Davis v. State

Decision Date26 February 2013
Docket NumberNo. 20120272.,20120272.
Citation827 N.W.2d 8,2013 ND 34
PartiesBradley A. DAVIS, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Russell J. Myhre, Valley City, ND, for petitioner and appellant.

Sean B. Kasson, Assistant State's Attorney, Minot, ND, for respondent and appellee.

KAPSNER, Justice.

[¶ 1] Bradley Davis appeals from a district court order dismissing his motions for leave to depose witnesses and summarily dismissing his post-conviction relief application. Because Davis produced no competent evidence to support his motion to depose Angela Cook, and the evidence he seeks to obtain by deposing Graylan Bobo and Angela Cook would not likely result in an acquittal, it was not an abuse of discretion to deny his motions for leave to depose Cook and Bobo. The district court did not err by summarily dismissing his post-conviction relief application because no showing has been made that a genuine issue of material fact exists. We affirm.

I

[¶ 2] In 2008, Davis was convicted of aggravated assault on Joshua Velasquez, and his codefendant, Antonio Stridiron, was convicted of murdering Velasquez after an early morning altercation at a July 2007 party. Their convictions were affirmed in a consolidated appeal in State v. Stridiron, 2010 ND 19, ¶ 32, 777 N.W.2d 892. At trial, several witnesses testified about either seeing or hearing Davis strike Velasquez several times with a weapon. Id. at ¶ 31.

[¶ 3] In April 2010, Davis filed a pro se post-conviction relief application. In the application, he asserted he had newly-discovered evidence but did not provide further detail. In December 2010, the State moved to summarily dismiss Davis's application arguing Davis failed to raise a genuine issue of material fact. In early January 2011, Davis opposed the State's motion asserting his new evidence would support his contention he did not assault Velasquez, but rather acted in self-defense. Later that month, Davis's newly-appointed attorney also filed a brief in opposition to the State's motion for summary dismissal and stated he found in Davis's case file a written note from Charles Price, a key State witness in Davis's trial, indicating Price wanted to “revise his statement.” 1 Davis's attorney sought more time to “secure the information necessary to support [Davis's] application for post-conviction relief.” In February 2011, Davis's attorney again opposed the State's motion for summary dismissal. Davis's attorney noted he had been unable to contact Price because Price was incarcerated in Texas and requested additional time to contact Price. Davis's attorney also submitted a copy of Price's April 2009 handwritten note, that stated:

I Charles Price would like to revise my statement I, under penalty of perjury to disclose the truth concerning these proceedings that I made on the night of July 27, 2007 against [Bradley] Davis and [Antonio] Stridiron and I would like to talk to legal Counsel about this.

[¶ 4] In September 2011, the district court held a status conference hearing on Davis's application. Davis's attorney told the court his continued efforts to contact Price were unsuccessful as Price had neither responded to his letters nor returned a proposed affidavit. Just before the hearing, Davis told his attorney of an individual in the area he believed to be Price's girlfriend, Angela Cook. Davis asserted that Cook could testify Price was not present at the July 2007 altercation because she was with Price on the night of the assault and, therefore, Price's trial testimony regarding Davis's involvement in Velasquez's death was fabricated. Davis's attorney sought additional time to contact Cook. The State requested summary dismissal. The district court granted Davis additional time to contact Price and Cook and stated it would conduct a “status check” in February 2012.

[¶ 5] In December 2011, Davis's attorney filed a motion for leave to depose Angela Cook and filed a brief in support of his motion that included an offer of proof of Cook's anticipated testimony. Davis's attorney asserted Cook originally agreed to sign an affidavit stating she was with Price at a different location the night of the assault, but Cook had not responded to his subsequent requests. The State opposed the motion for leave to depose Cook and again moved for summary dismissal.

[¶ 6] The court scheduled a hearing in February 2012 to show cause why it should not grant the State's motion for summary dismissal. Davis's attorney informed the court that Davis's wife recently told him of an inmate, Graylan Bobo, who could offer evidence Price had told Bobo that Price was not present during the assault and was not truthful at trial. The district court gave Davis until March 8, 2012, to submit competent admissible evidence to support his motion for leave to depose Cook or it would deny his motion and dismiss his post-conviction relief application. Davis's attorney then filed a motion for leave to depose Bobo and filed an affidavit from Bobo, stating Price had told Bobo, while they were incarcerated together, that Price did not witness the July 2007 assault and lied at trial to facilitate his own plea agreement. In March 2012, the State opposed Davis's motion to depose Bobo and again moved for summary dismissal. Davis did not file a motion for leave to depose Price.

