State v. Skjonsby, Cr. N

• Decision Date: 29 December 1987
• Docket Number: Cr. N
• Citation: 417 N.W.2d 818
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Richard W. SKJONSBY, Defendant and Appellant. o. 1149.
• Court: North Dakota Supreme Court

Page 818

417 N.W.2d 818

STATE of North Dakota, Plaintiff and Appellee, v. Richard W. SKJONSBY, Defendant and Appellant.

Cr. No. 1149.

Supreme Court of North Dakota.

Dec. 29, 1987.

Robert Garold Hoy, State's Atty., Fargo, for plaintiff and appellee. Appearance by Bruce D. Quick, Bismarck.

Lundberg, Nodland, Lucas, Schulz & Lervick, PC, Bismarck, for defendant and appellant; argued by Irvin B. Nodland.

LEVINE, Justice.

Richard W. Skjonsby [Skjonsby] appeals from an order of the district court denying his application for post-conviction relief. We affirm.

This case arises from a shooting incident which occurred on March 26, 1980. The facts are set out in detail in State v. Skjonsby, 319 N.W.2d 764 (N.D.1982) ["Skjonsby I"] and State v. Skjonsby, 338 N.W.2d 628 (N.D.1983) ["Skjonsby II"].

Skjonsby was tried and convicted for the murder of Michael Kurtz [Kurtz] and the attempted murder of Charlotte Skjonsby [Charlotte]. His convictions were affirmed on appeal to this court. Skjonsby I, supra.

Skjonsby subsequently applied to the District Court of Cass County for post-conviction relief pursuant to Chapter 29-32, N.D.C.C. ¹ Skjonsby asserted that he was denied effective assistance of counsel at trial, that he was incapable of assisting in his own defense, and that a psychiatric evaluation performed upon him at the State Hospital was invalid because two of the participating doctors were at that time engaged in illegal counterfeiting activities. The trial court did not afford Skjonsby an evidentiary hearing, but summarily dismissed Skjonsby's application. We reversed on appeal, holding that Skjonsby was entitled to an evidentiary hearing on his allegations. We remanded to the district court for an evidentiary hearing limited to the three issues raised by Skjonsby and appointed a different district judge to preside over the evidentiary hearing. Skjonsby II, supra.

The evidentiary hearing was conducted June 18-28, 1985. Skjonsby was represented by court-appointed counsel. Over thirty witnesses testified and 124 exhibits were received into evidence. After receiving briefs on the legal issues, the trial court issued its memorandum decision and order denying the application for post-conviction relief.

Skjonsby raises two issues on appeal: ineffective assistance of counsel and his mental incompetence to assist in his defense. Although these issues as formulated by Skjonsby are somewhat interrelated, we will address each separately.

I. Ability to Assist in Defense

Skjonsby asserts that the trial court erred in finding that he was mentally competent to assist in his own defense. The relevant statutory provision is Section 12.1-04-04, N.D.C.C.:

"12.1-04-04. Disposition of mentally unfit defendants. No person who, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures."

Whether a defendant is mentally competent to stand trial is a question of fact for the trial judge. State v. Heger, 326 N.W.2d 855, 858 (N.D.1982).

We review this issue within the context of the Uniform Post-Conviction Procedure Act, Chapter 29-32, N.D.C.C. The burden of establishing a basis for post-conviction relief rests upon the petitioning defendant. State v. Kunkel, 366 N.W.2d 799, 803 (N.D.1985). Proceedings under the Act are civil in nature, and all rules and statutes applicable in civil proceedings are available to the parties. Varnson v. Satran, 368 N.W.2d 533, 536 (N.D.1985). Thus, factual findings made by the trial court in post-conviction proceedings will not be disturbed on appeal unless they are clearly erroneous. Rule 52(a), N.D.R.Civ.P.; Varnson v. Satran, supra. On appeal, the complaining party bears the burden of demonstrating that error exists in the trial court's findings of fact. E.g., Johnson v. Hamill, 392 N.W.2d 55, 59 (N.D.1986); Byron v. Gerring Industries, Inc., 328 N.W.2d 819, 821 (N.D.1982).

