NO. 90-229
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA
Plaintiff and Respondent,
-vs-
LAWRENCE R. SHEPPARD,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William Boggs, Attorney at Law, Missoula, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Joseph Thaggard, Assistant Attorney General
~obgrt L. Deschamps, 111, Missoula, Montana
tty Wing, ~ e ~ u t y
County Attorney
MAY 11992 Submitted on Briefs: April 4, 1991
!
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
Lawrence R. Sheppard appeals his conviction of sexual
intercourse without consent, a felony, by a jury sitting in the
District Court of the Fourth Judicial District, Missoula County.
We affirm.
Sheppard presents the following issues on appeal:
1. Should Montana adopt the California rule that where the
evidence clearly supports it, a lesser-included offense instruction
must be given by the District Court sua monte, even if not
requested by the defense?
2. Did the District Court's failure to instruct the jury on
the lesser-included offense of misdemeanor sexual assault deprive
Sheppard of due process of law by denying him a fair trial?
In July 1989 Lawrence R. Sheppard and his wife moved from
Florida to Missoula, Montana. When he arrived in Missoula,
Sheppard went to Broughtonfs, a Missoula bar. There he met several
people, including 16-year-old C.K. and Terri Beckstrom. C.K. was
living with the Beckstrom family after having moved out of her
parentsf home. Testimony conflicted regarding lewd behavior of
C.K. and others at the bar that evening.
After that initial meeting, Sheppard visited the Beckstrom
household a few times and saw C.K. as one of a group of people
there. Sheppard treated the group, including C.K., to lunch and on
another occasion to ice cream.
On the evening before the alleged offense, Sheppard went out
1
.
drinking and stayed out all night. He testified that he came to
the Beckstrom household on the morning of August 25, allowed
Beckstrom and others to take his van for a shopping trip, and went
to sleep in an upstairs bedroom.
C.K. testified that when she went into the bedroom to find a
cigarette, Sheppard offered her $5 for a back rub. She gave him a
back rub, and Sheppard paid her $4. C.K. said that Sheppard then
offered her $50 to "make him feel good,I1 and that she refused.
C.K. stated that she thought this offer meant another back rub.
When Beckstrom and others returned to the house, Sheppard went
out to his van. After a few minutes, one of Beckstromls children
told C.K. that Sheppard wanted to talk to her. C.K. went out to
the van and got in. Sheppard offered to take her for a ride for an
hour, just to get away from the house and to buy some pants for
himself. Sheppard said that he again offered C.K. $50 to make him
feel good. C.K. testified that Sheppard made no mention of the
$50.
Sheppard drove the van to a ski area parking lot. Sheppard
got out and climbed into the carpeted area in the back of the van.
C. K. stayed in the front passenger seat for a few minutes and then,
at Sheppardls request, brought him a beer. C.K. then joined
Sheppard in the back of the van. She was seated with her legs
folded under her and with her back up against the back of the van.
Sheppard began making sexual advances, touching C.K.Is leg,
stomach, and breasts. Sheppard ran his hand between her legs and
into her crotch area. C.K. stated that she told him several times
to stop. Sheppard testified that C.K. did not tell him to stop
until he touched her vaginal area and when he was told to stop, he
did. C.K. testified that Sheppard lifted her skirt up and put his
hand inside her panties. Without removing her panties, he inserted
his finger into her vagina and then penetrated her momentarily with
his penis. Sheppard denied penetration in any manner.
Sheppard asked C.K. Itif it was okay if he took care of
himself, and masturbated on C.K. s leg. Sheppard wiped off her
leg with a Kleenex which he threw outside the van. The Kleenex was
later found by police.
Both testified that Sheppard then drove to the KOA campground
and let C.K. out. Sheppard stated that he told C.K. that he would
be back with the $50. C.K. denied that Sheppard told her that.
Sheppard did not return to pick her up, and C.K. tried to walk to
a friend's house, but could not find it. After approximately an
hour, she returned to the KOA store and called Beckstrom who sent
a friend to give her a ride home. C.K. testified that she was very
angry when the friend arrived, but that she did not talk to him
about the rape because she did not know him very well.
When she returned to Beckstromls, C.K. told Beckstrom about
the alleged rape and the incident was reported to the authorities.
When Sheppard was arrested by sheriff Is officers that night, he
denied any sexual contact with C.K. After Sheppard discovered that
the Kleenex had been recovered, he gave a second statement saying
that sexual contact occurred with C.K.'s consent, but that no
penetration occurred.
Physical evidence was consistent with events as described by
either C.K. or Sheppard. Semen was found on the recovered Kleenex.
