NO. 90-229 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

STATE OF MONTANA Plaintiff and Respondent,

-vsLAWRENCE 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. MarcRacicot,Attorney General,Helena,Montana Joseph Thaggard, Assistant Attorney General ~obgrt L. Deschamps, 111, Missoula, Montana tty Wing, ~e~uty County Attorney



### MAY 

### 11992 Submitted on Briefs: April 4, 1991

! ClerkJustice 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 clearlysupportsit, a lesser-includedoffense 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 lawby 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, Sheppardwent to Broughtonf s,aMissoula bar. Therehemet 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 thegroup, including C.K., to lunchand on another occasion to ice cream. On the evening before the alleged offense, Sheppard went out1



# .. 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 shewent into the bedroom to find a cigarette, Sheppard offered her $5 for a back rub. She gave him a back rub, and Sheppardpaid her $4. C.K. said that Sheppard then offered her $50 to "make him feel good,I1and that she refused. C.K. stated that she thought this offer meant another back rub. When Beckstrom and others returnedto the house, Sheppard went out to his van. After a few minutes, one of Beckstromlschildren told C.K. that Sheppard wanted to talk to her. C.K. went out to thevan and got in. Sheppard offered to takeher 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 tomake 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 thevan. C.K. stayed in the front passenger seat fora few minutes and then, at Sheppardlsrequest, brought him a beer. C.K. then joined Sheppard in the back of the van. She was seated with her legs folded underher and with herback up against theback of thevan. Sheppard began making sexual advances, touching C.K.Is leg, stomach, and breasts. Sheppard ran his hand between her legs and into her crotcharea. C.K. stated that she told him several timesto stop. Sheppard testified that C.K. did not tell him to stop until he touched her vaginal area and when hewas told to stop,he did. C.K. testified that Sheppard liftedher skirtup and put his hand insideherpanties. Without removingherpanties,he inserted his finger into hervagina and thenpenetrated 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 legwith a Kleenex whichhe threwoutside thevan. TheKleenexwas later found by police. Both testified that Sheppard thendrove to the KOA campground and let C.K. out. Sheppard stated thathe told C.K. thathe 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 togiveher a ridehome. C.K. testified that shewasvery 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 incidentwas reported to the authorities. When Sheppard was arrested by sheriffIs 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. Semenwas found on therecovered Kleenex. From vaginal smears of C.K., two sperm and three sperm heads were laterfound in laboratoryexaminations. 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. Sheppardwas charged with sexual intercourse without consent, a felony, in violation of 5 45-5-503,MCA (1989), andwas convicted by a jury. The District Court sentenced Sheppard to the maximum twentyyears in prison and enhanced the sentence another tenyears because of Sheppardls prior criminal record. Fifteenyears of the thirty-year sentence were suspended. I. Should Montana adopt the California rule that where the evidence clearlysupportsit, a lesser-includedoffense instruction must be givenby the court

### sua s~onte, even if not requestedby 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 montebecause of Sheppardls failureto requestthe instruction or object at trial. Sheppard asserts that 5 46-20- 701(2), MCA (1989), which places limits on appellate review where therehas been no objection in the trial court, is inapplicable inthis 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 theminority 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 lawboth mandate this result. Sheppard cites Statev. Lundblade (1981), 191Mont. 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 thisCourt to expand thisdutyby 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-includedoffense; (2)thepolicy ensures that theverdict is neitherharsher nor more lenient than the evidencemerits; (3) the policy protects a defendant from poor representation 

### by a lawyerwho 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 toerror. See, e.g., State v. Williams (1979), 184 Mont. 111, 601 P.2d 1194. However, the general rule inMontana is that the court

