Elk v. State

994 N.W.2d 394

Cassandra BLACK ELK, Petitioner and Appellee v. STATE of North Dakota, Respondent and Appellant

No. 20230035

Supreme Court of North Dakota.

Filed August 17, 2023

Mark R. Bradford (argued), Bloomington, MN, James R. Mayer (appeared), Minneapolis, MN, and Ryan D. Sandberg (appeared), Minot, ND, for petitioner and appellee.

David L. Rappenecker, Assistant State's Attorney, Bismarck, ND, for the respondent and appellant.

Jensen, Chief Justice.

[¶1] The State appeals from a district court's judgment granting post-conviction relief to Cassandra Black Elk. The State argues the court erred by relying on hearsay testimony and in finding defense counsel's conduct fell below an objective standard of reasonableness when counsel advised Black Elk she could deal with the not yet disclosed results of an autopsy after her guilty plea had been entered and accepted. The court also determined Black Elk would not have pled guilty but for this improper advice from counsel. We affirm.

I

[¶2] On February 22, 2022, the State charged Black Elk with child neglect under N.D.C.C. § 14-09-22.1(1), a class C felony, in relation to the death of her infant daughter, S.B. The State alleged that Black Elk willfully "failed to provide proper parental care or control for S.B. by consuming alcohol to a level that impaired her ability to care for S.B. and S.B. died due to the lack of appropriate care." On May 13, 2022, acting on advice of counsel, Black Elk pled guilty to the offense charged.

[¶3] A preliminary autopsy of the infant was completed on February 22, 2022, but was not released until May 27, 2022. The autopsy report concluded there was "[n]o evidence of foul play or recent significant trauma[.]" The report further identified the cause of death as "Unexplained Sudden Death" and the manner of death "Undetermined."

[¶4] Black Elk applied for post-conviction relief arguing the autopsy report was newly discovered evidence, asserting she received ineffective assistance of counsel, and asserting a Brady violation claiming the State's Attorney knew the exculpatory nature of the result of the autopsy prior to its release and prior to Black Elk's change of plea, but did not disclose the information. During an evidentiary hearing on her petition, Black Elk testified her defense counsel advised her they could deal with any findings from the autopsy report after she pled guilty. The district court granted the petition finding defense counsel was objectively ineffective, and Black Elk's plea was not knowingly and intelligently made. The court did not rule on Black Elk's newly discovered evidence claim or the Brady violation claim.

II

[¶5] Post-conviction relief may be granted if the "conviction was obtained ... in violation of the laws or the Constitution of the United States or of the laws or Constitution of North Dakota" or if newly discovered evidence establishes a petitioner's innocence. N.D.C.C. § 29-32.1-01(1)(a), (3)(a)(1). "Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure." Addai v. State , 2022 ND 190, ¶ 6, 982 N.W.2d 287 (quoting Parshall v. State , 2018 ND 69, ¶ 5, 908 N.W.2d 434 ). The standard of review in post-conviction 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 v. State , 2020 ND 224, ¶ 11, 949 N.W.2d 841 (quoting Brewer v. State , 2019 ND 69, ¶ 4, 924 N.W.2d 87 ).

III

[¶6] The State argues the district court erred by using hearsay when it referenced statements made by Black Elk about the advice her counsel provided before entering a guilty plea. The State did not object to Black Elk's statements made under oath at the evidentiary hearing.

[¶7] This Court has held that an evidentiary issue must be appropriately preserved before it can be reviewed on appeal:

A touchstone for an effective appeal on any issue is that the matter was appropriately raised in the district court so the court has an opportunity to intelligently rule on it. E.g., State v. Chacano , 2012 ND 113, ¶ 6, 817 N.W.2d 369 ; State v. Thompson , 2010 ND 10, ¶ 13, 777 N.W.2d 617 ; see also N.D.R.Ev. 103(a). Thus, a party who fails to timely object to admission of offered evidence may not challenge its admission on appeal[.]

