U.S. v. Johnson

• Decision Date: 29 August 1980
• Docket Number: No. CA,CA
• Citation: 637 F.2d 1224
• Parties: 6 Fed. R. Evid. Serv. 1264 UNITED STATES of America, Plaintiff-Appellee, v. Larry Burdette JOHNSON, Defendant-Appellant. 78-2736.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1224

637 F.2d 1224

6 Fed. R. Evid. Serv. 1264

UNITED STATES of America, Plaintiff-Appellee, v. Larry Burdette JOHNSON, Defendant-Appellant.

No. CA 78-2736.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 11, 1979.

Decided Aug. 29, 1980.

Jeffrey G. Howe, Asst. U.S. Atty., Boise, Idaho, for defendant-appellant.

Randall D. Schulthies, Pocatello, Idaho, for plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho.

Before WRIGHT, GOODWIN, Circuit Judges, and SPENCER WILLIAMS, ^* District Judge.

SPENCER WILLIAMS, District Judge:

Larry Burdette Johnson was convicted of one count of assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 1153 ¹ and 113(f) ² (1976). On this appeal, Johnson raises several instances of claimed error which occurred during his trial, the most important of which was the trial court's refusal to deliver lesser included offense jury instructions. We conclude that the failure to give such instructions was reversible error.

I FACTS

Johnson, an Indian, ³ was charged with two counts of assault resulting in serious bodily injury. The charges stemmed from an incident occurring within the boundaries of the Fort Hall Indian Reservation on or about April 23, 1978. ⁴ The victim in Count I was Edwin Papse, and the victim in Count II was Richard Johnson, appellant's father. ⁵ Both victims are Indians. ⁶

During the day of April 22, 1978, Johnson, the victims, and others were drinking alcoholic beverages in Blackfoot, Idaho, a short distance from the Fort Hall Indian Reservation. Later that day these individuals went to Johnson's residence on the Fort Hall Reservation. In the late evening or early morning, Johnson had an argument with his wife. Afterwards, he allegedly struck Papse and Richard Johnson with the blunt end and handle of a long-handled ax. Papse slept at the house that evening, and the next day walked to the home of a neighbor who transported him to a nearby hospital. He was treated there by Dr. Gary K. Haddock.

At Johnson's trial, the United States called Papse as a witness. A long-handled ax was offered into evidence during his testimony. Pursuant to a search warrant, this ax had been seized at Johnson's residence five days after the assault. Papse identified the ax, apparently with some hesitancy, as the weapon used to commit the assault on him. Over Johnson's objection that there had been insufficient foundation or authentication, the ax was admitted into evidence.

Dr. Haddock was called by the United States and testified about the nature and extent of Papse's injuries. Over objection, Haddock was allowed to state his opinion that Papse suffered "serious bodily injury."

In an instruction to the jury, the court defined "serious bodily injury" to include bodily injury which involves unconsciousness. Johnson timely objected to this instruction.

The trial judge did not instruct the jury that it could find Johnson guilty of any lesser included offenses. Johnson objected to this failure, and suggested three lesser included offenses. The court ruled that two of the suggested offenses were not federal crimes in Indian country, and hence could not be lesser included offenses, and that the third suggested offense was not a lesser included offense because it contained elements not included in the original charge.

The jury returned a verdict of guilty as to Count I (assault on Papse) and not guilty as to Count II (assault on Richard Johnson). A sentence of ten years imprisonment was imposed. This appeal followed.

II STATUTORY FRAMEWORK

Some familiarity with the historical development of federal criminal jurisdiction over Indians in Indian country is a useful starting point for analysis of several of the major issues presented by this case. "(T)he various Indian tribes were once independent and sovereign nations, and . . . their claims to sovereignty long predates that of our own Government." McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973). But when the tribes' status changed to that of dependency, subject to the overriding sovereignty of the United States, their authority as independent sovereigns was implicitly and necessarily limited in certain fundamental respects. As dependent sovereigns, the tribes' "exercise of separate power is constrained so as not to conflict with the interests of (the United States') overriding sovereignty." Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 209, 98 S.Ct. 1011, 1021, 55 L.Ed.2d 209 (1978). ⁷

This is not at all to say the Indian tribes were divested of all significant attributes of sovereignty. On the contrary, in the early 1830s two landmark Supreme Court opinions authored by Mr. Chief Justice Marshall, Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831), and Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832), firmly established the legal basis for the doctrine of inherent powers of limited sovereignty which remain vested in the Indian tribes unless extinguished by congressional act or surrendered by treaty. One aspect of this retained inherent tribal sovereignty is the exclusive power to prescribe tribal criminal laws and mete out punishment to tribal offenders. United States v. Wheeler, 435 U.S. 313, 326, 98 S.Ct. 1079, 1087, 55 L.Ed.2d 303 (1978); Oliphant, 435 U.S. at 210, 98 S.Ct. at 1021; Ex parte Crow Dog, 109 U.S. 556, 572, 3 S.Ct. 396, 406, 27 L.Ed. 1030 (1883).

