*1 C.J., ERICKSTAD, and VANDE LEVINE, JJ„
WALLE, MESCHKE
concur. Dakota, Plaintiff
STATE of North Appellee, TWEED, Reggie
Reginald Elbert a/k/a
Tweed, Appellant. Defendant No. 910380.
Cr.
Supreme of North Dakota.
Oct. 1992. (argued), Atty.,
John T. Far- Goff State’s go, plaintiff appellee. for Beauchene, Fargo, Brothers & for defen- appellant; argued by Benjamin E. dant and Thomas, Fargo.
ERICKSTAD, Chief Justice.
Reginald
appeals
Elbert Tweed
from
County
judgment
Cass
District Court
conviction
murder.
affirm.
On
Tweed was found
October
by jury
of class
property
and theft of
and was sentenced
prison
life in
His
October
appeal presents this Court with two issues:
1)
the trial court erred in
whether
failing to instruct
on the lesser
homicide;
included offense of
2)
or not the
whether
murder statute under which Tweed was
unconstitutionally
convicted
void
*2
death,
they
the
theft Dorff’s
that
hit Dorff about
conviction for
vagueness.1 Tweed’s
fists,
they
that
face and head with their
appealed
to this Court.
property
was
position,
“hog-tie”
him in the
that
bound
8, 1991, the deceased
April
or about
On
mouth,
they placed large gag
a
his
that
Dorff,
Terry
age
discover-
body of
was
large
they struck him on the head with a
Fargo
Dorff was
ed at his
residence.
rock,
they
and then
fled his residence
waterbed,
prone position on his
found in a
Dorff’s car.
“hog-tied”
gagged, and
with
he had been
trial,
large,
During
a
bloodied
the
Tweed testified
speaker wire.2 There was
homosexual,
head
and that Dorff
his
His face and
Dorff was a
rock beside
head.
shirt
after invit-
He had on a
made advances toward Tweed
badly
were
beaten.
unbuttoned,
ing
apartment,
and he was un-
Tweed and Sumner to
which was
subsequent
meeting
at the adult
down. The cause
them
clothed from the waist
Fargo.
said the ad-
a combination of as- bookstore
Tweed
probably
death was
(due
“hog-tie” posi-
very angry
him
gag, the
vances Dorff made
and
phyxia
to the
against
began hitting
the
head
tion,
of the face
he
Dorff in
face and
position
and the
(due
fists,
joined
waterbed)
loss
to the
area with his
and that Sumner
and blood
the
beating.
the
Tweed stated
Dorff
injuries).
head
back,
began hitting
yelling,
and that
at Dorff s residence were
Also found
police. Tweed
Dorff threatened to call the
very unique key
keys
some
set of car
with
gagged and
explained that he and Sumner
key ring. These
to the
chains attached
“hog-tied”
prevent
Dorff
him from mak-
s
lying underneath Dorff
keys were either
noise,
keep
fighting
him from
ing
and
attempt
In an
to find
body or beside it.
hit Dorff over
Tweed said
then
back.
murder,
Fargo police
the
dis-
leads for the
large
knock him
the head
the
rock to
key
to the me-
played
keys
the
and
chains
out,
get
could
a head start before
“so we
wife,
photo-
Raymona, saw
dia. Tweed’s
up
police.”
he woke
and called
graphs
newspaper
them in the
and con-
during
simply
incident he
testified that
police, stating
keys
and
tacted the
things
judgment”
exercised
“bad
belonged
Sub-
key chains
to her husband.
just “escalated.”
County
sequently, Tweed went to the Cass
trial,
jury
close of the
was
keys
key chains. Dur-
At the
Jail to claim the
murder,
visit,
class
to the
instructed on class
ing that
he admitted
authorities
murder,
manslaughter.
had
at A
that he and David Sumner
been
not, however,
negli-
instructed on
early morning
jury
was
Dorff’s residence on the
Frikke, explained
to the
convicted under Section 12.1-16-
1. Tweed was
01(1),
part,
“hog-tie” position:
relevant
that statute
N.D.C.C. In
provides:
Okay.
