State v. Sheldon, 714

• Decision Date: 30 October 1980
• Docket Number: No. 714,714
• Citation: 301 N.W.2d 604
• Parties: STATE of North Dakota, Plaintiff/Appellee, v. Gary SHELDON, Defendant/Appellant. Crim.
• Court: North Dakota Supreme Court

Page 604

301 N.W.2d 604

STATE of North Dakota, Plaintiff/Appellee, v. Gary SHELDON, Defendant/Appellant.

Crim. No. 714.

Supreme Court of North Dakota.

Oct. 30, 1980. ^*

Frederick E. Saefke, Jr., Bismarck, for defendant and appellant.

John Romanick, State's Atty., Washburn, for plaintiff and appellee.

PAULSON, Justice.

Charles Gary Sheldon appeals from a judgment of conviction for reckless endangerment entered against him on February 25, 1980, by the McLean County District Court. A 12-member jury returned a guilty verdict against Sheldon on the charge of reckless endangerment. We affirm the judgment of conviction.

At 8:30 p. m. on Monday, March 19, 1979, Deputy Sheriffs James Anderson and Douglas Kresbach received a call from the McLean County sheriff's office at Washburn. The sheriff's office informed the deputies that Dorothy Sheldon, the wife of the defendant and appellant, had requested assistance due to a domestic disturbance at the couple's mobile home. When the deputies arrived there, Mrs. Sheldon was waiting for them outside of the mobile home. She told the deputies that Sheldon had been drinking and had been using physical force against members of the family. The deputies assured Mrs. Sheldon that they would protect her until she could safely leave the mobile home.

Mrs. Sheldon requested that the deputies keep Sheldon out of the bedroom because Mrs. Sheldon wished to gather some of her belongings. Sheldon was permitted to enter the master bedroom, however. Deputy Anderson waited outside the bedroom. After Sheldon started arguing with his wife in the bedroom, Anderson intervened and requested that Sheldon allow his wife to leave. Mrs. Sheldon was allowed to leave the bedroom but, as she turned, she saw Sheldon reaching for his gun holster and she exclaimed "My God, he's going for his gun".

Deputy Anderson looked into the bedroom and saw Sheldon reaching for his gun. Anderson jumped back and drew his revolver and told Sheldon to put his gun away. Sheldon denies that he heard Anderson's request to put his gun down. Anderson pointed his revolver around the corner of the hallway where he was standing and into the bedroom. Sheldon saw Anderson's gun and fired his gun at it. The fragments of the bullet passed through the wall of the mobile home and struck Anderson in his stomach and hand. Anderson's wounds were not disabling and he was able to leave the mobile home without assistance.

On March 20, 1979, Deputy Anderson signed a complaint which charged Sheldon with attempted murder. Before commencement of the trial, the State requested that the court give an instruction on the lesser included offense of aggravated assault. Sheldon's counsel objected to the State's request on the basis that intoxication as a defense would not be available to Sheldon on the lesser included offense of aggravated assault. Sheldon's counsel contends that the inclusion of the instruction on aggravated assault violated due process. At trial, Sheldon's counsel requested instructions on the lesser included offenses of simple assault, menacing, and reckless endangerment; however, Sheldon's counsel alluded to as error the inclusion of any lesser included offenses in the jury instructions on the basis that instructions on lesser included offenses are solely within a defense counsel's authority to request.

The district court denied Sheldon's requested instructions on intoxication as a defense; on what constitutes a dwelling; on the offense of menacing; and on the right to employ force. Sheldon's counsel objected to the instruction given by the court on the definition and meaning of "intent". Sheldon's counsel argued that the presumption included in the instruction on "intent" violated the rule announced by the United States Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Sheldon's counsel also objected to the wording used by the district court in the instruction on the crime of reckless endangerment.

Sheldon's counsel objected to the form of the verdict given to the jury on the crime of reckless endangerment. Sheldon's counsel contends that the form of the verdict amounted to a special verdict. Finally, Sheldon contends that the jury improperly arrived at its verdict and he relies upon affidavits supplied by several jurors who expressed surprise at the penalty imposed for the crime of reckless endangerment. The jury deliberated for approximately ten hours and, after a brief intermission, returned after one-half hour of further deliberations to render a verdict.

