Chase v. State

1

2024 ND 215

Lorry Van Chase, Petitioner and Appellant v. State of North Dakota, Respondent and Appellee

No. 20240024

Supreme Court of North Dakota

November 21, 2024

Appeal from the District Court of Rolette County, Northeast Judicial District, the Honorable Michael P. Hurly, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice, in which Justices Crothers and McEvers joined. Justice Bahr filed a specially concurring opinion, in which Chief Justice Jensen joined.

Lorry Van Chase, self-represented, Bismarck, N.D., petitioner and appellant; submitted on brief.

Brian D. Grosinger, State's Attorney, Rolla, N.D., for respondent and appellee; submitted on brief.

TUFTE JUSTICE.

[¶ 1] Lorry Van Chase appeals from a district court order denying his amended application for postconviction relief. Chase argues the district court erred in concluding that: (1) res judicata and the statute of limitations bar Chase's application for relief based on newly discovered evidence and (2) Chase did not meet his evidentiary burden regarding his allegation of improper jury contact. We affirm the district court's order.

I

[¶ 2] In 2014, Chase was convicted of gross sexual imposition and sentenced to forty years' imprisonment. We affirmed the conviction on direct appeal. State v. Chase 2015 ND 234, 869 N.W.2d 733.

[¶ 3] The application denied by the district court was Chase's third application for postconviction relief. In his first application for postconviction relief, Chase argued that he received ineffective assistance from his trial counsel and that his trial counsel failed to disclose a conflict of interest. After we reversed summary dismissal and remanded for an evidentiary hearing, Chase v. State 2017 ND 192, 899 N.W.2d 280, the district court denied relief. Chase appealed, and we summarily affirmed because Chase's failure to file a transcript of the evidentiary hearing precluded any meaningful review. Chase v. State, 2018 ND 154, 913 N.W.2d 774.

[¶ 4] Chase then sought relief from the denial of his first application under N.D.R.Civ.P. 60(b). The district court summarily dismissed, concluding the motion was actually a second application for postconviction relief barred by res judicata and misuse of process. We affirmed the district court's recharacterization of the motion as a second postconviction application, but reversed the summary dismissal because the court had not provided notice to Chase. Chase v. State, 2019 ND 214, 932 N.W.2d 529. We remanded for the district court to review the application and consider appointment of counsel.

[¶ 5] Chase then filed his third application for postconviction relief, which the district court summarily dismissed. On appeal, we reversed and remanded, because the district court's treatment of the State's answer as a motion for summary disposition was inconsistent with the procedure for summary disposition required by N.D.C.C. § 29-32.1-09. Chase v. State, 2021 ND 206, 966 N.W.2d 557.

[¶ 6] Following remand, Chase filed an amended application for postconviction relief, the denial of which we consider in this appeal. Under N.D.C.C. § 29-32.1-01(3)(a)(1), he alleged two grounds of newly discovered evidence: a medical record created eight days after the alleged incident that is inconsistent with the victim's trial testimony, and an inappropriate contact between a uniformed person and the jury during its deliberations.

[¶ 7] In December 2023, the district court held an evidentiary hearing on Chase's allegations of newly discovered evidence. Regarding the medical record, Chase conceded that-upon review of the evidentiary hearing held on Chase's first application for postconviction relief-it was clear that Chase's trial attorney had in fact received the medical record before trial. Although Chase argued that his trial attorney's failure to use the medical record to impeach the victim was "a big issue for an ineffective assistance of counsel [claim]," he conceded that "by definition, we can't call it newly discovered evidence." The State also offered the testimony of Kelly Albertson, who was an assistant in the prosecutor's office during Chase's criminal case, as foundation for two documents showing that Chase's trial attorney had received the medical record before trial.

[¶ 8] Regarding the allegation of improper jury contact, Chase offered the following testimony from a juror who had been contacted by an investigator retained by Chase:

He asked me a lot of questions. I just told him that - what I thought about the case that there was not a lot of evidence to go on. It was a he-said/she-said type of involvement. I did tell him that one of the - I don't know if it was a bailiff, I don't know if it was police officer, I really can't recall - but someone did come into the room and said that we were not allowed to have a hung jury; it had to be a yes or a no.

