IN THE SUPREME COURT
STATE OF NORTH DAKOTA
SUPREME COURT NO. 20070304
| State of North Dakota, | Crim. No. 06-K-2085 | |||||
| Appellee, | ||||||
| vs. | ||||||
| Ernest Coppage, | ||||||
| Appellant. | ||||||
APPELLANT'S BRIEF
Appeal from the Jury Trial and Verdict, July 26-27, 2007, and
Sentencing Held on October 8, 2007, and
Order Denying Motion for New Trial, dated February 8, 2008
the Honorable Donald Jorgensen Presiding
| Lloyd Suhr, Asst. | Kent M. Morrow | |
| Burleigh County States Attorneys Office | Severin Ringsak and Morrow | |
| 514 E. Thayer Avenue | 411 North 4th Street #6 | |
| Bismarck, ND 58501 | Bismarck, ND 58501 | |
| (701) 222-6672 | (701) 255-1344 | |
| ID#05405 | ID#03503 | |
TABLE OF CONTENTS
| TABLE OF CONTENTS | ...2 | ||
| TABLE OF AUTHORITIES | 3 | ||
| STATEMENT OF FACTS | .4 | ||
| STATEMENT OF PROCEEDINGS | .4 | ||
| ISSUES | .5 | ||
| 1. | Was the verdict form legally and logically inconsistent? | ||
| 2. | Did the Court err in denying the Motion for New Trial? | ||
| 3. | Was there sufficient evidence to support the conviction of Attempted Murder? | ||
| LAW AND ARGUMENT | ...6 | ||
| CERTIFICATE OF SERVICE | ...12 | ||
TABLE OF AUTHORITIES
| CASES: | |||
| People v. Graham, 219 Mich. App. 707, 558 N.W.2d 2, 3 (1996) | 10 | ||
| People v. Hall, 174 Mich.App. 686, 688, 436 N.W.2d 446 (1989) | ..10 | ||
| People v. LaMarna, 96 App. Div.2d 1103, 467 N.Y.S. 2nd 74 (1983). | ....11 | ||
| State v. Bittner, 359 N.W.2d 121 (S.D. 1984) | ..10 | ||
| State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). | ....7 | ||
| State v. Comacho, 487 N.W.2d 67 Wis. App. (1992) | ..10 | ||
| State v. Larson, 453 N.W.2d 485 (N.D. 1990). | ..11 | ||
| State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). | ...7 | ||
| State v. Smith, 529 N.W.2d 116 (Neb.App. 1995). | ....10 | ||
STATEMENT OF FACTS
The statement of relevant facts are contained in the Law and Argument portion of the brief.
STATEMENT OF PROCEEDINGS
On October 24, 2006, Ernest Coppage ("Coppage") was charged by criminal Complaint with the offense of Attempted Murder. On December 11, 2006, he was arraigned and entered a plea of not guilty.
A jury trial was held on July 26-27, 2007, the Honorable Donald Jorgensen, presiding. Following the trial, the jury returned verdicts of guilty on both Attempted Murder and Aggravated Assault.
On October 9, 2007, Coppage was sentenced to fifteen (15) years at the North Dakota Department of Corrections. On October 10, 2007, Coppage filed a Notice of Appeal.
On January 28, 2008, Coppage filed a Motion for New Trial. On February 7, 2008, the District Court issued its Order Denying Motion. On February 25, 2008, Coppage filed a Notice of Appeal from the Order Denying Motion.
ISSUES
1. WAS THE VERDICT FORM LEGALLY AND LOGICALLY INCONSISTENT?
2. DID THE COURT ERR IN DENYING THE MOTION FOR NEW TRIAL?
3. WAS THERE SUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION OF ATTEMPTED MURDER?
LAW AND ARGUMENT
1. The verdict form was legally and logically inconsistent and must be reversed.
Prior to the commencement of the jury trial, the Court issued preliminary jury instructions. It instructed the jury on the essential elements of the offense charged Attempted Murder as well as the lesser included offense of Aggravated Assault. Both parties agreed that these were proper charges for the jury to consider.
The jury verdict form contained a place to find Coppage guilty or not guilty of both offenses. Following lengthy deliberations, the jury returned verdicts. The presiding juror indicated to the Court that the jury had "achieved a verdict . . .". [Emphasis added]. (Tr.p. 657, ll. 17-20). The Court only read the top of the verdict form that found Coppage guilty of the charge of Attempted Murder. (Tr.p. 67, ll. 24-25; p. 658, ll. 1-8). The jury was polled. No one, including the jurors or the Court revealed that the jury had in fact found him guilty of both the charged offense as well as the lesser-included offense.
