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Monty G. Mertz, Fargo, N.D., for petitioner and appellant.
Pamela A. Nesvig, Assistant State's Attorney, Bismarck, N.D., for respondent and appellee.
[¶ 1] Ernest Coppage appeals fro a district court order, denying him post-conviction relief from a criminal judgment entered after a jury convicted him of attempted murder. We recently held in Dominguez v. State, 2013 ND 249, ¶¶ 1, 22, 840 N.W.2d 596, that attempted murder under N.D.C.C. §§ 12.1-06-01 and 12.1-16-01(1)(b) is not a cognizable offense. In this appeal from a post-conviction proceeding, we conclude Coppage failed to establish he was prejudiced by claimed ineffective assistance of counsel and prosecutorial misconduct. But following a majority of this Court's holding in State v. Borner, 2013 ND 141, 836 N.W.2d 383, and State v. Whitman, 2013 ND 183, 838 N.W.2d 401, as to the parameters of obvious error, we exercise our inherent authority to notice obvious error because Coppage's conviction for attempted murder under N.D.C.C. §§ 12.1-06-01 and 12.1-16-01(1)(b) is not a cognizable offense. We reverse Coppage's conviction for attempted murder and reinstate the jury's verdict of aggravated assault and remand for resentencing.
[¶ 2] To understand the issues in Coppage's present appeal, we describe the procedural history of his conviction and prior post-conviction proceedings.
[¶ 3] In 2006, the State charged Coppage with attempted murder under N.D.C.C. §§ 12.1-06-01 and 12.1-16-01. Before trial, Coppage moved the court to prevent the State from introducing evidence of his prior alleged domestic violence. The State did not object, and the court granted Coppage's pretrial motion. In State v. Coppage, 2008 ND 134, 751 N.W.2d 254 (" Coppage I " ), we summarized the evidence adduced at a jury trial:
At trial, the victim testified that Coppage used a plunger and his hands to hit her. She said Coppage choked her with his hands and the plunger handle while she was on her stomach. She also testified that she pled with him not to kill her during the incident, to which he responded he did not care if he killed her. The victim testified that she managed to get to a couch, but Coppage followed her and hovered over her with a serrated steak knife. She testified she was able to grab the knife and throw it before running to a chair. Coppage followed her with a pair of scissors and stabbed her leg before she was able to grab the scissors from Coppage and flee the home. The victim testified she left the residence. Coppage caught up to her, hit her in the head, told her to be quiet, and dragged her back into the residence.
Coppage testified he told the victim during the altercation that he was not going to kill her. He claimed he only used his fists during the incident. He said the victim struck him three times, and that he was attempting to defend himself.
The victim's treating physician testified that the victim suffered soft tissue injuries and a right orbital fracture. He testified that a CAT scan showed the victim suffered from brain hemorrhaging. The victim was hospitalized for
three days. The physician indicated the victim's wounds were consistent with stabbing with a scissors and forceful application of a wooden rod against her throat area. He identified possible defensive wounds on the victim's right thumb and left forearm. The physician also identified hemorrhaging in the victim's eyes consistent with the infliction of force or trauma.
Coppage I, at ¶¶ 3-5.
[¶ 4] During trial, Coppage testified he had hit the victim multiple times but claimed he was defending himself. The State cross-examined Coppage about whether he had previously been " physical with a woman" or had " hit a woman," which he denied. The State then requested the trial court, outside the jury's presence, to allow the introduction of evidence of a prior misdemeanor assault conviction to impeach Coppage's testimony.
[¶ 5] Coppage's attorney objected, contending the State was trying to circumvent the court's order granting the pretrial motion, the State had not disclosed evidence of the prior conviction before trial, the conviction did not satisfy the requirements for impeachment under N.D.R.Ev. 609, and the State had not shown the evidence's probative value outweighed its prejudicial effect. The trial court overruled Coppage's objection, and the State thereafter cross-examined Coppage regarding a 2004 conviction, entered after he had pled guilty to domestic assault. During cross-examination Coppage conceded that he had assaulted another woman and his earlier trial testimony " was not truthful." The jury found Coppage guilty of attempted murder and aggravated assault, which under the law of the case had been designated as a lesser-included offense of attempted murder. See Coppage I, 2008 ND 134, ¶¶ 1-2, 22-23, 28, 751 N.W.2d 254. Coppage appealed from the criminal judgment and an order denying his new trial motion, arguing the verdict form was logically and legally inconsistent and there was insufficient evidence to support the attempted murder conviction. The same attorney represented Coppage both at trial and in his direct appeal. This Court affirmed both the judgment and order in that appeal. Id. at ¶ 28.
[¶ 6] In 2009, Coppage applied for post-conviction relief, alleging his trial attorney was ineffective, the jury selection was biased, and the crime scene was tainted. Coppage was represented by counsel during these proceedings. The district court denied his application after a hearing, and Coppage did not appeal that decision.
