Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.
The opinion of the court was delivered by: VandeWalle, Chief Justice
[¶1] Kenneth Jacob, Jr., appealed from the district court's judgment denying his petition for post-conviction relief. Jacob argued he received ineffective assistance of counsel because his trial counsel did not call an expert in trucking to testify. We affirm because Jacob did not establish a reasonable probability that the proposed testimony would lead to a different verdict.
[¶2] We affirmed Jacob's original conviction in State v. Jacob, 2006 ND 246, 724 N.W.2d 118. The facts regarding Jacob's conviction are described in that opinion:
Jacob, who has nearly 20 years of trucking experience, testified that he was driving a semitractor trailer from western North Dakota to his home in Minnesota when he stopped to see his brother at a Fargo tavern at about 11 p.m. on a Friday night in June. Jacob testified that he parked his truck in a lot across the street from the bar, locked both the driver and passenger doors, urinated "out behind the rear tires," and then walked across the street into the bar. Two witnesses sitting in a van in the bar's parking lot testified they noticed Jacob get out of his truck, go around the front of the truck to the passenger side, bend down, and then go into the bar. The witnesses testified they noticed this activity because they had been watching another man, obviously drunk, stagger about and eventually disappear behind Jacob's truck. The two witnesses testified that when Jacob emerged from the bar, having stayed inside only five minutes, he looked toward the back of his truck and yelled something. One witness characterized it as an "angry yell." Jacob testified that he then got into his truck, shifted and "got locked in reverse by accident," backed up several feet—the trailer rocked—and then drove immediately from the scene. Jacob testified the truck was old and the transmission was "sloppy." Jacob testified that when he got the truck moving forward he also "felt the trailer rock again a little bit back there . . . [and] assume[d] [he] went through a hole or over a small bump in the lot." The witnesses testified that after Jacob pulled away, they saw a man, later identified as Stephen Nelson, lying in the parking lot where Jacob's truck had been parked. An autopsy revealed that Nelson died from multiple blunt force injuries due to a pedestrianmotor vehicle collision and that the man had a bloodalcohol content of 0.42 percent. Another witness testified that he saw Jacob's truck, which had "no lights on at all," speeding away on a road heading east away from Fargo. That witness later notified police about seeing a truck matching the description given by a news bulletin of a truck possibly involved in the killing of a man at a Fargo bar's parking lot. Jacob testified that he had been having electrical problems with his truck and that when his headlights completely failed, he stopped at an abandoned truck stop to spend the night. Jacob testified that he arrived at his place of employment later that Saturday and pressurewashed his truck as company policy required. Four days later, Fargo police arrested Jacob at a construction site in Cass County.
Id. at ¶ 2 (alterations in original).
[¶3] The jury found Jacob not guilty of murder and negligent homicide, but convicted him of leaving the scene of an accident involving death, in violation of N.D.C.C. § 39-08-04, which states in part:
1. The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop or return with the vehicle as close as possible to the scene of the accident and in every event shall remain at the scene of the accident until that driver has fulfilled the requirements of section 390806 [Duty to give information and render aid]. Every stop required by this section must be made without obstructing traffic more than is necessary.
2. Any person failing to comply with the requirements of this section under circumstances involving personal injury is guilty of a class A misdemeanor. Any person negligently failing to comply with the requirements of this section under circumstances involving serious personal injury is guilty of a class C felony. Any person negligently failing to comply with the requirements of this section under circumstances involving death is guilty of a class B felony.
N.D.C.C. § 39-08-04(1), (2) (emphasis added).
[¶4] Jacob filed a petition for post-conviction relief, arguing he had received ineffective assistance of counsel. Specifically, Jacob argued his attorney's assistance "fell below an objective standard of reasonableness because he did not call an expert in the trucking industry to testify that [Jacob] did not act negligently in leaving the scene of [an] accident." Along with his petition, Jacob filed two affidavits from experienced truckers. John Lammers stated in his affidavit he was a professional truck driver for twelve to fifteen years and an acquaintance of Jacob's. He asserted Jacob was not acting negligently by leaving the scene. He explained:
Based on the shear [sic] size and weight of the semi trailer that Kenneth [Jacob] was driving, a reasonable, experienced truck driver would not feel a 170 pound human being under their truck. A reasonable truck driver would not be put on notice that the "rocking" was an accident. Instead, as Kenneth [Jacob] testified a reasonable, prudent truck driver would believe they hit a hole or bump in the road.
[¶5] Gordon Bolstad stated in his affidavit he was a professional truck driver most of his adult life and an acquaintance of Jacob's. He also asserted Jacob was not negligent in leaving ...