Kinsella v. State

• Citation: 840 N.W.2d 625,2013 ND 238
• Decision Date: 19 December 2013
• Docket Number: No. 20130150.,20130150.
• Parties: Billy Joe KINSELLA, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: United States State Supreme Court of North Dakota

840 N.W.2d 625

2013 ND 238

Billy Joe KINSELLA, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee.

No. 20130150.

Supreme Court of North Dakota.

Dec. 19, 2013.

Chad R. McCabe, Bismarck, ND, for petitioner and appellant.

Brian D. Grosinger, Assistant State's Attorney, Mandan, ND, for respondent and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Billy Joe Kinsella appealed from a district court judgment denying his application for post-conviction relief. We affirm, concluding Kinsella failed to demonstrate he received ineffective assistance of counsel from his trial attorney.

I

[¶ 2] In 2010, a jury convicted Kinsella of sexually assaulting his sixteen-year-old stepdaughter, S.B. Evidence at the trial included testimony from the investigating officer, the sexual assault nurse examiner (“SANE”), North Dakota State Crime Laboratory analysts, and DNA evidence taken from bed sheets located in the Kinsella residence. One of the crime laboratory analysts testified the bed sheet tested positive for semen and that DNA analysis revealed the semen matched Kinsella's DNA profile. S.B. testified she did not remember the sexual assault or the sexual assault examination conducted by the SANE nurse. Kinsella appealed his conviction to this Court. We affirmed the judgment in State v. Kinsella, 2011 ND 88, ¶ 1, 796 N.W.2d 678.

[¶ 3] Kinsella subsequently filed a petition for post-conviction relief. At the post-conviction relief hearing, Kinsella argued his trial counsel provided ineffective assistance of counsel for seven reasons: (1) failing to file a motion to suppress evidence; (2) failing to suppress statements allegedly taken in violation of Miranda v. Arizona; (3) appearing at a hearing without informing Kinsella; (4) failing to have the jury brought into the courtroom to have information requested by the jury given to it; (5) failing to advise Kinsella of his right against self-incrimination; (6) failing to investigate allegedly exculpatory evidence; and (7) failing to investigate and prepare defense witnesses to testify. The district court denied the petition. On appeal, Kinsella raises the same arguments he presented at the district court hearing. Kinsella requests a new trial and an order to suppress the “unconstitutionally obtained evidence.”

II

[¶ 4] The standard of review for a claim of ineffective assistance of counsel in a post-conviction appeal is well-established:

Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure. Whether a petitioner received ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable on appeal. Under N.D.R.Civ.P. 52(a), the district court's findings of fact will not be disturbed on appeal unless clearly erroneous. “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.”

Clark v. State, 2008 ND 234, ¶ 11, 758 N.W.2d 900 (citations omitted). The Sixth Amendment, made applicable to the states through the Fourteenth Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI; see also Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (holding that the Sixth Amendment right to counsel in all criminal prosecutions is a fundamental right essential to fair trial and obligatory upon the states through the Fourteenth Amendment). Article I, § 12 of the North Dakota Constitution also guarantees a criminal defendant the right to effective assistance of counsel. Klose v. State, 2005 ND 192, ¶ 9, 705 N.W.2d 809.

[¶ 5] In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established the test for whether a convicted criminal defendant's ineffective assistance of counsel claim warrants a reversal of conviction. “First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Second, the defendant must show that the deficient performance prejudiced his or her defense. Id. “This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.

[¶ 6] This Court has stated that the “[e]ffectiveness of counsel is measured by an ‘objective standard of reasonableness' considering ‘prevailing professional norms.’ ” DeCoteau v. State, 2000 ND 44, ¶ 8, 608 N.W.2d 240 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). We have also explained:

Establishing both elements is a heavy burden and requires a defendant to both overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. This requires the defendant to demonstrate with specificity how and where trial counsel was incompetent, and it is probable a different result would have been obtained had trial counsel not performed incompetently.

Klose, 2005 ND 192, ¶ 9, 705 N.W.2d 809 (citation omitted). In reviewing a trial counsel's conduct in an ineffective assistance of counsel claim, we are cognizant of limiting the “distorting effect of hindsight.” Garcia v. State, 2004 ND 81, ¶ 5, 678 N.W.2d 568.

III

A. Failure to File a Motion to Suppress Evidence from a Search of Kinsella's Home

[¶ 7] In the direct appeal, we made a factual error in stating, “[t]he officer then obtained a warrant and searched Kinsella's home....” Kinsella, 2011 ND 88, ¶ 3, 796 N.W.2d 678. No search warrant was issued to search the Kinsella residence. The misstatement has no substantive impact on the direct appeal proceedings or on the post-conviction proceedings.

[¶ 8] Kinsella argues his trial counsel was ineffective “when he failed to file a motion to suppress any and all evidence from the search of Kinsella's home.” Kinsella argues that when S.B. was at the hospital for her sexual assault exam, Detective Vanderhoef “threatened” Lori Kinsella (Kinsella's wife and S.B.'s mother) that social services would take S.B. away from her if she did not comply with the police investigation. Later in the evening, Detective Vanderhoef went to the Kinsella residence and asked Lori for permission to search the house. Lori consented. Police entered the Kinsella residence and seized sheets and bedding from S.B.'s bedroom. At the post-conviction hearing, Lori testified she allowed the police to enter her home “because I was still upset to the fact that [Detective Vanderhoef] had contacted social services to take my daughter away.” Lori also signed an affidavit stating, “[t]he only reason I ever allowed [the police] into the home was because of his threats to take away my child.”

[¶ 9] “Failure to file a pretrial suppression motion, by itself, does not equate to ineffective assistance of counsel.” Roth v. State, 2007 ND 112, ¶ 10, 735 N.W.2d 882. The United States Supreme Court has instructed:

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 and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice. Thus, while respondent's defaulted Fourth Amendment claim is one element of proof of his Sixth Amendment claim, the two claims have separate identities and reflect different constitutional values.

Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Thus, to bring a successful ineffective assistanceof counsel claim based on the failure of trial counsel to raise a Fourth Amendment issue, Kinsella must also prove he would have prevailed on his motion to suppress and that there is a reasonable probability a successful motion would have affected the outcome of the trial. Id.; see also Roth, 2007 ND 112, ¶ 10, 735 N.W.2d 882.

[¶ 10] The Fourth Amendment states, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....” U.S. Const. amend. IV. The North Dakota Constitution also shields individuals from unreasonable government searches and seizures. N.D. Const. art. I, § 8. Warrantless and non-consensual searches and seizures made inside a home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Notwithstanding this presumption, the Fourth Amendment's protection against warrantless searches inside a home is not absolute; it is “well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); see also State v. DeCoteau, 1999 ND 77, ¶ 9, 592 N.W.2d 579. When no exception to the requirement exists, such as consent, any evidence seized by police is inadmissible in court under the exclusionary rule. State v. Graf, 2006 ND 196, ¶ 9, 721 N.W.2d 381.

[¶ 11] On appeal, Kinsella argues the consent given by his wife was not voluntary, his Fourth Amendment claim is meritorious and that there is a “reasonable probability that the verdict would have been different absent the excludable evidence....” Kinsella argues the consent was involuntary because Detective Vanderhoef threatened Lori that social services would take...