State v. Frey, Cr. N

Decision Date06 June 1989
Docket NumberCr. N
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Jeffrey E. FREY, Defendant and Appellant. o. 880166.
CourtNorth Dakota Supreme Court

Galen J. Mack (argued), Asst. State's Atty., Rugby, for plaintiff and appellee. Appearance by Charles D. Orvik, State's Atty.

Garaas Law Firm, Fargo, Lylea Dodson Critelli (argued), and Lawrence F. Scalise (argued), Des Moines, Iowa for defendant and appellant. Appearance by Jonathan T. Garaas.

GIERKE, Justice.

Jeffrey Eugene Frey appeals from judgments of conviction entered upon a jury verdict finding him guilty of murder and aggravated assault. We affirm.

Frey's convictions arose from the shooting death of Douglas J. Bjornson and shooting injuries sustained by Scott Ottum during the early morning of September 5, 1987, when Frey, Bjornson, Ottum, Sebastian Black, Aaron Black, Judd Foughty, Tim Bartlett, Lonnie Bartlett, Dennis Eckes, and Earl Haugland were crane hunting in Pierce County. Frey and Ottum were from the Fargo area, and the other eight hunters were from the Devils Lake area. Sebastian Black and Ottum, a former Devils Lake resident, were friends, and Sebastian had met Frey previously, but none of the other hunters had met Frey.

On the night of September 4 all the members of the hunting party camped near some abandoned farm buildings adjacent to the southeast corner of a field. About a half hour before sunrise on September 5 the Bartletts, Eckes, and Haugland, proceeded through a gate at the campsite to the north end of the field. A few minutes later a second group of hunters, Frey, Bjornson, Ottum, the Blacks, and Foughty, walked near a fence line along the south edge of the field. However, Ottum returned to the campsite because he was bothered by mosquitos, and the remaining five members of the second group continued into the field. The Blacks proceeded along the southern edge of the field, and Frey, Bjornson, and Foughty took positions in the field near some haystacks.

There were no eyewitnesses to the ensuing events. The State presented circumstantial evidence that Frey shot Bjornson two to three times with a twelve gauge shotgun and proceeded to the north end of the field where he shot a crane and left it in the field. According to the State, Frey then returned to the gate by the campsite, fired a shot at the passenger window and side of Bjornson's pickup, and proceeded to Bjornson's pickup where he fired three more shots in the direction of the abandoned buildings and his own pickup. Two pellets ricocheted off the buildings or pickup and hit Ottum in the head. Ottum testified that he was standing between the abandoned buildings and Frey's pickup and could not identify who shot at him. Ottum testified that he then drove Haugland's car to the field, where Bjornson's body was found near a haystack. Ottum was taken to a hospital and the remaining hunters returned to the campsite where they found Frey lying in his pickup, holding his shotgun. Frey did not respond to questions by members of the hunting party. Law enforcement officials thereafter arrived and Frey stated that he had not been hunting that morning and that his gun had not been fired. He denied any knowledge of the shootings.

Frey was charged with murder for Bjornson's death and attempted murder for Ottum's injuries. Frey's counsel 1 requested an instruction on self-defense but specifically objected to instructing the jury on lesser included offenses of any kind. The State requested an instruction on a lesser included offense of attempted murder. The court instructed the jury on murder, self-defense, attempted murder and aggravated assault, but did not instruct the jury on lesser included offenses of murder. Frey was found guilty of murder and aggravated assault, and he has appealed.

Relying on State v. Leidholm, 334 N.W.2d 811 (N.D.1983), Frey contends that because the trial court gave an instruction on self-defense, it was necessary to instruct the jury on the lesser included offenses of murder 2 and the trial court erred in failing to so instruct the jury. Frey concedes that his trial counsel specifically objected to instructing the jury on lesser included offenses of murder, but argues that the giving of those instructions cannot be waived.

Generally, absent a request for an instruction on a lesser included offense, it is not error for the trial court not to give such an instruction. E.g., State v. Motsko, 261 N.W.2d 860 (N.D.1977) [disagreeing with the rule from some jurisdictions that, even in the absence of a request and irrespective of the evidence presented in a case, a trial court must instruct on all included offenses]. See also State v. Champagne, 198 N.W.2d 218 (N.D.1972). Although the trial court is initially responsible for correctly instructing the jury on the law of a case, both the prosecution and defense have a responsibility to request and object to specific instructions. State v. Klose, 334 N.W.2d 647 (N.D.1983); State v. Allery, 322 N.W.2d 228 (N.D.1982).

