Clark v. State

• Decision Date: 27 April 1999
• Docket Number: No. 980303,980303
• Citation: 593 N.W.2d 329
• Parties: Daniel J. CLARK, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

Page 329

593 N.W.2d 329

1999 ND 78

Daniel J. CLARK, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.

No. 980303.

Supreme Court of North Dakota.

April 27, 1999.

Irvin B. Nodland, Bismarck, N.D., for petitioner and appellant.

Owen K. Mehrer, State's Attorney, Dickinson, N.D., for respondent and appellee.

NEUMANN, Justice.

¶1 Daniel J. Clark appeals from a judgment of dismissal of his application for post-conviction relief. We affirm.

I

¶2 On January 17, 1996, Daniel Clark shot George Girodengo twice, after finding him in Clark's wife's bedroom. State v. Clark, 1997 ND 199, p 2, 570 N.W.2d 195. Girodengo died during surgery. As a result, Clark was charged with murder. Id. at p 2 570 N.W.2d 195. The jury found Clark not guilty of murder, but guilty of manslaughter. Id. at p 2, 570 N.W.2d 195. On direct appeal to this Court, we affirmed the judgment of conviction. See id. at p 1, 570 N.W.2d 195.

¶3 After his direct appeal, Clark instituted a post-conviction proceeding under N.D.C.C. ch. 29-32.1. On September 3, 1998, the trial court issued an order for judgment granting the State's motion for summary dismissal of Clark's post-conviction relief application. Clark appeals.

¶4 On appeal from the dismissal, Clark raises fourteen issues of alleged error occurring at the trial court level. Clark argues: (1) the trial court erred by not giving the defendant's requested jury instruction No. 18; (2) the trial court erred in giving a Defense of Others jury instruction; (3) the trial court erred in refusing to give an adverse inference instruction; (4) the trial court erred in not giving a justification jury instruction; (5) there is an inconsistent position of factual information; (6) prosecutorial misconduct in the prosecution's misrepresentation of Clark; (7) prosecutorial misconduct in the prosecution's description of Girodengo as a "little fellow"; (8) prosecutorial misconduct in the prosecution's misrepresentation of the gun's recoil; (9) the prosecution's failure to comply with discovery; (10) the prosecution's vouching for the credibility of witnesses; (11) manipulation by the prosecution of crime scene evidence which misled the jury; (12) prosecutorial misconduct by the prosecution's misquoting of Dr. Wolf's testimony; (13) prosecutorial misconduct by drawing attention to Clark's silence after he was given Miranda warnings; and (14) prosecution witnesses Lisa Jalbert's and Walter Eiden's relationships to the deceased's family were not disclosed to the jury.

II

¶5 Section 29-32.1-09(1), N.D.C.C., provides that 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. Owens v. State, 1998 ND 106, p 13, 578 N.W.2d 542. Our review of a summary denial of a post-conviction application is like our review of an appeal from a summary judgment under Rule 56, N.D.R.Civ.P. Id. at p 13, 578 N.W.2d 542. 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. Id. at p 13, 578 N.W.2d 542. 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. Id. at p 13, 578 N.W.2d 542. 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. Id. at p 13, 578 N.W.2d 542.

¶6 At the trial court, the State's motion to dismiss asserted the affirmative defenses under N.D.C.C. § 29-32.1-12(1) and (2), arguing Clark's application should be dismissed as res judicata and misuse of process. The trial court, in summarily dismissing Clark's post-conviction application, relied largely on those affirmative defenses. Consequently, the dispositive question on this appeal is whether Clark's application falls within the penumbra of the affirmative defenses delineated in N.D.C.C. ch. 29-32.1.

¶7 Section 29-32.1-12, N.D.C.C., provides, in part:

1. An application for postconviction relief may be denied on the ground that the same claim or claims were fully and finally determined in a previous proceeding.

2. A court may deny relief on the ground of misuse of process. Process is misused when the applicant:

a. Presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous postconviction proceeding; or

b. Files multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous. (Emphasis added.)

A. Res Judicata.

¶8 Section 29-32.1-12(1), N.D.C.C., allows for post-conviction applications to be denied if the same claims or claim has been fully and finally determined in a previous proceeding. Murchison v. State, 1998 ND 96, p 7, 578 N.W.2d 514. Consequently, when claims have been previously raised on direct appeal they cannot be raised again in a subsequent post-conviction application. Id. at p 7, 578 N.W.2d 514. The same principle applies within multiple post-conviction applications. Silvesan v. State, 1999 ND 62, p 11, 591 N.W.2d 131.

