State v. Dordain, 88-268-C

• Citation: 566 A.2d 942
• Decision Date: 30 November 1989
• Docket Number: No. 88-268-C,88-268-C
• Court: United States State Supreme Court of Rhode Island
• Parties: STATE v. Eddie DORDAIN. A.

Page 942

566 A.2d 942

STATE v. Eddie DORDAIN.

No. 88-268-C.A.

Supreme Court of Rhode Island.

Nov. 30, 1989.

James E. O'Neil, Atty. Gen., Jeffrey J. Greer, Asst. Atty. Gen., Caroline Cole Cornwell, Sp. Asst. Atty. Gen., for plaintiff.

Richard Casparian, Public Defender, Catherine A. Gibran, Asst. Public Defender, for defendant.

OPINION

FAY, Chief Justice.

On October 8, 1987, a jury convicted Eddie Dordain (Dordain) of assault with a dangerous weapon upon Charles Graves (Graves) and assault with intent to murder Geraldine Spears (Spears). The defendant appeals the conviction to this court, assigning as error the trial court's instruction to the jury that assault with a dangerous weapon may be considered a lesser included offense to assault with intent to murder. Additionally the defendant contends that the trial court erred in denying his motion for a judgment of acquittal with respect to the charges of assault with intent to murder. We affirm the trial justice and sustain the conviction. The facts relevant to this appeal follow.

On September 18, 1986, in the area of the Chad Brown Housing Complex in Providence, Dordain shot Graves in the leg and stomach and Spears in the lip and arm. The testimony describing the events that occurred that day is conflicting. The first shooting occurred following a brief altercation between Dordain and Graves concerning threats Dordain had allegedly made to Graves's wife. Graves stated that a week earlier his wife, Althea Graves, testified at a hearing against Dordain. The record also reveals that Spears testified against Dordain at that same hearing.

After the shooting, Graves testified that he got into his car and chased the retreating Dordain until Graves's car subsequently rear-ended Dordain's. Graves then went to the home of a friend who took him to Rhode Island Hospital.

Dordain, testifying in his own defense, stated that he was in the Chad Brown area to meet his son, contrary to the state's contention that Dordain was in the area solely to seek revenge against Spears and Althea Graves. Furthermore, the shooting occurred in self-defense when Graves began threatening Dordain and later pulled an ice pick out of his pocket. Dordain also testified that he shot Graves in the leg to scare him but that Graves continued to threaten him resulting in Dordain pulling the trigger for a second time. Finally, Dordain's testimony contradicts Graves's testimony in that Dordain insists that Graves deliberately drove into Dordain's car.

After the automobile accident, Dordain stated, he attempted to run from Graves, who continued to pursue him. It is at this time that Dordain encountered Spears, the second shooting victim. Dordain's testimony on the record indicates that when he shot Spears, he mistook her for Graves and was unaware it was Spears he had shot until four or five hours later. He also does not remember firing more than once. Dordain, who suffers from arteriosclerosis, asserted that when he shot at Spears he was losing consciousness, experiencing chest and leg cramps, and bleeding from a blow to the forehead from a flying object.

Spears also testified for the state and indicated that as she was standing in front of her apartment door in the Chad Brown Complex, she found Dordain standing behind her with a gun. Dordain then shot Spears twice, inflicting wounds to her upper lip and left arm. Dordain was later arrested and charged by criminal information No. P2/86-3180 with two counts of assault with intent to commit murder in violation of G.L.1956 (1981 Reenactment) § 11-5-1, as amended by P.L.1981, ch. 76, § 1.

At the close of the evidence, the trial justice instructed the jury on all relevant law, including the law on lesser included offenses. The instructions at issue are as follows:

"Now, as it relates to the charges in this particular case, again, the State is required in order for you to find this defendant guilty of assault with intent to commit murder of Mr. Graves or assault with the intent to commit murder of Miss Spears, that he did assault either or both of them with the specific intent to commit murder.

"If you find from the evidence presented that he acted in self-defense, then your verdict as it relates to that particular count should be one of not guilty. If you find the State has proven beyond a reasonable doubt that he did commit the assault, that it was without self-defense, but if you find the State did not prove that he did intend to commit murder on the body of Mr. Graves or that he did intend to commit murder on the body of Geraldine Spears, you may consider the lesser included offense of felony assault, and for felony assault the State is required to prove beyond a reasonable doubt that a defendant did assault another person; secondly, with the use of a dangerous weapon. In other words, assault with a dangerous weapon. A pistol is considered by law when loaded a dangerous weapon.

