State v. Tweed, Cr. N

Citation491 N.W.2d 412
Decision Date06 October 1992
Docket NumberCr. N
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Reginald Elbert TWEED, a/k/a Reggie Tweed, Defendant and Appellant. o. 910380.
CourtUnited States State Supreme Court of North Dakota

John T. Goff (argued), State's Atty., Fargo, for plaintiff and appellee.

Brothers & Beauchene, Fargo, for defendant and appellant; argued by Benjamin E. Thomas, Fargo.

ERICKSTAD, Chief Justice.

Reginald Elbert Tweed appeals from a Cass County District Court judgment of conviction for murder. We affirm.

On October 24, 1991, Tweed was found guilty by a jury of class AA felony murder and theft of property and was sentenced to life in prison on October 25, 1991. His appeal presents this Court with two issues: 1) whether or not the trial court erred in failing to instruct the jury on the lesser included offense of negligent homicide; and 2) whether or not the language of the murder statute under which Tweed was convicted is unconstitutionally void for vagueness. 1 Tweed's conviction for theft of property was not appealed to this Court.

On or about April 8, 1991, the deceased body of Terry Dorff, age 32, was discovered at his Fargo residence. Dorff was found in a prone position on his waterbed, he had been gagged, and "hog-tied" with speaker wire. 2 There was a large, bloodied rock beside his head. His face and head were badly beaten. He had on a shirt which was unbuttoned, and he was unclothed from the waist down. The cause of death was probably a combination of asphyxia (due to the gag, the "hog-tie" position, and the position of the face against the waterbed) and blood loss (due to the head injuries).

Also found at Dorff's residence were a set of car keys with some very unique key chains attached to the key ring. These keys were either lying underneath Dorff's body or beside it. In an attempt to find leads for the murder, the Fargo police displayed the keys and key chains to the media. Tweed's wife, Raymona, saw photographs of them in the newspaper and contacted the police, stating that the keys and key chains belonged to her husband. Subsequently, Tweed went to the Cass County Jail to claim the keys and key chains. During that visit, he admitted to the authorities that he and David Sumner had been at Dorff's residence on the early morning of Dorff's death, that they hit Dorff about the face and head with their fists, that they bound him in the "hog-tie" position, that they placed a large gag in his mouth, that they struck him on the head with a large rock, and then they fled his residence in Dorff's car.

During the trial, Tweed testified that Dorff was a homosexual, and that Dorff made advances toward Tweed after inviting Tweed and Sumner to his apartment, subsequent to meeting them at the adult bookstore in Fargo. Tweed said the advances by Dorff made him very angry and he began hitting Dorff in the face and head area with his fists, and that Sumner joined in the beating. Tweed stated that Dorff began hitting him back, yelling, and that Dorff threatened to call the police. Tweed explained that he and Sumner gagged and "hog-tied" Dorff to prevent him from making noise, and to keep him from fighting back. Tweed said they then hit Dorff over the head with the large rock to knock him out, "so we could get a head start before he woke up and called the police." Tweed testified that during the incident he simply exercised "bad judgment" and that things just "escalated."

At the close of the trial, the jury was instructed on class AA felony murder, class A felony murder, and manslaughter. The jury was not, however, instructed on negligent homicide, a lesser offense of murder and manslaughter. Tweed's attorney requested an instruction on negligent homicide, but the trial court refused to include one with the rest of the instructions. 3 The jury convicted Tweed of class AA felony murder, and the court sentenced Tweed to life in prison.

On the first issue before this Court, that of the lack of an instruction on the lesser included offense, it should be noted that a defendant does not have a constitutional right to a lesser included offense instruction. "[W]e have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process...." Beck v. Alabama, 447 U.S. 625, 637, 100 S.Ct. 2382, 2389, 65 L.Ed.2d 392 (1980). See also Keeble v. United States, 412 U.S. 205, 213, 93 S.Ct. 1993, 1998, 36 L.Ed.2d 844 (1973); Schad v. Arizona, --- U.S. ----, ---- - ----, 111 S.Ct. 2491, 2504-05, 115 L.Ed.2d 555 (1991); State v. Sheldon, 301 N.W.2d 604, 608 n. 1 (N.D.1980), cert. denied, 450 U.S. 1002, 101 S.Ct. 1711, 68 L.Ed.2d 204 (1981); State v. Houser, 261 N.W.2d 382, 384 (N.D.1977); State v. Piper, 261 N.W.2d 650, 653 (N.D.1977).

