Chatman v. State

• Citation: 908 N.W.2d 724
• Decision Date: 22 March 2018
• Docket Number: No. 20170384,20170384
• Parties: Marcus Orlando CHATMAN, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee
• Court: United States State Supreme Court of North Dakota

908 N.W.2d 724

Marcus Orlando CHATMAN, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee

No. 20170384

Supreme Court of North Dakota.

Filed March 22, 2018

Scott O. Diamond, Fargo, ND, for petitioner and appellant; submitted on brief.

Tessa M. Vaagen, Assistant State’s Attorney, Bismarck, ND, for respondent and appellee; submitted on brief.

Crothers, Justice.

[¶ 1] Marcus Orlando Chatman appeals an order summarily dismissing his second application for post-conviction relief. Chatman argues the district court erred in denying his request for an evidentiary hearing on newly discovered evidence, abused its discretion in granting summary dismissal prior to ruling on outstanding motions, and erred in determining the anticipatory search warrant in the underlying case was legal. We affirm the order summarily dismissing Chatman’s application for post-conviction relief.

I

[¶ 2] The facts essential to this case were explained in Chatman I :

"On May 20, 2014, an informant began providing information to a Bismarck Police detective in exchange for two one-way bus tickets and to potentially help with her boyfriend’s criminal charges. The informant told the detective she was a heroin user, Chatman was her source for heroin, Chatman was known by the street name ‘D,’ she had seen Chatman in possession of heroin two days earlier, and he was selling the heroin for $100 for one-tenth of a gram. The informant told the detective she was meeting Chatman later that day. After meeting with Chatman, the informant told the detective that Chatman was leaving for Chicago that night to pick up heroin and cocaine and asked her to accompany him on the trip.

"The informant traveled to Chicago with Chatman and kept in contact with the detective during the trip. The detective received a text message from the informant around 11:12 p.m. on May 20, 2014, stating they had left Bismarck to go to Chicago. On the morning of May 21, 2014, the detective received a text message from the informant stating they were in Wisconsin. On May 22, 2014, the detective applied for a warrant for cell tower information for a cell phone belonging to another individual the detective believed was with Chatman and the informant to track their progress. The affidavit submitted in support of the search warrant application included information obtained from the May 15, 2014, warrant[les]s search of Chatman’s cell phone. After the detective applied for the warrant for the cell tower information, he received a text message from the informant informing him they were almost to ‘the cities’ and Chatman had the heroin in his jeans pocket.

"The detective applied for a warrant to search Chatman and the vehicle he was driving. The detective testified in support of the application and also submitted a copy of his affidavit from the prior cell phone tower warrant application. A warrant was issued, authorizing a search of Chatman’s person and the vehicle he was driving when he arrived in Bismarck.

"Officers set up surveillance along the route they believed Chatman would take to determine when Chatman returned to Bismarck. The detective observed Chatman driving the vehicle on the interstate heading toward Bismarck, he notified other officers, and the officers stopped Chatman’s vehicle when it reached his residence. Officers searched Chatman and the vehicle and found heroin, cocaine, and marijuana. Chatman was charged with possession of heroin with intent to deliver or manufacture, a class A felony; possession of cocaine, a class C felony; and possession of marijuana by a driver, a class A misdemeanor.

"Chatman moved to suppress the evidence obtained from searching him and his vehicle. He argued information from the May 15, 2014, warrant[les]s cell phone search was used to obtain the search warrant, a warrant must be obtained to search a cell phone incident to arrest, and therefore all evidence obtained as a result of the illegal search of his cell phone must be suppressed. After a hearing, the district court denied the motion, concluding the Fourth Amendment was not violated by the search of Chatman and the vehicle because there was sufficient evidence to find probable cause to issue the search warrant absent the information obtained from the May 15, 2014, cell phone search.

"Before trial, Chatman requested the trial be reset because he was unable to contact the informant to testify. The district court granted the request and the trial was reset. On the morning of the first day of trial, Chatman informed the court he had subpoenaed the informant, but the person who responded to the subpoena was not the informant involved with his case, and he stated the informant should be present for the case to properly proceed. The State advised the court it did not know where the informant was. Chatman did not make any further motions or make any further argument about the informant’s absence.

