IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|Billy Joe Kinsella,|
|State of North Dakota,|
|Supreme Court No. 20130150|
|District Court No. 30-2012-CV-265|
Appeal from the District Court
South Central Judicial District
Morton County, North Dakota
The Honorable Sonna M. Anderson
Brief of Appellee
|Brian D. Grosinger|
|Assistant State's Attorney|
|210 Second Avenue NW|
|Mandan ND 58554|
|North Dakota License 4500|
|Table of Contents|
|Table of Authoritiesii|
|Statement of the Case2|
|Table of Authorities|
|Flanagan v. State, 2006 ND 76, 712 N.W.2d 602 . 6|
|State v. Kinsella, 2011 ND 88, 796 N.W.2d 678 . 2, 10|
|Strickland v. Washington, 466 U.S. 668 (1984) 6|
|Syvertson v. State, 2000 ND 185, 620 NW2d 362 ..8, 9|
|N.D.C.C. § 12.12002(5) 10|
|N.D.C.C. § 2932.112(2) .9|
|North Dakota State Constitution Article I §12 .. 4, 8|
|North Dakota Rules of Criminal Procedure, Rule 7 .. 8|
|North Dakota Rules of Criminal Procedure, Rule 43 4, 8|
1. Whether the argument that there was ineffective assistance of counsel has merit.
2. Whether any of appellant's specified issues have merit.
Statement of the Case
Kinsella was convicted after a jury trial. The jury conviction was appealed. The Direct Appeal is reported at State v. Kinsella, 2011 ND 88, 796 N.W.2d 678 and the underlying Judgment was affirmed. Kinsella subsequently filed a petition for post conviction relief. An evidentiary hearing was held on the petition on December 19, 2012. The Trial Court did not grant any relief requested in the petition. This appeal followed the denial of relief.
The evidentiary hearing on the petition for post conviction relief was held on December 12, 2012.
Kent Morrow, the trial counsel, was called as a witness for the hearing on post conviction relief. T. 50 L. 12. Mr. Morrow has practiced law in North Dakota for over thirty four (34) years. T. 50 L. 19. Mr. Morrow's testimony included that he had met with Defendant Kinsella, along with Nancy Kruckenberg, Phyllis Kinsella and Lori Kinsella multiple times. T. 51. Possibly six to eight times. T. 51 L. 15.
The question of the search of the home was posed to Mr. Morrow. T. 52 L. 1. Mr. Morrow responded that he did not believe it to be an issue because Lori Kinsella was present and gave consent. T. 52 L. 5. Mr. Morrow was pressed that the police report indicates that Lori Kinsella was pressured with the possibility of Social Services intervening and taking S.B., the victim, away, without cooperation. T. 53 L. 2. Mr. Morrow responded that neither Lori Kinsella nor the Defendant claimed an involuntary search. T. 53 L. 4. Mr. Morrow further elaborated that from experience, that's how this works, if the parent is not protecting the child, social services intervenes. T. 53 L. 7. Mr. Morrow testified that in his opinion, there were no grounds for the suppression motion. T. 53 L. 24.
Regarding the issue of a motion to suppress the statements of Kinsella to police, Mr. Morrow responded that Kinsella denied everything, and there was nothing incriminating to suppress. T. 55 L 21.
Regarding the issue of the Amended Information and the continuance, the substance of Mr. Morrow's testimony was that he objected to the filing of the Amended Information, but at the time it was granted, he requested the continuance to prepare. T. 58.
Addressing the issue of the claim regarding the jury questions, Mr. Morrow responded that the Court gave the usual responses to the Jury questions. T. 60 L. 5. Further, Mr. Morrow expanded that the Court's response was because the jury did not request any portion of any specific testimony, and agreed with the court's position that the jury answer given was appropriate to a general question. T. 61 L. 15.
Mr. Morrow answered the challenge that he was negligent for not obtaining Kinsella's phone records with the fact that Kinsella himself was in a better position to obtain his own phone records. T. 67 L. 1.
