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Arko v. Colorado
Colorado Supreme Court
183 P.3d 555 (2008)
Johnnie Arko (defendant) was charged with burglary and attempted second-degree murder after he appeared uninvited in the home of a woman who had said they should see less of each other, repeatedly strangled her, and said she was going to die. After a mistrial, Arko was retried on the attempted-murder charge. The judge instructed the jury on attempted murder and the lesser included offense of attempted reckless manslaughter. Arko’s attorney requested an instruction on the lesser nonincluded offense of third-degree assault, but Arko himself objected to the instruction, and the judge refused to give it. The jury convicted Arko of attempted reckless manslaughter. Arko appealed on multiple grounds, including that the judge should have given the instruction over Arko’s objection. The appellate court affirmed, reasoning that the decision whether to request an instruction on a lesser nonincluded offense belonged solely to Arko and not his attorney because it implicated Arko’s fundamental rights. Arko appealed.
Rule of Law
Holding and Reasoning (Bender, J.)
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