State v. Tresenriter , 2012 ND 240, ¶ 9, 823 N.W.2d 774. This rule applies equally to civil cases as it does to criminal cases. See Bell v. State , 1998 ND 35, ¶ 34, 575 N.W.2d 211 ("[F]ailure to object at the time an alleged irregularity occurs acts as a waiver of the claim of error." (quoting State v. Dymowski , 459 N.W.2d 777, 780 (N.D. 1990) )). See also Matter of Honerud's Estate, 294 N.W.2d 619, 622 (N.D. 1980) (finding an appellant's failure to object to a jury instruction was a waiver of that issue on appeal); Bartholomay v. St. Thomas Lumber Co. , 148 N.W.2d 278, 292 (N.D. 1966) (finding that an appellant's failure to object to a verdict form was a waiver of that issue on appeal); Ackerman v. Fischer , 79 N.D. 51, 54 N.W.2d 734, 736 (1952) (finding an appellant's failure to motion for a new trial for alleged errors made by the trial court was a waiver of those errors on appeal). If a party wishes to preserve a claim of error as it relates to the admissibility of evidence, it must, on the record, object or move to strike the evidence, and state a specific ground for exclusion. N.D.R.Ev. 103(a)(1)(A)-(B).

[¶8] The State urges this Court to adopt regular consideration of issues not preserved at post-conviction hearings if those issues arise from obvious error, a review we have exercised in criminal cases and is similar to the standard provided in N.D.R.Crim.P. 52(b). We decline to do so. In rare instances, this Court has considered issues not preserved in post-conviction proceedings. "When a forfeited plain error affects substantial rights, ‘we have discretion to correct the error and should correct it if it seriously affects the fairness, integrity or public reputation of judicial proceedings.’ " Coppage v. State , 2014 ND 42, ¶ 30, 843 N.W.2d 291 (quoting State v. Chacano , 2013 ND 8, ¶ 9, 826 N.W.2d 294 ). The State did not properly preserve its objection to the statements made by Black Elk.

[¶9] Black Elk can be tried again on the charges vacated by the post-conviction relief proceeding. The State has not provided any support for a determination that its substantial rights have been affected or that the alleged error seriously affects the fairness, integrity or public reputation of judicial proceedings. It is unnecessary for us to determine if Black Elk's testimony was admissible because under the circumstances of this case, we decline to exercise our discretion to address the alleged evidentiary error.

[¶10] The State attempts to avoid the necessity of having objected to the evidence to preserve the issue on appeal by arguing "[e]videntiary issues are examined differently depending on whether the underlying proceeding was a jury or nonjury proceeding." The State argues that because this was a nonjury proceeding a timely objection was not needed to stop the witness's testimony before it is heard by the jury, did not require an instruction by the judge to the jury to disregard the testimony, or an instruction to the jury to only consider the evidence for limited purposes. The State further argues, "[B]ecause hearsay statements can often be admitted for a non-hearsay purpose, and because of the preference for broadly admitting all evidence that is not clearly inadmissible, an objection to hearsay in a nonjury proceeding is far less necessary than in a jury trial." The State's arguments hearsay objections need not be raised in a nonjury proceeding lack merit.

[¶11] This Court has made a distinction between district courts admitting evidence in jury and nonjury proceedings noting that "[i]n a nonjury case, a trial judge should ordinarily admit all evidence which is not clearly inadmissible because a trial judge who is competent to rule upon the admissibility of evidence can distinguish between admissible and inadmissible evidence when deliberating upon the ultimate decision." Healy v. Healy , 397 N.W.2d 71, 74 (N.D. 1986). "Therefore, in a bench trial it is generally not reversible error for the court to admit incompetent evidence unless there is insufficient competent evidence to support an essential finding or unless the incompetent evidence induced the court to make an improper finding." Id. at 74-75. However, neither Healy nor similar cases hold a party is not required to raise hearsay objections in nonjury proceedings. To the contrary, this Court has plainly said, "[H]earsay evidence, if not objected to, may properly be used in a court proceeding." Zuo v. Wang , 2019 ND 211, ¶ 15, 932 N.W.2d 360 (quoting Sargent Cnty. Bank v. Wentworth , 547 N.W.2d 753, 762 (N.D. 1996) ).

[¶12] Under N.D.R.Ev. 103, the district court's decision to allow or exclude evidence will not be reversible error unless the party objected to the court's decision and the party's substantial rights were affected. Command Ctr., Inc. v. Renewable Res., LLC , 2021 ND 59, ¶ 22, 956 N.W.2d 755 ; Westby v. Schmidt , 2010 ND 44, ¶ 12, 779 N.W.2d 681. "A party must object at the time the alleged error occurs here to allow the district court to take appropriate action to remedy any prejudice that may have resulted." Command Ctr. , at ¶ 22 (quoting Westby , at ¶ 12 ). "If a party fails to object to the admission of testimony, the party waives the objection." Westby , at ¶ 12 ; see also Meier v....