Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.
The opinion of the court was delivered by: Kapsner, Justice.
This opinion is subject to petition for rehearing. [Go to Documents]
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Opinion of the Court by Kapsner, Justice.
[¶1] Ernest Coppage appeals from an order dismissing his application for post-conviction relief. Coppage argues the district court erred in dismissing his application and he was entitled to an evidentiary hearing because there were genuine issues of material fact about his ineffective assistance of post-conviction counsel claim. We reverse and remand for an evidentiary hearing.
[¶2] In 2006, Coppage was charged with attempted murder. Before trial, the district court issued preliminary jury instructions to the parties including the essential elements of attempted murder and aggravated assault. Aggravated assault was characterized in the instructions as a lesser-included offense of attempted murder. The parties agreed these charges were the proper charges for the jury to consider. Coppage filed a pre-trial motion in limine to prevent the State from seeking to introduce testimony about prior incidents of domestic violence. The State did not object and the district court granted the motion. The jury found Coppage guilty of both attempted murder and aggravated assault.
[¶3] Coppage appealed his conviction, arguing there was not sufficient evidence to support his attempted murder conviction and the verdict form was logically and legally inconsistent because proof of attempted murder negates a necessary element of aggravated assault. See State v. Coppage, 2008 ND 134, ¶¶ 21, 24, 751 N.W.2d 254. We affirmed Coppage's conviction and held the jury's verdict was not legally inconsistent and there was sufficient evidence to support his conviction. Id. at ¶ 28. Coppage was represented by Kent Morrow at trial and on appeal.
[¶4] In 2009, Coppage filed an application for post-conviction relief, arguing his trial attorney was ineffective, the jury selection was biased, and the crime scene was tainted. Coppage was represented by Susan Schmidt at the hearing on his application. After a hearing, the district court denied Coppage's application. Coppage did not appeal the court's decision.
[¶5] In October 2010, Coppage filed a second application for post-conviction relief. Coppage claimed he was subjected to double jeopardy when he was convicted of both attempted murder and aggravated assault and he was denied due process because the State improperly introduced evidence of prior crimes as impeachment evidence, the State engaged in prosecutorial misconduct, and the district court erred in failing to return the jury for further deliberations after they returned a verdict finding him guilty of both ...