IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| State of North Dakota, | ) | |||||||
| ) | ||||||||
| Plaintiff-Appellee, | ) | |||||||
| ) | ||||||||
| vs. | ) | |||||||
| ) | ||||||||
| Ernest Coppage, | ) | Supreme Ct. No. 20070304 | ||||||
| ) | ||||||||
| Defendant-Appellant. | ) | |||||||
District Ct. No. 08-06-K-2085
SA File No. F 747-06-10
REPLY TO BRIEF OF PLAINTIFF-APPELLEE
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 L. Jorgensen Presiding
| Lloyd Suhr, Assistant ID#05405 | Kent M. Morrow ID#03503 | |
| Burleigh County State's Attorney | Severin Ringsak and Morrow | |
| 514 E. Thayer Avenue | 411 North 4th St., PO Box 2155 | |
| Bismarck, ND 58501 | Bismarck, ND 58501 | |
| (701) 222-6672 | (701) 255-1344 | |
TABLE OF CONTENTS
| TABLE OF CONTENTS | 2 | ||
| TABLE OF AUTHORITIES | 3 | ||
| ISSUE | 4 | ||
| 1. | Does the merger doctrine apply to the convictions for aggravated assault and attempted murder? | ||
| LAW AND ARGUMENT | 5 | ||
| CERTIFICATE OF SERVICE | 6 | ||
TABLE OF AUTHORITIES
CASES:
| State v. Anderson, 565 N.W.2d 340, (Iowa 1997) | 5 | |
| State v. Banes, 874 S.W.2d 73 (Tenn 1993) | 5 | |
ISSUE
1. DOES THE MERGER DOCTRINE APPLY TO THE CONVICTIONS FOR AGGRAVATED ASSAULT AND ATTEMPTED MURDER?
LAW AND ARGUMENT
1. The doctrine of merger should not apply to the convictions of aggravated assault and attempted murder.
The State urges this Court to adapt the reasoning and result of the Tennessee Supreme Court in State v. Banes, 874 S.W.2d 73 (Tenn. 1993). The State urges the adoption of the merger doctrine in North Dakota.
The merger doctrine provides that, where it is impossible to commit the greater offense without also committing the lesser offense, the lesser offense merges with the greater offense and the conviction as the greater offense stands.
If the lesser offense contains an element that is not part of the greater offense, the lesser cannot be included in the greater and merger doctrine would not preclude convictions for both. State v. Anderson, 565 N.W.2d 340, (Iowa 1997). A review of the essential elements of each offense for which Coppage was convicted - attempted murder and aggravated assault - reveals a clear set of additional elements for the attempted murder, i.e. the element of extreme indifference to the value of human life and that Coppage attempted to kill Lindsey Wagner. Therefore, the elements test does not apply and the merger doctrine does not apply to merge the lesser conviction into the greater one. In addition, the charge of aggravated assault also required the State to prove, beyond a reasonable doubt, the non-existence of the defense of self-defense. This Court is left with two convictions for the same conduct in violation of the Double Jeopardy Clause of the United States and North Dakota Constitutions.
The merger doctrine does not apply. The verdicts and judgment must be reversed and a new trial ordered.
Dated this ____ day of April, 2008.
| ___ | |||||||
| Kent M. Morrow ID#03503 | |||||||
| Attorney for Appellant | |||||||
| 411 North 4th St., PO Box 2155 | |||||||
| Bismarck, ND 58502-2155 | |||||||
| (701) 255-1344 |