"So what I am saying to you is this. Consider the charges that have been presented against this defendant. Consider the charge of assault with intent to murder of Mr. Graves. If you find the State has proven Mr. Dordain assaulted Mr. Graves with the specific intent to kill him and the State proved beyond a reasonable doubt that he did not use the force allowed by law, your verdict should be one of guilty.

"If you find from the evidence presented, the State did not prove that Mr. Dordain did not act in self-defense, then consider whether or not the State proved the specific intent to commit murder. If the State did, find him guilty. If you find from the evidence presented, you're not satisfied beyond a reasonable doubt of the specific intent to murder, then and only then consider the lesser charge of assault upon Mr. Graves with a dangerous weapon.

"Again, a person may defend himself even to the charge of assault with a dangerous weapon if he or she acts in self-defense by using whatever force is reasonably necessary to repel the attack."

The defense promptly objected to these instructions, and that objection comes before us as the primary issue to consider on appeal. However, the court will first address defendant's additional contention that the trial justice incorrectly denied his motion for judgment of acquittal.

I Denial of Defendant's Motion for Judgment of Acquittal

The defendant filed a motion for judgment of acquittal at the close of the state's case and renewed it at the end of the trial, arguing that insufficient evidence existed to support a conviction for assault with intent to murder on either Graves or Spears. In both instances, the trial justice denied the motion.

This court has, on many occasions, enunciated the standard applied when considering a motion for judgment of acquittal. See State v. Caruolo, 524 A.2d 575, 580-81 (R.I.1987); State v. Wilshire, 509 A.2d 444, 452 (R.I.1986); State v. Gazerro, 420 A.2d 816, 827 (R.I.1980). The trial court, as well as this court on review, must view all evidence and inferences capable of supporting guilt by proof beyond a reasonable doubt in the light most favorable to the state. State v. Caruolo, 524 A.2d at 581. Furthermore, the court is precluded from considering the weight of the evidence or assessing the credibility of witnesses. State v. Wilshire, 509 A.2d at 452. If the evidence, as viewed in this light, could not support a jury finding of guilt beyond a reasonable doubt, the trial justice should grant the motion. See State v. Sundel, 121 R.I. 638, 644-45, 402 A.2d 585, 589 (1979). If, however, relying upon the evidence, a reasonable jury could find defendant guilty, the motion should be denied.

Applying these principles to the case at bar, we hold that the trial justice correctly denied defendant's motion for judgment of acquittal. The undisputed evidence adduced at trial shows that defendant shot Graves and Spears not once but twice. Although the record reveals a fair amount of contradictory testimony on the issues of self-defense and malicious intent, these were properly placed within the jury's province for deliberation. The jury resolved the issues in favor of defendant on count 1 and the state on count 2. At this juncture we cannot say that the evidence was insufficient for a reasonable jury to find defendant guilty.

II Jury Instructions on Lesser Included Offense

The second issue for appeal, whether the trial justice incorrectly instructed the jury on the offense of assault with a dangerous weapon, requires a re-evaluation of Rhode Island law on the issue of the lesser included offense. The defendant urges us to abandon our present law in favor of the standards applied in other jurisdictions. ¹ Notwithstanding jurisdictional variations, we find Rhode Island statutory and case law sufficiently clear on this issue and hold that the trial court's instructions were proper.

By way of introduction, in order for a court to obtain the necessary jurisdiction to convict a criminal defendant, the defendant must first be put on notice of all the charges against him. State v. Cipriano, 430 A.2d 1258, 1260 (R.I.1981). The notification, accomplished by a formal indictment or information, "serves to inform the accused of the nature of the offense with which he is charged so that he can make an adequate defense as well as be able to avail himself of the conviction or the acquittal so that he can avoid the threat of double jeopardy." State v. Walsh, 113 R.I. 118, 122, 318 A.2d 463, 465-66 (1974). However, on previous occasions this court has stated that it is unnecessary for an indictment to contain each and every element of a lesser offense for it to be properly included within the charge. State v. Raposa, 100 R.I. 516, 519, 217 A.2d 469, 471 (1966); see also State v. Waite, 484 A.2d 887, 890 (R.I.1984) (technical precision in criminal pleading no longer required). Therefore, the fact that assault with a dangerous weapon was not specifically alleged in the information against defendant does not...