The following excerpt is from Harris v. Scully, 779 F.2d 875 (2nd Cir. 1985):
Even in a capital case a lesser included noncapital offense need be submitted to the jury only when there is evidence to support the lesser verdict. Hopper v. Evans, 456 U.S. 605, 610, 102 S.Ct. 2049, 2052, 72 L.Ed.2d 367 (1982). This being a noncapital case, petitioner was entitled to no greater constitutional protection than he would have received in a capital case, and, since, as demonstrated below, there was insufficient evidence to support an instruction on second degree manslaughter, his claim on this point cannot succeed.
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