United States v. Walter Ivan Cooper, United States of America v. Raymond Keith Cooper , 812 F.2d 1283 ( 1987 )

SETH, Circuit Judge.

The two defendants-appellants are brothers and were indicted together in a single count indictment under 18 U.S.C. § 113(a). The charge in the statutory language was that the defendants, members of the Comanche Tribe on an Indian allotment, “did assault ... Jaime Fernandez with intent to commit murder ... in violation of Title 18, United States Code, Sections 113(a)____” The defendants were convicted under 18 U.S.C. § 113(f) as a lesser included offense.

The issues on appeal raise questions as to what are lesser included offenses in 18 U.S.C. § 113(a), especially § 113(f), and whether the court should have instructed on that subsection and on others without request from the government or defendants.

A description of the facts on which the charge was based is necessary. At the time of the incident the victim was working on his car in the yard of a friend, Bruce McCarthy. The defendants came from a nearby house to where the victim was working. The victim testified that he considered the defendants to be his friends and family and was not concerned when they approached him. There was hostility between the victim and the person at the house nearby where the defendants had been drinking before confronting the victim. Raymond Cooper began to verbally abuse the victim and came very close to him. The victim pushed him back and was then hit by Walter Cooper. The victim turned to confront Walter Cooper who then shot him in the chest. Raymond Cooper then told his brother to “finish off” the victim — to go ahead and kill him — and then approached the victim with a knife. The victim apparently attempted to seize the knife and was cut slightly by it. The incident ended and defendants left. Defendants had been drinking at a neighbor’s house before the incident as reported by the witness, Bruce McCarthy. He also saw them drinking there when he returned to his house after taking the victim to the hospital. The shot damaged the victim’s liver, surgery was necessary, and he was hospitalized for about a month and a half.

The facts were uncomplicated, the incident was outdoors within a small space, in daylight, and the parties and the witnesses were well known to each other. It was, of course, obvious at the end that the victim had been shot at close range and left on the ground.

At the conclusion of the trial the court instructed the jury sua sponte on what it considered to be several lesser included offenses in 18 U.S.C. § 113(a). These were:

§ 113(c) “Assault with a dangerous weapon with intent to do bodily harm____”

§ 113(d) “Assault by striking, beating, or wounding____”

§ 113(e) “Simple assault____”

§ 113(f) “Assault resulting in serious bodily injury____”

The parties agree that by reason of the intoxication of the defendants they were not capable of forming the specific intent required in § 113(a), which, as mentioned, was the charge in the indictment.

The defendants objected to the instructions as to § 113(c) and § 113(f) on the ground that these were not lesser included offenses. No objections were made to the instructions on § 113(d) or § 113(e). Defendants also made no objection to the fact that the instructions were given sua sponte. The jury found the defendants guilty under 18 U.S.C. § 113(f) — assault resulting in serious bodily injury.

Defendants on appeal assert as error the sua sponte origin of the instructions on what the court considered to be lesser included offenses. Neither the defendants nor the government had requested such instructions. This appeal is thus not the typical one wherein a defendant had requested lesser included offense instructions which were not given.

The defendants also, as mentioned, assert that § 113(f), on which they were convicted, was not a lesser included offense in § 113(a) under our decisions. This objection was made at trial and is preserved on appeal.

The sua sponte objection raised on this appeal was not made during the trial and will not be considered as there has been no showing that there was plain error as to this point. United States v. Hubbard, 603 F.2d 137 (10th Cir.1979); Chavez v. New Mexico, 456 F.2d 1072 (10th Cir.1972). We are not convinced that there was such error or any error. There are no persuasive authorities on the point and we must start with the proposition that the trial court instructs the jury in accordance with the evidence and the applicable law whether requested or not.

The defendant Raymond Cooper asserts that there can be an assault with intent to commit murder under § 113(a) without violating § 113(f). He also asserts that the greater offense, assault with intent to commit murder, contains the element of intent not included in simple assault which could not be established in this case thus only simple assault was possible. He asks that a judgment be entered for simple assault (§ 113(e)) as a lesser included offense rather than having a retrial as requested by defendant Walter Cooper.

Walter Cooper seeks a new trial. His argument is directed to the elements of the several offenses under the statute. Thus, despite the fact that defendants seek a different remedy, they both assert that § 113(f) is not a lesser included offense in the one charged.