On direct examination, the juror testified that while she remembered former Sheriff Rod Trottier and current Sheriff Nate Gustafson being present at trial, she could not recall with certainty whether either of them was the person in law enforcement uniform who had entered the jury room:

Juror: I - I recall Nate Gustafson being there, and I remember a partial [sic] of the Trottier cop, but I don't remember which one it was.

Chase: Okay. Were they in uniform?

Juror: Yes.

Chase: So they were in a law enforcement officer's uniform, is what you're saying?

Juror: Yes.

Chase: Okay. And they entered the jury room and in - and told you it had to be a unanimous vote?

Juror: Yes.

[¶ 9] On redirect, the juror clarified that although she had identified Trottier and Gustafson as possibilities, she could not say with certainty that either of them was the uniformed person who had entered the jury room:

Chase: You've testified that it's Gustafson or Trottier, but I think, when I was asking you, you recall law enforcement officer's uniform, correct?

Juror: Yes. Yes.

Chase: You're not 100 percent positive it was that one - or Gustafson or Trottier; is that true?

Juror: Yes.

Chase: Okay. But that - you're - so you're speculating when you say those two names?

Juror: Yes. Because it's been so long ago I honestly can't remember. But I do remember a uniform coming into the deliberating room.

[¶ 10] The juror testified that four jurors, including herself, were undecided when the uniformed person entered the room and informed them there could not be a hung jury. She stated that she would have remained undecided had the uniformed person not stated that the jury had to reach a unanimous decision. She further testified that she believed the uniformed person's statement similarly influenced other jurors to make a decision. No other jurors testified. In a colloquy with the district court, Chase's counsel stated that Chase's investigator had interviewed "almost all" of the jurors, but "it was so long ago they don't recall much of anything about the trial."

[¶ 11] When asked why she did not report this incident, the juror explained: "Honestly, I didn't know what the protocol was for that, so I didn't know at the time." She also testified that she had not discussed the incident with anyone until she was contacted by Chase's investigator.

[¶ 12] Chase testified in support of his application, stating that he learned about the alleged incident of improper jury contact from his daughter-in-law. Chase stated that his daughter-in-law disclosed this information in 2019 while visiting him in prison, but that he did not know where she had learned this information.

[¶ 13] The State offered the testimony of Trottier and Gustafson in support of its contention that the alleged improper jury contact did not occur. Trottier testified that he was sheriff at the time of Chase's trial; he was present for Chase's trial but did not enter the jury room or speak to the jury. Trottier also testified that he knew from his law enforcement training that such contact with the jury is prohibited. On cross-examination, Trottier stated that, as sheriff, he generally employed five or six deputies with various levels of law enforcement experience, conceding that, as such, it was possible that he had employed relatively inexperienced deputies at the time of Chase's trial. Trottier testified that Gustafson was not a sheriff's deputy at the time of Chase's trial, an assertion that he maintained on redirect.

[¶ 14] Gustafson testified that he was, in fact, a sheriff's deputy at the time of Chase's trial and that he was in charge of security at the courtroom entrance. He stated that he did not enter the jury room and speak to the jury, and that he understood the consequences of such improper jury contact from his law enforcement training.

[¶ 15] The district court denied Chase's application, finding the juror's testimony not credible and concluding that res judicata and the statute of limitations barred relief based on newly discovered evidence.

II

[¶ 16] Postconviction relief proceedings are governed by the North Dakota Rules of Civil Procedure. Koon v State, 2023 ND 247, ¶ 20, 1 N.W.3d 593. The applicant bears the burden of establishing grounds for relief. Id. Questions of law are fully reviewable. Id. We set aside the district court's findings of fact only if we conclude they are clearly erroneous. N.D.R.Civ.P. 52(a)(6). "A finding of fact 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 the finding, a reviewing court is left with a definite and firm conviction a mistake has been made." Morris v. State, 2019 ND 166, ¶ 6, 930 N.W.2d 195.

[¶ 17] On appeal, Chase argues the district court erred in concluding that res judicata and the statute of limitations...