Breding v. State

• Decision Date: 15 September 1998
• Docket Number: No. 970401,970401
• Citation: 584 N.W.2d 493,1998 ND 170
• Parties: Damien David BREDING, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee. Civil
• Court: North Dakota Supreme Court

Page 493

584 N.W.2d 493

1998 ND 170

Damien David BREDING, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.

Civil No. 970401.

Supreme Court of North Dakota.

Sept. 15, 1998.

Rehearing Denied Oct. 14, 1998.

Janet Holter Zander, of Zander Law Office, P.C., Williston, for petitioner and appellant.

Jeffrey J. Peterson (argued), State's Attorney, Bowbells, and Michel W. Stefonowicz (appeared), Assistant State's Attorney, Crosby, for respondent and appellee.

NEUMANN, Justice.

¶1 Damien David Breding appealed from a district court order denying his application for post-conviction relief. We affirm.

¶2 In 1994, a jury found Breding guilty on two counts of murder and one count of attempted murder. The jury found Breding, at age 16, purposely set fire to the home of Bradley and Paula Peterson in Powers Lake during the early morning hours of March 31, 1991. The Petersons' twin six-year-old daughters died in the fire and Bradley Peterson was injured. Breding's convictions were affirmed on appeal by this court in State v. Breding, 526 N.W.2d 465 (N.D.1995). That opinion contains a detailed account of the facts, which will not be repeated here except as necessary to explain and resolve the issues raised on this appeal.

¶3 In requesting post-conviction relief, Breding claims his constitutional right to effective assistance of counsel at the criminal trial was violated when: (1) counsel failed to object to Bradley Peterson's hypnotically enhanced testimony or to attack the credibility of such testimony; (2) counsel failed to object to the introduction of out-of-court statements made by Breding to investigating officers; and (3) counsel failed to introduce evidence of Bradley Peterson's careless smoking habits as a possible cause of the fire. The district court rejected these arguments, concluding Breding received effective assistance of counsel during the criminal trial proceedings.

¶4 The burden of establishing grounds for post-conviction relief rests upon the applicant. State v. Kunkel, 366 N.W.2d 799, 803 (N.D.1985). Effective assistance of counsel is guaranteed to a defendant under the Sixth Amendment to the United States Constitution, applied to the states through the Fourteen Amendment, and by Article I, Section 12 of the North Dakota Constitution. State v. Ricehill, 415 N.W.2d 481, 484 (N.D.1987). The issue of ineffective assistance of counsel is a mixed question of law and fact which is fully reviewable by this court. Falcon v. State, 1997 ND 200, p 21, 570 N.W.2d 719. However, a trial court's findings of fact in actions for post-conviction relief will not be disturbed unless clearly erroneous, pursuant to N.D.R.Civ.P. 52(a). Frey v. State, 509 N.W.2d 261, 263 (N.D.1993). We summarized our standard for reviewing a claim of ineffective assistance of counsel in Stoppleworth v. State, 501 N.W.2d 325, 327 (N.D.1993):

"When a defendant raises an ineffective-assistance-of-counsel argument, it is the defendant's burden to prove that counsel's assistance was ineffective at trial. State v. Skaro, 474 N.W.2d 711, 714 (N.D.1991). In carrying that burden, the defendant must establish two elements. 'First, the defendant must prove that the counsel's performance was deficient. Second, the defendant must prove that the deficient performance prejudiced the defendant.' State v. Wilson, 488 N.W.2d 618, 622 (N.D.1992) [citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]. In attempting to prove the first element, 'the defendant must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' State v. Skaro, 474 N.W.2d at 715 (quoting Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065). The second element requires the defendant to prove that, 'but for counsel's unprofessional errors, the result of the proceeding would have been different.' Id. (quoting Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068). See also State v. Bowers, 426 N.W.2d 293, 295 (N.D.1988); State v. Thompson, 359 N.W.2d 374, 377 (N.D.1985)."

I

Hypnotically Enhanced Testimony

¶5 Bradley Peterson, the father of the deceased victims, testified at trial about waking to what he thought was the sound of liquid pouring and then an explosion with an instant fire. Prior to testifying at the trial, Peterson underwent a hypnosis session to enhance his recall of what happened when he awoke on the morning of the fire. The jury was never informed of the hypnosis session, and Breding's trial counsel did not attempt to discredit Peterson's testimony on the ground that it had been hypnotically enhanced. Breding asserts his trial counsel's failure to inform the jury of the hypnosis session and failure to attempt to discredit Peterson's testimony as a product of hypnosis constituted ineffective assistance of counsel.