Skjonsby contends that the results of psychological tests conducted before trial were misinterpreted and that, upon review by Skjonsby's new experts, these tests show that Skjonsby was at the time of trial suffering from a mental disease or defect which rendered him unable to assist in his own defense. On three separate occasions before trial, the Minnesota Multiphasic Personality Inventory ["MMPI"] was administered to Skjonsby. Two of these tests were administered by Dr. Harper, a private psychologist retained on behalf of Skjonsby, and the third was administered by the staff at the State Hospital. It was the opinion of Dr. Harper and the State Hospital staff that Skjonsby was not at that time suffering from a mental disease or defect which rendered him incapable of assisting in his defense.

Skjonsby particularly attacks the conclusion of Dr. Harper that the MMPI conducted in November, 1980, shortly before trial, produced an invalid result because Skjonsby was "faking" the test. Dr. Harper testified that the test results would support two possible theories: either Skjonsby was seriously mentally ill or he was "faking" the test. Based upon other information available, including his extensive interviews with Skjonsby, his examination of other test results, and his personal observations, Dr. Harper concluded that Skjonsby had intentionally "faked" the November MMPI.

At the post-conviction hearing Skjonsby presented the testimony of Dr. Rasmussen, a psychotherapist, and Dr. Erickson, a psychiatrist, who disputed Dr. Harper's findings. They each testified that their interpretation of the MMPI results led to the conclusion that Skjonsby did not fake the November test and that Skjonsby indeed suffered from a mental disease or defect in 1980 which rendered him unable to assist in his defense.

Each side also presented additional evidence regarding Skjonsby's physical and mental condition before and during his trial in 1980. According to testimony and records introduced at the hearing, virtually every person who had significant contact with Skjonsby before and during his trial, including numerous mental health professionals, the physician who treated Skjonsby in the Cass County Jail, the original trial judge, and Skjonsby's trial counsel, was of the opinion that Skjonsby did not appear to be suffering from any mental disease or defect and that he was competent to stand trial. Skjonsby also presented various witnesses who testified regarding Skjonsby's excessive weight loss, bleeding ulcer, depression, and medications prescribed during his incarceration before trial.

The trial court weighed the conflicting evidence and found that Skjonsby was not suffering from a mental disease or defect in 1980 and was not incapable of assisting in his defense. In so holding, the court noted that the State's evidence was derived primarily from witnesses who had personal contact with Skjonsby in 1980, and who had conducted interviews and administered psychiatric testing at that time. In this regard, it is important to note that at trial Skjonsby did not raise the issue of mental inability to assist in his defense. In fact, it was not until filing an amended brief in the initial post-conviction proceedings, on February 4, 1983, that Skjonsby first asserted that he had been unable to assist in his defense. Thus, the expert testimony of Dr. Rasmussen and Dr. Erickson was based not upon personal contact and testing of Skjonsby in 1980 [inasmuch as neither of them met Skjonsby until more than two years later], but rather upon after-the-fact review of Skjonsby's 1980 test results.

Questions of credibility of witnesses are for the finder of fact, including the evaluation of expert witness testimony. Johnson v. Hamill, supra, 392 N.W.2d at 59. We have previously discussed our review of cases where the trial court was faced with conflicting opinions by expert witnesses:

" 'The trial court was thus confronted with a classic "battle of the experts". Consequently, this is a case where the court could have arguably relied upon either party's expert witness. However, upon hearing the testimony, observing the witnesses' demeanor, and judging their credibility, the court chose to rely upon the defendants' expert. Such a choice between two permissible views of the weight of the evidence is not clearly erroneous.' [Citations omitted.]" Johnson v. Hamill, supra, 392 N.W.2d at 59 [ quoting from Byron v. Gerring Industries, Inc., supra, 328 N.W.2d at 822].

We conclude that the trial court's finding that Skjonsby was not suffering from a mental disease or defect in 1980 which rendered him incapable of assisting in his own defense is not clearly erroneous.

II. Ineffective Assistance of Counsel

Skjonsby contends that he was denied his Sixth Amendment right to effective assistance of counsel. In State v. Thompson 359 N.W.2d 374, 377 (N.D.1985), we discussed the appropriate standards for judging a claim of ineffective assistance of counsel, as enunciated by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

"In Strickland, the Court held that '[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' Id. 104 S.Ct. at 2064. The Court established a two-part test for determining whether counsel's assistance was so defective as to require reversal of a 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. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the...