object to a lesser included offense instruction, the trial court should be loath to give it absent compelling circumstances to the contrary.” ¶ 17 (2012).

See Wall, 212 Ariz. at 3, ¶¶ 13-14 (noting the trial court is required to instruct only on “necessarily included offenses”); ¶ 14 n.2 (2012) (“An offense is necessarily included ‘when it is lesser included’ and ‘the facts of the case as presented at trial are such that a jury could reasonably find that only the elements of a lesser offense have been proved.’” (quoting Wall, 212 Ariz. at 3, ¶ 14)).

¶22 “In general the trial judge should withhold charging on lesser included offense[s] unless one of the parties requests it, since that charge is not inevitably required in our trials, but is an issue best resolved, in our adversary system, by permitting counsel to decide on tactics.” ¶ 15 (2012) (citations and internal quotation marks omitted).

L. Rev. 1103, 1110 (2009) (“The statutory elements approach used by a majority of jurisdictions and the federal system is identical to the test for determining which offenses are the ‘same offense’ for double jeopardy purposes.”); ¶ 14 n.2 (2012) (“An offense is necessarily included ‘when it is lesser included’ .

Id.; ¶ 15 (2012) (trial court should generally withhold lesser-included offense instruction unless requested by one of the parties).

As the Arizona Supreme Court has stated, “[w]hen both parties object to a lesser included offense instruction, the trial court should be loath to give it absent compelling circumstances to the contrary.” ¶ 17 (2012).

See, STATE v. BITHELL Decision of the Court 368 (App. 1991) (supp. op); (quoting Walker v. United States, 418 F.2d 1116, 1119 (D.C.

at 379- 80; ¶ 15 (2012) (“In general the trial judge should withhold charging on lesser included offense[s] unless one of the parties requests it, since that charge is not inevitably required in our trials, but is an issue best resolved, in our adversary system, by permitting counsel to decide on tactics.”) (citations omitt

¶ 13 (2012); see Ariz. R. Crim.

n.1, ¶ 2 (2012) ( n.1, ¶ 2 (2010).

“An offense is necessarily included when it is lesser included and the facts of the case as presented at trial are such that a jury could reasonably find that only the elements of a lesser offense have been proved.” n.2, ¶ 14 (2012).

¶13 In addition to effecting the legislature’s intent, our conclusion furthers the “societal interest in ‘avoiding the unjustified exoneration of wrongdoers and in punishing a defendant only to the extent of his crime.’” ¶ 16, (quoting People v. Garcia, 721 N.E.2d 574, 582–83 (Ill.

“An offense is necessarily included when it is lesser included and the facts of the case as presented at trial are such that a jury could reasonably find that only the elements of a lesser offense have been proved.” n.2, ¶ 14, n.2 (2012).

As a result, a “defendant is on notice from the beginning of the proceedings against him that the jury may be asked to consider any lesser- included offenses supported by the trial evidence.” -87, ¶ 14, -92 (2012).

“An offense is necessarily included ‘when it is lesser included’ and ‘the facts of the case as presented at trial are such that a jury could reasonably find that only the elements of a lesser offense have been proved.’” ¶ 14, n.2, n.2 (2012) (quoting Wall, 212 Ariz. at 3, ¶ 14, 126 P.3d at 150).