Coppage, through his counsel, conceded that he (Coppage) was guilty of Aggravated Assault. (Tr.p. 606, ll. 8-19). The jury deliberated, a total of 6 hours over a two day period before reaching their verdicts. It is logical to assume that the initial discussion was on the aggravated assault charge. Coppage conceded as much. The evidence was certainly consistent with Aggravated Assault.
The jury issued several questions to the Court well into the deliberations, including one requesting a "broader, clearer explanation" of "what constitutes 'a substantial step' toward the commission of crime of murder?" (Tr.p. 656, ll 10-14). The question came at 9:35 a.m. on the second day of deliberations. Following the Court's response, the Court was advised at 10:09 a.m. of the jury's decision (probably made several minutes prior to the 10:09 a.m. notification of the bailiff). Once again, the logic seems to dictate that the "conviction" for Aggravated Assault came early, followed later by a conviction of Attempted Murder.
The Minnesota Supreme Court has stated that logically inconsistent verdicts do not entitle a defendant to a new trial. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). However, legally inconsistent verdicts may form the basis for a new trial. Verdicts are legally inconsistent when proof of the elements of one offense negates a necessary element of another offense. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).
The essential elements of attempted murder and aggravated assault are:
CRIMINAL ATTEMPT
"A person is guilty of Criminal Attempt if, acting with the kind of culpability otherwise required for commission of a crime, that person intentionally engages in conduct which constitutes a substantial step toward commission of the crime. A "substantial step" is any conduct that tends toward but falls short of the actual commission and is strongly corroborative of the firmness of the actor's intent to complete the commission of the crime."
ATTEMPTED MURDER
"A person is guilty of Attempted Murder if the person acted with the kind of culpability otherwise required for the commission of the crime, intentionally engaged in conduct which, in fact, constitutes a substantial step toward the commission of the crime of murder."
ESSENTIAL ELEMENTS OF THE OFFENSE
The State's burden of proof is satisfied if the evidence shows beyond a reasonable doubt, the following essential elements:
(1) On or about the 24th day of October, 2006, in Burleigh County, North Dakota;
(2) The Defendant, Ernest Coppage;
(3) Intentionally;
(4) Engaged in conduct which constitutes a substantial step toward the commission of the crime of murder.
(5) Did so under circumstances manifesting an extreme indifference to the value of human life;
(6) Specifically, the defendant attempted to kill Lindsay Wenger, and
(7) The Defendant was not acting in self defense.
The question is whether proof of either offense negates a necessary element of the other offense. An initial examination of the elements reveals that each crime requires a different state of mind. Attempted murder requires intentional conduct. Aggravated Assault either willful or knowing conduct. In addition, Attempted Murder requires conduct manifesting an extreme indifference to the value of human life, while Aggravated Assault requires conduct either serious or substantial bodily injury. Clearly, there are several elements of either crime that specifically negate an element of the other. Therefore, the two verdicts are legally inconsistent and cannot stand. The Court needs to reverse the verdict and remand for a new trial.
2. The Court erred when it denied the Motion for New Trial.
As stated above, the verdicts were legally inconsistent. The legal inconsistency of the verdicts was the basis for the Motion for New Trial. Because the verdicts were legally inconsistent, the trial court committed reversible error.
3. There was insufficient evidence to support the conviction for Attempted Murder.
Most states require that the defendant have a specific intent to kill the victim in order to sustain a conviction for attempted murder. See People v. Hall, 174 Mich.App. 686, 688, 436 N.W.2d 446 (1989); People v. Graham, 219 Mich. App. 707, 558 N.W.2d 2, 3 (1996); State v. Comacho, 487 N.W.2d 67 Wis. App. (1992); State v. Bittner, 359 N.W.2d 121 (S.D. 1984); State v. Smith, 529 N.W.2d 116 (Neb.App. 1995).
A conviction may not be based upon a defendant's negligent or reckless actions. People v. Graham, supra at 3.
The inclusion of the specific intent to kill Lindsey Wenger was the difference between the charges of Attempted Murder and Aggravated Assault.
Intent can only be satisfied if the State proved, beyond a reasonable doubt, that Coppage intended that his actions in assaulting Wenger would result in her death. The evidence was insufficient.
