Chisholm v. State

• Decision Date: 01 December 2015
• Docket Number: No. 20150099.,20150099.
• Citation: 871 N.W.2d 595
• Parties: Rodney CHISHOLM, Petitioner and Appellant v. STATE of North Dakota, Defendant and Appellee.
• Court: North Dakota Supreme Court

871 N.W.2d 595

Rodney CHISHOLM, Petitioner and Appellant

v.STATE of North Dakota, Defendant and Appellee.

No. 20150099.

Supreme Court of North Dakota.

Dec. 1, 2015.

Rehearing Denied Feb. 18, 2016.

Nicholas D. Thornton, Fargo, N.D., for petitioner and appellant.

M. Jason McCarthy (argued) and Meredith H. Larson (appeared), Assistant State's Attorneys, Grand Forks County State's Attorney's Office, Grand Forks, N.D., for defendant and appellee.

SANDSTROM, Justice.

[¶ 1] Rodney Chisholm, convicted of murder in 2011, appeals from a district court order denying his application for post-conviction relief requesting a new trial, arguing the district court erred in denying his application. He claims his counsel was ineffective and argues the district court erred in failing to address all of the issues he raised post-conviction. We conclude the district court's decision to deny Chisholm post-conviction relief was supported by the evidence, and we affirm the district court's order.

I

[¶ 2] In 2011, Chisholm was convicted of the murder of his brother and was sentenced to 30 years' imprisonment. Chisholm appealed, and his conviction was affirmed. State v. Chisholm, 2012 ND 147, 818 N.W.2d 707.

[¶ 3] In 2013, Chisholm, on his own, applied for post-conviction relief, claiming ineffective assistance of counsel. He claimed his attorney, Steven Light, failed to present evidence about the victim's recent prior bad acts, his attorney had a drug addiction problem which affected his representation during the trial and the appeal, his attorney failed to challenge the admission of his confession, his attorney failed to adequately challenge the search of his property, and his attorney failed to object to instances of prosecutorial misconduct. The district court summarily dismissed Chisholm's application. On appeal, we concluded the district court erred in summarily dismissing the application, and reversed and remanded for further proceedings. Chisholm v. State, 2014 ND 125, 848 N.W.2d 703.

[¶ 4] On remand, Chisholm filed an amended brief setting forth five issues regarding his ineffective assistance of counsel claim. After an evidentiary hearing, the district court denied post-conviction relief.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 29–32.1–03. The appeal was timely under N.D.R.App.P. 4(d). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29–32.1–14.

II

[¶ 6] On appeal, Chisholm argues the district court erred in denying his application for post-conviction relief. He claims his counsel was ineffective because (1) he failed to challenge Chisholm's confession at trial, which he claims was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ; (2) he failed to raise or present the Miranda issue for this Court's review on appeal; (3) he failed to present expert testimony regarding Chisholm's psychological condition and state of mind at trial; (4) he did not adequately advise Chisholm on lesser included offenses; and (5) he failed to investigate and present evidence at trial of the victim's drug use. Chisholm further argues the district court erred in failing to address all of the issues raised in his application.

A

[¶ 7] " ‘Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure.’ " Kinsella v. State, 2013 ND 238, ¶ 4, 840 N.W.2d 625 (quoting Clark v. State, 2008 ND 234, ¶ 11, 758 N.W.2d 900 ). The petitioner bears the burden of establishing grounds for post-conviction relief. Moore v. State, 2007 ND 96, ¶ 8, 734 N.W.2d 336. "The district court's findings of fact in a post-conviction proceeding will not be disturbed on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a)." Wilson v. State, 2013 ND 124, ¶ 9, 833 N.W.2d 492. 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 the finding, a reviewing court is left with a definite and firm conviction a mistake has been made. Sambursky v. State, 2008 ND 133, ¶ 7, 751 N.W.2d 247.

