State v. Wilson

• Decision Date: 21 February 1991
• Docket Number: Cr. N
• Citation: 466 N.W.2d 101
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Donald WILSON, Defendant and Appellant. o. 900220.
• Court: North Dakota Supreme Court

Page 101

466 N.W.2d 101

STATE of North Dakota, Plaintiff and Appellee, v. Donald WILSON, Defendant and Appellant.

Cr. No. 900220.

Supreme Court of North Dakota.

Feb. 21, 1991.

Alan K. Duppler (argued), States Atty., Stanton, for plaintiff and appellee.

Rolf P. Sletten (argued), Bismarck, for defendant and appellant.

MESCHKE, Justice.

Claiming defective assistance of counsel, Donald Earl Wilson applied for post-conviction relief from a criminal conviction of delivering a controlled drug. The trial court summarily denied his application. Because there were genuine issues of material fact, we reverse and remand for an evidentiary hearing.

Despite Wilson's testimony that he bought, bagged, and delivered parsley, not marijuana, to a police informant for $100, a jury convicted him of violating NDCC 19-03.1-23 by delivering a controlled substance. Wilson appealed, alleging insufficient evidence and ineffective assistance of counsel. We held the evidence sufficient and affirmed his conviction "with the understanding that Wilson may raise the ineffective assistance of counsel issue at a proceeding for post-conviction relief pursuant to Chapter 29-32.1, N.D.C.C." State v. Wilson, 450 N.W.2d 422 (N.D.1990). After remand, Wilson applied for post-conviction relief.

In his application, Wilson claimed that his trial counsel failed to offer important testimony from a known independent witness, failed to obtain an independent test of the substance that Wilson delivered, and otherwise defectively represented him. The prosecution moved to summarily dismiss, arguing that there was no genuine issue as to any material fact. The trial court summarily denied Wilson's petition. Wilson appealed, seeking an evidentiary hearing for his claims of defective assistance of counsel in his criminal trial. ¹

Determination of a claim of defective assistance of counsel

requires more than a mere representation of what the testimony would be; we require some form of proof, e.g., an affidavit by the proposed witness, or testimony in a post-conviction-relief proceeding.

State v. Ricehill, 415 N.W.2d 481, 484 (N.D.1987). In Ricehill, and many decisions since, we have denied direct appellate determination of claims of defective assistance of counsel because a transcript of the trial is seldom adequate to demonstrate that an attorney's conduct of a criminal defense was poor enough to necessitate a new trial. A different procedural environment exists to explore that question in a post-conviction proceeding. Without confinement to the transcript, post-conviction procedures allow development of additional evidence to evaluate claims. Use of the record from the trial does not preclude a defendant from offering other evidence about facts and occurrences not recorded during the trial. NDCC 29-32.1-10. Summary denial of a post-conviction application forecloses that opportunity. When that happens, the post-conviction procedure becomes no better than direct review on appeal.

We recently reviewed the history of the Uniform Post-Conviction Procedure Act. From its initial enactment by North Dakota in 1969 through a revision enacted in 1985, its purpose has been to furnish a method to develop a complete record to challenge a criminal conviction and sentence. State v. DeCoteau, 464 N.W.2d 605, 606 (N.D.1990).

Post-conviction relief proceedings are civil in nature [see State v. Jensen, 333 N.W.2d 686 (N.D.1983) ], and all rules and statutes applicable in civil proceedings are available to the parties. Sec. 29-32-07, N.D.C.C.; State v. Lueder, 252 N.W.2d 861 (N.D.1977) [Rule 56, N.D.R.Civ.P., and decisions interpreting the rule are applicable in post-conviction proceedings].

Varnson v. Satran, 368 N.W.2d 533, 536 (N.D.1985). The civil nature of post-conviction proceedings has not changed. See NDCC 29-32.1-08, 29-32.1-10, and 29-32.1-11. As we pointed out in State v. Lueder, 252 N.W.2d 861, 866 (N.D.1977), "all rules and statutes applicable in civil proceedings, including pretrial and discovery procedures, are available to the parties," subject only to reasonable control by the trial court. NDCC 29-32.1-08. That remains true.

The Uniform Post-Conviction Procedure Act authorizes summary disposition only if "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." NDCC 29-32.1-09(1). This is the same standard as for summary judgment in civil cases. NDRCivP 56(c). That is the standard for our review here.

Wilson alleged that the missing independent witness, a clerk at a grocery store in Hazen, would have testified that he purchased parsley from her during the time that surveilling officers lost sight of him. The prosecution conceded, in the court below as well as on appeal here, that the grocery clerk would have so testified. The prosecution argues that, since it agreed that the missing defense witness would testify as Wilson alleges, her testimony would only be cumulative. We disagree. This witness was independent of Wilson and his friend who testified, and while partly cumulative, would have strengthened the weight and credibility of Wilson's testimony about purchasing the parsley as well as the weight and credibility of his friend's testimony about bagging it before the delivery. Unless rationally explained, failure to call such a witness raises doubts about the defense attorney's performance. Taken together with other potentially relevant evidence and puzzling closing arguments by Wilson's trial attorney, this record raised genuine issues of material fact for weighing at an evidentiary hearing. Summary disposition is not proper if there are material issues of fact.

The prosecution argues that Wilson's failure to request an independent test of the delivered substance was a deliberate tactic when the prosecution offered a test that the substance was marijuana. That may be a possibility, but not the only possible inference without an explanation from the defense attorney. The consistent defense theory throughout the trial was that a mistake had been made about the substance delivered. Wilson testified that he bought, bagged, and delivered parsley, not marijuana, to the police informant. A friend, at whose house Wilson prepared the bag for delivery, also testified that parsley was bagged. Closing argument by Wilson's defense attorney on this point was more confusing than clarifying:

For the most part, I find our law enforcement people are men and women of integrity. They absolutely can be trusted. If you were to ask me: Did somebody tamper with that? I would have to say to you, in all honesty, I don't know. Why would I say this? Well the reason is because I don't know every single drug agent or law enforcement officer in this state and I have also heard another person who is saying that this was parsley and something happened to it. Can I stand here and tell you what happened to it? No I can't.

Since the trial court did not have any clarification from Wilson's trial attorney, the trial court could not fairly select an inference adverse to Wilson in a summary disposition.

In the post-conviction proceeding, Wilson sought an independent test of the substance delivered and seized. This, too, was denied summarily and without explanation. Since Wilson's theory was that a mistake had been made about the substance seized, an independent test is obviously relevant. If an independent, post-conviction test shows that the substance was in fact parsley, not marijuana, Wilson undoubtedly will be entitled to a...