¶9 After a careful consideration of the record on appeal, we find none of the issues raised by Clark in this appeal fall under the post-conviction principle of res judicata. None of the issues raised in Clark's brief are issues which have been raised on direct appeal or in a previous post-conviction application. These issues have not been fully and finally determined in a previous proceeding, and therefore, do not come within the definition of res judicata in N.D.C.C. § 29-32.1-12(1). This however does not affect our affirmance of the trial court's decision.

B. Misuse of Process.

¶10 Chapter 29-32.1, N.D.C.C., is a codification of the 1980 Uniform Post-Conviction Procedure Act drafted by the National Conference of Commissioners on Uniform State Laws. 11A Uniform Laws Annotated, Uniform Post-Conviction Procedure Act of 1980, at 247 (1995). Section 29-32.1-12, N.D.C.C., is identical to Section 12 of the Uniform Post-Conviction Procedure Act of 1980. During proceedings of the National Conference of Commissioners on Uniform State Laws, the 1980 Uniform Post-Conviction Procedure Act was presented with the notation that "the impetus and the pole star of this revision are the current ABA standards." Proceedings in Committee of the Whole, Uniform Post-Conviction Act, July 26 and 29, 1980, at 1.

¶11 The reference to the "current ABA standards" means the American Bar Association recommended standards concerning post-conviction remedies. In the commentary following Section 12 of the 1980 Uniform Post-Conviction Procedure Act, A.B.A. Standards 22-6.1(c) and 22-6.2(b) are specifically referenced. 11A Uniform Laws Annotated, Uniform Post-Conviction Procedure Act of 1980 § 12, at 262 (1995).

¶12 Standard 22-6.1, relating to the finality of the judgment of conviction and sentence, provides:

* * * *

(c) Where an applicant raises in a postconviction proceeding a factual or legal contention which the defendant deliberately or inexcusably

(i) failed to raise in the proceeding to judgment of conviction, or,

(ii) having raised the contention in the court, failed to pursue the matter on appeal,

a court may deny relief on the ground of an abuse of process.

A.B.A. Standards, Post-Conviction Remedies § 22-6.1(c) (Approved Draft 1980 & Supp.1986 2nd ed.).

¶13 Standard 22-6.2, relating to finality of a judgment in a post-conviction proceeding, provides:

* * * *

(b) Where an applicant raises in a subsequent application a factual or legal contention which the applicant did not use due diligence in

(i) raising in an earlier application, or,

(ii) having raised the contention in the trial court, failed to pursue the matter on appeal,

a court may deny relief on the ground of an abuse of process.

A.B.A. Standards, Post-Conviction Remedies § 22-6.2(b) (Approved Draft 1980 & Supp.1986 2nd ed.).

¶14 Quite clearly, under the A.B.A. Standards, misuse of process occurs in three situations. The first is when the applicant deliberately or inexcusably fails to raise the issue in a proceeding leading to judgment of conviction. A.B.A. Standards, Post-Conviction Remedies § 22-6.1(c)(i) (Approved Draft 1980 & Supp.1986 2nd ed.). The second is when the applicant, having raised the issue in the trial court, fails to pursue the matter on appeal. A.B.A. Standards, Post-Conviction Remedies §§ 22-6.1(c)(ii), 22-6.2(b)(ii) (Approved Draft 1980 & Supp.1986 2nd ed.). The third is when the applicant could have raised an issue in an earlier post-conviction application, but failed to do so. A.B.A. Standards, Post-Conviction Remedies § 22-6.2(b)(i) (Approved Draft 1980 & Supp.1986 2nd ed.).

¶15 Due to the strong correlation between the A.B.A. Standards and the Uniform Post-Conviction Procedure Act of 1980, we find the framework of the A.B.A. Standards to be compelling precedent. In fact, our prior decisions addressing misuse of process follow a similar framework.

¶16 In State v. Willey, 381 N.W.2d 183 (N.D.1986), we held:

[F]ailure to take a direct appeal bars relief in a post-conviction action under Chapter 29-32, N.D.C.C., on the ground of abuse of process as to factual and legal contentions that the post-conviction applicant raised and litigated at the time of the original trial court proceedings and which he deliberately or inexcusably failed to pursue on direct appeal.

Id. at 186. That holding was based, in part, on our agreement with an Iowa Supreme Court decision holding Section 1(b) of the 1966 Uniform Post-Conviction Procedure Act declares it an abuse of process to deliberately and inexcusably fail to pursue an appeal on matters known during the trial court proceeding. Id. at 185 (relying on ...