Kisi v. State
| Docket Number | 20230074 |
| Decision Date | 01 December 2023 |
| Parties | Jean-Michael Kisi, Petitioner and Appellant v. State of North Dakota, Respondent and Appellee |
| Court | North Dakota Supreme Court |
1
2023 ND 226
Jean-Michael Kisi, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20230074
Supreme Court of North Dakota
December 1, 2023
Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Paul W. Jacobson, Judge.
AFFIRMED.
Jean-Michael Kisi, self-represented, Bismarck, N.D., petitioner and appellant; submitted on brief.
Nathan K. Madden, Assistant State's Attorney, Williston, N.D., for respondent and appellee; submitted on brief.
TUFTE, JUSTICE
[¶1] Jean-Michael Kisi appeals from orders dismissing in part and denying in part his application for postconviction relief. He argues the district court erred because he was convicted of a non-cognizable offense, accomplice to attempted murder. He also argues the district court erred by dismissing his other claims for relief on grounds that he received ineffective assistance of counsel, the court followed improper trial procedure, and the State committed prosecutorial misconduct. We affirm.
I
[¶2] A jury convicted Kisi of gross sexual imposition and accomplice to attempted murder. Kisi appealed the judgment, and we affirmed. State v. Kisi, 2018 ND 147, ¶ 1, 913 N.W.2d 767.
[¶3] Kisi applied for postconviction relief. He alleged the conviction of accomplice to attempted murder is illegal because a "knowing" murder under N.D.C.C. § 12.1-16-01(1)(a) cannot be the underlying offense for an accomplice to an attempt offense. He also argues he received ineffective assistance of counsel, the district court followed improper trial procedure, and the State committed prosecutorial misconduct.
[¶4] The State responded to Kisi's application and moved for summary dismissal. The district court granted the State's motion in part, and dismissed Kisi's claims of ineffective assistance of counsel, improper trial procedure, and prosecutorial misconduct on the basis that Kisi had raised no genuine issue of material fact. The court ordered an evidentiary hearing on the issue of the non-cognizable offense. After the hearing, the court concluded accomplice to attempted knowing murder is a non-cognizable offense, but the erroneous jury instruction was harmless beyond a reasonable doubt because it determined this jury convicted on attempted intentional murder. The court denied Kisi's application for postconviction relief. Kisi appeals.
II
[¶5] "Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure." Myers v. State, 2017 ND 66, ¶ 7, 891 N.W.2d 724 (quoting Wacht v. State, 2015 ND 154, ¶ 6, 864 N.W.2d 740). The standard of review in a postconviction proceeding is well-established:
A trial court's findings of fact in post-conviction relief proceedings will not be disturbed unless they are 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 it, a reviewing court is left with a definite and firm conviction that a mistake has been made Questions of law are fully reviewable on appeal of a post-conviction proceeding
Olson v. State, 2019 ND 135, ¶ 7, 927 N.W.2d 444 (citations omitted). "The interpretation of a statute is a question of law, which is fully reviewable on appeal." Pemberton v. State, 2021 ND 85, ¶ 7, 959 N.W.2d 891.
[¶6] A person convicted and sentenced for a crime may apply for postconviction relief upon the ground that "[t]he conviction was obtained or the sentence was imposed in violation of the laws or the Constitution of the United States or of the laws or Constitution of North Dakota." N.D.C.C. § 29-32.1-01(1)(a); Dominguez v. State, 2013 ND 249, ¶ 23, 840 N.W.2d 596.
III
[¶7] Kisi argues the district court erred by denying his application for postconviction relief, because accomplice to attempted knowing murder is a non-cognizable offense and the State did not show the inclusion of "knowing" in the jury instructions was harmless error. Whether accomplice to attempted knowing murder is a non-cognizable offense is a question of law fully reviewable on appeal.
