Kinsella v. State

20130150 Billy Joe Kinsella, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

Appeal from: District Court, South Central Judicial District, Morton County
Judge Sonna M. Anderson
Nature of Action: Post-Conviction Relief
Counsel:
Appellant: Chad Rory McCabe
Appellee: Brian David Grosinger , Asst. State's Attorney
Term: 11/2013   Argument: 11/05/2013  9:05am
ND cite: 2013 ND 238
NW cite: 840 N.W.2d 625

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Issues: Appellant's Statement of the Issues:
I: Kinsella's counsel committed professional error and was ineffective when he failed to file a motion to suppress any and all evidence from the search of Kinsella's home, in violation of the Fourth Amendment of the United States Constitution, and even greater possible protection provided by Article I, Section 8 of the North Dakota State Constitution. This failure was the result of ineffective assistance of counsel and advice outside the range of competence demanded of attorneys in a criminal case, in violation of the Sixth Amendment of the United States Constitution and even greater possible protection pursuant to Art. I.  12 of the North Dakota State Constitution.
II: Kinsella's counsel committed professional error and was ineffective when he failed to file a motion to suppress any and all statements of Kinsella in violation of Miranda v. Arizona, 384 U.S. 436 (1966), the Fifth Amendment of the United States Constitution, and even greater possible protection pursuant to Art. I.  12 of the North Dakota State Constitution. This failure was the result of ineffective assistance of counsel and advice outside the range of competence demanded of attorneys in a criminal case, in violation of the Sixth Amendment of the United States Constitution and even greater possible protection pursuant to Art. I.  12 of the North Dakota State Constitution.
III: The Court erred and/or Kinsella's counsel committed professional error and was ineffective when the Court held a hearing on April 14, 2010 in Kinsella's absence and without informing him, and/or when Kinsella's counsel failed to advise or include Kinsella in this hearing, and the Court continued the trial to his detriment, when the Information did not list any witnesses regarding DNA collection or testing and Kinsella was fully prepared for trial. This was in violation of Kinsella's right to be present as provided by Art. I.  12 of the North Dakota State Constitution and Rule 43, N.D.R.Crim.P., and also was the result of ineffective assistance of counsel and advice outside the range of competence demanded of attorneys in a criminal case, in violation of the Sixth Amendment of the United States Constitution and even greater possible protection pursuant to Art. I.  12 of the North Dakota State Constitution.
IV: Kinsella's counsel committed professional error and was ineffective when he failed to claim error for the trial court's procedure in responding to two specific questions and/or failed to exercise Kinsella's statutory right to have the jury brought into the courtroom and have the information requested by the jury given to it, where the undisputed answers existed in the testimonial record. This failure was the result of ineffective assistance of counsel and advice outside the range of competence demanded of attorneys in a criminal case, in violation of the Sixth Amendment of the United States Constitution and even greater possible protection pursuant to Art. I.  12 of the North Dakota State Constitution.
V: Kinsella's counsel committed professional error and was ineffective when he failed to advise Kinsella of his right to testify or not to testify, the strategic implications of each choice, and the benefits and hazards of testifying and of not testifying. This failure was the result of ineffective assistance of counsel and advice outside the range of competence demanded of attorneys in a criminal case, in violation of the Sixth Amendment of the United States Constitution and even greater possible protection pursuant to Art. I.  12 of the North Dakota State Constitution.
VI: Kinsella's counsel committed professional error and was ineffective when he failed to investigate and have the bed sheets tested to determine if Lori Kinsella's DNA or a third profile DNA was on the bed sheets. This failure was the result of ineffective assistance of counsel and advice outside the range of competence demanded of attorneys in a criminal case, in violation of the Sixth Amendment of the United States Constitution and even greater possible protection pursuant to Art. I.  12 of the North Dakota State Constitution.
VII: Kinsella's counsel committed professional error when he failed to investigate and prepare defense witnesses to testify, which resulted in ineffective assistance of counsel and advice outside the range of competence demanded of attorneys in a criminal case, in violation of the Sixth Amendment of the United States Constitution and even greater possible protection pursuant to Art. I.  12 of the North Dakota State Constitution.

Appellee's Statement of the Issues:
1. Whether the argument that there was ineffective assistance of counsel has merit.
2. Whether any of appellant's specified issues have merit.

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Docket entries:
105/10/2013 NOTICE OF APPEAL: 05/09/2013
205/10/2013 ORDER FOR TRANSCRIPT: 05/10/2013
305/21/2013 Certified ROA dated 5/21/13 (Entry Nos. 1-63)(underlying criminal record)(Not Scanned 44)
406/06/2013 ELEC. RECORD ON APPEAL DATED JUNE 6, 2013 (ENTRY NOS. 1-46)
506/28/2013 TRANSCRIPTS DATED DECEMBER 19, 2012 & C.O.S.
606/28/2013 DISK-Transcript dated December 29, 2012 (e-mailed)
708/01/2013 MOT. EXT/TIME APPELLANT BRIEF
808/01/2013 E-FILED MOTION
908/02/2013 ACTION BY CLERK. Granted: 08/21/2013
1008/21/2013 Rec'd non-compliant brief ATB; sent back for corrections (word limit 32(7)(a))
1108/23/2013 Rec'd $25 e-file surcharge for ATB (receipt #22035)
1208/30/2013 Rec'd compliant ATB
1308/30/2013 APPELLANT BRIEF (PDF)
1408/30/2013 E-FILED BRIEF (PDF)
1508/30/2013 APPELLANT APPENDIX
1608/30/2013 E-FILED BRIEF
1709/06/2013 Rec'd the ATB & ATA from Central Duplicating
1809/06/2013 Rec'd $12.50 for overage of pages for ATA (receipt #22206)
1909/27/2013 APPELLEE BRIEF
2009/27/2013 DISK - AEB
2110/11/2013 NOTICE OF ORAL ARGUMENT SENT
2211/05/2013 APPEARANCES: Chad McCabe/Brian Grosinger
2311/05/2013 ARGUED: McCabe/Grosinger
2412/19/2013 DISPOSITION: AFFIRMED
2512/19/2013 UNANIMOUS OPINION: VandeWalle, Gerald W.
2612/20/2013 Judgment Sent to Parties
2701/15/2014 MANDATE
2801/21/2014 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

Generated from Supreme Court Docket on 07/30/2014