## Facts

- Johnnie Erick Arko went to the home of a woman he had been intermittently dating after she said they should see less of each other and told him not to come over because she believed he had been drinking.
- Arko entered the residence without knocking or ringing the doorbell, argued with the woman, and a physical altercation occurred.
- Arko admitted causing injury but denied trying to kill the woman or cause serious bodily injury.
- The woman described a prolonged and violent assault involving repeated choking that impeded breathing and speech, pinning her to the floor while strangling her, and punching her in the mouth.
- Arko was charged with burglary and attempted second-degree murder; after a mistrial, he was retried on the attempted-murder charge.
- At the retrial, the court instructed on attempted second-degree murder and the lesser-included offense of attempted reckless manslaughter.
- Defense counsel requested an instruction on third-degree assault as a lesser non-included offense, but Arko personally objected.
- The trial court treated Arko’s personal objection as controlling and refused the third-degree assault instruction; the jury convicted Arko of attempted reckless manslaughter.

## Issues

1. Whether the decision to request a jury instruction on a lesser offense—specifically a lesser non-included offense—is a fundamental decision reserved to the defendant or a tactical decision for defense counsel after consultation.
2. Whether Arko was barred from challenging the refusal to give the lesser non-included instruction by judicial estoppel, invited error, or acquiescence.

## Decision

- The supreme court reversed the judgment affirming the conviction and reversed Arko’s conviction.
- The court held that requesting or forgoing lesser-offense instructions (including lesser non-included offenses) is a tactical decision committed to defense counsel after consultation with the defendant.
- The trial court erred by overriding counsel’s request for the third-degree assault instruction based solely on Arko’s personal objection.
- Arko was not precluded from raising the instructional error on appeal by judicial estoppel, invited error, or acquiescence.
- The case was remanded for a new trial.

## Legal Principles

- Fundamental decisions reserved to a criminal defendant personally are limited (e.g., pleading guilty, waiving jury trial, testifying, and taking an appeal).
- Trial-management and strategy choices are generally entrusted to defense counsel; this includes whether to request instructions on lesser offenses, even when the lesser offense is non-included.
- Counsel must consult with the defendant on significant strategic matters, but consultation does not transfer final control of tactical decisions to the defendant.
- Doctrines such as judicial estoppel, invited error, and acquiescence do not bar review when the asserted error is the trial court’s mistaken allocation of decision-making authority between defendant and counsel.

## Conclusion

The court ordered a new trial because the trial judge wrongly treated the defendant’s objection as controlling and denied defense counsel’s requested lesser non-included offense instruction; the choice was counsel’s tactical decision after consultation, and the defendant’s prior position did not bar appellate review.


Arko v. People, 183 P.3d 555 (Colo. 2008)