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State v. Sellner12/29/1997
Submitted on Briefs December 16, 1997.
In proceedings before the Twentieth Judicial District Court, Lake County, Gordon D. Sellner was charged with attempted deliberate homicide and criminal endangerment. A jury found him guilty of attempted deliberate homicide, and he appeals. We affirm.
Sellner argues that his trial counsel failed to request jury instructions on attempted mitigated deliberate homicide and aggravated assault as lesser included offenses, thus violating Sellner's right to effective assistance of counsel.
BACKGROUND
On the evening of June 27, 1992, a Lake County, Montana, resident called the local sheriff's office to report that he had been assaulted at his home. He identified John Dorin as his assailant. Missoula County Deputy Sheriff Robert Parcell was the closest officer to the scene and the first to respond to the call.
Parcell drove first to Dorin's home and spoke with him. Dorin maintained that he had been working at Sellner's sawmill that day and denied assaulting the victim. Parcell then went to the victim's home, where the victim continued to maintain that it was Dorin who had assaulted him and identified Sellner as a witness. He also told Parcell that the assault had ended after his dog bit Dorin on the face. Two other law enforcement officers, also responding to the victim's phone call, arrived at the victim's house. The three officers returned to Dorin's home. After questioning him further and noting a wound on his cheek consistent with a dog bite, they arrested him. They then went to Sellner's house to get a statement from him.
Parcell did not know at that time that Sellner had not paid federal income taxes for nearly twenty years as a protest against abortion rights, or that Sellner did not have a driver's license because he believed that he had the right to refuse to enter such contracts with the government. As a result of the positions he had taken on those and other matters, Sellner avoided contact with law enforcement.
Sellner was not home, but his wife told Parcell where he had gone and with whom. Because it was getting late and it was a stormy night, Parcell and the other officers decided to wait until morning to find Sellner and interview him. As they drove away, they saw the vehicle in which they believed Sellner was riding, on the road heading toward Sellner's home. Activating his overhead lights, Parcell pulled the car over. Sellner, who was a passenger in the vehicle, jumped out of the car and fled into the woods. Parcell got out of his vehicle and shouted for Sellner to stop. On his way into the woods, Sellner turned and shot Parcell in the chest with the .41 caliber handgun which he carried with him. A brief exchange of gun fire ensued between Sellner and Parcell, ending when Sellner fired into the air before taking off through the woods toward his home.
Because Parcell was wearing a bulletproof vest, he survived the shooting. The force of the bullet created a gaping wound in his chest, however, and he was transported to the nearest hospital.
For over three years, Sellner remained at large but under surveillance. He was finally arrested in a July 1995 undercover operation at his home. During surveillance of Sellner just before his arrest, he fired a gun into the woods where law enforcement officers were stationed. That incident was the basis for the criminal endangerment charge of which the jury acquitted him.
Before trial, Sellner was referred by the court for a psychological evaluation at the Montana State Hospital. It was the opinion of the professionals at the State Hospital that Sellner did not suffer from a mental d
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