State v. Dyer

• Decision Date: 19 September 1983
• Docket Number: No. 18377,18377
• Citation: State v. Dyer, 671 P.2d 142 (Utah 1983)
• Parties: STATE of Utah, Plaintiff and Respondent, v. Thomas Peterson DYER, Defendant and Appellant.
• Court: Utah Supreme Court

Page 142

671 P.2d 142

STATE of Utah, Plaintiff and Respondent, v. Thomas Peterson DYER, Defendant and Appellant.

No. 18377.

Supreme Court of Utah.

Sept. 19, 1983.

Ronald R. Stanger, Provo, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Robert N. Parrish, Salt Lake City, for plaintiff and respondent.

HALL, Chief Justice:

Defendant Thomas P. Dyer was tried by the court, sitting without a jury, for the shooting death of Nina Marie Fuelleman. He was convicted of negligent homicide ¹ and sentenced to a term of one year in the Utah County Jail, together with a fine of $1,000. On this appeal, he contends: (1) the trial court is without authority to consider a lesser included offense in view of its finding of not guilty as to the charge of manslaughter; (2) negligent homicide is not a lesser included offense of manslaughter; and (3) the evidence presented at trial is insufficient to sustain a verdict of guilty to the charge of negligent homicide. We affirm.

On the evening of August 20, 1981, defendant, his brother Robert Dyer and one Nina Fuelleman went to a private club in American Fork, Utah, where all three partook of alcoholic beverages. Robert Dyer testified that he became mildly intoxicated that evening and that defendant became heavily intoxicated. ² Sometime after 1:00 a.m. (August 21, 1981), they left the club and, at approximately 1:30 a.m., arrived at the house where defendant and Robert resided.

Upon arriving at the house, defendant announced that he was going on to his girlfriend's house for the night. Robert objected to defendant's taking the car and took the keys away from him. An argument then ensued between the brothers as they, with Nina, entered the house. Nina apparently went upstairs, while defendant and Robert continued to argue downstairs. Robert reports that he finally grabbed defendant by the throat because he "couldn't get a word in edgewise" and proceeded to strangle and hit defendant. Then, after a time, Robert "felt sorry for taking advantage" of defendant and let him go. Defendant went immediately into his bedroom, which was also on the downstairs level. Seconds later, Robert went to the doorway of the bedroom and saw defendant backing out of a closet with a .30-.30 caliber rifle in his hand. The next thing Robert remembers is an explosion from the gun.

When the gun discharged, the bullet passed approximately two feet from Robert and through the door frame. Unbeknown to either Robert or defendant, Nina had come downstairs and was standing outside the bedroom. After the bullet passed through the door frame, a fragment struck Nina in the head and killed her.

Robert immediately telephoned for emergency assistance. When the police arrived, defendant told them that he and Robert had been discussing the deer hunt and admiring the gun when it accidentally discharged. At trial, however, Robert testified that defendant's account of the incident to the police was false. He testified that the shooting was indeed accidental, but that it did not occur while discussing the deer hunt or admiring the rifle; rather, it occurred immediately after a fight between defendant and Robert.

According to Robert's testimony, defendant was holding the gun at a level somewhere between his hips and shoulders when it discharged. Further evidence adduced at trial revealed that the bullet struck the door frame five feet above the floor and, as noted above, only two feet from where Robert was standing. Notwithstanding this evidence, together with the evidence that the shooting took place only seconds after defendant and Robert had been physically fighting, Robert maintains that defendant neither threatened him with the gun nor aimed it at him.

Robert also testified that he did not see or hear the gun being loaded by defendant. Nevertheless, the police discovered, in an open drawer next to where defendant had been standing when the gun discharged, two spent cartridges and a box of .30-.30 caliber ammunition.

A neighbor testified that she heard male voices coming from Robert and defendant's house at approximately 1:30 a.m., a minute or two after she observed people getting out of a car and entering the house. She reports that the language she heard was profane, argumentative and threatening. She also testified that just before she heard the gunshot, she heard one of the male voices say, rather distressfully, "Not that. Not that."