## mav instruct the jury

sua s~onte 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 ~roposedto 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 doesnot fallwithin thecategory ofan Iles~ential~~ question of law because defense counselmay 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;Peoplev. Alvarez (Ill.App. Ct. 1989), 542 N.E.2d 737; Huntley v. State (Okla. Crim. App. 1988), 750 P.2d 1134. TheUnited StatesSupreme Court recognizes adefendant's right toa 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 theomission 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 reasonusually 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 haveheld that a defendant not onlyhas a right to lesser-included offense instructions on request, but also has a right to foreso such instructions for strategicreasons. 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 Peoplev. 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 surpriseboth the defense and the prosecution. We conclude thatunder our adversarial system of justice, the prosecution and defensemust have the option of foregoinga lesser charge instruction for strategic reasons. Lawyers, not judges, should try cases. Although the record does not enlightenus, both prosecution and defense counselmay have made a decision to force the jury to either convictor 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 instructthe jury

### sua sponteon 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 Itrequires a factfinding process free ofany impermissible extraneous influences on the trier of fact." Trujillov. Sullivan (10thCir. 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 thiscase to instruct the jury

### sua swonteon the lesserincluded 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 theSupremeCourtheld thatthedueprocess clauseguarantees 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, inwhich the Supreme Court stated that vg[p]rovidingthe jurywith the 'thirdoption' of convictingon 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 

### thedue process clause and that the trial court's giving of such an instruction

### sua monte is includedwithin 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 lesserincluded offense in a capital case. The jury convicted the defendant of the capital offense. The SupremeCourt struck downtheAlabama statute. Inholding 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 somedoubtwith respect toan element that would justify conviction of a capital offense--the failuretogive the jury the "thirdoptionwof 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 lesserpunishments. 

# .. . Beck, 447U.S. at 637. Given the Beck Court's emphasis on the life and death nature of guilt determination in capital cases and "the significantconstitutional difference between the death penaltyand lesser punishment^,^^ the due process clause does not necessarily requirelesser-included offense instructionsinnoncapital casesasSheppard maintains. Indeed,while praising thevalue of a lesser charge instructionasameans of strengtheningthereasonabledoubt standard, the Beck Court specifically declined to decide whether defendants have a due process right to such an instruction in noncapital cases. Beck, 447U.S. at 638 n. 14. The Supreme Court itselfhas stated that its decision in Beck

was based on the EighthAmendment. "Ourholding in Beck, like our other Eighth Amendment decisions in thepast decade,was concerned with insuring that sentencing discretion in capital cases is channelled so that arbitrary and capricious results are avoided." Hopperv. Evans (1982), 456U.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 FourteenthAmendment, 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 thecircuitsconsideringthisdifficult issuehaveheld 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 Pittsv. 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 (5thCir. 1988), 835 F.2d 126; Chavez v. Kerby (10th Cir. 1988), 848 F.2d 1101 (dueprocess did not entitle defendant charged with6 L

a criminal penetration of child under thirteen to lesser-included offense involving sexual misconduct short of penetration);Perryv. Smith (11thCir. 1987), 810 F.2d 1078. Finally, it is important to remember that the defendant in Beck requesteda 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 lesserincluded offense; the case did not involve whether the trial court shouldhave given a lesser-includedoffense instruction

### sua sponte. At least one federal courthas concluded that Beck does not require judges,asamatter of dueprocess, togive 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 alsoreliesontheNinth Circuit's decision inBashor

v. Risley (9thCir. 1984), 730 F.2d 1228, cert. denied, 469 U.S. 838, 105 S.Ct. 137,83 L.Ed.2d 77 (1984),to supporthis 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 theNinthCircuit rulewhich requires the trial court to instructthe jury as to thedefense theory of the case. This rule was adopted inUnited 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 dueprocess violation occurs when thecourt fails to give such an instruction

### sua sponte. Accordingly, we hold that theDistrict Court's failureto instruct the jury

### sua monte on the lesser-included offense of misdemeanor sexual assault did not deprive Sheppard of his Fourteenth Amendment right todue process. The judgment of the District Court is affirmed.