State v. Wiedrich, Cr. N

• Decision Date: 31 July 1990
• Docket Number: Cr. N
• Citation: 460 N.W.2d 680
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Marvin WIEDRICH, Defendant and Appellant. o. 890126.
• Court: North Dakota Supreme Court

Page 680

460 N.W.2d 680

STATE of North Dakota, Plaintiff and Appellee, v. Marvin WIEDRICH, Defendant and Appellant.

Cr. No. 890126.

Supreme Court of North Dakota.

July 31, 1990.

Michael Ray Hoffman, Bismarck, for defendant and appellant.

James M. Vukelic, Deputy Atty. Gen., Bismarck, Joseph H. Kubik (appeared), State's Atty., Dickinson, for plaintiff and appellee.

VANDE WALLE, Justice.

Marvin Wiedrich appealed from a jury conviction of manslaughter, alleging, among other issues, omissions from the jury instructions. We reverse the conviction.

On May 21, 1988, Eddie Goodbird went to Halliday, North Dakota, to seek work at the Long Horn Bar, owned by Wiedrich. Wiedrich hired him to do some yard work. After Goodbird started the job, the mower broke. Goodbird went back into the bar, told Wiedrich about the mower, and offered to finish the job when the mower was fixed. Wiedrich paid Goodbird $15.00. Goodbird had a few beers and played an electronic game with another bar patron. Meanwhile, Wiedrich went out to inspect Goodbird's work. When he came back in, he was angry and hollered at Goodbird "You didn't do shit." An argument took place in which Wiedrich was more vocal, but no one heard or saw any threats of violence, shoving, or pushing.

The other patrons left and there was no one else present when Wiedrich shot Goodbird twice with a pistol. Soon after the shooting, Esther Horning, Wiedrich's live-in friend, returned to the bar and found Wiedrich calling the sheriff to report the shooting. Wiedrich told her to lock the door to the bar. When the sheriff arrived, Horning unlocked the door and let him in. The sheriff found Goodbird dead, lying face down behind the bar. Wiedrich told the sheriff, "I shot him."

Wiedrich was charged with murder, a class AA felony. The jury was instructed on AA murder, on lesser-included offenses of A murder and manslaughter, and on self-defense. Wiedrich was convicted of manslaughter and sentenced to ten years in the state penitentiary. Wiedrich appealed.

The trial court refused an instruction requested by Wiedrich that possession of a firearm by the proprietor of a retail liquor establishment was not illegal. The trial court denied his request because the instruction concerned a "collateral matter" which would "only cause confusion of the real issues before the jury." Wiedrich argues this omission was reversible error.

Wiedrich was not being tried for possessing a firearm, but rather for how he used it. It is well-settled that if the instructions, when considered in their entirety, correctly advise the jury as to the law applicable to the case, there is no error even though the trial court refused to submit a requested instruction which itself was a correct statement of law. State v. Huwe, 413 N.W.2d 350, 352 (N.D.1987). Wiedrich was not substantially harmed by the denial of a jury instruction on an issue different than homicide.

Wiedrich was on trial for AA murder. ¹ The trial court also instructed on lesser-included offenses of A murder ² and manslaughter, ³ as well as self-defense, but did not instruct on negligent homicide. ⁴ Wiedrich objected to submission of any lesser offenses and did not request submission of the lesser offense of negligent homicide. On appeal Wiedrich assigns as obvious error the trial court's failure to instruct on negligent homicide.

In this Court, Wiedrich insists that a charge of negligent homicide must always be given to a jury instructed on self-defense and on manslaughter. Wiedrich quotes State v. Leidholm, 334 N.W.2d 811, 821 (N.D.1983), as authority that "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." See also State v. White, 390 N.W.2d 43 (N.D.1986). Wiedrich urges that, when the trial court overruled his objections to submission of any lesser offenses and instructed on manslaughter and self-defense, the trial court was still obliged to instruct on negligent homicide. ⁵

A defendant is entitled to an instruction on all defenses for which there is any support in the evidence, whether such evidence is consistent or inconsistent. State v. Thiel, 411 N.W.2d 66 (N.D.1987); State v. Hazlett, 16 N.D. 426, 113 N.W. 374 (1907). But, generally, absent a request for an instruction on a lesser-included offense, it is not error for the trial court to fail to give such an instruction. State v. Motsko, 261 N.W.2d 860 (N.D.1977) [disagreeing with the rule from some jurisdictions that, even in the absence of a request and irrespective of the evidence presented in a case, a trial court must instruct on all included offenses]. The issue before us is whether our decision in State v. Leidholm, supra, requiring that when an instruction on self-defense is given the court must also instruct on all lesser-included offenses, is controlling in this instance or whether our decision in State v. Frey, 441 N.W.2d 668 (N.D.1989), holding that when a defendant objects to the lesser-included offense instruction there is no error when the court does not instruct as to the lesser-included offenses notwithstanding that the court has also instructed on self-defense is controlling. We conclude that, under the facts of this case, Leidholm, not Frey, controls.

