Thomas v. State

• Decision Date: 30 September 2021
• Docket Number: No. 20210056,20210056
• Citation: 964 N.W.2d 739
• Parties: Ross THOMAS, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee
• Court: North Dakota Supreme Court

964 N.W.2d 739

Ross THOMAS, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee

No. 20210056

Supreme Court of North Dakota.

FILED SEPTEMBER 30, 2021

Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.

Pat J. Merriman, Assistant State's Attorney, Mott, ND, for respondent and appellee.

Crothers, Justice.

[¶1] Ross Thomas appeals from a district court order denying his application for postconviction relief. We affirm.

I

[¶2] In 2017, the State charged Thomas with felonious restraint, terrorizing, aggravated assault, and reckless endangerment. A jury found Thomas guilty of terrorizing, not guilty of aggravated assault and reckless endangerment, and did not reach a verdict on felonious restraint. Thomas appealed the terrorizing conviction. This Court reversed and remanded, concluding the district court erred in failing to conduct a hearing relating to juror misconduct. State v. Thomas , 2019 ND 194, ¶¶ 16, 18, 931 N.W.2d 192.

[¶3] On remand, the State retried Thomas on the felonious restraint charge. The jury found Thomas guilty, and the district court sentenced him to ten years in prison. This Court affirmed the criminal judgment. State v. Thomas , 2020 ND 30, ¶ 21, 938 N.W.2d 897.

[¶4] In July 2020, Thomas applied for postconviction relief, claiming ineffective assistance of counsel. He alleged his trial attorney failed to request a self-defense instruction, failed to obtain and offer video evidence, failed to call certain witnesses and failed to argue against double jeopardy. Thomas requested an evidentiary hearing and sought to have a criminal defense attorney offer expert testimony relating to the performance of Thomas's trial attorney. The State moved in limine to exclude Thomas's proposed expert testimony. The district court granted the State's motion, concluding the proposed testimony relating to the performance of Thomas's trial attorney would usurp the court's role in deciding whether the conduct of Thomas's attorney was reasonable.

[¶5] At the evidentiary hearing on Thomas's postconviction relief application, his trial attorney testified about her trial strategy and why she did not request a self-defense jury instruction. She also testified she spoke with Thomas about the video evidence, but he did not want to continue the trial to pursue the evidence. The district court denied Thomas's application for postconviction relief, concluding he did not receive ineffective assistance of counsel.

II

[¶6] Postconviction proceedings are civil in nature and the applicant must establish the grounds for relief. Hunter v. State , 2020 ND 224, ¶ 10, 949 N.W.2d 841. The standard of review in postconviction proceedings is well established:

"A trial court's findings of fact in a post-conviction proceeding will not be disturbed on appeal unless clearly erroneous under N.D.R.Civ.P. 52(a). A finding is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm conviction a mistake has been made. Questions of law are fully reviewable on appeal of a post-conviction proceeding."

Hunter , at ¶ 11 (quoting Brewer v. State , 2019 ND 69, ¶ 4, 924 N.W.2d 87 ).

[¶7] To prevail on a claim for ineffective assistance of counsel, the applicant 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. Hunter , 2020 ND 224, ¶ 10, 949 N.W.2d 841 (citing Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). The question of ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable on appeal. Hunter , at ¶ 11. However, a court's findings of fact in a postconviction proceeding will not be reversed on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a). State v. Steen , 2004 ND 228, ¶ 8, 690 N.W.2d 239.

III

[¶8] Thomas argues the district court abused its discretion by excluding his proposed expert witness from testifying.

[¶9] Rule 702, N.D.R.Ev., relating to opinion testimony by an expert witness, provides:

"A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue."

"Expert testimony is admissible whenever specialized knowledge will assist the trier of fact." Condon v. St. Alexius Med. Ctr. , 2019 ND 113, ¶ 28, 926 N.W.2d 136. The district court has broad discretion to admit or exclude expert testimony, and its decision is reviewed for an abuse of discretion. Klein v. Estate of Luithle , 2019 ND 185, ¶ 3, 930 N.W.2d 630. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, when it misinterprets or misapplies the law or when its decision is not the product of a rational mental process leading to a reasoned determination. Id.

