STATE of Minnesota, Respondent,
v.
Chadwick Phaen MARQUARDT, Appellant.
No. C5-92-985.
Supreme Court of Minnesota.
February 23, 1993.ORDER
Based upon all the files, records and proceedings herein,
IT IS HEREBY ORDERED that the petition of Chadwick Phaen Marquardt for further review of the court of appeals' decision affirming his conviction of felony murder be, and the same is, denied. Petitioner was charged both with intentional murder and felony murder. He claimed self-defense. CRIMJIG 7.05, as worded, is appropriate when the defendant claims he killed intentionally but in self-defense. However, it contains language ("the killing must have been done in the belief that it was necessary to avert death or great bodily harm") which is inappropriate if the defendant claims, e.g., that he intentionally stabbed the victim in self-defense but without intending to kill the victim.[1] We have said before that trial courts must use analytical precision in drafting instructions on self-defense and should modify CRIMJIG 7.05 if necessary or give the more general 7.06. See, e.g., State v. Sanders, 376 N.W.2d 196, 201 (Minn.1985), and State v. Edwards, 343 N.W.2d 269, 277 (Minn.1984). Petitioner's trial attorney did not object to the giving of CRIMJIG 7.05 or request that it be modified or that the more general CRIMJIG 7.06 be given. Nonetheless, we would grant petitioner a new trial if we believed that petitioner was prejudiced as a result of the giving of CRIMJIG 7.05. State v. Malaski, 330 N.W.2d 447 (Minn. 1983). Here, the record fails to support the argument that the giving of the potentially misleading instruction prejudiced petitioner.
NOTES
[1] The quoted language improperly implies that the defendant must believe it necessary to kill in order for the killing to be justified. The Committee on Criminal Jury Instruction Guides of the Minnesota District Judges Association may want to reconsider CRIMJIG 7.05 in light of this case and in light of the prior cases in which trial courts have inappropriately used CRIMJIG 7.05.