Mbulu v. State

• Decision Date: 07 July 2022
• Docket Number: 20210224
• Parties: David Ntoto MBULU, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee
• Court: North Dakota Supreme Court

977 N.W.2d 305

David Ntoto MBULU, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee

No. 20210224

Supreme Court of North Dakota.

FILED JULY 7, 2022

Rehearing Denied August 26, 2022

Samuel A. Gereszek, Grand Forks, ND, for petitioner and appellant.

Nathan K. Madden, Assistant State's Attorney, Williston, ND, for respondent and appellee; submitted on brief.

VandeWalle, Justice.

[¶1] David Ntoto Mbulu appealed from a district court order granting his application for post-conviction relief in part and denying it in part. We conclude the district court did not err by denying Mbulu's claims related to the jury instructions for the conspiracy to commit gross sexual imposition charge. However, we also conclude the court erred by summarily dismissing Mbulu's ineffective assistance of counsel claim related to the failure to call his co-defendant as a witness during the criminal trial. We affirm in part, reverse in part, and remand.

I

[¶2] In 2017, Mbulu was convicted of conspiracy to commit gross sexual imposition, accomplice to gross sexual imposition, conspiracy to commit murder, and attempted murder. His conviction was affirmed on appeal. State v. Mbulu , 2018 ND 73, 908 N.W.2d 732.

[¶3] In 2018, Mbulu applied for post-conviction relief. He alleged various claims of ineffective assistance of counsel, including that his trial counsel failed to subpoena and call his co-defendant, Jean-Michael Kisi, to testify during the trial. He claimed Kisi's testimony would have resulted in a different outcome on the conspiracy to commit gross sexual imposition and accomplice to gross sexual imposition charges. Mbulu later moved to amend his application to include claims that his trial and appellate attorneys were ineffective because they failed to object to errors in the jury instructions for the conspiracy to commit murder and conspiracy to commit gross sexual imposition charges, which allowed him to potentially be convicted of non-cognizable offenses.

[¶4] The State moved for dismissal of Mbulu's application for post-conviction relief. The district court partially granted the State's motion to dismiss, including dismissing Mbulu's claim that he received ineffective assistance of counsel because his trial counsel failed to subpoena Kisi. The court granted Mbulu's motion to amend his application. The court denied the State's motion to dismiss Mbulu's claims about improper jury instructions related to the conspiracy to commit murder and conspiracy to commit gross sexual imposition charges.

[¶5] After an evidentiary hearing, the district court granted the application in part and denied it in part. The court ruled Mbulu abandoned the jury instruction argument related to the conspiracy to commit gross sexual imposition charge. The court granted the application for relief on the jury instruction issue related to the conspiracy to commit murder charge, and ordered the conspiracy to commit murder conviction be vacated and remanded for a new trial. Judgment was entered.

II

[¶6] Mbulu argues the district court erred by summarily dismissing his ineffective assistance of counsel claim related to the failure to subpoena and call Kisi as a witness during the criminal trial. He contends he presented sufficient evidence to raise a genuine issue of material fact and entitled him to an evidentiary hearing, including an affidavit from Kisi in which Kisi stated that he acted spontaneously and alone regarding the gross sexual imposition charges and that he was willing to waive his right against self-incrimination and testify at Mbulu's trial.

[¶7] A claim for post-conviction relief may be summarily dismissed if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Pinkney v. State , 2021 ND 155, ¶ 13, 963 N.W.2d 737. "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 admissible evidence, by affidavit or other comparable means, to raise a genuine issue of material fact." Friesz v. State , 2022 ND 22, ¶ 7, 969 N.W.2d 465 (quoting Morales v. State , 2020 ND 117, ¶ 3, 943 N.W.2d 761 ). "The party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact." Friesz , at ¶ 7 (quoting Davis v. State , 2013 ND 34, ¶ 25, 827 N.W.2d 8 ). On appeal, the summary dismissal of a claim for post-conviction relief is reviewed like an appeal from summary judgment. Pinkney , at ¶ 13.