Regarding the DNA/bed sheets issue, Amy Gebhart from the North Dakota State lab reprised her trial testimony. T. 77.
The Trial Court issued findings of fact and order denying post conviction relief subsequent to the hearing. A. 98. The Trial Court issued findings specific to each of the issues identified by Kinsella.
To the first issue, failure to make a motion to suppress evidence based on the search of the residence, the Court found no evidence in support of the allegation. A. 99. The finding included that the Kinsellas provided no basis for Attorney Morrow to make such a motion. A. 99. The Court also notes that Attorney Morrow is bound by an ethical duty not to bring frivolous motions. A. 100. Further, because Lori Kinsella may have claimed coercion does not by itself produce suppression. A. 100.
To the second issue, failure to make a motion to suppress on the Miranda issue, the Court again found no basis to grant relief. A. 100. The Trial Court's reasoning includes the fact that the officer testified that Kinsella had been properly advised. A. 100. Further, Kinsella did not specify what statements should have been suppressed. A. 100. Further, the statements were denials of any criminality anyway. A. 100.
To the third issue, Kinsella claims he was not present at a hearing. The Trial Court found that the hearing was not one that required Kinsella's presence, or that he specifically had a right to be present at. A. 101. Citing Article I §12 of the North Dakota State constitution and Rule 43 of the North Dakota Rules of Criminal Procedure, the Trial Court found the hearing was not one that required the Defendant's presence, or one that he had a specific right to be present. A. 101-102. More specifically, it was not a trial appearance, arraignment, plea, trial, or sentencing. A. 102.
To the fourth issue, the Trial Court identified the jury questions that were submitted during the course of the trial. A. 102-103. And then the Trial Court specified the responses given. A. 103. To the specific complaint alleged in the petition, the Court indicated that no specific testimony was requested. A. 103. Instead, the Court was put in the position of answering fact questions. A. 103. The Trial Court maintained the response was correct. A. 103.
The fifth issue was an allegation that Kinsella should not have testified. The Trial Court wrote that Kinsella would have been aware of the right not to testify at the original initial appearance. A. 104. Then the Trial Court notes Mr. Morrow's testimony that Kinsella's testimony was necessary to the conduct of the theory of the defense. A. 104. That included Kinsella's activities at the time of the offense to show he could not have committed the offense, and to explain the presence of his DNA on the victim's bed sheets as due to having had sex with his wife. A. 104. In finding Kinsella did not meet the burden of proof the Trial Court included that trial strategy will not be second guessed. A. 105.
The Trial Court addressed the sixth issue of independently testing the bed sheets. First, the Trial Court recognized that the Trial testimony was that Kinsella's DNA and the victim's cells were intermingled on the bed sheet. A. 105. The Trial Court concluded that the Petitioner did not show how the failure of Mr. Morrow to test the sheets independently fell below the standard of practice, and did not show how that would have changed the outcome. A. 106.
The Trial Court addressed the seventh issue claiming Mr. Morrow did not adequately prepare for trial. The Trial Court recognized that this complaint ran from investigation and witness preparation to cross examination at trial. A. 106. The Trial Court reviewed the trial court and found Mr. Morrow's performance professional and with requirements. A. 106. The Court found Mr. Morrow's testimony in regard to the specific complaints showed the allegation had not been proved. A. 106.
The Trial Court denied the petition for Post Conviction Relief. A. 106-107.
Kinsella noticed this appeal following the Findings and Order of the District Court denying post conviction relief.
A. There was no ineffective assistance of counsel as alleged
Ineffective assistance of counsel is governed by the Strickland test, originating from Strickland v. Washington, 466 U.S. 668 (1984) and is largely followed by this Court as per Flanagan v. State, 2006 ND 76, 712 N.W.2d 602. In short, the test requires that the performance of the accused counsel fall below an objective standard of performance, and then the second prong requires that the defendant be prejudiced. Prejudice is often judged by if the outcome would have been different.
