Ellis v. State

• Decision Date: 06 May 2003
• Docket Number: No. 20020289.,20020289.
• Citation: 2003 ND 72,660 N.W.2d 603
• Parties: Blaine Douglas ELLIS, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

660 N.W.2d 603

2003 ND 72

Blaine Douglas ELLIS, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.

No. 20020289.

Supreme Court of North Dakota.

May 6, 2003.

Chad R. McCabe, Vinje Law Firm, Bismarck, N.D., for petitioner and appellant.

Birch Peterson Burdick, Fargo, N.D., for respondent and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Blaine Douglas Ellis appealed from a judgment denying his petition for post-conviction relief from an attempted murder conviction. We hold this record does not establish a violation of Ellis' Sixth Amendment right to assistance of counsel. We affirm.

I

[¶ 2] In February 2000, a jury found Ellis guilty of attempted murder, and in March 2000, he was sentenced to twenty years in prison. On May 1, 2001, we affirmed Ellis' direct appeal of his conviction. State v. Ellis, 2001 ND 84, 625 N.W.2d 544.

[¶ 3] On July 18, 2000 and while Ellis' direct appeal was pending, law enforcement officers obtained a search warrant and searched the office of Rolf Rolshoven, a private investigator hired by Ellis and his attorneys. According to Rolshoven, during the course of his investigation of Ellis' case, he interviewed Sharon Foell and DeEtta Weber, and the Cass County Sheriff's Department questioned whether Rolshoven had represented himself as a law enforcement officer when talking to Foell and Weber. See N.D.C.C. § 12.1-13-04 (person is guilty of a class A misdemeanor if he falsely pretends to be a law enforcement officer). An exhibit attached to the search warrant described the property to be seized:

All records, to include any writings, typed or hand written, audio or video tapes or cassettes, hand written notes, typed notes, all billing documentation and/or invoices directed to Mr. Brian Nelson, Attorney at Law or Mr. Blaine Ellis concerning: all interviews or meetings between Mr. Ross Rolshoven, Legal Investigator and Ms. DeEtta Weber and/or Ms. Sharon Foell that occurred between 09/20/99 and 12/29/99 in the City of Fargo, County Of Cass, North Dakota.

An evidence inventory and receipt for the search states the law enforcement officers seized a one-page typed billing document, a one-page typed DeEtta Weber report, a two-page typed Sharon Foell report, a four-page handwritten Sharon Foell interview, and a two-page handwritten DeEtta Weber interview.

[¶ 4] In February 2002, Ellis petitioned for post-conviction relief, claiming the search and seizure of items from his file in Rolshoven's office violated Ellis' right to counsel and due process under the Sixth and Fourteenth Amendments of the United States Constitution. The trial court dismissed Ellis' petition, concluding the search and seizure occurred months after Ellis' conviction and sentencing and Ellis had failed to establish misconduct by the law enforcement officers, who acted under a search warrant and did not exceed the scope of the warrant. The court concluded Ellis had not proven deliberate misconduct by the prosecution, or that law enforcement officers' actions resulted in tainted evidence or communication of any defense strategy to the prosecution. The court ruled Ellis had not shown he was prejudiced by the search and seizure.

II

[¶ 5] The burden of establishing a basis for post-conviction relief rests on the petitioner. Abdi v. State, 2000 ND 64, ¶ 8, 608 N.W.2d 292. Post-conviction proceedings under N.D.C.C. ch. 29-32.1 are civil in nature. Id. In a post-conviction proceeding, a court may accept the record if there is a contradiction between the record and a petitioner's unsupported assertions. Id.

[¶ 6] A trial court's findings of fact in a post-conviction proceeding will not be disturbed on appeal unless clearly erroneous under N.D.R.Civ.P. 52(a). Hill v. State, 2000 ND 143, ¶ 17, 615 N.W.2d 135. Contrary to Ellis' claim that the clearly erroneous rule does not apply to review of a trial court's findings based solely on documentary evidence, see Varnson v. Satran, 368 N.W.2d 533, 536 (N.D. 1985),

N.D.R.Civ.P. 52(a) was amended in 1994 to provide that findings of fact, whether based on oral or documentary evidence, will not be set aside on appeal unless clearly erroneous. N.D.R.Civ.P. 52, Explanatory Note. Under N.D.R.Civ.P. 52(a), 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 it, a reviewing court is left with a definite and firm conviction a mistake has been made. DeCoteau v. State, 2000 ND 44, ¶ 10, 608 N.W.2d 240. Questions of law are fully reviewable on appeal of a post-conviction proceeding. See Falcon v. State, 1997 ND 200, ¶ 9, 570 N.W.2d 719.