From vaginal smears of C.K., two sperm and three sperm heads were
later found in laboratory examinations. Expert testimony indicated
that the low number of sperm found could be associated with
momentary penetration or from intercourse a few days prior to the
laboratory tests.
Sheppard was charged with sexual intercourse without consent,
a felony, in violation of 5 45-5-503, MCA (1989), and was convicted
by a jury. The District Court sentenced Sheppard to the maximum
twenty years in prison and enhanced the sentence another ten years
because of Sheppardlsprior criminal record. Fifteen years of the
thirty-year sentence were suspended.
I.
Should Montana adopt the California rule that where the
evidence clearly supports it, a lesser-included offense instruction
must be given by the court sua s~onte,
even if not requested by the
defense?
One matter in addition to the issues raised by the appellant
requires discussion before we begin our analysis of those issues.
The State asserts that this Court should decline to review the
District Court's failure to give the lesser-included offense
instruction monte because of Sheppardlsfailure to request the
instruction or object at trial. Sheppard asserts that 5 46-20-
701(2), MCA (1989), which places limits on appellate review where
there has been no objection in the trial court, is inapplicable in
this case because any sua monte action by a trial court by
definition takes place without request or objection from trial
counsel. We decline to consider the applicability of 5 46-20-
701(2), MCA (1989), to a trial court's duty to act sua s~onte.
To begin our analysis of the issues to be decided, Sheppard
urges this Court to adopt the minority rule that a trial court has
a duty to instruct the jury on a lesser-included offense, even
absent a request for such an instruction. See, e.g., People v.
Wickersham (Cal. 1982), 650 P.2d 311; State v. Coward (N.C. App.
1981), 283 S.E.2d 536. While conceding that this is a case of
first impression in Montana, he argues that Montana statutory and
case law both mandate this result.
Sheppard cites State v. Lundblade (1981), 191 Mont. 526, 625
P.2d 545 and 5 46-16-401, MCA (1989), for the proposition that in
Montana the trial judge has a duty to charge the jury on all
essential questions of law, whether requested or not. Sheppard
asks this Court to expand this duty by adopting the California rule
compelling trial courts to instruct monte if the evidence
supports a conviction for a lesser-included offense. Wickersham,
650 P.2d at 320. The California Supreme Court based its policy
requiring sua monte instruction on a lesser-included offense on
the following rationale: (1) a defendant has no right to an
acquittal when the evidence is sufficient to convict him of a
lesser-included offense; (2) the policy ensures that the verdict is
neither harsher nor more lenient than the evidence merits; (3) the
policy protects a defendant from poor representation by a lawyer
who is unaware of possible lesser-included offenses; and (4) the
policy fully guards the right of the accused to complete
instructions. Wickersham, 650 P.2d at 319-21.
We concede that a district court's failure to instruct the
jury on essential questions of law can amount to error. See, e.g.,
State v. Williams (1979), 184 Mont. 111, 601 P.2d 1194. However,
the general rule in Montana is that the court mav instruct the jury
sua s ~ o n t e if evidence supports such an instruction. State v.
DeMers (1988), 234 Mont. 273, 280-81, 762 P.2d 860, 864-65.
Further, the statute on which Sheppard relies denotes the
trial court's permissive power, rather than a mandatory duty, to
give the jury a lesser-included offense instruction sua monte.
Section 46-16-401(1), MCA (1989), provides that the district court
may instruct the jury as to its duties by means of general
instructions on that subject. In addition, S 46-16-401(4)(b), MCA
(1989), refers to the court's role of settling the instructions
"offered by counsel or ~roposed to be siven to the iurv bv the
court. (Emphasis added. ) Conversely, S 46-16-401 (4)(a), MCA
(1989), clearly requires counsel to offer special instructions to
the court if counsel desires such instructions to be given to the
jury. While we agree that the trial court should instruct on all
essential questions of law and may offer its own instructions,
46-16-401, MCA (1989), does not expressly impose on the district
court a duty to instruct the jury on questions of law not requested
by counsel.
A lesser-included offense does not fall within the category of
an Iles~ential~~
question of law because defense counsel may want to
omit such an instruction as a matter of strategy. Montana
recognizes that, upon request, a defendant is entitled to an
instruction about a lesser-included offense if the evidence would
permit a jury rationally to find him guilty of the lesser offense
and acquit him of the greater. State v. Ostwald (1979), 180 Mont.
530, 538, 591 P.2d 646, 651. However, the rule in Montana and the
overwhelming majority of states is that if a request for such an
instruction is not made, the appellate court will not overturn the
conviction absent plain error. State v. Evans (1991), 247 Mont.
218, 226, 806 P.2d 512, 517; see, e.g., State v. Lucas (Ariz.
