Flanagan v. State

• Decision Date: 19 April 2006
• Docket Number: No. 20050226.,20050226.
• Citation: 2006 ND 76,712 N.W.2d 602
• Parties: David FLANAGAN, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

712 N.W.2d 602

2006 ND 76

David FLANAGAN, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.

No. 20050226.

Supreme Court of North Dakota.

April 19, 2006.

COPYRIGHT MATERIAL OMITTED

Chad Rory McCabe, Vinje Law Firm, Bismarck, ND, for petitioner and appellant.

Lloyd Clayton Suhr, Assistant State's Attorney, Bismarck, ND, for respondent and appellee.

MARING, Justice.

[¶ 1] David Flanagan appeals from a judgment denying his application for post-conviction relief. We conclude Flanagan's claim about an erroneous jury instruction is res judicata and he has failed to establish his trial counsel was ineffective. We affirm.

I

[¶ 2] Flanagan was charged with gross sexual imposition under N.D.C.C. § 12.1-20-03(2)(a) for allegedly engaging in sexual contact with a person less than 15 years old, specifically a 13-year-old female complainant. The incident precipitating the criminal charge occurred on July 28, 2002, at a birthday party at a motel swimming pool when Flanagan allegedly engaged in sexual contact with the complainant. The State presented evidence the complainant was 13 years old and Flanagan inappropriately put his hand under her swimsuit bottom, on her hips and the strings of her bikini bottom, on her bikini top over her breast, under the top part of her swimsuit, and on her buttocks. The State also presented evidence Flanagan pinched the complainant's buttocks. Flanagan claimed any touching of the complainant's "sexual or other intimate parts" which may have occurred was accidental and was not for the purpose of arousing or satisfying his sexual desires as required by the definition of sexual contact in N.D.C.C. § 12.1-20-02(4). Without an objection by Flanagan's trial counsel, the jury was not instructed that the sexual contact must have been with a person less than 15 years old as required by N.D.C.C. § 12.1-20-03(2)(a). A jury found Flanagan guilty of gross sexual imposition.

[¶ 3] In State v. Flanagan, 2004 ND 112, 680 N.W.2d 241, we affirmed Flanagan's direct appeal from the conviction. Under the framework for analyzing obvious error in N.D.R.Crim.P. 52(b), we held the trial court erred in failing to instruct the jury that the complainant must have been less than 15 years old. Flanagan, at ¶ 4. We concluded, however, that under the circumstances, the erroneous instruction did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings and did not require reversal because the identity and age of the complainant was essentially undisputed and the issue at trial was whether Flanagan accidentally touched the complainant or touched her for the purpose of arousing or satisfying his sexual desires. Id. at ¶ 10. We also held Flanagan's acquiescence in a curative instruction waived his right to complain on appeal about a question by the prosecuting attorney and precluded him from raising the issue as obvious error. Id. at ¶ 14. We further held Flanagan's failure to raise an issue at trial about the prosecution's claimed use of gender-based peremptory challenges precluded him from raising the issue for the first time on appeal and was not obvious error. Id. at ¶ 16.

[¶ 4] Flanagan applied for post-conviction relief under N.D.C.C. ch. 29-32.1. He claimed he was entitled to post-conviction relief because the trial court's erroneous instruction on the elements of the offense violated N.D.C.C. § 12.1-01-03(1), which requires that no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. Flanagan also claimed his trial counsel was ineffective because counsel failed to object to the instruction about the elements of the offense, failed to investigate, interview, and subpoena potential witnesses for trial, failed to object to the prosecution's use of gender-based peremptory challenges, and failed to preserve a request for a curative instruction.