"[A] determination that an offense is a lesser included offense does not necessarily require that a lesser included offense instruction be given upon request." State v. Langan, 410 N.W.2d 149, 152 (N.D.1987). Only under certain circumstances will the lesser included offense instruction be required. "[T]he defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater." Houser, supra, 261 N.W.2d at 384 (quoting Keeble, supra, 412 U.S. at 208, 93 S.Ct. at 1995).

We implement a two-pronged "independent evidence" test to determine whether or not the lesser included offense should be given to the jury. We have said:

"The test is not merely whether or not the offense is a lesser included offense of the basic offense charged, but rather is whether or not there is evidence which will create a reasonable doubt as to the greater offense and support a conviction of the lesser included offense. The 'beyond a reasonable doubt' test also applies to the lesser included offense."

Piper, supra, 261 N.W.2d at 654. See also Langan, supra, 410 N.W.2d at 152, State v. Gross, 351 N.W.2d 428, 431 (N.D.1984); State v. Skjonsby, 319 N.W.2d 764, 776-77 (N.D.1982); State v. Trieb, 315 N.W.2d 649, 656 (N.D.1982); Houser, supra, 261 N.W.2d at 385.

The evidence in this case does not support an instruction on negligent homicide. Tweed's conduct could not be conceived by reasonable people to be negligent conduct. Tweed, during his trial, admitted that he acted either recklessly or negligently on the morning of Dorff's death.

"Q. Do you feel that you may have act--acted during the whole scope of this situation either recklessly or negligently?

"A. Yes."

In closing arguments, Tweed's attorney told the jury that his client was reckless. What defense counsel disputed in closing argument was not Tweed's recklessness, but that his conduct constituted extreme indifference to human life.

"It's been brought up that my client and I have discussed the case and my client said on the witness stand that he was reckless....

"The very definition of reckless, as you will read, I will read it to you, will indicate that he was reckless. I mean there is no doubt about it."

Tweed is before this Court today, contending that the trial court erred in refusing to instruct the jury on the "lesser-included offense of negligent homicide." According to Tweed's own testimony, Tweed and David Sumner beat Terry Dorff about the head and face with their fists, "hog-tied" Dorff and placed a large gag in his mouth, hit him on top of the head more than once with a large rock, left him in a prone position on his waterbed, and then fled in Dorff's car to avoid the police. Nothing in these facts indicates to us that Tweed's actions were "negligent." Tweed's conduct appears intentional, willful, and maybe reckless, but NOT negligent. He and his attorney agreed with this conclusion at trial, albeit they had no encouragement to argue negligence. The facts in this case obviously do not pass the independent evidence test, and thus the trial court did not err in refusing to give the negligent homicide instruction.

In spite of the above evidence, Tweed asserts on appeal that the trial court was required to give the negligent homicide instruction in light of our decision in State v. Leidholm, 334 N.W.2d 811 (N.D.1983), and its progeny. We disagree.

First, it should be noted that previously, this Court has been reluctant to require trial courts to instruct the jury on all lesser included offenses of the crime charged regardless of the evidence presented at trial. Such a requirement could lead to a less reliable jury verdict.

"We are not satisfied that justice will be done if instructions on the lesser included offense are given regardless of the evidence because it may well lead the jury to a compromise decision, which is not compatible with the function of the jury in a criminal case."

Piper, supra, 261 N.W.2d at 654.

Additionally, Leidholm and its progeny are distinguishable from the case at hand. In Leidholm, we in essence held that if a trial court instructs the jury on self-defense at the defendant's request, and also instructs on manslaughter over the defendant's objection, then the court must instruct on negligent homicide because Section 12.1-05-08, N.D.C.C., so requires. 4

"Whether or not a lesser included offense instruction on manslaughter is appropriate in a murder trial depends upon the particular facts and circumstances of the case. See Trieb, supra, 315 N.W.2d at 656. We have no question that the court's instruction on manslaughter was warranted in this case. See Trieb, supra, 315 N.W.2d at 656-657; Vol. II, Working Papers, Comment on Manslaughter, at 829 (1970).

"Moreover, any time the court instructs a jury on self-defense, it must of necessity include a special instruction on manslaughter as well as an instruction on negligent homicide. Sec. 12.1-05-08, N.D.C.C.; Vol. I, Working Papers, Comment on Excuse, at 271-272 (1970). See also [People v.] Scott, supra, 53 Ill.Dec. [657,] 659-60, 424 N.E.2d [70,] at 72-73. The difference between self-defense and manslaughter is the...

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