Those principles are in accord with a defendant's right to waive instructions on lesser included offenses as a trial tactic. Mosley v. State, 482 So.2d 530 (Fla.Dist.Ct.App.1986) aff'd. 492 So.2d 1071 (1986); Black v. State, 279 So.2d 909 (Fla.Dist.Ct.App.1973); Clements v. State, 284 So.2d 700 (Fla.Dist.Ct.App.1973); Neuenfeldt v. State, 29 Wis.2d 20, 138 N.W.2d 252 (1965). A defendant who waives instructions on lesser included offenses takes an all-or-nothing risk that the jury will not convict of the greater offense. Those types of decisions involving waiver are not unknown in our criminal justice system where, for example, a criminal defendant can waive a trial and plead guilty or waive a jury trial and receive a bench trial. See also Section 1-01-08, N.D.C.C.

Although we generally cannot consider an alleged error raised for the first time on appeal, we can notice an error in jury instructions under Rule 52(b), N.D.R.Crim.P., if the alleged error infringes upon substantial rights of the defendant. State v. Kraft, 413 N.W.2d 303 (N.D.1987); State v. Halvorson, 346 N.W.2d 704 (N.D.1984); State v. Trieb, 315 N.W.2d 649 (N.D.1982).

However, there is a vast difference between a defendant raising an issue on appeal about allegedly incorrect jury instructions where there has been no objection [Halvorson, supra; Trieb, supra ], or no request for other instructions in the lower court [Kraft, supra ], and a defendant raising an issue on appeal about jury instructions where the defendant has specifically requested that the jury not be given those instructions. In State v. Trieb, supra, 315 N.W.2d at 655, fn. 8, we recognized that difference when we cautioned that the "failure to object [to jury instructions] as a deliberate trial tactic designed to 'sandbag' the judicial process, will not be tolerated by this court." See State v. Miller, 388 N.W.2d 522 (N.D.1986) [declining to review an alleged error under Rule 52(b), N.D.R.Crim.P., where the failure to raise it below constituted a tactical decision]. That difference is also a corollary of our well established rule that a party to a criminal proceeding cannot complain about errors invited upon the court. State v. Huber, 361 N.W.2d 236 (N.D.), cert. denied, 471 U.S. 1106, 105 S.Ct. 2339, 85 L.Ed.2d 855 (1985); State v. Hepper, 316 N.W.2d 338 (N.D.1982); State v. Sheldon, 301 N.W.2d 604 (N.D.), cert. denied, 450 U.S. 1002, 101 S.Ct. 1711, 68 L.Ed.2d 204 (1981). We do not read State v. Leidholm, supra, so narrowly as to preclude a defendant, as a matter of trial tactics, from waiving jury instructions on the lesser included offenses of murder where a self-defense instruction is given.

In this case Frey's trial counsel specifically objected to instructing the jury on any lesser included offenses as a "trial tactic." Frey therefore took that all-or-nothing risk and cannot now complain that the jury convicted him of the greater offense. We disagree with Frey's characterization that counsel's action was not a trial tactic because it was done before the jury was picked and the evidence heard. We specifically note that counsel had the opportunity to request those instructions after the evidence was presented, but apparently relied upon the previous decision to object to giving those instructions.

Moreover, we are not persuaded by Frey's argument that instructions on lesser included offenses of murder were mandated because the trial court instructed the jury on aggravated assault, a lesser included offense of attempted murder. First, the death of Bjornson and the injuries to Ottum involved two separate shooting incidents which, if properly requested, may have warranted different factual considerations about the propriety of instructions on lesser included offenses. More importantly, however, the State specifically requested a lesser included instruction on the attempted murder charge, and the trial court obliged.

Because Frey's trial counsel specifically objected to instructions on lesser included offenses of murder, Frey waived any right to those instructions that he might otherwise have had, and the trial court did not err in failing to instruct the jury on lesser included offenses of murder. 3

Frey next contends that, pursuant to Section 12.1-16-01, N.D.C.C., 4 the trial court was required to instruct the jury that in order to find Frey guilty of murder under Section 12.1-16-01(1), N.D.C.C., the State was required to prove the absence of "extreme emotional disturbance for which there is reasonable excuse," under Section 12.1-16-01(2), N.D.C.C. Frey concedes that the same argument was rejected in State v. Dilger, 338 N.W.2d 87 (N.D.1983), but asserts that the Legislature subsequently amended the law, 1985 N.D.Sess.Laws ch. 174, to require the State to prove the absence of extreme emotional distress.

Initially, we note that Frey did not raise that issue in the trial court. Moreover, Frey was charged with murder, a class AA...

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