State v. Thompson

• Citation: 359 N.W.2d 374
• Decision Date: 03 January 1985
• Docket Number: 1029,Nos. 982,s. 982
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Ronald Scott THOMPSON, Defendant and Appellant. Crim.
• Court: United States State Supreme Court of North Dakota

Page 374

359 N.W.2d 374

STATE of North Dakota, Plaintiff and Appellee, v. Ronald Scott THOMPSON, Defendant and Appellant.

Crim. Nos. 982, 1029.

Supreme Court of North Dakota.

Jan. 3, 1985.

Richard L. Schnell, State's Atty., Mandan, for plaintiff and appellee; argued by Richard L. Schnell.

Bickle, Coles & Snyder, Bismarck, for defendant and appellant; argued by James J. Coles, Bismarck.

ERICKSTAD, Chief Justice.

This case involves two separate appeals by the defendant, Ronald S. Thompson, the first from a judgment of conviction entered by the district court pursuant to a jury verdict finding him guilty on two counts of burglary, and the second from an order of the district court denying his motion for a new trial on the ground of newly discovered evidence. We affirm both the judgment of conviction and the order denying a new trial.

Thompson was charged in a criminal complaint with committing two counts of burglary on or about June 9, 1983, in that he did willfully enter rooms 133 and 205 of the Seven Seas Motor Inn [hereinafter referred to as the "Seven Seas"] in Mandan--rooms which at the time were rented to other persons--when he was not licensed, invited, or otherwise privileged to do so.

During the early afternoon of June 9, 1983, Barry Davis, the owner and operator of the Seven Seas, observed Thompson and three other young persons, David Kershner, Robyn Walotsky and her brother, Michael, approach the motel's registration desk and ask the desk clerk for employment applications. According to Davis, Thompson "kind of stuck out" as he was dressed in fairly heavy military or camouflage-type clothing which, at the time, was thought by Davis to be unusual dress for warm weather and for one in quest of employment. Davis later observed, without concern, Thompson and another young man walking through a ground floor hallway in the motel room area of the Seven Seas, and thereafter observed Thompson and the other job applicants leaving the parking lot of the Seven Seas in a vehicle driven by David Kershner. Kershner testified that he drove Thompson and Michael Walotsky back to the Seven Seas, at approximately 5:30 or 6:00 p.m., because the pair wanted to eat dinner at the restaurant located there.

Davis testified that he was walking down a stairway in the motel room area of the Seven Seas at about 9:00 p.m., when he saw a man he recognized as Thompson, dressed in camouflage clothing with "gloves on him," and another man, standing together "kind of leaning against the wall" in the second floor hallway. The men did not notice Davis who had stepped back into the stairway to observe what was going on. Davis testified that he then realized that Thompson and the other person were watching another man who was walking away from them to the far end of the hallway. As soon as this man turned into his room, the two started walking in the same direction that the man had gone. Davis testified:

"As soon as [the man] ... disappeared, they started to move. At that time I asked them if I could be of any assistance, and I don't believe they had seen me until that time. They seemed kind of surprised. And they ... continued walking away from me, and I asked them again could I be of any assistance or what they were doing, and received no reply, and I finally asked them were they registered in the motel. And the defendant turned over his shoulder and says, yeah, we are in room 111, which I knew was not accurate because I knew the person that was in 111."

Davis testified that the two then increased their pace, not running but "awfully close to it," in proceeding to the end of the hallway and down a stairway. Davis observed the men outside the motel "running toward Interstate 94," which is adjacent to the Seven Seas.

The police were called after a guest of the Seven Seas reported that someone had entered his room. The occupant of room 205 testified that a suitcase in his room had been "messed up" and that a package of Winston brand cigarettes, purchased in Minnesota, was taken. The occupant of room 133 testified that just about everything in his room had been disturbed, but nothing was missing. Thompson and Walotsky were apprehended by the police alongside Interstate 94 near the Seven Seas. A package of Winston cigarettes bearing a Minnesota stamp was found in Thompson's possession.

Davis later discovered that an emergency master key, capable of opening the door of any of the motel's sleeping rooms, and a maid's key were missing from the Seven Seas.

Thompson raises the following issues for our consideration: (1) "Was the defendant denied his Sixth Amendment right to effective counsel?" (2) "Was there sufficient evidence for the jury to find the defendant guilty of the charges alleged beyond a reasonable doubt?" (3) "Did the court err in denying the defendant's motion for a new trial based upon the discovery of new evidence?"

I.

Thompson contends that he was denied his Sixth Amendment right to effective assistance of counsel as applied to state courts through the Fourteenth Amendment of the United States Constitution.

Counsel was appointed for Thompson by the court. This attorney represented Thompson at his preliminary hearing and for a time thereafter; however, for reasons not explained by the record, a different attorney represented Thompson for a time prior to and during the trial held December 8-9, 1983. Immediately prior to trial the court denied Thompson's request that yet another attorney be appointed to represent him. Thompson's trial attorney later filed a motion to withdraw as counsel upon being made aware that Thompson desired to appeal his conviction on the ground of ineffective assistance of counsel. The motion was granted. A different attorney was retained who on behalf of Thompson filed, pursuant to Rule 33, N.D.R.Crim.P., a motion for a new trial on the ground of newly discovered evidence. This motion was denied. The attorney on these appeals is not the same attorney who represented Thompson at trial.

In our recent decision in State v. Patten, 353 N.W.2d 30, 33 (N.D.1984), we briefly reviewed the United States Supreme Court's decision in Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which articulated the proper standards for judging a criminal defendant's claim of actual ineffective assistance of counsel under the Sixth Amendment. 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 defendant of a fair trial, a trial whose result is reliable." Id.

Strickland directs that in examining the first element--whether counsel's performance was deficient--"[j]udicial scrutiny of counsel's performance must be highly deferential." Id. 104 S.Ct. at 2065. The proper measure of attorney performance is "simply reasonableness under prevailing professional norms," considering all the circumstances from the defense counsel's perspective at the time. Id. However, because it is all too easy to second-guess an unsuccessful counsel's defense through the distorting effects of hindsight, in making that inquiry "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. 104 S.Ct. at 2065-66 [citation omitted].

In examining the second element--whether the deficient performance was prejudicial--we must inquire, considering the totality of the evidence before the judge or jury, "whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. 104 S.Ct. at 2069. It is the defendant's burden to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. 104 S.Ct. at 2068.

The principles outlined by the majority opinion in Strickland do not establish mechanical rules. Id. 104 S.Ct. at 2069. "Although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." Id. The Supreme Court also suggested that a court need not address both the performance and prejudice components of the inquiry if the defendant makes an insufficient showing on one. Id. 104 S.Ct. at 2069-70.

After examining carefully the record in light of the standards articulated in Strickland, we conclude that Thompson has failed to show that the performance of his trial attorney was deficient.

A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. Strickland, 104 S.Ct. at 2066. Thompson has listed for this Court several instances of alleged deficient conduct on the part of his trial attorney, the cumulative effect of which he argues resulted in a denial of his right to effective counsel:

1. Counsel did not spend sufficient time discussing the case with the...