The State argues, as the Trial Court found, that the first prong was not proved in the instant case. It was not proved on any of the seven (7) issues identified by Kinsella that the performance of Attorney Morrow fell below an objective standard of reasonableness.
The testimony of Attorney Morrow provides most of the basis for the denial of relief. At each issue there is a rational basis for the decisions made by Attorney Morrow in the conduct of the trial. Further, there is no indication that his conduct was substandard during the pretrial stage either.
In general, the testimony of Attorney Morrow is that a trial strategy, based largely on the Defendant claiming his innocence, and that his testimony would show his innocence, was determined. The trial was conducted toward that strategy. The strategy didn't succeed. An unsuccessful outcome does not invalidate the strategy. Also, an unsuccessful outcome does not show the performance of counsel fell below the objective standard required to prove the first prong.
Because the performance of Attorney Morrow did not fall below the objective standard, the second prong need not be addressed. (Nevertheless, on the sixth issue regarding DNA and the bed sheets, the Trial Court did specifically find that the first prong was not met, and added that the Petitioner did not show that the outcome would have been different, essentially addressing both prongs without necessity.)
B. Defendant does not raise a specific issue of merit
The issues raised on appeal by the Petitioner/Appellant are exactly those that were identified in the original petition and litigated at the evidentiary hearing. The Trial Court in its Findings and Order addressed each individually and specifically.
1. Suppression regarding the search
First and foremost, Mr. Morrow believed there was no basis for suppression of the search. His testimony included that there was no basis for such a motion given to him by the Kinsellas. Judge Anderson added that he has an ethical duty not to forward frivolous motions. Judge Anderson also stated that the claim that indentifying potential social service involvement may have been perceived as coercive, but was grounded in reality.
There is no basis for a finding that Mr. Morrow's behavior fell below standards, and the Trial Court should be affirmed.
2. Suppression of Denials
There were no admissions made during the police interrogation. The investigator testified that the Miranda warning was given. Thus, if there had been admission, there would have been dispute that the Miranda requirement was violated. The Defendant testified, and testified on the basis that he did not commit the offense. Kinsella established a timeline that he claimed meant he could not have committed the offense. His testimony was required for that evidence.
3. Amended Information and continuance
This issue is identified as April 14, 2010, hearing in the Trial Court's order. In substance, the State's Motion to Amend the Information was granted by the Trial Court. As a result the Defense made its own motion to continue based on the Amended Information. That Motion was also granted. Kinsella claims he was not at the hearing, therefore his rights were violated, and this constitutes ineffective assistance of counsel.
Pursuant to Rule 7(e) of the North Dakota Rules of Criminal Procedure amendment to the Information can be permitted anytime before verdict provided the defendant is not prejudiced. In this case the witnesses were not a secret or an ambush because the discovery had been provided. The amendment was not improper. Continuances are largely discretionary. This continuance was requested by the defense. Both of these matters routinely occur on paper without the presence of the defendant.
The Trial Court in its order relied on Article I §12 of the North Dakota State Constitution and Rule 43 of the North Dakota Rules of Criminal Procedure as authority for a determination that the Defendant did not have to be at the proceeding.
This issue goes more to the Court's ruling that to the performance of counsel. Further, the State argues it should not be raised or considered at this time, because it was not raised at the trial court, and it was not raised on the direct appeal.
Syvertson v. State, 2000 ND 185, 620 NW2d 362 at ¶18 states:
In (citation omitted) we explained under N.D.C.C. § 2932.112(2), a misuse of process "occurs (1) if the defendant has inexcusably failed to raise an issue in a proceeding leading to judgment of conviction and now seeks review in a first application for post-conviction relief; (2) if the defendant inexcusably fails to pursue an issue on appeal which was raised and litigated in the original trial court proceedings; and finally, (3) if a defendant inexcusably fails to raise an issue in an initial post-conviction application." (Citations omitted.)