"Q.
talked about
We haven’t
person
a class AA
"1. A
really.
hog-tie position
What is that?
felony, if he:
pulling the arms behind
"A.
... It involves
knowingly
Intentionally
causes the
or
a.
handcuffing
tying
or
them
the back and
arms,
being;
human
death of another
handcuffing
tying
the ankles
then
of another human be-
b. Causes the death
putting
patient
together,
then
on their
manifesting
ing
extreme
under circumstances
pulling
up
the ankles
so that
stomach and
life;
value of human
....”
indifference to the
they’re up
to the hands. So that the
close
language
appeal that
Tweed asserts on
know,
body, you
the hands and the feet are
of human
to the value
"extreme indifference
body.
way
up together
pulled
behind the
This
given
vagueness. The
life" is void for
kick,
patient
person can’t
he can’t
knowingly” language
“intentionally
both the
—the
walk, and he can’t use his hands for defensive
language in one
and the
indifference”
"extreme
measures.
asserts that the
instruction. Tweed further
your knowledge
"Q.
indifference”
is that method
the "extreme
To
convicted him under
argued
prosecution
long any longer
never
because the
in law enforcement
used —
kill” murder.
an "intent to
that he committed
Instead,
practices?
claims,
argued only that he
he
discouraged
very
strongly
"A. It
to the value
exhibited extreme indifference
officers,
amongst
enforcement
because
law
Terry Dorffs life.
dangerous position
person
for the
it’s such
is tied.”
who
per-
During
testimony, the coroner who
her
Dorff,
autopsy
Maureen Jane
formed the
Dr.
Houser,
supra,
(quoting
gent homicide,
a lesser offense of murder
261 N.W.2d at
Keeble,
at
at
attorney
manslaughter.
re-
1995).
quested
instruction on
homi-
an
cide,
court
include
trial
refused to
implement
two-pronged “indepen-
*3
one
with the rest of
instructions.3
dent evidence” test
to determine whether
felony
convicted Tweed
class
not the
lesser included offense should be
murder,
the court sentenced Tweed to
given to
jury.
We have said:
life
prison.
“The
merely
test is not
whether or not
a
included
offense is
lesser
offense
Court,
first issue before this
On the
charged,
of the basic offense
but rather
of an instruction on the
of the lack
is whether or
there is
not
evidence which
offense,
lesser
it should
noted
included
be
will create a reasonable doubt as to the
not
does
have a constitu
a defendant
support offense and
conviction
tional
right
to a
included offense
offense.
lesser included
The ‘be-
have never held that a
instruction.
“[W]e
yond
ap-
test
reasonable doubt’
also
to a
defendant
is entitled
lesser included
plies to
included
the lesser
offense.”
pro-
as a matter
offense instruction
of due
Piper, supra,
412
93 S.Ct.
Trieb,
(N.D.1982);
649,
State v.
—
Arizona,
v.
(1973);
Schad
L.Ed.2d 844
Houser,
(N.D.1982);
U.S. -, -,
2491,
111 S.Ct.
2504-
N.W.2d at 385.
05,
(1991);
v.
