U.S. v. Martin

• Decision Date: 05 March 1986
• Docket Number: No. 84-1360,84-1360
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wayne MARTIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1449

783 F.2d 1449

UNITED STATES of America, Plaintiff-Appellee, v. Wayne MARTIN, Defendant-Appellant.

No. 84-1360.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 16, 1985.

Decided March 5, 1986.

Eugene R. Bracamonte, Virginia Mathis, Tucson, Ariz., for plaintiff-appellee.

Francisco Leon, Asst. Federal Public Defender, Tucson, Ariz., for defendant-appellant.

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

Before ANDERSON, and CANBY, Circuit Judges; IDEMAN, ^* District Judge.

IDEMAN, District Judge:

Wayne Martin, a juvenile, was charged by information with assault resulting in serious bodily injury, 18 U.S.C. Sec. 113(f). Trial was by judge alone. At the close of the government's case in chief, appellant moved for judgment of acquittal. This was denied, and appellant rested without presenting any evidence. The trial judge requested briefs on the issue of whether, and which, lesser included offenses briefed by counsel might be considered. Among those lesser offenses briefed by counsel and considered by the trial court was the offense of which appellant was ultimately convicted, assault with a deadly weapon with the intent to do bodily harm, 18 U.S.C. Sec. 113(c).

The same issue that is presented in this appeal, that defendant lacked notice of additional elements in the lesser offense, was argued before the trial court. Appellant, however, did not request permission to reopen his case to present any evidence relative to these additional elements. Approximately three weeks later the trial court convicted appellant of the lesser offense. The court suspended imposition of sentence and ordered appellant placed on supervised probation. He appeals. We affirm.

I. FACTS

On the evening of June 9, 1984, an altercation occurred at the home of Sam Serapo, which is located on the Papago Indian Reservation in southern Arizona. The record indicates that both appellant, a Papago Indian juvenile, and Serapo were drinking heavily. Appellant and Serapo began arguing when appellant threatened his own girlfriend with barbells.

According to witness testimony, appellant picked up an axe outside the house, saying "that he was going to kill Sam." Appellant then ran into the house and struck Serapo in the back with an axe. However, the doctor testified that in his opinion, the wound was not serious.

II. ISSUES PRESENTED

The "lesser included offense" of assault with a deadly weapon with the intent to do bodily harm, 18 U.S.C. Sec. 113(c), contains two elements not necessarily included in the charged offense of assault resulting in serious bodily harm, 18 U.S.C. Sec. 113(f): (1) the specific intent to do bodily harm, and The issues are: (1) whether assault with a deadly weapon with intent to do bodily harm was a lesser included offense of the offense charged, and (2) whether defendant was given adequate notice that he might be convicted of that lesser offense. We conclude that the answer to both questions is affirmative.

(2) the use of a deadly weapon. In this case, the weapon used was an axe. These additional elements were not charged in the information. Appellant claims that this constitutes a fatal lack of notice, requiring reversal or modification of the judgment by this court.

DISCUSSION

A. "Inherent Relationship" Test:

In order to establish entitlement to an included offense instruction, a two-step process must be satisfied: (1) a lesser included offense must be identified, and (2) a rational trier of fact must be able to find the defendant guilty of the included offense but innocent of the greater offense. United States v. Johnson, 637 F.2d 1224, 1233-1234 (9th Cir.1980).

This circuit has made clear that an "inherent relationship" test is to be applied in order to determine whether certain offenses are lesser included within greater offenses. United States v. Stolarz, 550 F.2d 488, 491 (9th Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 162, 54 L.Ed.2d 119 (1977). The "inherent relationship" test is stated as follows:

[T]he two offenses "must relate to protection of the same interests, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the commission of the greater offense."

Stolarz, 550 F.2d at 491 (citation omitted).

In Stolarz, where the government requested the instructions, the court found that both Sec. 113(a), assault with intent to commit murder, and Sec. 113(c), assault with a dangerous weapon with intent to do bodily harm, relate to the protection of the same interest in preventing and punishing assaults within federal jurisdictions and that proof of the two crimes will generally but not invariably overlap. Id. at 491. Therefore, Sec. 113(c) was found to be a lesser included offense of Sec. 113(a). The court noted that:

While all assaults with intent to commit murder do not involve the use of a dangerous weapon, it cannot be denied that such assaults are commonly perpetrated by the use of dangerous weapons. This is not to say that Section 113(c) is always a lesser included offense of Section 113(a).... It does mean that we reject appellant's contention that Section 113(c) can never be a lesser included offense when a defendant is charged with violating Section 113(a).