A gunsmith testified that the gun involved was in perfect working condition. He indicated that, although the trigger pull had been lightened from the factory setting by a gunsmith, it was still heavy enough to require a conscious effort to pull it. He further testified that in his expert opinion, this particular gun could not have been fired without pulling the trigger.

An information was filed against defendant on August 21, 1981, charging him with second degree murder. ³ On January 21, 1982, by amended information, the charge was reduced to manslaughter. ⁴ At the conclusion of arguments at trial, the judge informed counsel that the evidence appeared to be insufficient to prove manslaughter, but that it might be sufficient to prove the lesser included offense of negligent homicide. He instructed counsel to return the next day prepared to discuss the elements of negligent homicide. The next day, counsel presented their arguments as per the judge's request, whereupon the judge entered a verdict of guilty of negligent homicide.

It is defendant's position on appeal that the trial court acted without authority in considering the lesser included offense of negligent homicide, and further, that consideration of this offense, after acquittal of the manslaughter charge, violated his constitutional guarantees against being twice put in jeopardy. ⁵

Defendant argues that where an acquittal is sought on an "all or nothing" defense theory, i.e., that the defendant is totally innocent of any wrongdoing, the trial court cannot consider a lesser included offense absent a specific request by the defendant. The sole support offered by defendant for this position is an argument made by plaintiff (State of Utah) in the case of Boggess v. State. ⁶ In Boggess, the State took the well-recognized position that the trial court was not obligated to instruct the jury on a lesser included offense where the defendant failed to request the instruction or provide any evidentiary basis therefor; it did not, however, argue, as defendant does here, that the trial court is precluded from instructing the jury on a lesser included offense where the defendant employs an "all or nothing" defense theory. Thus, the State's argument in Boggess is not supportive of defendant's position herein. Nor do we find defendant's position to be consistent with the law in this jurisdiction. This Court has recognized on numerous occasions the prerogative of the trial court to submit or consider lesser included offenses whenever the interest of justice so requires. ⁷

In the case of State v. Mitchell, ⁸ the Court addressed the question as to whether the trial court had the authority to submit a lesser included offense when no request had been made by counsel:

As to the situation where instructions are not requested, and there may be some evidence touching included offenses, we believe the trial court, in its sound discretion, based on the evidence presented, and after paying due respect to the fact that, as a procedural choice deemed beneficial to his client, counsel purposely and deliberately may have concluded not to ask for instructions as to included offenses, should be allowed to determine whether or not such instructions should be given. ⁹

Clearly, the trial court has the authority to submit a lesser included offense in the absence of a specific request by counsel.

The rationale behind the discretion given the trial court with respect to the submission of lesser included offenses has been stated as follows:

If one were to view a trial as a strictly adversarial contest or combat between two parties, one could argue that a defendant should have the right to win or lose solely on the basis of what the prosecution has charged. However, a criminal trial is much more than just a contest between the State and an individual which is determined by strategies appropriate to determining the outcome of a game. A primary purpose of a criminal trial is the vindication of the laws of a civilized society against those who are guilty of transgressing those laws.

....

... [W]hen evidence of a defendant's criminal conduct has been placed before a court of justice, even though that conduct has not been specifically charged, it would be a mockery of our criminal laws for a court to ignore a proved crime and acquit on the charged crime, when the defendant is not prejudiced in presenting a full and complete defense to the proved crime. ¹⁰

Defendant's claim of double jeopardy arises out of an action taken by the trial judge during the course of the trial. At the conclusion of the arguments pertaining to the manslaughter charge, the judge made the following observation:

THE COURT: Okay. I am convinced--well, let's put it another way: that the evidence is not convincing that the defendant intentionally pulled the trigger on the rifle. I'd have to find that, I think, in order to find this man guilty of the offense charged [manslaughter] beyond a reasonable doubt, and I can't do that. However, I agree with what you say with respect to the negligence involved in bringing a loaded, taking a loaded rifle under the circumstances, being intoxicated, having it on his lap, having it in a condition that it can be discharged accidentally with people around, and I believe that that is negligent homicide under Section 76-5-206. However, I'm not going to pass sentence--strike that. I'm not going to find that he's guilty of that offense this afternoon. I'm going to give you an opportunity to brief the law on that matter, and you can come back...