¶6 We approved the introduction of hypnotically enhanced recall testimony in State v. Brown, 337 N.W.2d 138, 151 (N.D.1983):

"[H]aving weighed the benefits of hypnotically induced recall testimony against the inherent risks, we are not convinced that a witness should be rendered incompetent to testify merely because he or she was hypnotized during the investigatory phase of a criminal case. Rule 601 of the North Dakota Rules of Evidence provides that 'Every person is competent to be a witness except as otherwise provided in these rules.' Our rules of evidence do not provide that a previously hypnotized witness is incompetent to testify. We believe that an attack on credibility is the proper method of determining the value of hypnotically induced testimony. See Rule 607, N.D.R.Ev.; Chapman, supra, 638 P.2d at 1284. Accordingly, we align ourselves with the majority of jurisdictions which have held that hypnosis affects credibility but not admissibility."

Breding claims an attorney's failure to attack the credibility of hypnotically enhanced testimony is, per se, deficient lawyering. We disagree.

¶7 Breding's trial lawyer filed a preliminary motion in limine to restrict Bradley Peterson's testimony and hired an expert to review a video tape of the hypnosis session. At the post-conviction proceedings, Breding's trial counsel testified that after discussing the hypnosis issue with his expert and reviewing the law he concluded Peterson's testimony would be admissible and that "I couldn't blow it out of the water." He said his expert would not conclude Peterson's testimony could be discredited because of the hypnosis session. Breding's trial counsel concluded, as a matter of trial strategy, it was better not to inform the jury about the hypnosis to avoid the possibility the jury would give more, rather than less, credibility to the testimony because it had been hypnotically enhanced and thereby "divinely inspired."

¶8 A similar ineffective assistance of counsel argument was rejected by the United States Court of Appeals for the Eleventh Circuit in Spaziano v. Singletary, 36 F.3d 1028, 1039-1040 (11th Cir.1994), cert. denied, 513 U.S. 1115, 115 S.Ct. 911, 130 L.Ed.2d 793 (1995):

"[C]ounsel made a strategic decision to keep from the jury the fact of the hypnosis ... Counsel decided to pursue the strategy he did because he had abundant information to use in impeaching Dilisio, and he did not want to risk having the jury think that Dilisio's testimony was more reliable because it had been hypnotically refreshed ... [C]ounsel's strategic decision to keep from the jury the evidence of hypnosis was not one of those relatively rare strategic decisions that is outside the wide range of reasonable professional assistance.

* * * * * *

"Counsel also knew that, as Spaziano concedes in his brief: '[t]here is a public misconception that hypnosis acts as a truth serum, preventing a hypnotized witness from lying.' Based upon that knowledge and his extensive experience as a criminal defense attorney, counsel made the strategic decision to keep from the jury the fact that Dilisio had been hypnotized.

* * * * * *

"Another factor requiring deference to counsel's judgment call in this case is that it was a decision based upon his perception of how the jury would react to the evidence of hypnosis. We have held that a defense attorney's sense of the jury's reaction to testimony or evidence is a sound basis on which to make strategic decisions."

¶9 Breding's trial counsel attacked Peterson's credibility by emphasizing Peterson had been heavily drinking before falling asleep and was suddenly jolted awake by the fire. As a matter of strategy, he did not want to add legitimacy to Peterson's testimony by the fact it was hypnotically enhanced. An unsuccessful trial strategy does not make defense counsel's assistance defective, and we will not second-guess counsel's defense strategy through the distorting effects of hindsight. Frey, 509 N.W.2d at 263. We conclude Breding has failed to demonstrate he received ineffective assistance of counsel because his trial lawyer did not attempt to discredit Peterson's testimony on the ground it had been hypnotically enhanced.

II Breding's Out-of-Court Statements

¶10 Statements made by Breding during interviews of him by investigators were introduced into evidence. Breding asserts his trial counsel's failure to object to the admission of these statements constituted ineffective assistance of counsel. The need for additional representation protection of children has been recognized by our Legislature and codified under N.D.C.C. 27-20-26(1), which at the time of the original trial provided:

"1. Except as otherwise provided under this chapter, a party is entitled to representation by legal counsel at all stages of any proceedings under this chapter and, if as a needy person he is unable to employ counsel, to have the court provide counsel for him. If the party appears without counsel the court shall ascertain whether he knows of his right thereto and to be provided with counsel by the court if he is a...