The instant case mirrors the issue in Syverson, in that this particular issue of the claim of the Defendant not being present at hearing was not raised or argued at the trial court level. Further, it was not raised or argued on the direct appeal. Nor, is there any explanation forthcoming for why there is good cause to address the issue at present. Syvertson at ¶19.
Therefore, even if the State's first argument and the Trial Court's rationale fails, there should still be no relief granted on this issue.
4. Jury Question Procedures
The Court made a correct ruling on the jury questions. Even if the court didn't, this issue also does not go to Mr. Morrow's performance. At most he could have presented an objection to the answers the Court gave to the jury questions. This performance does not meet the burden required for post conviction relief.
5. Defendant's Decision to Testify
Most importantly, the theory of the defense required the Defendant's testimony to admit the evidence necessary. To now allege that the trial counsel's performance fell below standards for not advising of the right to not testify, or not advising the defendant not to testify is an attempt to have his cake and eat it too.
The Trial Court correctly found that the Defendant would have been advised of this right through the pretrial procedure. The Trial Court further found that it's appropriate to call the Defendant when it's required for the trial strategy. Finally, the Trial Court appropriately found that trial strategy will not be second guessed.
Therefore, there is no relief that should be granted on this issue.
6. Bed sheets and DNA
This argument is that the performance of Mr. Morrow fell below standard because he did not have an independent test of bed sheets to show that Kinsella's wife's DNA was also present. If this had happened, it would not have unsettled the evidence that was presented.
At trial, the investigating officer testified Kinsella seemed "on guard" and "closed up" when questioned about the sexual assault allegations. An analyst from the State Crime Laboratory testified Kinsella's semen was present on the bed sheet recovered from S.B.'s bedroom, along with S.B.'s skin cells. The State also presented evidence from the results of S.B.'s medical examination following the assault, which revealed redness and irritation on S.B.'s genitalia. Further, Kinsella's wife testified S.B. told her about the sexual assault the day after the assault took place, even though S.B. later recanted her story. We conclude the jury could infer Kinsella had the requisite intent based on the evidence presented at trial. Moreover, the presence of Kinsella's semen on the bed sheet recovered from S.B.'s bedroom and the nurse examiner's testimony she observed redness and irritation on S.B.'s genitalia are sufficient bases for the jury to infer sexual contact. See N.D.C.C. § 12.12002(5) (defining sexual contact as any touching of the sexual or intimate parts of the person or the penile ejaculation for purposes of arousing or satisfying sexual desires). Accordingly, we conclude sufficient evidence exists to support the jury's verdict of guilty.
State v. Kinsella, 2011 ND 88, 796 N.W.2d 678 at ¶15.
The burden of proof was achieved by the total of the evidence presented. Even if the DNA profile of Kinsella's spouse was identified on the bed sheet, it does not alter the mingling of Kinsella's semen and the cells of the victim. It certainly would not nullify the other facts that led to achieving the burden of proof.
Therefore, the Trial Court found correctly that this was not performance by Mr. Morrow that was below the objective standard.
7. Trial Preparation
In deciding this issue the Trial Court reviewed the trial transcript in addition to evaluating the evidence at the hearing on the Petition. Mr. Morrow's testimony was that he did prepare defense witnesses to testify. The State also argues that he reasonably evaluated and followed up on the demands placed upon him by his client. The Trial Court found that his trial performance was professional, and that his performance met standards in all other respects. The evidence allows this finding. Therefore, no relief should be afforded on this issue.
For the reasons stated above the State of North Dakota requests the Findings and Order of the Trial Court denying Post Conviction relief be entirely in all respects affirmed.
|Dated this day of September, 2013.|
|Brian D. Grosinger|
|Assistant State's Attorney|
|210 Second Avenue NW|
|Mandan ND 58554|
|North Dakota License 4500|