Brewer v. State

924 N.W.2d 87

Michael BREWER, Petitioner and Appellee

v.STATE of North Dakota, Respondent and Appellant

No. 20180254

Supreme Court of North Dakota.

Filed March 13, 2019

Scott O. Diamond, Fargo, N.D., for petitioner and appellee.

Marina Spahr, Assistant State’s Attorney, Bismarck, N.D., for respondent and appellant.

Tufte, Justice.

[¶1] The State appeals from a district court order finding Michael Brewer had received ineffective assistance of counsel and granting him a new trial. At trial, Brewer’s attorney did not object to evidence that was likely inadmissible under N.D.R.Ev. 404(b). We affirm the district court’s order.

I

[¶2] Brewer was convicted of two counts of Gross Sexual Imposition ("GSI"). He appealed the judgment of conviction, and this Court affirmed the judgment. See State v. Brewer , 2017 ND 95, 893 N.W.2d 184. Both victims of the GSI counts, J.L. and G.H., were minors. Three interviews were received into evidence: one interview given by G.H. regarding a separate incident occurring at the home of Brewer and G.H.’s aunt, Brewer’s girlfriend, prior to the pool incident; and two interviews regarding the charged incident—one from each of the minor children about interactions Brewer had with them in a hotel pool. In the interview about the home incident, G.H. stated Brewer had placed his hand on her buttocks inside her pants but outside her underwear. In a pretrial motion, Brewer sought to exclude this interview from trial, arguing it was inadmissible under Rules 403 and 404(b). The district court found the interview was not unduly prejudicial and would be admissible at trial to prove motive, intent, plan, absence of mistake or lack of accident under N.D.R.Ev. 404(b)(2). Brewer’s attorney failed to renew his objection to the evidence at trial when the State offered a recording of the interview into evidence.

[¶3] After his conviction was affirmed on appeal, Brewer applied for postconviction relief. In 2018, a postconviction hearing was held. The same district court judge presided over both the original trial and the postconviction hearing. The court explained in its postconviction relief order that at trial it was not "given the opportunity to reconsider [its] ruling after hearing ... G.H.’s actual court testimony." The district court specifically noted that if an objection had been raised at trial, the court would "have had the opportunity to view the alleged conduct in light of the definition of sexual conduct and the actual evidence produced at trial." The court stated it likely would have sustained the objection to the interview had the evidence been objected to at trial.

II

[¶4] "Postconviction proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure." Broadwell v. State , 2014 ND 6, ¶ 5, 841 N.W.2d 750. The "applicant has the burden of establishing grounds for post-conviction relief." Rourke v. State , 2018 ND 137, ¶ 5, 912 N.W.2d 311.

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.

Middleton v. State , 2014 ND 144, ¶ 5, 849 N.W.2d 196 ; see Rourke , at ¶ 5.

[¶5] "The issue of ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable by this Court." Rourke , 2018 ND 137, ¶ 5, 912 N.W.2d 311. The analysis for ineffective assistance of counsel claims under the United States Constitution’s Sixth Amendment is well established:

In order to prevail on a post-conviction relief application based on ineffective assistance of counsel, the petitioner must (1) "show that counsel’s representation fell below an objective standard of reasonableness" and (2) "show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Surmounting Strickland’s high bar is never an easy task. An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial or in pretrial proceedings, and so the Strickland standard must be applied with scrupulous care, lest intrusive post-trial inquiry threaten the integrity of the very adversary process the right to counsel is meant to serve. Even under de novo review, the standard for judging counsel’s representation is a most deferential one.... It is all too tempting to second-guess counsel’s assistance after conviction or adverse sentence.

Rourke , at ¶ 5 (quoting Booth v. State , 2017 ND 97, ¶ 7, 893 N.W.2d 186 ).

