Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Frank L. Racek, Judge.
The opinion of the court was delivered by: Kapsner, Justice
[¶1] Reginald Tweed appeals from a district court judgment dismissing his application for post-conviction relief. We hold the district court was not clearly erroneous to find Tweed failed to establish entitlement to post-conviction relief on the basis of either newly discovered evidence or ineffective assistance of counsel. We affirm.
[¶2] On April 8, 1991, the deceased body of Terry Dorff was found at his Fargo residence. Dorff had been gagged, with his hands and ankles bound together behind his back in a hogtie position. A large, bloodied rock was found beside Dorff's head, and his face and head were badly beaten. Police found a unique key chain in Dorff's bedroom, which they displayed to the media to help find leads in Dorff's death. Tweed's wife recognized the key chain and called police, stating it belonged to her estranged husband. Tweed's wife also called Tweed to inform him that she had called the police. Soon after receiving the call from his wife, Tweed went to the Cass County jail to claim the key chain.
[¶3] While at the jail, an investigator with the Cass County states attorney's office questioned Tweed. Tweed told the investigator he and David Sumner met Dorff at an adult bookstore in Fargo during the early morning hours of April 8, 1991. Tweed said Dorff invited them to go back to his residence and drink beer. Tweed then explained what caused the night to turn violent:
Terry [Dorff] start[ed] to reach for my crotch. I got angry. I hit him. Then he started to hit back. Then Dave [Sumner] and I tied him up because he started to kick. He also said he was going to call the police. We tied him up with speaker wire. We tied his hands behind his back. (He started to take his pants off before I hit him, and fuck no I didn't like that.) We tied his feet together with his hands. We grabbed the closest thing and put it in his mouth. He said he was going to call the cops so needed a head start. Because we were scared. He was still struggling so Dave hit him with a rock. He wasn't out yet. So I hit him with the rock. We left Terry was still alive. We took the gag away from his mouth and we still heard him breathing. We left but came back because I realized I had lost my keys to my car. But I didn't get back into the house. We thought we saw someone.
The police arrested Tweed and Sumner and charged both with murdering Dorff.
[¶4] Tweed and Sumner were tried separately. Tweed's trial was held first in October 1991. Fargo police officer Paul Lies testified he was one of the first officers to arrive at the crime scene. When he arrived, Lies stated he observed Dorff's body lying face down on a waterbed. Lies testified Dorff's body was naked from the waist down, and a pillow was lying on his head. Lies stated Dorff's hands and ankles were bound together behind his back. When another police officer pulled back a corner of the pillow, Lies testified he saw a rock lying right next to Dorff's bloodied head. Fargo police officer Gregory Stone also testified. Stone stated when police found Dorff's body, a gag had been tied around his neck. He stated the gag was "not completely inside [Dorff's] mouth, but right at the opening and in the mouth." Stone testified there were blood splatters on the headboard and computer monitor in Dorff's bedroom, both of which were approximately two-and-a- half feet from Dorff's head.
[¶5] Dr. Maureen Frikke testified she performed an autopsy on Dorff and determined his death was caused by a combination of blood loss and asphyxia. Frikke stated Dorff suffered blood loss due to five head lacerations. Frikke testified the lacerations were caused by blunt force trauma, possibly being struck by the rock police discovered on Dorff's bed. Frikke opined just two of the lacerations could have caused immediate, significant blood loss. In addition, Frikke stated the asphyxia was caused by several factors. First, Frikke testified the oral gag would have blocked the "full free flow of air through the mouth into the lungs." Second, Frikke stated binding Dorff's hands and ankles behind his back "severely compromise[d]" his ability to breathe. Frikke testified persons have been asphyxiated solely due to being left in a hogtie position. Third, Frikke testified asphyxia was caused by the position of Dorff's face against the waterbed. Frikke stated police photographs showed Dorff's face compressed against the waterbed, which would have restricted his airflow. Frikke also testified the autopsy revealed Dorff's nose had been compressed for a significant period of time. She stated this compression suggests Dorff was unconscious when he died because "a conscious person would have moved his head so that he would have had the nose and the mouth as free from obstruction as possible." Finally, Frikke stated the waterbed would have exacerbated the asphyxia caused by the position of Dorff's face because "water beds have a nonabsorb[e]nt, non-air-permeable surface" and "when you put something down on [a water bed], the object sinks into the water bed, and the surface of the water bed comes up around it and it molds against whatever is there."
[¶6] Tweed called Sumner to testify in his defense. However, Sumner invoked his privilege against self-incrimination under the Fifth Amendment and refused. Tweed then testified. On the night of April 7, 1991, Tweed said he and Sumner consumed approximately eighteen beers at Sumner's house before going to a bar in Moorhead and continuing to drink. Tweed did not recall how much he drank at the bar, but said it was "[q]uite a lot." After the bar closed, Tweed testified he and Sumner went to an adult bookstore in Fargo. By this time, Tweed said they were "pretty drunk." While at the bookstore, Tweed testified he and Sumner first met Dorff, who invited the pair to his place to drink some beer. Tweed stated Dorff drove them to his residence, where all three went into a basement and began to drink beer and converse. Tweed then described what caused the night to turn violent:
A: I was talking to Dave [Sumner], and - and I don't know if we were - just the way Dave looked over my shoulder or something, because I did - turned around and did a 180, and there's Terry with his pants off. And I looked at him all shocked, and he grabbed my crotch. And I started hitting him.
Q: Okay. Up to that point did you have any reason that you were going to find yourself in that sort of situation?
Q: Did he actually touch you? Terry Dorff.
Q: What was your reaction?
A: I - I just got really angry, and I started hitting him.
A: I started hitting him for a while, and he started fighting back, you know, and I kind of, you know, wrestled him over to the bed. And Dave jumped in there, and he started hitting him, too.
Q: So what - what happened?
A: We - we tied him up, because he was trying to fight back. And as soon as we had him all tied up, we decided to leave, you know, and he was yelling for help, so we put a gag in his mouth and knocked him out on our way out to get a good head start.
Q: Did you hog-tie him in the manner that's described right away?
A: Yeah. We didn't do that right away, no.
Q: Well, what did you do?
A: We just tied him up, you know, and he was still, you know, he was hitting us like this (indicating). We untied his hands and put them behind his back. And - and while he was like that, I just - I don't know why, but I took a - I took a string and went from his hands to his ankles and we tied it like that.
Q: Okay. Was David Sumner helping you out to tie him up?
Q: Well, after you had him tied, what happened next?
A: We decided to get a head start from him, you know, before he got his roommates woke up, and we decided to knock him out.
Q: Was he on the bed at that time?
A: Yeah, he was on the bed.
Q: How did he get to the bed?
A: That's where I wrestled him down and that's where he stayed.
Q: And you mentioned you wanted to get a head start. So what did you do? What happened?
A: One of us, I can't remember which one of us, decided that - that we should knock him out, you know, then we'd be able to get quite a ways away before he woke up. And Dave picked up this rock, it was the closest thing, and hit him in the head with it. And he wasn't out yet, so I - I picked up the rock and I hit him in the head, and he was knocked out.
Q: Before that time, before you hit him, had you - had you applied the gag that has been introduced into evidence?
Q: Had you put on this gag before you hit him or after?
Q: Okay. When did you do that?
A: It was right after we tied him up.
Q: And what is that gag? I mean, where did you get it, do you remember?
A: One of us just grabbed it off the floor, I think, and tied a knot in it and put that knot in his mouth.
Q: After you hit Terry Dorff - do you remember how many times you hit Terry Dorff?