A jury trial was held, and the jury found Chatman guilty on all three charges."

State v. Chatman , 2015 ND 296, ¶¶ 3-8, 872 N.W.2d 595, reh’g denied , February 18, 2016 [ Chatman I ].

[¶ 3] In Chatman I the anticipatory search warrant was constitutional "because it was probable at the time the warrant was issued that evidence of a crime would be on Chatman’s person or in the vehicle when the warrant was executed." Id. at ¶ 24. Chatman applied for post-conviction relief, claiming ineffective assistance of counsel, the State knowingly failed to correct false testimony, and the State knowingly failed to provide exculpatory evidence. Chatman v. State , 2017 ND 12, ¶ 1, 891 N.W.2d 778 [ Chatman II ] (per curiam). This Court affirmed summary dismissal, concluding Chatman "failed to provide competent admissible evidence by affidavit or other comparable means raising a factual dispute" supporting his claims. Id. at ¶ 2.

[¶ 4] In December 2016 Chatman applied a second time for post-conviction relief, claiming unconstitutionality of the anticipatory search warrant and alleged newly discovered evidence obtained from an open records request. Chatman’s evidence states the informant from his criminal conviction used an alias. The name used at trial was "Ashley Giles." The State notified Chatman of Giles’ alias, "Jyssica Noble," on November 3, 2016, after his open records request. In January 2017 the State admitted in its answer that the alias information was new. The State moved for summary dismissal the same day, arguing Chatman did not raise an issue of material fact. Chatman claimed he would have subpoenaed the correct witness to trial had he known of the alias.

[¶ 5] In May and September of 2017 Chatman moved to compel discovery from the State. In October 2017 the State responded to Chatman’s motions, and the district court granted summary dismissal of Chatman’s application under N.D.C.C. § 29-32.1-09(3) without ruling on the outstanding discovery motions. The district court held the anticipatory search warrant’s validity was established in a prior decision, the purported newly discovered evidence would not establish a lack of criminal conduct given the evidence at trial, and N.D.R.Crim.P. 16 remedies did not require disposition of Chatman’s discovery motions. Chatman appeals.

II

[¶ 6] Our standards of review for post-conviction relief applications are well-established. "Questions of law are fully reviewable on appeal of a post-conviction proceeding." Middleton v. State , 2014 ND 144, ¶ 5, 849 N.W.2d 196 (citation and quotation marks omitted).

"We review an appeal from a summary denial of post-conviction relief like we review an appeal from a summary judgment. The party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding, and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact."

DeCoteau v. State , 1998 ND 199, ¶ 4, 586 N.W.2d 156 (citations omitted).

"A petitioner is not required to provide evidentiary support for his petition until he has been given notice he is being put on his proof. At that point, the petitioner may not merely rely on the pleadings or on unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact. If the petitioner presents competent evidence, he is then entitled to an evidentiary hearing to fully present that evidence."

Ude v. State , 2009 ND 71, ¶ 8, 764 N.W.2d 419 (citations omitted). "The court may grant a motion by either party for summary disposition if ... there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." N.D.C.C. § 29-32.1-09(3). "A genuine issue of material fact exists if reasonable minds could draw different inferences and reach different conclusions from the undisputed facts." Coppage v. State , 2011 ND 227, ¶ 14, 807 N.W.2d 585 (citation and quotation marks omitted).

III

[¶ 7] Chatman argues the district court erred by denying his request for an evidentiary hearing for newly discovered evidence after learning the informant "Ashley Giles" had an alias, "Jyssica Noble." Chatman also claims certain emails sent between his trial attorney and the State regarding Giles’ identity are newly discovered.

"Th[e] statutory ground for postconviction relief is similar to a request for new trial based on newly discovered evidence under N.D.R.Crim.P. 33. To prevail on a motion for new trial on the basis of newly discovered evidence under N.D.R.Crim.P. 33, the defendant must show: ‘(1) the evidence was discovered after trial, (2) the failure to learn about the evidence at the time of trial was not the result of the defendant’s lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal.’ "

Wacht v. State , 2015 ND 154, ¶ 11, 864 N.W.2d 740 (quoting Syvertson v....