Prior to 1885, there existed no explicit congressional enactment permitting the federal courts to exercise any criminal jurisdiction over Indians who had committed crimes against other Indians on Indian land. The implication of the absence of express congressional authorization was made clear when Crow Dog killed Chief Spotted Tail of the Brule Sioux in Indian country, and the Supreme Court ruled he could not be tried for murder in a federal court. Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883). Congress responded by passing the Major Crimes Act of 1885, ch. 341, § 9, 23 Stat. 385. This Act conferred jurisdiction on the federal courts to punish certain enumerated offenses committed by Indians in Indian country. The Act "reflected a view that tribal remedies were either nonexistent or incompatible with principles that Congress thought should be controlling." Keeble v. United States, 412 U.S. 205, 210, 93 S.Ct. 1993, 1996, 36 L.Ed.2d 844 (1973); see generally id. at 209-12, 93 S.Ct. at 1996-1997. Its list of enumerated offenses has been codified at 18 U.S.C. § 1153. ⁸

The Supreme Court has recognized the Major Crimes Act as a "carefully limited intrusion of federal power into the otherwise exclusive jurisdiction of the Indian tribes to punish Indians for crimes committed on Indian land." Wheeler, 435 U.S. at 325 n. 22, 98 S.Ct. at 1087. Thus, except for the crimes specifically enumerated in section 1153, the general rule is that tribal courts have retained exclusive jurisdiction over all crimes committed by Indians against other Indians in Indian country. 18 U.S.C. § 1152. See United States v. Antelope, 430 U.S. 641, 643 n. 2, 97 S.Ct. 1395, 1397, 51 L.Ed.2d 701 (1977); United States v. Jackson, 600 F.2d 1283, 1286 (9th Cir. 1979). ⁹

The only forms of assault enumerated in 18 U.S.C. § 1153 before 1968 were assault with a dangerous weapon, assault with intent to kill, and assault with intent to commit rape. All other forms of assault by Indians against Indians in Indian country were punishable solely in the tribal courts. Tribal courts, however, had been limited to imposing criminal sentences not exceeding six months, and Congress became concerned that serious assaults within the tribal courts' exclusive jurisdiction would not be punished adequately. Consequently, section 1153's list of enumerated offenses was amended in 1968 to include assault resulting in serious bodily injury. Act of April 11, 1968, Pub.L.No.90-284, Title V, § 501, 82 Stat. 80. ¹⁰

When originally added to section 1153, assault resulting in serious bodily injury was included in a category of enumerated offenses which were required to be "defined and punished in accordance with the laws of the State in which such offense was committed." 18 U.S.C. § 1153 (1970) (amended 1976). This feature of section 1153 produced unfortunate results. Indians prosecuted for those enumerated offenses governed by state law often faced harsher definitions and penalties than non-Indians prosecuted for the same offenses, for non-Indians were subject to federal definitions and penalties pursuant to 18 U.S.C. § 1153. ¹¹ To correct the unequal and possibly unconstitutional treatment of Indian defendants, Congress passed the Indian Crimes Act of 1976, Pub.Law No.94-297, 90 Stat. 585 (codified at 18 U.S.C. §§ 113, 1153 (1976)), shifting assault resulting in serious bodily injury and several other enumerated offenses into the category of crimes defined and punished in accordance with federal law. See generally H.R.Rep.No.94-1038, 94th Cong., 2d Sess. 1-5 (1976), reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 1125, 1125-29.

Where section 1153 provides for an enumerated offense to be defined and punished in accordance with federal law, i. e., the law governing areas "within the exclusive jurisdiction of the United States," it refers to the law in force in federal enclaves. Criminal assaults have been defined for federal enclaves since at least as early as 1825. See Act of March 3, 1825, ch. 65, § 22, 4 Stat. 121 (repealed 1909). The current provisions regarding punishable assaults in federal enclaves may be traced directly to the Act of March 4, 1909, ch. 321, § 276, 35 Stat. 1143 (current version codified at 18 U.S.C. § 113 (1976)). As originally enacted, and for more than 67 years thereafter, these provisions did not include assault resulting in serious bodily injury. It was not until Congress decided in 1976 that the enumerated offense of...