[Copyrighted Material Omitted]
Chad R. McCabe, Bismarck, ND, for petitioner and appellant.
Brian D. Grosinger, Assistant State's Attorney, Mandan, ND, for respondent and appellee.
VANDE WALLE, Chief Justice.
[¶ 1] Billy Joe Kinsella appealed from a district court judgment denying his application for post-conviction relief. We affirm, concluding Kinsella failed to demonstrate he received ineffective assistance of counsel from his trial attorney.
[¶ 2] In 2010, a jury convicted Kinsella of sexually assaulting his sixteen-year-old stepdaughter, S.B. Evidence at the trial included testimony from the investigating officer, the sexual assault nurse examiner (" SANE" ), North Dakota State Crime Laboratory analysts, and DNA evidence taken from bed sheets located in the Kinsella residence. One of the crime laboratory analysts testified the bed sheet tested positive for semen and that DNA analysis revealed the semen matched Kinsella's DNA profile. S.B. testified she did not
remember the sexual assault or the sexual assault examination conducted by the SANE nurse. Kinsella appealed his conviction to this Court. We affirmed the judgment in State v. Kinsella, 2011 ND 88, ¶ 1, 796 N.W.2d 678.
[¶ 3] Kinsella subsequently filed a petition for post-conviction relief. At the post-conviction relief hearing, Kinsella argued his trial counsel provided ineffective assistance of counsel for seven reasons: (1) failing to file a motion to suppress evidence; (2) failing to suppress statements allegedly taken in violation of Miranda v. Arizona; (3) appearing at a hearing without informing Kinsella; (4) failing to have the jury brought into the courtroom to have information requested by the jury given to it; (5) failing to advise Kinsella of his right against self-incrimination; (6) failing to investigate allegedly exculpatory evidence; and (7) failing to investigate and prepare defense witnesses to testify. The district court denied the petition. On appeal, Kinsella raises the same arguments he presented at the district court hearing. Kinsella requests a new trial and an order to suppress the " unconstitutionally obtained evidence."
[¶ 4] The standard of review for a claim of ineffective assistance of counsel in a post-conviction appeal is well-established:
Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure. Whether a petitioner received ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable on appeal. Under N.D.R.Civ.P. 52(a), the district court's findings of fact will not be disturbed on appeal unless clearly erroneous. " A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support the finding, a reviewing court is left with a definite and firm conviction a mistake has been made."
Clark v. State, 2008 ND 234, ¶ 11, 758 N.W.2d 900 (citations omitted). The Sixth Amendment, made applicable to the states through the Fourteenth Amendment, provides that " [i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI; see also Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (holding that the Sixth Amendment right to counsel in all criminal prosecutions is a fundamental right essential to fair trial and obligatory upon the states through the Fourteenth Amendment). Article I, § 12 of the North Dakota Constitution also guarantees a criminal defendant the right to effective assistance of counsel. Klose v. State, 2005 ND 192, ¶ 9, 705 N.W.2d 809.
[¶ 5] In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established the test for whether a convicted criminal defendant's ineffective assistance of counsel claim warrants a reversal of conviction. " First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘ counsel’ guaranteed the defendant by the Sixth Amendment." Id. Second, the defendant must show that the deficient performance prejudiced his or her defense. Id. " This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id.
[¶ 6] This Court has stated that the " [e]ffectiveness of counsel is measured by
an ‘ objective standard of reasonableness' considering ‘ prevailing professional norms.’ " DeCoteau v. State, 2000 ND 44, ¶ 8, 608 N.W.2d 240 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). We have also explained:
Establishing both elements is a heavy burden and requires a defendant to both overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. This requires the defendant to demonstrate with specificity how and where trial counsel was incompetent, and it is probable a different result would have been obtained had trial counsel not performed incompetently.
Klose, 2005 ND 192, ¶ 9, 705 N.W.2d 809 (citation omitted). In reviewing a trial counsel's conduct in an ineffective assistance of counsel claim, we are cognizant of limiting the " distorting effect of hindsight." Garcia v. State, 2004 ND 81, ¶ 5, 678 N.W.2d 568.
A. Failure to File a Motion to Suppress Evidence from a Search of ...