[¶8] Kisi was charged with accomplice to attempted murder under N.D.C.C. §§ 12.1-03-01 and 12.1-16-01(1)(a). The relevant part of the criminal attempt statute, N.D.C.C. § 12.1-06-01(1), states:
A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime. A "substantial step" is any conduct which is strongly corroborative of the firmness of the actor's intent to complete the commission of the crime.
A person is guilty of murder under N.D.C.C. § 12.1-16-01(1)(a) if the person "[i]ntentionally or knowingly causes the death of another human being." A person engages in conduct "intentionally" "if, when he engages in the conduct, it is his purpose to do so." N.D.C.C. § 12.1-02-02(1)(a). A person engages in conduct "knowingly" "if, when he engages in the conduct, he knows or has a firm belief, unaccompanied by substantial doubt, that he is doing so, whether or not it is his purpose to do so." N.D.C.C. § 12.1-02-02(1)(b).
[¶9] The essential elements instruction read: "Jean-Michael Kisi, acting with the kind of culpability otherwise required for the intentional or knowing killing of [victim] a human being . . . [a]ided David Mbulu in committing the offense of attempted murder." (Emphasis added.) The jury instructions explain:
A person who, intending that the offense of Murder be committed, commands, induces, procures, or aids another to commit it, or being a co-conspirator whose association with the offense matches such actions is guilty of Accomplice to Attempted Murder wherein the actions of the parties do not result in the death of the intended target, but demonstrate an intent to kill the intended target.
A
[¶10] An attempt offense requires an intent to complete the underlying criminal offense. Pemberton, 2021 ND 85, ¶ 24; Dominguez, 2013 ND 249, ¶ 22. Where the underlying offense is murder, an intent to kill is required. Pemberton, at ¶ 24. "The offense of murder requires the defendant to cause the death of another; therefore, in order to intend to complete the commission of the offense for purposes of attempted murder, the defendant must have an intent to cause the death of another." Id. at ¶ 11. An attempted knowing murder is not a cognizable offense. Id. at ¶¶ 11, 24.
[¶11] Our case law distinguishes intentional murder from knowing murder. See State v. Swanson, 2019 ND 181, 930 N.W.2d 645. The statutory definition of knowingly includes "when he engages in the conduct, he knows or has a firm belief, unaccompanied by substantial doubt, that he is doing so, whether or not it is his purpose to do so." N.D.C.C. § 12.1-02-02(1)(b) (emphasis added). "Purpose" has been defined as "[t]hat which one sets before him to accomplish." Black's Law Dictionary 1400 (4th ed. 1968). It is "[a]n objective, goal, or end." Black's Law Dictionary 1493 (11th ed. 2019). "Intention" and "purpose" are synonyms. Webster's Third New International Dictionary 1847 (16th ed. 1971). "As such, the term knowingly, when used in conjunction with N.D.C.C. § 12.1-16-01(1)(a), permits an individual to be convicted of a murder when they did not have the purpose (synonymous with intent) to cause the death of another human being." Swanson, 2019 ND 181, ¶ 13. For this reason, the inclusion of "knowingly" in the jury instruction may render a conviction illegal as a non-cognizable offense. See, e.g., Swanson, 2019 ND 181, ¶ 15; State v. Borner, 2013 ND 141, ¶ 7, 836 N.W.2d 383.
[¶12] In Pemberton, 2021 ND 85, ¶¶ 13, 17, where we held attempted knowing murder is not a cognizable offense, we noted the jury instructions included the word "knowingly," which allowed the jury to find the defendant guilty of a non-cognizable offense. See also Mbulu v. State, 2022 ND 138, ¶ 26, 977 N.W.2d 305 (reversing on a separate issue but allowing "the parties an opportunity to address the Pemberton opinion" on Mbulu's conspiracy to commit murder charge). We held under the instructions in Pemberton, the jury could have found Pemberton guilty of attempted murder without finding he intended to kill another human being. In that case, the instructions allowed the jury to find Pemberton guilty of a...
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