State v. Gisege
| Decision Date | 20 March 1997 |
| Docket Number | No. C0-96-305,C0-96-305 |
| Citation | 561 N.W.2d 152 |
| Parties | STATE of Minnesota, Respondent, v. Kennedy Amenya GISEGE, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. When a defendant is convicted of a crime that is not a lesser-included offense of any of the charged crimes, the defendant necessarily is convicted of a crime with which the defendant was not charged.
2. Because it is fundamental error to convict a defendant of a crime with which the defendant was not charged, the doctrine of invited error does not apply.
3. The fundamental error of convicting a defendant of a crime with which the defendant was not charged is not reversible when it is the defendant who requested that the charge be included in the jury instructions.
4. The trial court did not err in instructing the jury only once concerning the defendant's self-defense theory.
John M. Stuart, Minnesota State Public Defender, Mark F. Anderson, Assistant State Public Defender, Minneapolis, for Appellant
Hubert H. Humphrey, III, Minnesota Attorney General, St. Paul, Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, for Respondent.
The charges in this case arose from a domestic incident that occurred at the North Minneapolis residence shared by the appellant, Kennedy Amenya Gisege, his wife Heather Brasch, their infant daughter Kayla, and Adrian Brasch, the 3-year-old son of Heather Brasch by a previous relationship. A Hennepin County grand jury indicted appellant for the first-degree murder of Adrian and the attempted first-degree murder or attempted second-degree murder of Brasch. Following trial, a jury found appellant guilty of the first-degree murder of Adrian and of what the trial court had instructed was the lesser-included charge of the first-degree assault of Brasch. The court sentenced the appellant to a mandatory life term for the first-degree murder and a consecutive 129-month sentence for the first-degree assault. We affirm both convictions and the accompanying sentences.
The following facts are undisputed.
Shortly after 2 a.m. on April 17, 1995, a motorist saw Brasch running down a street with blood all over her. The motorist stopped. Brasch told the motorist she had been stabbed by her husband and that "he is going to kill my baby." The motorist's boyfriend then called 911. The 911 operator arranged for an ambulance and forwarded the information to a police dispatcher who sent officers to meet Brasch. When the police arrived, Brasch told them she had been stabbed by her husband and that he was going to kill her 3-year-old child. She gave the police her address and they left for the residence. An ambulance later took Brasch to the hospital. She had a laceration on her head, a laceration extending across her neck, and lacerations on her hand and abdomen. The hospital released her 48 hours later.
After arriving at the residence, the police observed a man, later identified as the appellant, inside the house. After a time, the appellant walked out the back door and the police took him into custody. The appellant had fresh blood on his hands and blood stains on his body and shorts. The police took appellant to the hospital for treatment. Tests indicated that appellant had a .29 percent blood alcohol level. The officers who remained at the scene then entered the residence. They found Kayla sleeping and unharmed in the downstairs bedroom. They found Adrian crouched in a corner in an upstairs bedroom, covered in blood from multiple stab wounds to the head. He was alive but had trouble breathing. An ambulance transported Adrian to the hospital where doctors determined that Adrian suffered a series of very deep cuts to the scalp and face. Doctors declared him brain dead two days later. Forensic scientists testified that tests indicated that the blood in Adrian's bedroom was Adrian's, and that the blood on appellant was that of Adrian and Brasch.
The following facts are disputed.
The appellant testified that Brasch killed Adrian and then attacked the appellant following an argument. According to the appellant, Brasch took both children to her mother's for Easter dinner while the appellant remained home. The appellant fell asleep in his bed and was awakened by Brasch when she returned home. The couple began to argue in the bedroom and then moved into the sitting room. The argument lasted for close to two hours. The appellant then told Brasch he wanted a divorce and planned to move back to his native Kenya. After Brasch became hysterical, the appellant went back into the downstairs bedroom. The appellant testified that he heard Brasch move things in the kitchen sink. Shortly thereafter, the appellant walked into the kitchen, but Brasch was not there. Appellant then heard Adrian scream. Appellant subsequently saw Brasch come into the kitchen. She threw something into the sink and then threw a knife at appellant. The struggle moved into the bedroom and then the living room. Eventually, appellant gained control of the knife and held Brasch down. Brasch then told appellant she had killed Adrian. Appellant ran upstairs where he saw Adrian crouched by the wall and covered in blood. Appellant moved Adrian to the bed and went back downstairs, but Brasch was gone. The police arrived shortly thereafter.