1985), 708 P.2d 81; Robinson v. State (Ga. Ct. App. 1990), 390
S.E.2d 652; People v. Alvarez (Ill. App. Ct. 1989), 542 N.E.2d 737;
Huntley v. State (Okla. Crim. App. 1988), 750 P.2d 1134.
The United States Supreme Court recognizes a defendant's right
to a lesser-included offense jury instruction if requested, Keeble
v. United States (1973), 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d
844, but has not ruled on whether courts must instruct the jury on
lesser-included offenses sponte. Kubat v. Thieret (7th Cir.
1989), 867 F.2d 351, 365. Accordingly, federal courts will not
consider a trial court's failure to instruct on lesser-included
offenses without a contemporaneous objection unless the omission of
the instruction constitutes plain error pursuant to Rule 52(b),
Fed.R.Crim.P. See, e.g., United States v. Lopez Andino (1st Cir.
1987), 831 F.2d 1164, cert. denied, 486 U.S. 1034, 108 S.Ct. 2018,
100 L.Ed.2d 605 (1988); United States v. Vincent (5th Cir. 1981),
648 F.2d 1046. The reason usually given is that the trial court is
not to interfere with strategy of defense counsel who may opt to
omit a lesser-included offense instruction in order to force the
jury to find the defendant guilty of the crime charged or acquit
him. Kubat, 867 F.2d. at 365-66.
Some courts have held that a defendant not only has a right to
lesser-included offense instructions on request, but also has a
right to foreso such instructions for strategic reasons. See Lowez
Andino, 831 F.2d at 1171. In contrast, the California Supreme
Court in Wickersham noted that the trial court must instruct sua
swonte on lesser-included offenses, even when a defendant objects
for tactical reasons. Wickersham, 650 P.2d at 324 n. 8 (citing
People v. Sedeno (Cal. 1974), 518 P.2d 913). Not only does such a
policy impinge on the advocate's role, but the result may be to
unfairly surprise both the defense and the prosecution.
We conclude that under our adversarial system of justice, the
prosecution and defense must have the option of foregoing a lesser
charge instruction for strategic reasons. Lawyers, not judges,
should try cases. Although the record does not enlighten us, both
prosecution and defense counsel may have made a decision to force
the jury to either convict or acquit of the offense charged without
being given the opportunity to take the middle ground and convict
of the lesser charge of misdemeanor sexual assault. Because
mandatory sua swonte jury instruction on lesser offenses is
inconsistent with Montana law and our public policy of allowing
trial counsel to conduct the case according to his or her own
, & - b .
strategy, we decline to adopt the minority rule. The District
Court did not err in failing to instruct the jury sua sponte on the
lesser offense of misdemeanor sexual assault.
11.
Did the District Court's failure to instruct the jury on the
lesser-included offense of misdemeanor sexual assault deprive
Sheppard of due process of law by denying him a fair trial?
The due process clause of the Fourteenth Amendment ensures a
defendant's right to a fair and impartial trial, which Itrequiresa
factfinding process free of any impermissible extraneous influences
on the trier of fact." Trujillo v. Sullivan (10th Cir. 1987), 815
F.2d 597, 601, cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98
L.Ed.2d 246 (1987). Sheppard asserts that the District Court's
failure in this case to instruct the jury sua swonte on the lesser-
included offense of misdemeanor sexual assault violated his right
to due process. In support of his argument, Sheppard cites In re
Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, in
which the Supreme Court held that the due process clause guarantees
defendants the full benefit of the reasonable doubt standard. He
also cites Beck v. Alabama (1980), 447 U.S. 625, 634, 100 S.Ct.
2382, 2388, 65 L.Ed.2d 392, 400, in which the Supreme Court stated
that vg[p]rovidingthe jury with the 'third option' of convicting on
a lesser included offense ensures that the jury will accord the
defendant the full benefit of the reasonable-doubt standard."
Sheppard apparently concludes that, in light of Winship and Beck,
a lesser-included offense instruction is a right inherent in the
due process clause and that the trial court's giving of such an
instruction sua monte is included within that right.
Beck does not support the conclusions asserted by Sheppard.
Beck involved a charge of capital murder. The defendant's own
testimony established that he was guilty of felony murder, a
noncapital lesser-included offense. The trial court refused
defense counsel's requested lesser charge instruction in light of
the Alabama statute prohibiting jury instruction on a lesser-
included offense in a capital case. The jury convicted the
defendant of the capital offense.