III

[¶ 7] Ellis argues the law enforcement officers' search and seizure of items in his file in Rolshoven's office violated Ellis' right to counsel and to due process of law under the Sixth and Fourteenth Amendments of the United States Constitution. Ellis argues the law enforcement officers' actions constituted gross misconduct and prejudiced his case, requiring reversal of his conviction or dismissal of the action.

[¶ 8] Under the Sixth Amendment of the United States Constitution, "[i]n all criminal prosecutions, the accused shall enjoy the right to ... have the assistance of counsel for his defense." See State v. Schneeweiss, 2001 ND 120, ¶ 6, 630 N.W.2d 482

; State v. Dvorak, 2000 ND 6, ¶ 9, 604 N.W.2d 445. See generally 3 LaFave, Israel, and King, Criminal Procedure ch. 11 (2d ed.1999). The Sixth Amendment imposes an affirmative obligation on the prosecution to respect and preserve an accused's choice to seek assistance of counsel, and "at the very least, the prosecutor and police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel." Maine v. Moulton, 474 U.S. 159, 171, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985).

[¶ 9] An essential element of an accused's Sixth Amendment right to assistance of counsel is the privacy of communications with counsel. State v. Clark, 1997 ND 199, ¶ 14, 570 N.W.2d 195 (quoting United States v. Brugman, 655 F.2d 540, 546 (4th Cir.1981)). There is a legitimate public interest in protecting confidential communications between an attorney and a client, see Clark, at ¶ 14 (quoting State v. Red Paint, 311 N.W.2d 182, 185 (N.D.1981)), and the attorney-client relationship extends to communications between the client and the attorney or the attorney's representative. See N.D.R.Ev. 502. See also State v. Copeland, 448 N.W.2d 611, 614-16 (N.D.1989)

; Red Paint, at 184-85.

[¶ 10] An accused's right to assistance of counsel precludes direct restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary fact-finding process. Herring v. New York, 422 U.S. 853, 858-65, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) (holding unconstitutional a statute that authorized trial court to deny counsel any opportunity for final argument in nonjury criminal case). See LaFave at § 11.8(a). It also has been recognized that some forms of State interference with the assistance of counsel and an attorney-client relationship do not directly impede the traditional functions of counsel in defending an accused. See United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981)

; Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). See generally LaFave at § 11.8(b).

[¶ 11] In Weatherford, 429 U.S. at 547, 97 S.Ct. 837, a convicted defendant brought a civil rights action against an undercover agent, alleging the agent's actions had denied the defendant effective assistance of counsel at his criminal trial. In Weatherford, the police arrested both the undercover agent and the defendant for vandalizing a selective service office. Id. At the defendant's request, the agent subsequently attended two pretrial meetings with the defendant and his lawyer to discuss the defendant's defense. Id. at 547-48, 97 S.Ct. 837. The agent did not initiate the meetings and did not seek information from the defendant or his attorney. Id. at 548, 97 S.Ct. 837. The agent did not disclose to his superiors any information derived from the meetings, and when the agent was unexpectedly called as a prosecution witness at trial, he did not testify about anything he learned at the meetings. Id. at 548-49, 97 S.Ct. 837.

[¶ 12] The Fourth Circuit Court of Appeals held that "`whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship, the right to counsel is sufficiently endangered to require reversal and a new trial.'" Weatherford, 429 U.S. at 549, 97 S.Ct. 837 (quoting Bursey v. Weatherford, 528 F.2d 483, 486 (4th Cir.1975)). The court of appeals held the agent was a member of the prosecution and it was immaterial that he had not informed other law enforcement officials about what was said at the meetings. Weatherford, 429 U.S. at 549-50, 97 S.Ct. 837. The court of appeals also held the defendant was denied due process by the concealment of the agent's identity. Id. at 550, 97 S.Ct. 837.

[¶ 13] The Supreme Court rejected the per se rule for reversal of a conviction in those circumstances. Weatherford, 429 U.S. at 551-59, 97 S.Ct. 837. The Court also rejected the State's argument that a defendant assumes the risk whenever the defendant converses with counsel in the presence of a third party who is thought to be a confederate and ally. Id. at 554, 97 S.Ct. 837. Under the circumstances of the case, the Court said the defendant would have had a much stronger case for reversal if the agent had testified at trial about the conversations during the attorney-client meetings, if the State's evidence had originated from those conversations, if the conversations had been used in any way to the substantial detriment of the defendant, or if the prosecution had learned the details about the defendant's trial preparation. Id. at 554, 97 S.Ct....