State
Shel
“It’s been includ- done if instructions on the lesser my discussed the case and I have given regardless of the ed offense are that he on the witness stand client said it lead the evidence because well was reckless.... decision, compromise is jury to a which reckless, you very definition of “The compatible with the function read, it indi- you, I read will will will jury in a criminal case.” I mean there he was reckless. cate that supra, 261 Piper, N.W.2d at 654. it.” about no doubt Additionally, progeny Leidholm and con- today, this before distinguishable from at hand. the case erred refus- tending that the trial court Leidholm, we in held that if a essence *4 “lesser- ing jury on the instruct to trial court instructs the on self-de- homicide.” negligent of included offense request, also fense at defendant’s and testimony, According Tweed’s own to manslaughter on defen- instructs over the Terry Dorff David Sumner beat Tweed and objection, then in- dant’s the court must fists, face their head and about the negligent struct on homicide because Sec- large gag in placed “hog-tied” Dorff 12.1-05-08, N.D.C.C., requires.4 tion so mouth, top more hit him on of the head his or not included of- “Whether a lesser large rock, him in a than left once with manslaughter ap- on fense instruction waterbed, and then prone position on his propriate depends upon in a murder trial police. to fled in Dorff’s car avoid particular facts and circumstances facts to us that Nothing in these indicates Trieb, the case. See “negligent.” actions were question that the at 656. We no intentional, appears will- Tweed’s conduct manslaughter instruction on court’s ful, reckless, negli- maybe but NOT Trieb, in this See su- warranted case. attorney gent. agreed with this He and 656-657; II, pra, 315 N.W.2d at Vol. trial, no en- at albeit had conclusion Working Papers, on Man- Comment argue couragement negligence. to (1970). at 829 slaughter, pass the obviously in this case do not facts “Moreover, any in time the court test, thus the independent evidence self-defense, on it must of structs a give refusing err in to trial court did not include a on necessity special instruction negligent homicide instruction. manslaughter as well as an instruction 12.1-05-08, negligent homicide. Sec. on evidence, above spite I, N.D.C.C.; Papers, Working Vol. Com court was appeal on the trial asserts Excuse, (1970). at on See ment in- required give negligent homicide to Scott, supra, Ill. [People also v.] [97 our decision State struction 659-60, 424 899,] [657,] App.3d Ill.Dec. Leidholm, (N.D.1983), N.W.2d 811 [70,] at 72-73. The difference N.E.2d disagree. progeny. manslaughter self-defense and between First, previously, it should be noted that the reasonableness of the accused’s require necessary to use this has been reluctant that the of force is belief all lesser harm. If prevent to instruct the on imminent unlawful trial courts reasonable, charged re- he will offenses of crime the accused’s belief is included at trial. found to have acted self-defense. gardless presented the evidence unreasonable, guilty of either a less If he is requirement could lead to Such a homicide, de- manslaughter negligent or jury verdict. reliable 12.1-05-08, prosecution an offense for an excuse in a reads: N.D.C.C. Section 4. recklessness, negligence the case or which person's if he A conduct is excused "Excuse. be, culpability. Ex- suffices to establish that his con- that the facts are such believes any necessary appropriate affir- this is a defense or duct is cuse under section justifi- purposes which type would establish according defense to which mative chapter, under even or excuse this cation the facts would be established had defense However, though if his his belief is mistaken. person them to be.” been as the believed held, recklessly negligently it is not belief is on con- upon his belief was held homicide. To hold to the pending whether respectively. trary permit jurors judges recklessly negligently, would to act as N.D.C.C.; 12.1-05-08, Report, by allowing Final them to the sen- Sec. determine Excuse, at on tences choice by Comment their of lesser verdicts § I, Ex- Working Papers, Comment on supported Vol. which could the facts. Weston, cuse, also See That justice. at not be [v. would [1186,] State], supra, P.2d at 1187- here, Notwithstanding what we have said 659-60, 1188; Scott, Ill.Dec. supra, 53 at recognize importance in- giving 72-73.” N.E.2d at justi- structions on lesser offenses included Leidholm, at particular fied facts of the case. Instructing jury on a lesser included Frey, facts offense, warrants, when the evidence so distinguishable. provides “procedural a defendant with a wanted an Frey, the defendant instruc- safeguard.” self-defense, objected any tion on included instructions offenses unquestionably es- the evidence “[WJhen that a has