The issues presented for our determination are as follows:

(1) Whether or not the district court committed constitutional error when the court submitted instructions on lesser included offenses to the jury;

(2) Whether or not the district court committed error when the court denied Sheldon's requested instructions;

(3) Whether or not the district court committed error when the court submitted the instruction on intent;

(4) Whether or not the district court committed error when the court submitted a form of the verdict accompanied by a question concerning the jury's deliberations;

(5) Whether or not jury misconduct was a factor in arriving at the jury's verdict;

(6) Whether or not the district court committed error when the court denied Sheldon's motions for acquittal on the charge of attempted murder; and (7) Whether or not the evidence was sufficient to support the jury's verdict of guilty of the crime of reckless endangerment.

I.

Sheldon contends that the district court erred when it submitted instructions on the offenses of aggravated assault, simple assault, and reckless endangerment. Apparently the objection is three-fold. Firstly, Sheldon's counsel contends that instructions concerning lesser included offenses are solely the prerogative of the defendant. Secondly, Sheldon's counsel contends that inclusion of the instructions on lesser included offenses violated Sheldon's right to adequate notice of the charges against him. Finally, Sheldon's counsel contends that aggravated assault, simple assault, and reckless endangerment are not lesser included offenses within the offense of attempted murder.

Sheldon's counsel bases the first part of his argument on the case of Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956), where the United States Supreme Court stated that a defendant in a criminal case is entitled to an instruction on a lesser included offense as a matter of right if the evidence would permit the jury to find him guilty of that offense. Sheldon's counsel extends this argument to the instant case and argues that the defendant alone has the right to instructions on lesser included offenses. We disagree with Sheldon's argument on the basis that it misconstrues the nature and history of the lesser-included-offense doctrine which is contained in Rule 31(c) of the North Dakota Rules of Criminal Procedure.

The Committee Note accompanying subdivision (c) of Rule 31 of the Federal Rules of Criminal Procedure stated that Rule 31(c) was a restatement of existing law. The primary purpose of the statutory predecessors of Rule 31(c), F.R.Crim.P., was to aid the prosecution where its proof failed to prove all of the elements of the offense charged in the indictment. ¹ The defendant may avail himself of instructions on lesser included offenses under certain factual circumstances. Similarly, the prosecution may also request instructions on lesser included offenses. State v. Houser, 261 N.W.2d 382 (N.D.1977); State v. Piper, 261 N.W.2d 650 (N.D.1978). Rule 31(c), N.D.R.Crim.P., was adopted from the Federal Rules of Criminal Procedure. We believe that the history surrounding Rule 31(c), F.R.Crim.P., applies with equal force to Rule 31(c), N.D.R.Crim.P.

The second part of Sheldon's counsel's argument involves Sheldon's Sixth Amendment right "to be informed of the nature and cause of the accusation against him". Sheldon's counsel's argument apparently is based on the premise that inclusion of lesser included offenses in the district court's jury instructions violated Sheldon's Sixth Amendment rights. In Walker v. United States, 135 App.D.C. 280, 418 F.2d 1116 (1969), the United States Court of Appeals for the District of Columbia held that an indictment submitted in a criminal case is sufficient notice to the defendant that he may be called upon to defend a lesser included charge. This rule has been reaffirmed in opinions by many State courts. E. g., People v. Cooke, 186 Colo. 44, 525 P.2d 426 (1974); Wisner v. State, 216 Kan. 523, 532 P.2d 1051 (1975); State v. Daniels, 223 Kan. 266, 573 P.2d 607 (1977). Thus, where a jury returns a guilty verdict to a lesser included offense not specifically stated in the information, the defendant is not deprived of his Sixth Amendment right to notice of the charges against him.

In the instant case, the information alleged that Sheldon committed the offense of attempted murder in violation of §§ 12.1-16-01 and 12.1-06-01, N.D.C.C., by intentionally and knowingly attempting to cause the death of another human being. The information alleged that Sheldon fired a .357 magnum pistol at Deputy Anderson in Sheldon's mobile home and that the bullet injured Anderson but failed to kill him. The contents of the information fully complied with Rule 7(c), N.D.R.Crim.P. In light of the history surrounding Rule 31(c), N.D.R.Crim.P., and the authority cited above, we conclude that Sheldon's rights under the Sixth Amendment were not violated.

Sheldon argues that the offenses of aggravated assault, simple assault, and reckless endangerment are not lesser included offenses within the offense of attempted murder. The doctrine of lesser included offenses was discussed in Piper, supra 261 N.W.2d at 654, wherein we stated that in order to submit an instruction on a lesser included offense, a two-part test must be resolved: the instruction must include an offense which is a...