[¶8] To prevail on a claim of ineffective assistance of counsel, the applicant for post-conviction relief must show: "1) counsel's representation fell below an objective standard of reasonableness and 2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Yoney v. State , 2021 ND 132, ¶ 7, 962 N.W.2d 617 (quoting Olson v. State , 2019 ND 135, ¶ 19, 927 N.W.2d 444 ). There is a presumption that the counsel's representation fell within the wide range of reasonable professional assistance. Heckelsmiller v. State, 2004 ND 191, ¶ 3, 687 N.W.2d 454. We have said the record and transcripts generally are not adequate to determine whether summary disposition is appropriate on claims of ineffective assistance of counsel. Stein v. State , 2018 ND 264, ¶ 8, 920 N.W.2d 477.

[¶9] The district court granted the State's motion to dismiss Mbulu's claim that he received ineffective assistance of counsel because his trial counsel failed to subpoena Kisi. The court explained the decision not to call Kisi as a witness was a trial strategy which was evidenced by trial counsel's argument opposing consolidation of Mbulu's and Kisi's cases, in which counsel argued Kisi could not be compelled to testify and be subjected to cross-examination if the cases were joined. The court stated that to the extent Kisi's affidavit contradicted the testimony Kisi gave at his own trial those contradictions could not be used to create a genuine issue of material fact. The court noted Kisi was tried after Mbulu and any statement Kisi made in Mbulu's trial would have been used against him at his own trial, and Mbulu failed to provide an affidavit from Kisi's trial counsel indicating he would have allowed Kisi to waive the privilege against self-incrimination and testify. The court concluded Mbulu failed to show a genuine issue of fact that his trial counsel's failure to call Kisi fell below an objective standard of reasonableness or that the outcome of the proceeding would have been different.

[¶10] Mbulu presented an affidavit from Kisi as evidence supporting his claim. In the affidavit, Kisi claimed he would have waived the right against self-incrimination and agreed to testify at Mbulu's trial. He explained his version of the events leading to the charges. Kisi stated he was traveling with Mbulu and the victim in a vehicle, he stopped the vehicle, and Mbulu physically removed the victim from the vehicle. He alleged Mbulu and the victim got into a verbal and physical altercation, he tried to separate Mbulu and the victim, the victim's pants started to come off, and Mbulu went back to the vehicle. Kisi stated that he was trying to calm the victim down and he "inappropriately touched or fingered" the victim before he got back into the vehicle.

[¶11] The State charged Mbulu with conspiracy to commit gross sexual imposition, alleging Mbulu agreed with Kisi to commit gross sexual imposition against the victim and engaged in one or more overt acts to further that objective. The State also charged Mbulu with accomplice to gross sexual imposition, alleging Mbulu, acting as a co-conspirator or with the intent that an offense be committed, aided Kisi in committing the offense of gross sexual imposition by physically restraining the victim while Kisi engaged in a sexual act. Mbulu filed an affidavit from Kisi providing evidence of what Kisi would have testified to if called as a witness and how that testimony likely would have led to a different result on the conspiracy to commit and accomplice to gross sexual imposition charges. Giving Mbulu all reasonable inferences, the affidavit from Kisi creates a genuine issue of material fact about whether Mbulu's trial counsel's representation fell below an objective standard of reasonableness.

[¶12] The district court stated it appeared Mbulu's trial counsel at least considered calling Kisi as a witness because one of the grounds for opposing consolidation of Mbulu's and Kisi's trials was that Mbulu would be unable to compel Kisi to testify if the cases were joined. The court concluded "[t]he ultimate decision not to call Kisi as a witness was clearly a matter of trial strategy and within the range of choices that a reasonable attorney would make." However, there was no testimony from Mbulu's trial attorneys that this was trial strategy or about why Kisi was not called as a witness.

[¶13] The district court also noted Kisi's statements in his affidavit contradict the testimony he gave at his own trial and any statements Kisi made at Mbulu's trial would have been used against him by the State at his own trial, which is something "any reasonable criminal defense attorney would not have allowed to occur." The court further stated Mbulu did not provide an affidavit from Kisi's trial counsel indicating that he would have advised or permitted Kisi to waive his Fifth Amendment privilege against self-incrimination in order to testify. The privilege against self-incrimination belongs to the witness, and it is the witness's decision whether to waive it. See Rogers v. United States , 340 U.S. 367, 371, 71 S.Ct. 438, 95 L.Ed. 344 (1951) (stating the privilege against self-incrimination is solely for the benefit of the witness and is purely a personal privilege of the...