Opinions

Berlin v. State 2000 ND 206
Docket No.: 20000076
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: To establish ineffective assistance of counsel, the defendant must prove the counsel's performance was deficient and the deficient performance prejudiced the result.
An application for post-conviction relief may be denied for misuse of process if the applicant presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous post-conviction proceeding.

State v. Gleeson 2000 ND 205
Docket No.: 20000084
Filing Date: 12/7/2000
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: When there is sufficient doubt concerning a defendant's competency, a trial court must on its own motion conduct a hearing to determine whether the defendant is competent to stand trial.
Inconsistent testimony at trial and confusion regarding administrative and criminal proceedings do not create a sufficient doubt of a defendant's competency so as to warrant a hearing on the issue.

Mayo v. Mayo 2000 ND 204
Docket No.: 20000032
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Child Support
Author: Neumann, William

Highlight: In deciding a motion to modify custody, a trial court must consider whether there has been a significant change of circumstances and whether modification is necessary to serve the best interests of the child.
The credibility of witnesses, including experts, and the weight to be given their testimony are questions of fact subject to the clearly erroneous standard of review.
A trial court may question witnesses.

Logan v. Bush 2000 ND 203
Docket No.: 20000090
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

State v. Erickstad (CONSOLIDATED W/20000051 and w/20000052 & 20000053)) 2000 ND 202
Docket No.: 20000050
Filing Date: 12/7/2000
Case Type: Appeal - Criminal - Homicide
Author: Kapsner, Carol

Highlight: A defendant seeking a change of venue for adverse pretrial publicity must demonstrate a reasonable likelihood of prejudice so pervasive that it is impossible to impanel a fair and impartial jury.
When a party fails to object to a proposed instruction, fails to specifically request an instruction, or fails to object to omission of an instruction, the issue is not adequately preserved for appellate review and inquiry is limited to whether the jury instructions as given constitute obvious error.
Evidence of value of a vehicle from the Kelley Blue Book Internet website may be admissible under the market report or commercial publication hearsay exception, N.D.R.Ev. 803(17).

Mathre v. State 2000 ND 201
Docket No.: 20000097
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: Defense counsel should consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury, but failure to do so is not always ineffective assistance of counsel.
A defendant alleging ineffective assistance of counsel has a heavy burden to demonstrate her counsel's representation fell below an objective standard of reasonableness and she was prejudiced by counsel's deficient performance.

O'Neill v. O'Neill 2000 ND 200
Docket No.: 20000091
Filing Date: 12/7/2000
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A movant seeking change of custody, who brings allegations, supported by affidavit, demonstrating a custodial environment which may be endangering the childrens' physical or mental health, presents a prima facie case entitling the movant to an evidentiary hearing.
If the allegations of a movant seeking a modification of child custody are so unfounded and unsupported as to render them false and not made in good faith, the court can award costs and reasonable attorney fees.

State v. Gehring 2000 ND 199
Docket No.: 20000114
Filing Date: 12/7/2000
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Denial of a suppression motion and judgment entered on a conditional guilty plea are summarily affirmed. N.D.R.App.P. 35.1(a)(2).

State v. Lunstad 2000 ND 198
Docket No.: 20000113
Filing Date: 12/7/2000
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of surreptitious intrusion summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

State v. Wilson 2000 ND 197
Docket No.: 20000101
Filing Date: 12/7/2000
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Judgment of conviction for crime of accomplice to assault is summarily affirmed under N.D.R.App.P. 35.1(a) (3) and (7).