[¶ 7] In May 2012, the district court denied Davis's motions for leave to depose Cook and Bobo and summarily dismissed his post-conviction relief application. The district court found Davis had not provided competent admissible evidence to support his motion to depose Cook, and because the evidence he seeks to obtain from Bobo is not likely to lead to an acquittal, the court denied the motions for leave to depose. As a result, the court summarily dismissed Davis's application.

II

[¶ 8] On appeal, Davis argues the district court abused its discretion in denying his motions to depose Cook and Bobo, because without their depositions, he cannot prove Price lied at trial. Consequently, Davis argues, the district court erred in summarily dismissing his post-conviction relief application.

[¶ 9] “Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure.” Wheeler v. State, 2008 ND 109, ¶ 5, 750 N.W.2d 446 (citation omitted). A petitioner's post-conviction relief application is “not required to include ... supporting evidentiary materials necessary to withstand a potential motion for summary dismissal.” Overlie v. State, 2011 ND 191, ¶ 7, 804 N.W.2d 50 (citing N.D.C.C. § 29–32.1–04 and State v. Bender, 1998 ND 72, ¶ 19, 576 N.W.2d 210). If the State moves for summary dismissal, putting a petitioner to his proof, a minimal burden shifts to the petitioner to support his application with “competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.” Ude v. State, 2009 ND 71, ¶ 8, 764 N.W.2d 419 (citing Wheeler, 2008 ND 109, ¶ 5, 750 N.W.2d 446). “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 omitted).

[¶ 10] Davis's 2010 post-conviction relief application asserted he had newly-discovered evidence favorable to him. Though Price purportedly sent his April 2009 note on his own accord, Price has not followed up and provided any other information. Price has not responded to any correspondence from Davis's attorney, and at no time has Price indicated how he would “revise [his] statement.”

[¶ 11] Once the State moved for summary dismissal, Davis had the burden to support his application with competent admissible evidence. Because he was unable to secure admissible evidence from Price, Davis sought to support his assertion by deposing Cook and later Bobo. Under N.D.C.C. § 29–32.1–08, [t]he court, for good cause, may grant leave to either party to use the discovery procedures available in criminal or civil proceedings.” See also Mertz v. State, 535 N.W.2d 834, 837 (N.D.1995). A district court has broad discretion in defining the scope of discovery, and we will not reverse a court's discovery decision absent an abuse of discretion.” Wheeler, 2008 ND 109, ¶ 15, 750 N.W.2d 446 (citation omitted). Moreover, the party claiming the district court abused its discretion must meet a heavy burden:

The district court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. The party seeking relief must show more than the district court made a “poor” decision, but that it positively abused the discretion it has....

Investors Title Ins. Co. v. Herzig, 2010 ND 169, ¶ 38, 788 N.W.2d 312 (quoting

Martin v. Trinity Hosp., 2008 ND 176, ¶ 17, 755 N.W.2d 900).

[¶ 12] In Wheeler, this Court upheld a district court's denial of a post-conviction relief applicant's request for subpoenas noting an evidentiary hearing would be nothing more than a “fishing expedition” because “Wheeler failed to provide any competent evidence to show even minimal support for his assertion of juror misconduct....” 2008 ND 109, ¶ 16, 750 N.W.2d 446. The district court determined Wheeler's claim that a juror lied during voir dire by stating that she did not know Wheeler “lacked factual support” as it relied on “bare assertions” based on Wheeler's purported conversation with an individual at the state penitentiary who provided no supporting affidavits or testimony. Id. at ¶¶ 9, 16. We noted N.D.C.C. § 29–32.1–08 required Wheeler to show “good cause” for the district court to grant leave to use discovery procedures. Criminal or civil discovery procedures are allowed in post-conviction proceedings, but the standard for accessing these discovery procedures in the...

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