United States v. John D. Parisien

574 F.2d 974, 1978 U.S. App. LEXIS 11401
CourtCourt of Appeals for the Eighth Circuit
DecidedMay 2, 1978
Docket77-1879
StatusPublished
Cited by22 cases

This text of 574 F.2d 974 (United States v. John D. Parisien) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. John D. Parisien, 574 F.2d 974, 1978 U.S. App. LEXIS 11401 (8th Cir. 1978).

Opinions

PER CURIAM.

John D. Parisién appeals from a jury verdict finding him guilty of larceny within the boundaries of Indian territory, a violation of 18 U.S.C. §§ 661 and 1153. Appellant Parisien’s sole contention on this appeal is that the district court’s1 instruction to the jury concerning voluntary intoxication was erroneous. We affirm.

Parisién requested the following instruction (Defendant’s Requested Instruction No. 7) on intoxication:

Although intoxication or drunkenness alone will never provide a legal excuse for the commission of a crime, the fact that a person may have been intoxicated at the time of the commission of a crime may negate the existence of a specific intent.
So, evidence that a defendant acted or failed to act while in a state of intoxication is to be considered in determining whether or not the defendant acted, or failed to act, with specific intent, as charged.
If the evidence in the case leaves the jury with a reasonable doubt whether, because of the degree of his intoxication, the mind of the accused was capable of forming, or did form, specific intent to commit the crime charged, the jury should acquit the accused.
The jury will always bear in mind that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.

See 1 E. Devitt and C. Blackmar, Federal Jury Practice and Instructions § 14.19 (3rd ed. 1977).

[976]*976The district court did not use that instruction, but gave the following instruction concerning voluntary intoxication:

A condition or state of voluntary intoxication, if shown by the evidence to have existed in the Defendant at the time he allegedly committed the crime charged, is not of itself a defense. As a general rule, voluntary intoxication affords no excuse, justification or extenuation for a crime committed under its influence.
But, whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, you may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act.
Thus, in the crime of larceny, of which the Defendant is accused in this case, the specific intent to steal and purloin is a necessary element of the crime. So, evidence that a defendant acted while in a state of intoxication is to be considered in determining whether or not the defendant acted with specific intent, as charged. The weight to be given the evidence on that question and the significance to attach to it, in relation to all the other evidence, are for you to determine.

Parisién contends that the instruction given by the court failed to instruct the jury to acquit the accused if they had a reasonable doubt as to whether the accused had the capacity to form the specific intent required for the crime of larceny. Parisién further argues that the given instruction failed to instruct the jury in accordance with the applicable North Dakota statute.

The record reveals that on November 8, 1977, out of the presence of the jury, the attorneys made specific objections to the district court’s proposed instructions. Pari-sien’s attorney took specific exception to the court’s instruction concerning possession of property recently stolen (Instruction No. 15). In addition, Parisien’s attorney specifically excepted to the court’s failure to include three of Parisien’s requested instructions (Defendant’s Requested Instructions Nos. 8,10 and 12). However, at no time did the defense take exception to the court’s instruction on voluntary intoxication, nor did he object to the court’s failure to give Defendant’s Requested Instruction No. 7, supra.

Fed.R.Crim.P. 30 provides in part: No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.

As this court has stated before in reference to Rule 30, “The object of Rule 30 is to afford an adequate opportunity for the trial judge to correct mistakes in his charge and for the opposing party to keep the record clear of error.” United States v. Phillips, 522 F.2d 388, 391 (8th Cir. 1975).

Our review of the record convinces us that the district court was not afforded the opportunity to "correct the alleged mistakes in the voluntary intoxication instruction. Parisien’s initial tender of an alternative instruction, without objecting to specific error in the court’s final charge concerning voluntary intoxication, does not comply with Rule 30. United States v. Byrd, 542 F.2d 1026, 1028 (8th Cir. 1976); United States v. Phillips, supra, 522 F.2d at 391. See United States v. Williams, 172 U.S.App.D.C. 290, 295-296, 521 F.2d 950, 955-56 (1975). We are aware of the district court’s general statement to counsel, after all specific exceptions had been voiced by counsel, that “All specific requests for instructions except as included within the general charge are denied, and counsel are deemed to have taken 'exception to any requested instructions that were not included in the general charge.” This, however, does not relieve counsel of making specific exceptions under Rule 30.

Since there was no timely objection to the voluntary intoxication instruction, we will regard it as reversible error only if it affects substantial rights. Fed.R.Crim.P. 52(b). See United States v. Gambina, 564 F.2d 22, 24 (8th Cir. 1977); United States v. [977]*977Cheyenne, 558 F.2d 902, 906 (8th Cir. 1977); United States v. Robinson, 539 F.2d 1181, 1185 (8th Cir. 1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1124, 51 L.Ed.2d 550 (1977); United States v. Hinderman, 528 F.2d 100, 102 (8th Cir. 1976).

We do not find plain error affecting Parisien’s substantial rights in the district court’s failure to include within the voluntary intoxication instruction a statement concerning reasonable doubt. It is axiomatic that the jury instructions should be construed as a whole. United States v. Kershman,

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United States v. John D. Parisien
574 F.2d 974 (Eighth Circuit, 1978)

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Bluebook (online)
574 F.2d 974, 1978 U.S. App. LEXIS 11401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-john-d-parisien-ca8-1978.