The incident on October 24, 2006, evolved into several different stages during the early morning hours.
Lindsey Wenger ("Wenger") and Coppage were still residing together even after their relationship dissolved. (Tr.p. 82, ll. 20-21). Wenger had gone out with a friend the previous evening. (Tr.p, 82, ll. 19-25). After spending the night drinking at bars, Wenger returned home. (Tr.p.90, ll. 7-11). Upon entering the residence, she saw Coppage and his friend Juanita were smoking crack cocaine. (Tr.p. 94, ll. 1-5). Wenger was upset. She told them to get out. (Tr.p. 94, ll. 15-22). Coppage told Juanita to leave. Wenger then slapped Coppage. (Tr.p. 96, ll. 11-24). Wenger was "pretty drunk." (Tr.p. 252, l. 20). Coppage and Wenger were "screaming and hollering at each other." (Tr.p. 252, ll. 17-22). Coppage did not attempt to strike Wenger, but "was trying to put her arms down." (Tr.p. 252, ll. 23-25). Wenger hit Coppage. He fell backwards and hit the wall. (Tr.p. 253, ll. 5-8). Wenger pushed Coppage out of the way and went into the bathroom, with a plunger in her hand. Coppage took the plunger away from her. (Tr.p. 465, ll. 8-15). He threw it on the ground. (Tr.p. 467).
Coppage sat down on the couch and dialed Juanita for a ride. (Tr.p. 470, ll. 1-3). Wenger came of the bathroom, looked at the hole in the wall. She screamed at Coppage and hit him in the nose. (Tr.p. 470, ll. 4-7). This was the third time that Wenger had struck Coppage that night. (Tr.p. 471, ll. 1-7). Coppage attempted to defend himself, by "swinging back." (Tr.p. 472, l. 1).
Coppage did strike Wenger with his fist, but not the plunger. (Tr.p. 473, ll. 19-25). Somehow, the fight continued to the kitchen. Coppage and Wenger were standing. Coppage had a scissors in his hand. (Tr.p. 473, ll. 6-10). Wenger grabbed them out of his hand. (Tr.p. 476, ll. 14-23). Coppage stated for Wenger to "go for it." She then lunged toward Coppage with the scissors. (Tr.p. 477, ll. 3-16). Wenger said repeatedly, "Don't kill me." Coppage told her "that I wasn't going to kill her." (Tr.p. 478m, ll. 12-14). Coppage "walked away from her and went through the kitchen to the living room table and grabbed my cell phone to dial 911." (Tr.p. 479, ll. 7-9). Coppage waited for an ambulance to arrive. The only thing used by Coppage that evening that could have caused Wenger's injuries were his fists. (Tr.p. 483, ll. 13-16).
The standard of review for this Court on the issue of sufficiency of the evidence on a criminal conviction on a criminal conviction is to determine whether there was competent evidence that allowed the jury to draw a reasonable inference of guilt and that fairly warranted a conviction. State v. Larson, 453 N.W.2d 485 (N.D. 1990).
Courts in other states have ruled that the evidence was insufficient to sustain a conviction for attempted murder where, although force was used, the victim had not been injured in a manner that was potentially fatal. People v. LaMarna, 96 App. Div.2d 1103, 467 N.Y.S. 2nd 74 (1983).
The main documented injury received by Wenger was a right orbital blowout fracture. (Tr.p. 410, ll. 16-25). This was not potentially fatal. A CAT scan was done of Wenger and also revealed a "questionable subarachnoid bleed as well." (Tr.p. 400, ll. 14-15). (Emphasis added). Her condition failed to deteriorate to a life-threatening situation. She was released from the hospital. (Tr.p. 441, ll. 3-5).
The evidence does not support a finding of any intentional conduct by Coppage to cause the death of Wenger. The flurry of activity, precipitated by Wenger's striking out at Coppage, and coupled with the spontaneous continuity of events, supports only aggravated assault and not attempted murder. There was no time for reflection or planning by Coppage. All of his actions were instinctual and responsive to the actions of Wenger.
The evidence was insufficient to sustain the conviction for Attempted Murder. The conviction must be reversed.
Dated this ____ day of February, 2008.
| Kent M. Morrow ID#03503 | |||||||
| Attorney for Appellant | |||||||
| 411 North 4th Street #6 | |||||||
| Bismarck, ND 58501 | |||||||
| (701) 255-1344 | |||||||