III

[¶6] To succeed on an ineffective assistance of counsel claim, the "defendant must first overcome the ‘strong presumption’ that trial counsel’s representation fell within the wide range of reasonable professional assistance, and courts must consciously attempt to limit the distorting effect of hindsight." Rourke , 2018 ND 137, ¶ 5, 912 N.W.2d 311. The "objective standard of reasonableness" takes "prevailing professional norms" into account. Heckelsmiller v. State , 2004 ND 191, ¶ 3, 687 N.W.2d 454 (quoting Strickland , 466 U.S. at 688, 104 S.Ct. 2052 ). There is a wide range of actions that are considered "reasonable professional assistance." Heckelsmiller , at ¶ 3 (quoting Strickland , at 689, 104 S.Ct. 2052 ). Simply using an "unsuccessful trial strategy does not make defense counsel’s assistance defective, and we will not second-guess counsel’s defense strategy through the distorting effects of hindsight." Garcia v. State , 2004 ND 81, ¶ 8, 678 N.W.2d 568. When applying prong one of the Strickland test, the reviewing court looks at the facts known to counsel at the time of the claimed error. Here, the relevant time is when Brewer’s attorney failed to object when the interview was offered at trial.

[¶7] The district court found prong one of the Strickland test was met. We agree. "A motion in limine seeking an evidentiary ruling must be decided without the benefit of evaluating the evidence in the context of trial." State v. Steen , 2015 ND 66, ¶ 5, 860 N.W.2d 470. "A renewed objection at the time the evidence is offered focuses the court on the objection in the trial context at which time both the relevance and the potential for prejudice will be more discernible." Id. Here, the failure to object at trial deprived the district court of an opportunity to reconsider the issue within the context of trial. See Brewer , 2017 ND 95, ¶ 5, 893 N.W.2d 184. Objecting within the context of trial allows the court to reevaluate the objectionable evidence in light of the other evidence admitted thus far in the trial, and to reconsider it, particularly under N.D.R.Ev. 403. This is a well established principle. N.D.R.Ev. 103(a)(1) ; see, e.g. , State v. Shick , 2017 ND 134, ¶ 8, 895 N.W.2d 773 ; Brewer , at ¶ 4 ; Brouillet v. Brouillet , 2016 ND 40, ¶ 32, 875 N.W.2d 485 ; Steen , at ¶ 5 ; State v. Doll , 2012 ND 32, ¶ 15, 812 N.W.2d 381 ; State v. Thompson , 2010 ND 10, ¶ 13, 777 N.W.2d 617.

[¶8] The attorney’s failure to object was not simply a trial tactic. Brewer’s attorney testified in the postconviction hearing that he did not object because he "felt that [he] had adequately formed a record in the hearing on the motion itself [and] did not need to raise it." This statement admits a legal error that is below an objective standard of reasonableness. Beyond the intentional failure to object, the attorney stated affirmatively "no objection" when the State offered the 404(b) interview. We conclude failing to object at trial because of reliance on the record made in a pretrial motion is a basic legal error that satisfies Strickland’s prong one.

[¶9] Brewer must also satisfy Strickland’s prejudice prong to establish his claim of ineffective assistance of counsel. "Even where the court finds that counsel’s representation fell below an objective standard of reasonableness, prejudice is not normally assumed." Broadwell , 2014 ND 6, ¶ 7, 841 N.W.2d 750. "To demonstrate prejudice, the defendant must establish a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, and the defendant must specify how and where trial counsel was incompetent and the probable different result." Middleton , 2014 ND 144, ¶ 6, 849 N.W.2d 196. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. ; Strickland , 466 U.S. at 694, 104 S.Ct. 2052.

[U]nless counsel’s errors are so blatantly and obviously prejudicial that they would in all cases, regardless of the other evidence presented, create a reasonable probability of a different result, the prejudicial effect of counsel’s errors must be assessed within the context of the remaining evidence properly presented and the overall conduct of the trial.

Middleton , at ¶ 13. To evaluate a claim of prejudice, the district court considers not only the evidence introduced up to that point in the trial, but must consider the probability of a different result in light of the evidence presented and the overall conduct of the entire trial before and after the claimed error.

[¶10] Brewer was charged with two counts of GSI under N.D.C.C. § 12.1-20-03(2)(a), which states a person is guilty of an offense if he "engages in sexual contact with another," ... and the "victim is less than fifteen years old." "Sexual contact" is defined as "any touching, whether or not through the clothing or other covering, of the sexual or other intimate parts of the person, ... for the purpose of arousing or satisfying sexual or aggressive desires." N.D.C.C. §...