Coppage v. State

• Decision Date: 23 January 2013
• Docket Number: No. 20120267.,20120267.
• Parties: Ernest COPPAGE, Petitioner, Appellee and Cross–Appellant v. STATE of North Dakota, Respondent, Appellant and Cross–Appellee.
• Court: North Dakota Supreme Court

826 N.W.2d 320

2013 ND 10

Ernest COPPAGE, Petitioner, Appellee and Cross–Appellant

v.STATE of North Dakota, Respondent, Appellant and Cross–Appellee.

No. 20120267.

Supreme Court of North Dakota.

Jan. 23, 2013.

Monty G. Mertz, Fargo Public Defender Office, Fargo, N.D., for petitioner, appellee and cross-appellant.

Lloyd C. Suhr, Assistant State's Attorney, Bismarck, N.D., for respondent, appellant and cross-appellee.

VANDE WALLE, Chief Justice.

[¶ 1] The State appealed and Ernest Coppage cross-appealed from a district court judgment granting Coppage's application for post-conviction relief, vacating his attempted murder conviction, and ordering a new trial. The State argues the court erred in finding Coppage received ineffective assistance of counsel and erred in granting his application for post-conviction relief. Coppage argues the court's decision on his ineffective assistance claim should be affirmed but the court erred by failing to rule on his other claims for post-conviction relief. We reverse and remand.

I

[¶ 2] In 2006, Coppage was charged with attempted murder. Before trial, he filed a motion in limine to prevent the State from introducing evidence about prior incidents of alleged domestic violence. The State did not object and the district court granted the motion. During the trial, Coppage testified that he hit the victim multiple times, but he claimed he was defending himself. The State questioned Coppage about his claims during its cross-examination:

Q. Mr. Coppage, why did you have to hit her more than once to defend yourself?

A. Well, I wasn't in my right frame of mind.

Q. Why weren't you in your right frame of mind?

A. Well, drinking and drugs.

Q. So you never would have hit her if you hadn't been drunk?

A. I've never done that to a woman ever in my life. My 38 years I've never hit a woman.

Q. You've never assaulted a woman in your life?

A. Not like that.

Q. What do you mean, “not like that”? You've never been physical?

A. I've had arguments.

Q. You've had arguments. You've never been physical with a woman?

A. No.

Q. You've never hit a woman.

A. No.

[¶ 3] Outside the presence of the jury, the State sought to introduce evidence of a prior misdemeanor assault conviction to impeach Coppage's testimony. Coppage's attorney objected, arguing the State was attempting to circumvent the court's order on the motion in limine, evidence of the prior conviction was not disclosed before trial, the conviction did not meet the requirements for impeachment by evidence of a prior conviction under N.D.R.Ev. 609, and the State did not demonstrate the probative value of the evidence outweighed the prejudice against Coppage. The court overruled the objection:

THE COURT: Thank you. I do find, first of all, the witness has asserted his innocence of any prior conduct of alleged assault or assaultive behavior. By virtue of the same, it is the order of the Court that the certified conviction occurring in 2004, by virtue of its proximity in time, is an appropriate impeachment document, and I'll overrule the objection and allow the same. The same limited for impeachment purposes only.

Please invite the jury to be returned.

[COPPAGE'S ATTORNEY]: Your Honor, just for the completion of the record for possible appeal, I would ask the Court to make a specific ruling that the probative value of this outweighs any prejudicial effect on Mr. Coppage.

THE COURT: It is inherent in the Court's ruling, but I will so state.

[¶ 4] The jury returned to the courtroom and the State continued cross-examining Coppage:

Q. Mr. Coppage, before the jury broke, I asked you a question to which you responded that you had never assaulted another woman before. Do you remember that answer?

A. Yes.

Q. So it was your testimony you've never assaulted another woman?

A. That's what I said, yes.

....

Q. Mr. Coppage, I'm showing you what has been marked as State's Exhibit 61. This is a certified copy of a conviction from October of 2004, where you pled guilty to domestic assault.... You testified under oath—you understand you are under oath, correct?

A. Yes.

Q. You understand you have to tell the truth.

A. Yes, I do.

Q. When you testified you had never assaulted another woman, that wasn't true; was it?

A. To the scope of those pictures, yes, it was.

Q. I didn't ask you if you ever assaulted another woman as severely as [the victim]. I asked you if you ever assaulted another woman?

A. I misunderstood the question.

Q. So you have assaulted another woman.

A. Yes.

Q. So your testimony before was not truthful?

A. No.

Q. Even though you are under oath?

A. Yes.

[STATE]: State offers Exhibit 61, Your Honor.