a murder. We held tablishes defendant is right to waive instructions on lesser includ- serious, violent leaves some offense—but *5 offenses, stating ed that defendant who respect doubt with to an element that so, tactics, trial does as a matter of “takes capital justify would conviction of a of- all-or-nothing jury that the an risk will [robbery killing] fense —intentional —the greater convict of the offense.” Id. at 670. give jury option’ failure to the the ‘third convicting on a offense lesser included Wiedrich, Finally, inevitably to [felony would seem murder] defendant wanted no the the risk of an con- enhance unwarranted offenses, on included instructions viction.” court, request, the trial at the State’s Beck, at U.S. at 100 S.Ct manslaugh- instructed on self-defense and ter. Under circumstances we held those
that it was error the trial reversible present given The jury in the case was give negligent in- court not to homicide instructions on all lesser included offenses struction. justified by jury the facts in The this case. was instructed on two lesser included of- cases, deciding those we did charged. fenses the crime was Tweed anytime that a court on intend instructs charged AA felony with class murder. The manslaughter, neg it must also instruct on jury instructed on that offense and was ligent irrespective homicide de other also on the lesser included offenses of class fenses and facts of the case. mere A The manslaughter. murder ly urged, held that when self-defense was jury great- chose to convict Tweed of manslaughter sup and a instruction was est, most serious offense. The evidence given ported by jury, facts jury did not convince the that was Tweed negligent the court must instruct on guilty of either of those lesser included required by language homicide logic defies all offenses. It common (statute 12.1-05-08, N.D.C.C. Section on ex that, say given sense had jury been cuse), I, Working and in Pa of Yol. homicide, an instruction on an Excuse, pers, at Comment on others, less serious than offense all the it foregoing The three dealt cases guilty would have found Tweed of that involving the with situations defense of least offense. serious self-defense. The case, Supreme United States Court was present
In the
did
not raise
self-defense,
very
faced
similar situation in
the defense of
so Section
12.1-05-08,
Schad,
N.D.C.C.,
supra. The
apply.
does not
defendant
Schad
Thus,
allegedly
had
killed a
though
even
the court
on
man and stolen his
instructed
manslaughter,
compulsion,
camper.
under no
car and
it was
trial court instructed
progeny,
first-degree
from Leidholm
the jury
to instruct
on
murder and second-
degree
appealed
murder. The
argument
ment.
If Tweed’s
is that
first-degree
adding negligent
his conviction of
on the
at the
homicide
“bottom”
instructing
offenses,
jury
jury might
of error in not
on
list of
basis
persuaded
robbery.
the lesser included offense of
In been
necessarily
to choose not
case,
disposing
Supreme
Court
offense but one
less than
argument
said:
is contrary
previous
to our
decisions. Those decisions
hold that
argument
unavailing,
“The
because
requiring independent
evidence of
jury’s
option’
the fact that the
'third
was
offenses,
and lesser included
the court en-
second-degree murder rather than rob-
sures that a
likely
will be less
to reach
bery
reliability
does not diminish the
sympathy
decisions based on
or on a desire
jury’s capital murder
verdict. To
agreement
to reach an
compromise
or to a
accept
by peti-
the contention advanced
decision
compatible
which is not
with the
dissent,
tioner and the
we would have to
case,
function of a
in a criminal
assume that a
peti-
unconvinced that
likely
more
reach decisions based on evi-
guilty
capital
tioner was
of either
or sec-
actually presented.
Gross,
dence
ond-degree murder,
acquit
but loath to
supra;
Skjonsby, supra;
State v.
(because
completely
it was convinced
Piper, supra.
he
robbery), might
choose
capital
second-degree
murder rather than
brought
appeal
second issue
be-
keeping
murder as its means of
him off
fore the
is a
constitutional void for
the streets. Because
can see no
we
basis vagueness
applied
contention as
to Section
irrationality,
to assume such
are sat-
12.1-16-01(l)(b), N.D.C.C. Tweed asserts
isfied
second-degree
murder in-
causing “the death of
struction in this case sufficed to ensure
being
another human
under circumstances
*6
reliability.”
the verdict’s
manifesting extreme indifference to the
—
unconstitutionally
value of human life” is
at-,
111
at 2505.
vague
rights
and in violation of his
of due
Court,
ju-
the case before this
if the
process.
rors were not convinced that Tweed was
murder,
they
of class AA
We have been
in
unable
find
could have
A felony
convicted
of class
record that Tweed raised this contention
However,
manslaughter.
before
trial court.5 It is a well-estab
anomaly
chose not to.