Id., at 491.

The Stolarz decision was reaffirmed in the recent Johnson case. In Johnson, defendant requested instructions that Sec. 113(c) be considered a lesser included offense of Sec. 113(f). The trial judge refused to so instruct, reasoning that this crime was not a lesser included offense because it contained two elements not necessary to make out assault resulting in serious bodily injury under 18 U.S.C. Sec. 113(f). We reversed, reasoning that Sec. 113(c) was considered inherently related to assault resulting in serious bodily injury, Sec. 113(f), and that the evidence adduced at trial could support conviction of the lesser included offense. Johnson, 637 F.2d at 1241.

A brief review of the evidence presented in the instant case indicates that an instruction on Sec. 113(c) as a lesser included offense was appropriate here also. The same offenses which the Johnson court found to be "inherently related" are at issue. A similar factual situation existed, wherein a defendant used a weapon in the commission of the offense, but was not charged in the information with the use of the weapon. In the instant case, witness and medical testimony at trial confirmed that an axe was used during the assault. When he came out of the house, appellant told a witness that he had stabbed Serapo.

The government sought a conviction by attempting to prove that Serapo had suffered a wound about five inches long and one and one-half inches deep and approximately three-quarters of an inch from the spinal cord. The government never contended that anything other than an axe had been used in the assault. There is nothing to indicate that this court should not adopt the Johnson court's conclusion that Sec. 113(c) may be a lesser included offense of Sec. 113(f).

B. Notice Requirement:

The issue of notice must be examined separately from the issue of whether an inherent relationship exists. United States v. Whitaker, 447 F.2d 314, 320 (D.C.Cir.1971). Appellant contends that the district court improperly found him guilty of assault with a deadly weapon under Sec. 113(c) because he was not given notice in the information that he would have to defend against that charge, and he had not waived his right to notice.

Notice is ordinarily given by the language of the accusatory pleading. A charging document serves two purposes: (1) it enables the defendant to adequately prepare his defense and (2) it enables him to plead double jeopardy against a second prosecution. United States v. Buckley, 689 F.2d 893, 896 n. 3 (9th Cir.1982), cert. denied, 460 U.S. 1086, 103 S.Ct. 1778, 76 L.Ed.2d 349 (1983). Charging documents are tested by whether they apprise the defendant of what evidence he must be prepared to meet. United States v. Rojo, 727 F.2d 1415, 1418 (9th Cir.1983). An indictment should be read in its entirety, construed according to common sense and interpreted to include facts which are necessarily implied. United States v. Anderson, 532 F.2d 1218, 1222 (9th Cir.), cert. denied, 429 U.S. 839, 97 S.Ct. 111, 50 L.Ed.2d 107 (1976).

According to Fed.R.Crim.P. 7, an indictment must be a "plain, concise and definitive written statement of the essential facts constituting the offense charged." United States v. Christopher, 700 F.2d 1253, 1257 (9th Cir.1982), cert. denied, 461 U.S. 960, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983). "The instrument must set forth the elements of the offense charged and contain a statement of the facts and circumstances that will inform the accused of the elements of the specific offense." Id. (citations omitted).

C. Exceptions for Actual Notice:

It is true that an indictment may be insufficient if it fails to allege an essential element of the offense. Id. at 1257. However, if the defendant is sufficiently informed of the charge against him, specific information may not be necessary. Id. (Information did not specify the "normal working hours" of the federal property, yet information charging appellants with being present on federal property after normal working hours was held sufficient). But see United States v. Rojo, 727 F.2d 1415, 1418 (9th Cir.1983) (citation which did not contain even a cursory reference to any act allegedly committed or to any other facts, such as date, time or location, deemed insufficient).

Furthermore, convictions are no longer reversed because of minor and technical deficiencies which do not prejudice the accused. Christopher, 700 F.2d at 1257 (citing Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 996, 3 L.Ed.2d 1041 (1959)). But see United States v. Stewart Clinical Laboratory, Inc., 652 F.2d 804, 807 (9th Cir.1981) (Schroeder, J....