Bell v. State

• Citation: 2001 ND 188,636 N.W.2d 438
• Decision Date: 05 December 2001
• Docket Number: No. 20010138.,20010138.
• Parties: Kyle Kenneth BELL, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
• Court: United States State Supreme Court of North Dakota

636 N.W.2d 438

2001 ND 188

Kyle Kenneth BELL, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.

No. 20010138.

Supreme Court of North Dakota.

December 5, 2001.

Kyle Kenneth Bell (on brief), pro se, Florence, CO.

Adam Wade Hamm (argued), and Mark Rainer Boening (appeared), Assistant State's Attorneys, Fargo, ND, for respondent and appellee.

KAPSNER, Justice.

[¶ 1] Kyle Bell appeals the summary dismissal of his application for post-conviction relief and the denial of his request for court-appointed counsel for the post-conviction proceeding. We hold the trial court did not abuse its discretion in denying Bell's request for court-appointed counsel, and the court did not err in summarily dismissing Bell's application for post-conviction relief. We affirm.

I

[¶ 2] In August 1999, a jury found Bell guilty of the 1993 murder of eleven-year-old Jeanna North, and the trial court sentenced Bell to life imprisonment. In March 2000, we dismissed Bell's direct appeal from the conviction, holding that, by escaping from custody while his appeal was pending, he forfeited and abandoned his right to appeal under the "fugitive dismissal rule." State v. Bell, 2000 ND 58, ¶ 20, 608 N.W.2d 232.

[¶ 3] Bell was recaptured while his direct appeal was pending, and he is currently incarcerated in Colorado. In March 2001, he applied for post-conviction relief under N.D.C.C. ch. 29-32.1. The trial court identified Bell's seven post-conviction claims as: (1) the State unconstitutionally proceeded by way of an information instead of by indictment; (2) a witness at trial committed perjury; (3) the conviction was obtained through the use of allegedly unconstitutional statements and testimony of Detectives Jim LeDoux and Rollie Rust; (4) during the proceedings against him, including the trial, the media was used to convict him; (5) the conviction was obtained in violation of an alleged constitutional requirement of a corpus delicti; (6) the State improperly commented on Bell's failure to testify; and (7) the trial court improperly denied Bell's motion for judgment of acquittal. When Bell filed his application for post-conviction relief, he also requested court-appointed counsel and sought to bar the media from the post-conviction proceeding.

[¶ 4] The State moved to dismiss Bell's application, arguing it was a misuse of process under N.D.C.C. § 29-32.1-12. The trial court dismissed Bell's application for post-conviction relief, concluding claims one, three, five and seven had to be raised at trial or on direct appeal and were barred as a misuse of process. The court decided claims two, four, and six were unsubstantiated and also should have been raised at trial or on direct appeal. The court denied Bell's request for court-appointed counsel, concluding he was able to file his application for post-conviction relief without assistance, and reading his application in the light most favorable to him, it failed to raise any substantial issue of law or fact. The court also denied Bell's request to be present at the post-conviction proceeding and to bar the media from the proceeding. Bell appealed and requested court-appointed counsel for the appeal. The trial court denied Bell's request for counsel for appeal.

II

[¶ 5] On appeal, Bell argues the trial court abused its discretion in denying his application for post-conviction relief and in granting the State's motion for summary dismissal without conducting an evidentiary hearing.

[¶ 6] Under N.D.C.C. § 29-32.1-09(1), a trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Our review of a summary dismissal of a post-conviction proceeding is similar to our review of a summary judgment. E.g., Clark v. State, 1999 ND 78, ¶ 5, 593 N.W.2d 329

. In Clark, at ¶ 5 (citations omitted), we said:

The party opposing the motion is entitled to all reasonable inferences at the preliminary stages and is entitled to an evidentiary hearing if an inference raises a genuine issue of fact. Once the moving party has established there is no genuine issue of fact, the burden shifts to the nonmoving party to show a genuine issue of fact exists. The party resisting the motion may not merely rely on the pleadings or unsupported conclusory allegations; rather the party must present competent admissible evidence by affidavit or other comparable means.