[¶10] In response to the State's objections to Thomas's application for relief, he requested a hearing "so he can call his trial attorney and question her about why she didn't request the self-defense jury instruction." Thomas also sought the testimony of a criminal defense attorney "to give his opinion on the self-defense jury instruction and why when it is given there has to be an instruction on the burden of proof for the state." Thomas filed a notice of expert witness, stating:

"Attorney [Thomas Tuntland], who will give his expert opinion on a defense attorney's duties and obligations during a jury trial to request jury instructions on all elements of the crime or crimes charged and to also request jury instructions on any justification, excuse, or affirmative defense that is applicable to the crime or crimes charged. One of the jury instructions Attorney Tuntland will give his opinion on is the self-defense instruction and how it applies to this case."

[¶11] The State moved to exclude Tuntland's testimony. At the hearing on the State's motion, Tuntland stated: "Based on my 42 years of trial experience, I am not able to give an opinion as to the propriety of [Ms. Weiler's] representation until I've heard [her] testimony." Upon questioning by the district court, Thomas's lawyer stated he believed Tuntland's testimony would go to both prongs of the Strickland test.

[¶12] The district court granted the State's motion in limine excluding testimony from Tuntland. The court's order did not address N.D.R.Ev. 702 on whether Tuntland's testimony would "help the trier of fact to understand the evidence or to determine a fact in issue." Rather, the court relied in part on this Court's holdings in attorney discipline cases "that expert testimony regarding the interpretation of the rules of professional conduct and whether a rule has been violated is inappropriate." In re Disciplinary Action Against McKechnie , 2003 ND 22, ¶ 15, 656 N.W.2d 661. The court concluded "the objective standard of what are the prevailing norms of practice is a matter of law solely for the Court to determine." "Neither is the Court persuaded that the proffered opinion testimony is relevant to the question of whether the conduct of [Thomas's] trial counsel fell below such standard is admissible." The court also concluded, "Inasmuch as it is the Court's responsibility to make findings of fact as to whether the actual conduct of the [Thomas's] trial attorney fell below the objective standards, the Court concludes on the basis of the rulings in the McKechnie cases that any proffered testimony on that subject would usurp the Court's role." The court ordered "that no opinion testimony will be allowed as concerns the question of what are the objective standards of reasonableness and whether the conduct of [Thomas's] trial counsel fell below those standards."

[¶13] This Court has not addressed the admissibility of expert opinion testimony relating to ineffective assistance of counsel in a postconviction relief proceeding. In State v. Pico , 382 Wis.2d 273, 914 N.W.2d 95 (2018), the Wisconsin Supreme Court discussed expert testimony in the context of ineffective assistance of counsel. On the mixed question of fact and law standard of review, the court explained, "In the specific context of an ineffective assistance of counsel claim, findings of fact include the circumstances of the case and the counsel's conduct and strategy." Id. at 106-07. Whether the factual description of counsel's strategy and conduct add up to deficient performance is a question of law that is reviewed de novo. Id. at 107. On whether another attorney can opine on a trial counsel's performance, the court stated "[e]xpert testimony is admissible to address questions of fact, not law. This is so because the only expert on domestic law is the court." Id. at 110. See also United States v. Bull , 8 F.4th 762, 768 (8th Cir. 2021) (stating "expert testimony on legal matters is not admissible because matters of law are for the trial judge"). The court held "expert testimony about the ‘reasonableness’ of counsel's performance is inadmissible because it addresses a question on which the court is the only expert." Pico , at 111, 382 Wis.2d 273, 914 N.W.2d. The court concluded " Strickland expert testimony is admissible ... but only to the extent the expert focuses on factual matters and does not offer his [or her] opinion on the reasonableness of trial counsel's conduct or strategy." Id. at 112.

[¶14] Here, the district court employed reasoning similar to the Wisconsin Supreme Court. The court ruled the objective standard of reasonableness and whether an attorney's performance fell below that standard was a question of law for the court to decide. Testimony relating to the objective...