Although Wiedrich did not testify at the trial, there is no doubt that his explanation of the shooting was self-defense. Wiedrich's statement to a deputy sheriff at the scene of the shooting was offered in evidence by the State. Excerpts from Wiedrich's statement illustrate his position:

[Wiedrich]: [H]e told me and he come around the end of the bar come up, the threat to kill me, and beat on me (inaudible due to crying).

* * * * * *

[Wiedrich]: I got this little pistol laying over there, it's always there, it's always been there.

* * * * * *

[Wiedrich]: I couldn't take no more beating, I reached for my pistol and apparently I used it.

* * * * * *

[Wiedrich]: I had to do something to survive.

[Deputy]: Okay, you felt at this point if you had not killed him, he was going to kill you.

[Wiedrich]: I said, I was dead when I picked up the gun.

[Deputy]: Okay, so you, when you shot the gun, you felt that you had to do that to protect yourself?

[Wiedrich]: Yes, to stay alive, I had, cause he was nailing me right and left, I mean, it was (inaudible) on me.

[Deputy]: Okay, by nailing you right and left, can you, ah, what do you mean by that? Was he hitting you with his fists?

[Wiedrich]: Like hitting me, like.

[Deputy]: So he was hitting you with his fists?

[Wiedrich]: With his fist, tried to kick me a few times and asked me to get out of the way and he kicked me in a certain place (inaudible) which he was aiming for.

[Deputy]: What place was this?

[Wiedrich]: The crotch.

[Deputy]: So you felt if he'd a kicked you in the groin area then you'd been down.

[Wiedrich]: Right. That's what he was aiming for.

[Deputy]: Okay, while he was hitting and kicking you, was he, say anything to you?

[Wiedrich]: Ya. I'm gonna kill you son-of-a-bitch.

[Deputy]: That was quote "I'm gonna kill you son-of-a-bitch"? Unquote.

[Wiedrich]: I'm gonna kill you son-of-a-bitch.

[Deputy]: How many times did he say this to you?

[Wiedrich]: About three-four times before he got backed in the corner.

[Deputy]: Okay, ah, did he tear the tie off you?

[Wiedrich]: Ya. I didn't know I was even missing it. I didn't know I was.

* * * * * *

[Wiedrich]: Yes, when, first time I shot him, he had hold of my throat, and beating on me. After that he just kept beating on me until the second shot.

There was also evidence that Wiedrich's left temple was bloody and bruised and that he had a scratch on the left side of his face. Witnesses testified that Wiedrich appeared upset and that he said "I didn't mean to do it. I didn't want to kill anybody," and "He kept coming at me. He just was coming at me, and I shot him, and he kept coming at me so I shot him again."

In State v. Leidholm, supra, Leidholm contended that it was error to instruct the jury, over her objection, that manslaughter was a lesser-included offense of murder. We observed that 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 and concluded that the trial court's instruction on manslaughter was warranted in that case. More significantly, for the purpose of this case, we observed that:

"[A]ny 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. [Citations omitted.] The difference between self-defense and manslaughter is the reasonableness of the accused's belief that the use of force is necessary to prevent imminent unlawful harm. If the accused's belief is reasonable, he will be found to have acted in self-defense. If unreasonable, he is guilty of either manslaughter or negligent homicide, depending upon whether his belief was held recklessly or negligently, respectively. [Citations omitted.]" State v. Leidholm, 334 N.W.2d at 821.

In State v. Frey, supra, Frey was charged with the murder of one man and the attempted murder of another man. Frey requested an instruction on self-defense but specifically objected to instructing the jury on lesser-included offenses of any kind. The State requested an instruction on a lesser-included offense of attempted murder, i.e., aggravated assault. The court instructed the jury on murder, self-defense, attempted murder and aggravated assault (a lesser-included offense of attempted murder), but did not instruct the jury on lesser-included offenses of murder. Frey was convicted of murder and aggravated assault but notwithstanding his objection to any instructions on lesser-included offenses of murder at the trial level on appeal, relying on Leidholm, he contended it was obvious error under Rule 52(...