Here the evidence supported the giving of the instruction on § 113(f). This is, of course, a fundamental requirement for any instruction. With that requirement satisfied what standards under our decisions should be applied to determine whether § 113(f) is a lesser included offense in the offense charged? There is, of course, the notice factor. Thus a defendant is considered to be on notice to defend against such lesser offenses as may be included in the offense charged.

The defendants assert that there was no notice that the government's evidence would show bodily injury to the victim. However, the obvious serious injury to the victim by a gunshot could not have been ignored by defendants. Referring again to the uncomplicated nature of the proof, with a single incident, the limited area and time involved, the fact that the witnesses were friends or acquaintances in the neighborhood, and the obviousness of the injury, we cannot conclude that there would be any question as to what proof would be produced by the government. There is really no issue of “notice” to the defendants. It was obvious from the start that they would be confronted with proof of serious bodily harm at the trial on § 113(a) as the “assault.”

The offense under § 113(a) could be established with or without proof of bodily harm or serious bodily harm. Since “harm” was not necessary to establish the offense it was not necessary to allege it. It was possible to prove all elements of § 113(f) in the proof of § 113(a) and this was done. All of § 113(a) was not established as the “intent” element was not proved. This was the contested fact issue as to the greater offense which triggered the lesser included offense instruction under Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). See also Rule 31(c) of the Rules of Criminal Procedure.

The lesser included offense doctrine has not been held by the Supreme Court to be a component of due process. Instead the reference has been to Rule 31(c) of the Rules of Criminal Procedure. United States v. Pino, 606 F.2d 908 (10th Cir.1979). The basis for the holding in Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), was a construction of Rule 31(c). The “necessarily included” language in the Rule was construed initially to lead to a rule applied in a certain category of cases as the “impossibility” rule. Thus in Larson v. United States, 296 F.2d 80 (10th Cir.1961), we considered an appeal where the charge was stealing government property with a value of more than $100. There was a value issue and we held that the lesser offense was stealing property with a value of less than $100. It was easy to state the “impossibility” rule which we there stated to be:

“[T]he lesser offense must be such that it is impossible to commit the greater without having first committed the lesser.”

In Larson we were there not faced with the possibility that the greater offense could be committed in several different ways as in the case before us and as in United States v. Pino, 606 F.2d 908 (10th Cir.1979). It thus became apparent that the “impossibility” test could not be made applicable to all situations.

Thus in United States v. Pino, we were concerned with another category of cases. There the charge was involuntary manslaughter by the operation of a car in a reckless and wanton manner causing death. Recklessness and wantonness were the disputed factors required in the manslaughter charge. We held that an instruction on “careless driving” should have been given as a lesser included offense. We relied on Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, and on United States v. Whitaker, 447 F.2d 314 (D.C.Cir.1971), and did not apply Larson, in view of the several different ways in which the greater offense — the core offense — could be committed. In the case before us the same consideration applies as assault with intent to commit murder can be committed in several different ways, and also because “assault” is the core offense for the several subsections including § 113(a) and § 113(f). The trial court gave the basic “assault” instruction. In our view Pino controls this case.

In United States v. Zang, 703 F.2d 1186 (10th Cir.1982), (reversed on another ground), we described the “inherent relationship” doctrine, whereby the aim and purpose of the statute concerned is examined to see if there is a close relationship and purpose among the several offenses. This in substance was the holding in Pino. As Pino demonstrates, we cannot agree with United States v. Knife, 592 F.2d 472 (8th Cir.1979).

Our decisions, like most from other courts, are on appeals wherein the defendant has requested and has been denied a lesser included offense instruction. We hold that the same considerations apply to the circumstances presented in the case before us. The trial judge must give instructions to the jury as required by the evidence and the law where the parties so request or not, and to do so although objections are made. The trial judge is charged with the responsibility for instructing the jury. This is not controlled by the parties as their function and duty is to bring to the court’s attention the instructions they consider applicable and the reasons why they should be given. The fact that the defendants here objected to the giving of lesser included offense instructions does not alter the prevailing standards applied in cases where the defendant has requested but has been refused such instructions.

The judgments in both cases, United States v. Walter Ivan Cooper, No. 86-1477, and United States v. Raymond Keith Cooper, No. 86-1508, are AFFIRMED.

IT IS SO ORDERED.