[¶ 8] In Roth v. State, 2007 ND 112, ¶¶ 7–9, 735 N.W.2d 882 (citations omitted), we summarized the petitioner's burden in a post-conviction claim of ineffective assistance of counsel:

The Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel. In order to prevail on a post-conviction claim of ineffective assistance, the petitioner bears a heavy burden. The petitioner must prove that (1) counsel's representation fell below an objective standard of reasonableness, and (2) the petitioner was prejudiced by counsel's deficient performance.

As to the first prong, the petitioner must overcome the strong presumption that counsel's representation fell within the wide range of reasonable professional assistance. An attorney's performance is measured considering the prevailing professional norms. In assessing the reasonableness of counsel's performance, courts must consciously attempt to limit the distorting effect of hindsight. Courts must consider all the circumstances and decide whether there were errors so serious that defendant was not accorded the "counsel" guaranteed by the Sixth Amendment.

In order to meet the second prong, the petitioner must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. The petitioner must prove not only that counsel's representation was ineffective, but must specify how and where counsel was incompetent and the probable different result. If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, that course should be followed.

Whether a petitioner received ineffective assistance of counsel is a mixed question of law and fact, which is fully reviewable on appeal. Sambursky v. State, 2008 ND 133, ¶ 7, 751 N.W.2d 247.

B

[¶ 9] Chisholm specifically claims his trial and appellate counsel, Steven Light, was deficient in five different ways. Because of Light's alleged ineffective assistance, Chisholm argues he was prejudiced.

[¶ 10] Chisholm first argues that Light failed to challenge his confession and failed to raise the issue on appeal. He alleges the confession was obtained in violation of Miranda, and that a motion to suppress the confession would have been successful. To support this argument, Chisholm claims statements he made to the detectives during his interrogation such as "I think we're at the end" and "[s]o are we all done for today?" and "[p]ut the bad guy back in the cell" were a clear, unambiguous assertion of his right to silence. Therefore, he claims Light's failure to file a motion to suppress his subsequent confession was deficient and prejudiced him. The U.S. Supreme Court has stated, "Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious...." Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

[¶ 11] Prior to any custodial interrogation, a suspect must be advised that he has the right to remain silent, that any statement he makes can be used against him, and that he has the right to have an attorney present during any questioning. Miranda v. Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). To cease all questioning, a suspect must invoke his Miranda rights clearly and unambiguously. State v. Pederson, 2011 ND 155, ¶ 19, 801 N.W.2d 723. If a suspect makes a statement regarding his rights that is unclear, the police are not required to cease questioning. Id. The Supreme Court has found strong policy behind this clear articulation rule:

There is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously. A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that avoids difficulties of proof and provides guidance to officers on how to proceed in the face of ambiguity. If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused's unclear intent and face the consequence of suppression if they guess wrong.

Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 2260, 176 L.Ed.2d 1098 (2010) (internal quotations omitted).

[¶ 12] The district court heard testimony at the evidentiary hearing from Detective Michael Ness regarding Chisholm's questioning and confession. Ness testified he informed Chisholm of his Miranda rights roughly five times throughout the interviews. He also testified the other agent participating in the questioning became upset with him for frequently asking Chisholm whether he was comfortable speaking with them. Ness testified Chisholm never unambiguously demanded an attorney, nor did he state that he wished to remain silent. Furthermore, Chisholm himself admitted during cross-examination that his initial confession was not to law enforcement, but rather to his brother. He admitted law enforcement was not present for this confession, and it was only after this confession to his brother that he also confessed to the detectives.

[¶ 13] After hearing this testimony and reviewing the transcripts of the interviews with Chisholm, the district court found there was no indication Chisholm misunderstood his Miranda rights or ever clearly or unambiguously indicated he wished to cease questioning. We agree that Chisholm did not unequivocally invoke his constitutional rights to counsel or silence. His inquiries about being done for the day, going in circles in discussion, and being "at the end" were, at best, ambiguous. His comment about putting the bad guy back in the cell was also...