The Supreme Court struck down the Alabama statute. In holding
that due process requires that a lesser-included offense
instruction be given when the evidence warrants such an
instruction, the Supreme Court stated:
That safeguard [lesser-included offense instruction]
would seem to be especially important in a case such as
this. For when the evidence unquestionably establishes
that the defendant is guilty of a serious, violent
offense--but leaves some doubt with respect to an element
that would justify conviction of a capital offense--the
failure to give the jury the "third optionw of convicting
on a lesser included offense would seem inevitably to
enhance the risk of an unwarranted conviction.
Such a risk cannot be tolerated in a case in which
the defendant's life is at stake. As we have often
stated, there is a significant constitutional difference
between the death penalty and lesser punishments. ...
Beck, 447 U.S. at 637. Given the Beck Court's emphasis on the life
and death nature of guilt determination in capital cases and "the
significant constitutional difference between the death penalty and
lesser punishment^,^^ the due process clause does not necessarily
require lesser-included offense instructions in noncapital cases as
Sheppard maintains. Indeed, while praising the value of a lesser
charge instruction as a means of strengtheningthe reasonable doubt
standard, the Beck Court specifically declined to decide whether
defendants have a due process right to such an instruction in
noncapital cases. Beck, 447 U.S. at 638 n. 14.
The Supreme Court itself has stated that its decision in Beck
was based on the Eighth Amendment. "Our holding in Beck, like our
other Eighth Amendment decisions in the past decade, was concerned
with insuring that sentencing discretion in capital cases is
channelled so that arbitrary and capricious results are avoided."
Hopper v. Evans (1982), 456 U.S. 605, 611, 102 S.Ct. 2049, 2052, 72
L.Ed.2d 367, 373. Thus, it is possible that the Beck holding was
based, not on the due process clause of the Fourteenth Amendment,
but rather on a due process concept rooted in the Eighth Amendment
prohibition against cruel and unusual punishment which requires a
higher degree of procedural exactitude in capital cases to ensure
that the death penalty is not imposed on the basis of caprice or
emotion. Trujillo, 815 F.2d at 601. Consequently, "[a] majority
of the circuits considering this difficult issue have held that the
failure of a state court to instruct on a lesser included offense
in a noncapital case never raises a federal constitutional
question.l8 Pitts v. Lockhart (8th Cir. 1990), 911 F.2d 109, 112,
cert. denied, - U.S. , 111 S.Ct. 2896, 115 L.Ed.2d 1060
(1991); Truiillo, 815 F.2d at 602; see, e.g., Valles v. Lynaugh
(5th Cir. 1988), 835 F.2d 126; Chavez v. Kerby (10th Cir. 1988),
848 F.2d 1101 (due process did not entitle defendant charged with
6 L
a
criminal penetration of child under thirteen to lesser-included
offense involving sexual misconduct short of penetration) ; Perry v.
Smith (11th Cir. 1987), 810 F.2d 1078.
Finally, it is important to remember that the defendant in
Beck requested a lesser-included offense instruction at trial. The
issue before the Supreme Court was whether in a capital case a
state could statutorily preclude jury instruction on a lesser-
included offense; the case did not involve whether the trial court
should have given a lesser-included offense instruction sua sponte.
At least one federal court has concluded that Beck does not require
judges, as a matter of due process, to give lesser-included offense
instructions sua sponte. Kubat, 867 F.2d 351. As the Kubat court
observed, "[tlhis [the Beck] holding is far from a rule requiring
judges to sponte instruct the jury on lesser included
offenses." Kubat, 867 F.2d at 365.
Sheppard also relies on the Ninth Circuit's decision in Bashor
v. Risley (9th Cir. 1984), 730 F.2d 1228, cert. denied, 469 U.S.
838, 105 S .Ct. 137, 83 L.Ed. 2d 77 (1984), to support his contention
that due process mandates sua sponte lesser-included offense
instructions by trial courts. Specifically, Sheppard claims that
in Bashor "the court adopted as a hypothesis that, in certain
cases, a failure to give a lesser-included offense instruction
could violate a defendant's due process rights, because it would
contravene the rule--given constitutional status in the Ninth
Circuit--that 'a jury must be instructed as to the defense theory
of the case.111Sheppard overlooks the limited nature of the Ninth
Circuit rule which requires the trial court to instruct the jury as
to the defense theory of the case. This rule was adopted in United
States v. Kenny (9th Cir. 1981), 645 F.2d 1323, cert. denied, 452
U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981), and pertains to a
trial court's refusal to give jury instructions offered by a
defendant. Kennv, 645 F.2d at 1337. Like Beck, Kennv does not
address whether a due process violation occurs when the court fails
to give such an instruction sua sponte. Accordingly, we hold that
the District Court's failure to instruct the jury sua m o n t e on the
lesser-included offense of misdemeanor sexual assault did not
deprive Sheppard of his Fourteenth Amendment right to due process.
The judgment of the District Court is affirmed.