[¶ 7] Here, the trial court summarily dismissed several of Bell's claims on the ground of misuse of process. Section 29-32.1-12(2), N.D.C.C., authorizes a court to deny post-conviction relief on the ground of misuse of process. Summary dismissal of a post-conviction application is appropriate if the issues raised in the application constitute a misuse of process. See Clark, 1999 ND 78, ¶ 25,

593 N.W.2d 329. In Clark, at ¶ 23 (citations omitted), we said:

misuse of process under N.D.C.C. ch. 29-32.1 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.

A

[¶ 8] Bell argues due process requires the State to prove his guilt beyond a reasonable doubt, and he claims he supplied a police report and relevant transcripts to show a witness perjured herself. He essentially argues the State failed to overcome the presumption of his innocence, and he established reasonable doubt about his guilt.

[¶ 9] In Bell's application for post-conviction relief, he claimed a witness who was rollerblading with Jeanna North the night that North disappeared committed perjury. Bell claimed the witness "was asked, and given ample opportunity to disclose anyone that she or Jeanna North had spoken to between the time they left the North house to the time they returned to the area from the Stop-N-Go. Yet, [the witness] states that the only person they spoke to was the Defendant Kyle Bell." Bell claimed the witness told police that North also spoke to an "unknown person" and a police officer that night. We have reviewed the witness' testimony at trial, and it does not reflect the witness was specifically asked whether North talked to any other persons on the night North disappeared. We conclude Bell's conclusory assertions about perjury by that witness are meritless.

[¶ 10] Moreover, to the extent Bell argues the State failed to overcome the presumption of his innocence, his argument involves the sufficiency of the evidence to support the conviction, the failure of the State to produce the victim's body or a corpus delicti, and the trial court's denial of his motion for judgment of acquittal. Those issues were raised in the original criminal prosecution. Bell's direct appeal from the conviction was dismissed under the "fugitive dismissal rule." Bell, 2000 ND 58, ¶ 20,608 N.W.2d 232. Bell forfeited and abandoned his direct appeal, and the effect of the dismissal is that Bell failed to properly perfect an appeal of his conviction. See State v. Willey, 381 N.W.2d 183, 186 (N.D.1986)

(failure to take direct appeal bars post-conviction relief as to factual and legal issues that post-conviction applicant raised and litigated in original trial court proceeding and deliberately or inexcusably failed to pursue on direct appeal). Bell's attempt to raise those issues after failing to pursue them in a properly perfected direct appeal constitutes a misuse of process, and the trial court did not err in summarily dismissing those claims.

B

[¶ 11] Bell argues the State unconstitutionally proceeded against him by way of a criminal information instead of by grand jury indictment. Bell has cited no authority requiring the State of North Dakota, rather than the federal government, to prosecute criminal actions by indictment. Under N.D. Const. Art. 1, § 10, "[u]ntil otherwise provided by law, no person shall, for a felony, be proceeded against criminally, otherwise than by indictment." Section 29-09-02, N.D.C.C. and N.D.R.Crim.P. 7, authorize criminal prosecutions by information, and Bell's argument that a prosecution must be by an indictment is meritless. See State v. Williamson, 86 S.D. 485, 198 N.W.2d 518, 520 (1972)

(stating neither Fifth Amendment nor due process clause of Federal constitution requires indictments in state courts). See also 41 Am.Jur.2d Indictments and Informations § 9 (1995). Moreover, Bell has cited no references to the original criminal proceeding where he raised this issue, and he has presented no explanation for his failure to raise it in that preceding. Bell's attempt to now raise this issue after his inexcusable failure to raise it in the original criminal prosecution constitutes a misuse of process, and the trial court did not err in summarily dismissing this claim.

C

[¶ 12] Bell argues his conviction was based on the use of allegedly unconstitutional statements and testimony of Detectives Jim LeDoux and Rollie Rust. In the original criminal action, the trial court denied Bell's motion to suppress statements he made to Detectives LeDoux and Rust. Bell's direct appeal was dismissed because he failed to properly perfect the appeal, and his attempt to now raise this issue after failing to pursue it in a properly perfected appeal constitutes a misuse of process. See Clark, 1999 ND 78, ¶ 23,

593 N.W.2d 329; Willey, 381 N.W.2d at 186. The trial court did not err in summarily dismissing this claim.

D

[¶ 13] Bell alleges the media was used to convict him during the entire proceeding against him, including the trial. The original trial was moved from Cass County to Morton County. To the extent Bell raised this issue in the original criminal prosecuti...