It would be an
principle in
lished
this state that issues not
state,
case,
under the facts of this
appeal.
raised below cannot
raised on
is not
verdict
reliable because an instruc-
“Generally, issues
raised in
the trial
negli-
tion of the lesser included offense of
court,
issues,
even constitutional
will not
gent
given
homicide was not
to the
appeal.”
be addressed on
v. Miller
State
verdicts,
(N.D.1986)
of the other choices of
(emphasis
522
388 N.W.2d
add
greater degrees
ed).
all of which were of
of
See also Hanson v.
Coun
Williams
severity
(N.D.1990);
punish-
ty,
with attendant
452
313
N.W.2d
counsel,
Com’rs,
during
closing argument
Valley
Cty.
5. Tweed’s
his
So.
Grain Dealers v. Bd. of
425,
(N.D.1977)
jury,
(emphasis
to the
asserte’d that the
of the
257 N.W.2d
434
add-
ed).
in the statute was difficult to discern.
However, counsel did not make a motion or
brought up
Tweed’s counsel should have
his
brief the issue in the trial court. The attention
given
"heavy artillery”
Alluding
at the trial level.
challenge
closing
the constitutional
ar-
vagueness during closing arguments
hardly
can
gument was not sufficient to "raise the issue
even be considered a firecracker! Failure to
merely
must do
below.” One
more than
assert
sufficiently raise the issue at the trial court level
appro-
that a statute is difficult to understand to
precludes
raising
Tweed
from
issue here.
priately raise a constitutional issue. As Justice
Dickinson,
113,
Meyer City
See
v.
451
of
Vogel said:
(N.D.1990);
State,
117
Wisdom v.
N.D. Real Es
19,
Com’n,
(N.D. 1987); City
tate
403 N.W.2d
22
“One
a statute on constitutional
who attacks
Johnston,
275,
(N.D.1985);
grounds,
Minot v.
379 N.W.2d
278
defended as that statute is
of
Com’rs,
strong
presumption
constitutionality,
Cty.
dis
v. Bd.
Grand Forks
Cal
665,
(N.D.1979);
bring
artillery
forego
County,
up
heavy
should
his
279
667
197,
(N.D.1979).
entirely.”
Hagstrom,
the attack
v.
274 N.W.2d
200
(N.D.1985);
legislative
“All
enactments are imbued
376 N.W.2d
Slapnicka,
strong presumption of constitu
Store,
awith
Inc. v. State
Drug
Family Center
is conclu
(N.D.
tionality,
presumption
and the
181 N.W.2d
Pharmacy,
Bd. of
clearly
shown that
sive unless it
1970).
the state or federal
statute contravenes
Miller,
exception
the narrow
noted in
As
Hegg, 410 N.W.2d
constitution. State v.
52(b),
in Rule
found
principle is
to this
Jones,
152,
(N.D.1987);
Richter v.
Procedure.
of Criminal
Dakota Rules
North
(N.D.1985). Any
378 N.W.2d
errors
“(b)
Error. Obvious
Obvious
doubt must be resolved
favor
rights
affecting substantial
or defects
constitutionality
Verry v.
of the statute.
although they
were
noticed
(N.D.
Trenbeath,
148 N.W.2d
of the court.”
brought to the attention
1967).”
error, in the
or not it is obvious
Whether
ex rel. Lesmeis
Id. at 285. See also State
consider it.
justice
we will
interests
Olson,
(N.D.
v.
354 N.W.2d
ter
constitutionality
attacking the
When
Com’rs,
1984);
Cty.
v. Bd.
Paluck
statute,
weighed in
the scales
(N.D.1981);
challenger must
statute. The
favor of the
Hanson,
256 N.W.2d
strong presumption of constitu
overcome
172, 178
Thompson,
Kessler
tionality.
