Stoppleworth v. State, s. 920035

• Decision Date: 16 June 1993
• Docket Number: 930051,Nos. 920035,s. 920035
• Citation: 501 N.W.2d 325
• Parties: Leo Daniel STOPPLEWORTH, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 325

501 N.W.2d 325

Leo Daniel STOPPLEWORTH, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.

Civ. Nos. 920035, 930051.

Supreme Court of North Dakota.

June 16, 1993.

Leo Daniel Stoppleworth, pro se.

J.E. Rick Brown, Asst. State's Atty., Grand Forks, for respondent and appellee; submitted on brief.

NEUMANN, Justice.

Leo Daniel Stoppleworth appeals from the order of the District Court for Grand Forks County denying his application for post-conviction relief. We affirm.

Stoppleworth was convicted of the class A felony of gross sexual imposition ¹ by a jury in the District Court for Grand Forks County. His conviction was affirmed by this Court in State v. Stoppleworth, 442 N.W.2d 415 (N.D.1989). Subsequent to that opinion, Stoppleworth initiated an application for post-conviction relief in the district court. The application alleged two grounds: (1) ineffective assistance of counsel; and (2) newly discovered evidence. Following a hearing, the district court denied the application, and this timely appeal followed. Because we view the district court's memorandum decision and order denying the application for post-conviction relief to be a thoroughly adequate explanation and interpretation of the law and issues involved, we will attempt to keep our discourse brief, and direct Stoppleworth to refer to that document.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Stoppleworth has designated numerous areas in which he believes the conduct of his trial attorney ² was deficient, entitling him to a reversal of his conviction. A defendant is guaranteed effective assistance of counsel by both the Federal and North Dakota Constitutions. U.S. Const. amend. VI and XIV; N.D. Const. art. I, Sec. 12. When a defendant raises an ineffective-assistance-of-counsel argument, it is the defendant's burden to prove that counsel's assistance was ineffective at trial. State v. Skaro, 474 N.W.2d 711, 714 (N.D.1991). In carrying that burden, the defendant must establish two elements. "First, the defendant must prove that the counsel's performance was deficient. Second, the defendant must prove that the deficient performance prejudiced the defendant." State v. Wilson, 488 N.W.2d 618, 622 (N.D.1992) [citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]. In attempting to prove the first element, "the defendant must overcome the 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " State v. Skaro, 474 N.W.2d at 715 (quoting Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065). The second element requires the defendant to prove that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068). See also State v. Bowers, 426 N.W.2d 293, 295 (N.D.1988); State v. Thompson, 359 N.W.2d 374, 377 (N.D.1985).

Stoppleworth's first area of contention concerns jury instructions and a plea bargain agreement. He claims that the attorney failed to advise him of the availability of jury instructions on lesser-included offenses. He also accuses the attorney of neglecting to relay information to him regarding a plea bargain agreement offered by the State. The district court found both arguments unpersuasive. It noted that the attorney testified that he informed Stoppleworth of the instructions on lesser-included offenses and of the plea bargain agreement. The attorney's law partner also testified that Stoppleworth and the attorney discussed instructions on lesser-included offenses in the partner's presence. Although a claim of ineffective assistance of counsel is a mixed question of law and fact which is fully reviewable on appeal, State v. Skaro, 474 N.W.2d at 716-17, we still tender some recognition to the factual findings of the district court. It is in a better position to judge the credibility and demeanor of the witnesses. After reviewing the record, we are also convinced that Stoppleworth was advised of the instructions and the plea bargain agreement. We are persuaded not only by the attorney's testimony and the testimony of the attorney's law partner, but also by the testimony of Stoppleworth and his wife, and by the substance of various correspondence sent by Stoppleworth to the attorney following the conviction. In addition, we must proceed with the strong presumption that the attorney was competent. Such factors lead us to conclude that Stoppleworth had knowledge of the availability of the instructions and the plea bargain agreement.

We believe several of Stoppleworth's deficiency claims can be combined into one area of contention involving witnesses. Stoppleworth asserts that the attorney should have called character witnesses on his behalf at trial because the crux of the case hinged on his word against the victim's (Karen). He also faults the attorney for not cross-examining Karen about her previous testimony at her ex-husband's rape trial, contradicting her testimony that she had not testified before in a trial of this kind. Additionally, Stoppleworth believes that the attorney was deficient in not drawing to the jury's attention the similarities between Karen's testimony at his trial and the testimony of the victim in Karen's ex-husband's rape trial, suggesting that Karen fabricated her testimony.

All of the above accusations involve trial strategy and tactics by the attorney, and we have stated that "[i]t is for trial counsel and not appellate courts to determine trial strategy and tactics." State v. Wilson, 488 N.W.2d at 622. The attorney gave coherent and rational reasons for proceeding the way he did at trial, and explained with clarity why he believed the above evidence was best left undisclosed. We will not second-guess the trial strategy and tactics of the attorney. Id. Instead, we follow our cautious directive in Skaro, where we said:

"In State v. Motsko, 261 N.W.2d 860, 863 (N.D.1977), Justice Vogel made the following observation which is particularly relevant to our analysis here:

'It is easy for new counsel on appeal (or for an appellate judge, for that matter) to go through a transcript and find matters that could have been explored further, questions that could have been asked but were not, questions that were asked that should not have been asked, objections that could have been made that were not, and witnesses who could have been called but were not or witnesses who would have been better left uncalled. Hindsight is perfect and criticism is easy. But the lawyer engaged in a trial, who has made an investigation of the facts and has talked to the witnesses, may have his own reasons and they may be very good reasons for not asking a question or making an objection or calling a witness. In all fairness, courts must pay some respect to the right and duty of attorneys, whether court-appointed or not, to use judgment in the heat of a trial, and we must have some doubts about the accuracy of second-guesses later on.'

"Thus, we should scrutinize trial counsel's conduct with a great deal of deference and consciously attempt to limit the distorting effect of hindsight."

State v. Skaro, 474 N.W.2d at 716. Under this standard, we do not believe that the attorney's conduct regarding witnesses was deficient.

The last area in which Stoppleworth claims the attorney was ineffective is the testing of a pair of panty hose. The panty hose were entered into evidence in Stoppleworth's trial. One of the feet had been severed from a leg, and it was the State's contention that Stoppleworth had severed the foot while he was forcefully pulling the panty hose off of Karen. Stoppleworth, through the attorney, countered that assertion by arguing that Karen had cut the foot off, fabricating the evidence and her story of the rape. A test was conducted on the panty hose to determine if the foot had been cut off or torn off, and that test was inconclusive. Stoppleworth now contends that the attorney was deficient for not testing the panty hose further to prove that they were cut. During oral argument to this Court, Stoppleworth offered a testing site which he believes would render a conclusive test.

We answer this contention by quoting the attorney's response to the inquiry about the panty hose testing.

"Q. You ...