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Ernest Coppage v. State of North Dakota

January 23, 2013


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: VandeWalle, Chief Justice.

N.D. Supreme CourtCoppage v.

State, 2013 ND 10 This opinion is subject to petition for rehearing. [Go to Documents]

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Opinion of the Court by VandeWalle, Chief Justice.

[¶1] The State appealed and Ernest Coppage cross-appealed from a district court judgment granting Coppage's application for post-conviction relief, vacating his attempted murder conviction, and ordering a new trial. The State argues the court erred in finding Coppage received ineffective assistance of counsel and erred in granting his application for post-conviction relief. Coppage argues the court's decision on his ineffective assistance claim should be affirmed but the court erred by failing to rule on his other claims for post-conviction relief. We reverse and remand.


[¶2] In 2006, Coppage was charged with attempted murder. Before trial, he filed a motion in limine to prevent the State from introducing evidence about prior incidents of alleged domestic violence. The State did not object and the district court granted the motion. During the trial, Coppage testified that he hit the victim multiple times, but he claimed he was defending himself. The State questioned Coppage about his claims during its cross-examination:

Q. Mr. Coppage, why did you have to hit her more than once to defend yourself? A. Well, I wasn't in my right frame of mind. Q. Why weren't you in your right frame of mind? A. Well, drinking and drugs. Q. So you never would have hit her if you hadn't been drunk? A. I've never done that to a woman ever in my life. My 38 years I've never hit a woman. Q. You've never assaulted a woman in your life? A. Not like that. Q. What do you mean, "not like that"? You've never been physical? A. I've had arguments. Q. You've had arguments. You've never been physical with a woman? A. No. Q. You've never hit a woman. A. No.

[¶3] Outside the presence of the jury, the State sought to introduce evidence of a prior misdemeanor assault conviction to impeach Coppage's testimony. Coppage's attorney objected, arguing the State was attempting to circumvent the court's order on the motion in limine, evidence of the prior conviction was not disclosed before trial, the conviction did not meet the requirements for impeachment by evidence of a prior conviction under N.D.R.Ev. 609, and the State did not demonstrate the probative value of the evidence outweighed the prejudice against Coppage. The court overruled the objection:

THE COURT: Thank you. I do find, first of all, the witness has asserted his innocence of any prior conduct of alleged assault or assaultive behavior. By virtue of the same, it is the order of the Court that the certified conviction occurring in 2004, by virtue of its proximity in time, is an appropriate impeachment document, and I'll overrule the objection and allow the same. The same limited for impeachment purposes only. Please invite the jury to be returned. [COPPAGE'S ATTORNEY]: Your Honor, just for the completion of the record for possible appeal, I would ask the Court to make a specific ruling that the probative value of this outweighs any prejudicial effect on Mr. Coppage. THE COURT: It is inherent in the Court's ruling, but I will so state.

[¶4] The jury returned to the courtroom and the State continued cross-examining Coppage:

Q. Mr. Coppage, before the jury broke, I asked you a question to which you responded that you had never assaulted another woman before. Do you remember that answer? A. Yes. Q. So it was your testimony you've never assaulted another woman? A. That's what I said, yes. . . . . Q. Mr. Coppage, I'm showing you what has been marked as State's Exhibit 61. This is a certified copy of a conviction from October of 2004, where you pled guilty to domestic assault . . . . You testified under oath--you understand you are under oath, correct? A. Yes. Q. You understand you have to tell the truth. A. Yes, I do. Q. When you testified you had never assaulted another woman, that wasn't true; was it? A. To the scope of those pictures, yes, it was. Q. I didn't ask you if you ever assaulted another woman as severely as [the victim]. I asked you if you ever assaulted another woman? A. I misunderstood the question. Q. So you have assaulted another woman. A. Yes. Q. So your testimony before was not truthful? A. No. Q. Even though you are under oath? A. Yes. [STATE]: State offers Exhibit 61, Your Honor. [COPPAGE'S ATTORNEY]: Same objection as before. THE COURT: Same objection is overruled, and the same received for the limited purpose as previously recited. The jury found Coppage guilty of attempted murder and aggravated assault, as a lesser-included offense.

[ΒΆ5] 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. See State v. Coppage, 2008 ND 134, 751 N.W.2d 254 ("Coppage I"). We affirmed Coppage's convictions. Id. at ...

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