[¶ 7] In 2010, Coppage again applied for post-conviction relief, claiming that he was subjected to double jeopardy when convicted of both attempted murder and aggravated assault, that he was denied due process when the State improperly introduced evidence of prior crimes as impeachment evidence, that the State had engaged in prosecutorial misconduct, and that the trial court erred in failing to require the jury to deliberate further after returning a verdict finding him guilty of both attempted murder and aggravated assault. The State moved to dismiss his application, claiming it was barred by res judicata (the matter had been previously decided) and misuse of process. Coppage responded that his claims were not barred because he had relied on his appointed counsel, whose assistance he alleged was ineffective. He also filed an affidavit claiming he received ineffective assistance of trial, appellate, and post-conviction counsel.
[¶ 8] The district court summarily dismissed Coppage's application on the basis of res judicata and misuse of process, and he appealed. We reversed and remanded, concluding the court erred in summarily
dismissing Coppage's claims about the admission of evidence, prosecutorial misconduct, and ineffective assistance of post-conviction counsel without holding an evidentiary hearing. Coppage v. State, 2011 ND 227, ¶¶ 19-20, 807 N.W.2d 585 (" Coppage II " ). We held Coppage had raised a genuine issue of material fact regarding his ineffective assistance of post-conviction counsel claim by presenting evidence about why his failure to raise the evidentiary and prosecutorial misconduct issues in prior proceedings was excusable. Id.
[¶ 9] After an evidentiary hearing on remand, the district court granted Coppage's application for post-conviction relief. The court held, in part, the evidence of Coppage's prior conviction was not admissible under N.D.R.Ev. 609 because the conviction was for a misdemeanor offense and was not for a crime of dishonesty. The court found Coppage had received ineffective assistance of trial counsel because his counsel had failed to request an instruction limiting the jury's use of the evidence of his prior conviction and he was prejudiced by the admission of that evidence. The court granted Coppage post-conviction relief to the extent he was entitled to a new trial on the attempted murder charge and vacated his attempted murder conviction. The court also stated that " [b]ased on Coppage's admission to the crime of aggravated assault, ... the sentence for the same is deemed satisfied[,]" and " Coppage is to be returned to [the district court] for the setting of bond."
[¶ 10] The State appealed, and Coppage cross-appealed. We again reversed and remanded. Coppage v. State, 2013 ND 10, ¶¶ 1, 27, 826 N.W.2d 320 (" Coppage III " ). We explained our rationale for reversing the district court's decision, stating:
Although the evidence of Coppage's prior conviction does not meet the requirements for admission under N.D.R.Ev. 609 because the conviction was for a misdemeanor, the rule does not apply because the evidence was not offered to impeach Coppage's general character for truthfulness. The court did not consider whether the evidence was properly admitted for other reasons, including whether Coppage " opened the door" and the evidence was admissible to contradict his testimony and whether the probative value of the evidence substantially outweighed the danger of unfair prejudice under N.D.R.Ev. 403.
Furthermore, the court also did not correctly apply the law in determining whether Coppage was prejudiced by his counsel's conduct. The court found Coppage's trial counsel's conduct fell below an objective standard of reasonableness because he failed to request an instruction limiting the jury's use of the evidence of Coppage's prior conviction. The court further found Coppage was prejudiced by his counsel's conduct because the evidence was improperly admitted and the admission prejudiced Coppage. However, that is not the correct standard for ineffective assistance of counsel.... The court did not assess the prejudicial effect of counsel's error within the context of the remaining evidence and the overall conduct of the trial. On remand, the court must consider the error in the context of the properly presented evidence and overall conduct of the trial and determine whether Coppage established a reasonable probability that the result of the trial would have been different if his counsel had requested a limiting instruction.
Coppage III, at ¶¶ 20-21 (emphasis added).
[¶ 11] We held the district court had failed to carry out the terms of our mandate on remand in Coppage II. Although
the court had correctly begun its analysis by deciding whether Coppage's trial counsel was ineffective for failing to request a limiting instruction, we held the district court had not properly applied the law to decide whether Coppage had been prejudiced and had failed to decide whether Coppage's first post-conviction counsel was also ineffective for not arguing his trial counsel was ineffective and for not raising the prosecutorial misconduct issues. Coppage III, 2013 ND 10, ¶¶ 24-26, 826 N.W.2d 320. We said for Coppage to succeed on his claim, he must prove:
(1) his trial and appellate counsel's representation fell below an objective standard of reasonableness, (2) there is a reasonable probability that the result of the trial or appeal would have been different absent his counsel's alleged errors, (3) his prior post-conviction counsel's performance fell below an objective standard of reasonableness by not arguing his trial and appellate counsel was ineffective, and (4) there is a reasonable probability ...