[¶ 5] After an evidentiary hearing, the district court denied Flanagan's application for post-conviction relief. The court concluded Flanagan's claim about the elements of the offense was res judicata under this Court's decision in his direct appeal. The district court concluded Flanagan's trial counsel was not ineffective in failing to obtain an instruction on the age and identity of the complainant because the matter was res judicata and there was no reasonable probability the result would have been different with a proper instruction. The court concluded Flanagan's trial counsel was not ineffective in failing to interview witnesses and subpoena one witness because the evidence indicated Flanagan's trial counsel was not aware of one of the witnesses, and even if counsel had been aware of that witness, the record did not indicate the substance of that witness's testimony and there was insufficient evidence to show that witness's testimony would have altered the result. The court concluded Flanagan's trial counsel was not ineffective in failing to object to the State's use of alleged gender-based peremptory challenges because counsel's conduct did not fall below an objective level of competence and was reasonable. The court also concluded Flanagan's trial counsel was not ineffective in failing to preserve an objection to a curative instruction about prosecutorial misconduct because counsel's conduct did not fall below an objective level of competence and there was no evidence counsel's conduct affected the outcome of the criminal proceeding.

II

[¶6] Flanagan argues the trial court's failure to instruct the jury that the complainant must have been under 15 years of age violated the statutory requirement that no person may be convicted of an offense unless each element is proved beyond a reasonable doubt under N.D.C.C. § 12.1-01-03(1). He argues he is entitled to greater statutory protections under state law, and because he could not be convicted of an offense unless each element of the offense was proved beyond a reasonable doubt, the obvious error in failing to instruct the jury on this issue was a miscarriage of justice. He argues this statutory right was not addressed in his direct appeal from his conviction.

[¶ 7] Under N.D.C.C. § 29-32.1-12(1), an application for post-conviction relief may be denied on the ground of res judicata if the claim was fully and finally determined in a previous proceeding. Petitioners are not entitled to post-conviction relief when their claims are variations of previous claims that have been rejected in prior proceedings. Jensen v. State, 2004 ND 200, ¶ 9, 688 N.W.2d 374. Flanagan's argument in his direct appeal was that due process under the state and the federal constitutions required the State to prove each element of the charge beyond a reasonable doubt, and that the state constitution may provide a defendant with greater rights than the federal constitution. In this proceeding, Flanagan's argument is couched in terms of a greater state statutory right, but his claim is merely a variation of the argument we rejected in his direct appeal. We conclude Flanagan's argument about N.D.C.C. § 12.1-01-03(1) is res judicata.

III

[¶ 8] Flanagan argues his trial counsel was ineffective under the state and federal constitutions for failing to object to the trial court's instructions on the elements of gross sexual imposition; failing to interview, subpoena, and investigate witnesses; failing to object to the prosecution's use of gender-based peremptory challenges; and failing to preserve a request for a curative instruction.

[¶ 9] Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure. Laib v. State, 2005 ND 187, ¶ 11, 705 N.W.2d 845. The issue of ineffective assistance of counsel is a mixed question of law and fact which is fully reviewable by this Court. Klose v. State, 2005 ND 192, ¶ 10, 705 N.W.2d 809. A trial 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). Klose, at ¶ 10; Laib, at ¶ 11.

[¶ 10] The burden of establishing grounds for post-conviction relief rests upon the petitioner. State v. Steen, 2004 ND 228, ¶ 9, 690 N.W.2d 239. In Heckelsmiller v. State, 2004 ND 191, ¶¶ 3-4, 687 N.W.2d 454 (citations omitted), we recently outlined the "heavy burden" required for a petitioner to prevail on a post-conviction claim for ineffective assistance of trial counsel:

The Sixth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, and Article I, § 12 of the North Dakota Constitution guarantee a criminal defendant effective assistance of counsel. In accord with the test established by the United States Supreme Court 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 has a 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. "Effectiveness of counsel is measured by an `objective standard of reasonableness' considering 'prevailing professional norms.'" The defendant must first overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Trial counsel's conduct is presumed to be reasonable and courts consciously attempt to limit the distorting effect of hindsight.

The prejudice element requires a defendant to "establish a reasonable probability that, but for his counsel's errors, the result of the proceeding would have been different." Not only does a criminal defendant have "the heavy, demanding burden of proving counsel's assistance was ineffective," a defendant claiming ineffective assistance of counsel "must specify how and where trial counsel was incompetent and the probable different result." A "reasonable probability" is a probability...