of appeals and reverse Arko's conviction. We return this case to the court of appeals with directions to remand the case to the trial court for a new trial. Justice COATS dissents, Justice EID joins in the dissent. 1 . We granted certiorari on this issue: Whether the court of appeals erred in concluding that petitioner's right to present a defense was not denied when, over defense counsel's objection, the trial court refused to give the tendered third-degree assault instruction to the jury, based on the court's holding that defendants have a fundamental constitutional right to decide whether to submit a lesser non-included offense. 2 . Other federal and state jurisdictions have also reached the conclusion that the decision whether to request a lesser offense instruc , 544 (Ct.App.1996) (<HOLDING>). Justice COATS, dissenting. Because I agree
holding that conspiracy is lesserincluded offense of cce holding that the decision to pursue an all or nothing strategy was not patently unreasonable and accordingly that counsel was not ineffective in his strategic decision not to request a jury charge as to the lesserincluded offense holding that the right to request a lesserincluded offense instruction is neither a constitutional nor a fundamental right and the decision of whether to request a lesserincluded offense instruction is a complicated one involving legal expertise and trial strategy holding that counsel was not ineffective in failing to request a charge on the lesserincluded offense when the evidence showed either the commission of the completed offense as charged or the commission of no offense such that the defendant was not entitled to a charge on the lesser offense holding that where jury was instructed on both a greater offense and lesserincluded offense and the jury convicted on the lesserincluded offense the double jeopardy provision prohibited retrial on the greater offense