Thus,
has the
burden
is a valid
“Presumptively, the statute
rebutting
presumption of the consti
ap
on the
and the burden is
enactment
tutionality
of the class
‘Every
that it is not.
pellant
so,
to show
doing
clearly
he must
show
statute.
presumption is
favor
reasonable
the state or feder
that the statute violates
constitutionality
enacted
of a statute
constitution.
al
801;
Legislature.
Cyc.
O’Laugh
his constitutional at
Tweed bases
Carlson,
152 N.W.
lin v.
N.D.
vague
tack of the statute on the void
conclusive,
presumption is
un
675. This
doctrine, claiming the statute violates
ness
clearly
that the enact
less it is
shown
rights
process guaranteed by the
of due
prohibited by the Constitution
ment is
Amendment
to the United
Fourteenth
Coo
state or of the United States.
vagueness
doc
States Constitution.
242;
Lim.,
Cyc.
ley’s
7th Ed.
Const.
requires:
trine
*7
only
validity
of an
test of
801.
define,
penal statute
the criminal
“that a
Legisla
regularly passed by a state
act
definiteness that
offense with sufficient
any of the
ture is whether it violates
people
understand what
ordinary
can
express
implied restrictions of the
prohibited and in a manner
conduct is
ex
state or federal Constitutions.’ State
encourage arbitrary and
that does not
76,
Taylor, 33 N.D.
156
rel. Linde v.
discriminatory enforcement. Hoffman
561, L.R.A.1918B, 156, Ann.Cas.
N.W.
Estates,
Flipside,
v.
Estates
Hoffman
1918A,
See, also,
583.
ex rel
State
489,
1186,
Inc., supra
U.S.
102 S.Ct.
[455
University and
v. Board
Sathre
of
(1982)];
vagueness challenge, When faced with this we said: doctrine, and rec- adopted this We have say cannot the circum- “[w]e applied criminal ognize importance as employed grading stances in the of the statutes. unreasonable, arbitrary, statute are process
“The due clauses State grad- unwarranted. We believe that the require defi- ing phrase and Federal Constitutions ‘extreme indifference to the statutes so that the niteness of criminal value human life’ is an understanda- language, when measured common ble and distinct cir- what definition understanding practice, gives ade- necessary bring cumstances are proscribed quate warning of the conduct such, felony act within the offense. As sufficiently dis- and marks boundaries it is a reasonable and rational method of judges juries fairly tinct for ad- distinguishing crime from City minister the law. v. Olson West the lesser crime.” 821, (N.D.1981); Fargo, 305 N.W.2d added). (emphasis Id. at 369 See also Woodworth, 243, v. 234 N.W.2d State Halvorson, v. 708- State (N.D.1975).” (N.D.1984) (recognizing the lan- Johnson, v. 368 guage manifesting State “under circumstances Johnson, we went on to extreme indifference to the value of human point requirements out that there are two sufficiently grade life” definite to of- vagueness fenses); Arizona, doctrine: Tison v. 481 U.S. 157-158, 95 L.Ed.2d
“(1)
provide adequate
the statute
(1987) (holding
that “reckless indiffer-
proscribed,
warning as to the conduct
ence to the value of human life
(2)
minimal
that the statute establish
every
shocking
to the moral sense as
bit
govern
guidelines to
law enforcement.
an ‘intent to kill’”—and when combined
Lawson, supra;
Kolender v.
v.
felony supports
commission
Woodworth,
supra;
Hagge,
imposition
penalty).
the death
see
17.”
Am.Jur.2d
Law
Criminal
[Section]
part
the class AA
challenging
statute Tweed is
is the lan-
Id.
manifesting
guage “under circumstances
previous
of our
decision in State
to the value of human
extreme indifference
Hanson,
gious” subject “grave” to the obvi- Ag-
ous United error rule. See States (10th Cir.1991).
new, I 931 F.2d
am that the violation asserted confident egregious grave and
Tweed is neither nor constitute obvious error.
does not