[COPPAGE'S ATTORNEY]: Same objection as before.

THE COURT: Same objection is overruled, and the same received for the limited purpose as previously recited.

The jury found Coppage guilty of attempted murder and aggravated assault, as a lesser-included offense.

[¶ 5] Coppage appealed his conviction, arguing there was not sufficient evidence to support his attempted murder conviction and the verdict form was logically and legally inconsistent. See State v. Coppage, 2008 ND 134, 751 N.W.2d 254 (“Coppage I ”). We affirmed Coppage's convictions. Id. at ¶ 28. The same attorney represented Coppage during his trial and on appeal.

[¶ 6] In 2009, Coppage filed an application for post-conviction relief, arguing his trial attorney was ineffective, the jury selection was biased, and the crime scene was tainted. After a hearing, the district court denied Coppage's application. Coppage did not appeal the court's decision. Coppage was represented by counsel during the post-conviction proceedings.

[¶ 7] In October 2010, Coppage filed a second application for post-conviction relief. Coppage claimed he was subjected to double jeopardy when he was convicted of both attempted murder and aggravated assault, he was denied due process because the State improperly introduced evidence of prior crimes as impeachment evidence, the State engaged in prosecutorial misconduct, and the district court erred in failing to return the jury for further deliberations after they returned a verdict finding him guilty of both attempted murder and aggravated assault.

[¶ 8] The State moved for dismissal, arguing Coppage's claims were barred by res judicata and misuse of process. Coppage responded to the State's motion and filed a memorandum in support of his argument, contending his claims were not barred by misuse of process because he relied on his appointed counsel and his counsel was ineffective. Coppage later filed an affidavit in support of his application, claiming he received ineffective assistance of trial, appellate, and post-conviction counsel. The district court dismissed Coppage's application, ruling his claims were barred by res judicata and misuse of process.

[¶ 9] Coppage appealed. This Court reversed the district court decision and remanded for an evidentiary hearing, holding the court erred in summarily dismissing Coppage's application. Coppage v. State, 2011 ND 227, ¶ 19, 807 N.W.2d 585 (“Coppage II ”). This Court held dismissal was not appropriate because Coppage raised a genuine issue of material fact and presented evidence that his failure to raise the evidentiary and prosecutorial misconduct issues in prior proceedings was excusable because his prior post-conviction counsel was ineffective. Id.

[¶ 10] On remand, the district court held an evidentiary hearing and granted Coppage's petition. The court ruled Coppage received ineffective assistance of trial counsel because his counsel failed to request an instruction limiting the jury's use of the evidence of Coppage's prior conviction and Coppage was prejudiced by the admission of the evidence. The court ordered Coppage was entitled to a new trial on the charge of attempted murder, but stated Coppage had admitted to the crime of aggravated assault and the sentence for that offense was deemed satisfied.

II

[¶ 11] The State argues the district court erred in finding Coppage's trial counsel was ineffective and erred in granting Coppage's application for post-conviction relief.

[¶ 12] Ineffective assistance of counsel is a mixed question of fact and law, which is fully reviewable on appeal. Wright v. State, 2005 ND 217, ¶ 9, 707 N.W.2d 242;see also Kruckenberg v. State, 2012 ND 162, ¶ 5, 820 N.W.2d 314.

In accord with the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance of counsel bears the heavy burden of proving (1) counsel's representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel's deficient performance. The defendant must first overcome the “strong presumption” that trial counsel's representation fell within the wide range of reasonable professional assistance, and courts must consciously attempt to limit the distorting effect of hindsight. Heckelsmiller [v. State, 2004 ND 191, ¶ 3, 687 N.W.2d 454];Ernst v. State, 2004 ND 152, ¶ 9, 683 N.W.2d 891.

To meet the “prejudice” prong of the Strickland test the defendant carries the heavy burden of establishing a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. The defendant must prove not only that counsel's assistance was ineffective, but must specify how and where trial counsel was incompetent and the probable different result. Unless counsel's errors are so blatantly and obviously prejudicial that they would in all cases, regardless of the other evidence presented, create a reasonable probability of a different result, the prejudicial effect of counsel's errors must be assessed within the context of the remaining evidence properly presented and the overall conduct of the trial.

Wright, at ¶ 10 (quoting Laib v. State, 2005 ND 187, ¶¶ 9–10, 705 N.W.2d 845). A “reasonable probability” is a probability sufficient to undermine confidence in the outcome of...