Brasch testified that the appellant attacked her and threatened to kill Adrian. According to Brasch, she was asleep on a couch in the living room when appellant awoke her. He asked that she come to bed with him, and then they began arguing. Brasch told appellant that she wanted to end the marriage. Appellant turned off the living room light and went back to the bedroom. Brasch fell back asleep face down on the couch. She awoke, however, when appellant climbed on her back, pulled back her hair, and cut her throat and forehead with a knife. They struggled over the knife, and he continued to stab the top of her head. Finally, he stopped and threw the knife down after Brasch agreed to go to bed with him. After moving into the bedroom, she suggested that she call an ambulance, but discovered the phones had been disconnected. The appellant began stabbing Brasch in the ribs. Brasch wrested the knife away from the appellant. He went back into the kitchen and Brasch ran into the bathroom and locked the door. Brasch testified that the appellant said Shortly thereafter, Brasch climbed out the window and ran down the street for help.
A grand jury indicted appellant of first-degree murder of Adrian, and attempted first-degree murder and attempted second-degree murder of Brasch. At the close of trial, the defense apparently requested that the court also instruct the jury on what the defense classified as the lesser-included charge of first-degree assault of Brasch. The court apparently granted that request, and the jury convicted appellant of first-degree murder for the death of Adrian and first-degree assault of Brasch. 1 The appellant now contends, however, that the trial court erred in instructing the jury on first-degree assault because the grand jury did not indict him of that offense and because it is not a lesser-included offense of either attempted first-degree murder or attempted second-degree murder. The appellant also contends that the trial court erred in failing to give his requested self-defense instruction after each of the three charges involving Brasch. 2
Before we decide whether it was error for the trial court to instruct the jury on first-degree assault, we must decide whether first-degree assault is a lesser-included offense of either attempted first-degree murder or attempted second-degree murder. And if we conclude that first-degree assault is not a lesser-included offense of either attempted first-degree or attempted second-degree murder, we must determine whether the inclusion of such a charge would be improper.
The legislature has defined a lesser-included offense as:
(1) a lesser degree of the same crime; or (2) an attempt to commit the crime charged; or (3) an attempt to commit a lesser degree of the same crime; or (4) a crime necessarily proved if the crime charged were proved; or (5) a petty misdemeanor necessarily proved if the misdemeanor charge were proved.
Minn.Stat. § 609.04, subd. 1 (1996). Because first-degree assault is not a lesser degree of attempted murder, see Minn.Stat. § 609.221 (1996) (first-degree assault), Minn.Stat. § 609.17 (1996) (attempt), Minn.Stat. § 609.185 (1996) (first-degree murder), Minn.Stat. § 609.19 (1996) (second-degree murder); or an attempt to commit attempted murder, see id.; or an attempt to commit a lesser degree of attempted murder, see id., or a petty misdemeanor, see Minn.Stat. § 609.221 (1996), it will be a lesser-included offense of attempted murder only if it is "necessarily proved" when attempted murder is proved. See Minn.Stat. § 609.04, subd. 1(4) (1996).
In determining whether one offense necessarily is proved by the proof of another, "the trial court must look at the statutory definitions rather than the facts in a particular case." State v. Gayles, 327 N.W.2d 1, 3 (Minn.1982). A person commits attempted murder when he or she, "with intent to commit a [murder], does an act which is a substantial step toward * * * the commission of the [murder]." Minn.Stat. § 609.17 (1996). The necessary mens rea for first-degree murder is "premeditation and with intent to effect the death of the person." Minn.Stat. § 609.185(1) (1996). The necessary mens rea for second-degree murder is "intent to effect the death of the person * * * without premeditation." Minn.Stat. § 609.19(1) (1996).
First-degree assault, however, includes "great bodily harm" as a necessary element. Minn.Stat. § 609.221 (1996). Consequently, the state does not necessarily prove first-degree assault by proving attempted first-degree...
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...offense and Minn. R.Crim. P. 17.05 does not prohibit amendments that allege lesser-included offenses. See State v. Gisege, 561 N.W.2d 152, 157 (Minn.1997) (explaining that a trial court may instruct the jury to find the defendant guilty of any offense necessarily included in the offense wit......
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