Wickham v. State ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MAY 26, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 116Corey Wickham, Petitioner and Appellee
v.
State of North Dakota, Respondent and Appellant
No. 20210313
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Bobbi Brown Weiler, Judge.
REVERSED.
Opinion of the Court by Tufte, Justice.
Lloyd C. Suhr, Bismarck, N.D., for petitioner and appellee.
David L. Rappenecker (argued) and Joshua A. Amundson (appeared),
Assistant State’s Attorneys, Bismarck, N.D., for respondent and appellant.
Wickham v. State
No. 20210313
Tufte, Justice.
[¶1] The State appeals from an order granting Corey Wickham’s
postconviction relief application. The State argues the district court did not
properly apply the Strickland test and its findings regarding ineffective
assistance of counsel were clearly erroneous. We reverse.
I
[¶2] Wickham was found guilty of two counts of gross sexual imposition. He
appealed his conviction and this Court affirmed in State v. Wickham, 2020 ND
25, 938 N.W.2d 141. Wickham then filed an application for postconviction
relief, arguing that his conviction was obtained in violation of his Sixth
Amendment right to effective assistance of counsel because his trial counsel
failed to object to a State witness’s comment on Wickham’s invocation of his
right to counsel. Because the district judge who presided over Wickham’s trial
had retired, an evidentiary hearing on his postconviction application was held
in front of a different judge. Testimony was heard from Wickham’s trial counsel
at the hearing. The court found that Wickham satisfied the Strickland test and
granted Wickham’s application for postconviction relief.
II
[¶3] The State argues the court’s order granting postconviction relief should
be reversed because trial counsel’s failure to object to Detective Lahr’s
testimony commenting on Wickham’s post-arrest silence did not amount to
ineffective assistance of counsel. This Court’s standard of review for
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
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made. Questions of law are fully reviewable on appeal of a post-
conviction proceeding.
Brewer v. State, 2019 ND 69, ¶ 4, 924 N.W.2d 87.
[¶4] “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.”
Thomas v. State, 2021 ND 173, ¶ 7, 964 N.W.2d 739 (citing Strickland v.
Washington, 466 U.S. 668 (1984)).
[¶5] Further, “[c]ourts need not address both prongs of the Strickland test,
and if a court can resolve the case by addressing only one prong it is encouraged
to do so.” Booth v. State, 2017 ND 97, ¶ 8, 893 N.W.2d 186. “If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.” Id.[¶6] “A comment on the defendant’s post-arrest silence is an improper
comment on the right to remain silent in violation of the Fifth and Fourteenth
Amendments of the United States Constitution.” State v. Wilder, 2018 ND 93,
¶ 5, 909 N.W.2d 684. “[B]ecause the Miranda warning carries an implicit
‘assurance that silence will carry no penalty,’” a defendant’s post-arrest silence
cannot be used against him at trial. Id. (quoting Doyle v. Ohio, 426 U.S. 610,
617–19 (1976)). Further, the United States Supreme Court extended the
prohibition against commenting on a defendant’s post-Miranda silence to a
defendant’s post-Miranda invocation of the right to counsel. Wainwright v.
Greenfield, 474 U.S. 284, 295 n.13 (1986) (“With respect to post-Miranda
warnings ‘silence,’ we point out that silence does not mean only muteness; it
includes the statement of a desire to remain silent, as well as of a desire to
remain silent until an attorney has been consulted.”). Thus, a Doyle violation
also occurs when the prosecutor comments upon a defendant’s statement
invoking his right to remain silent by requesting an attorney. Id.[¶7] During direct examination in the State’s case-in-chief, Detective Lahr
testified:
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Q: Did you have a conversation with Mr. Wickham at that time
when their vehicle was pulled over?
A: It was very brief. Basically, I told him that he was under arrest.
The patrolman made contact with Mrs. Wickham, the driver, first
and then Mr. Wickham was in the passenger’s seat. And then by
the time I got up there, I had told Mr. Wickham to step out of the
vehicle, which he complied. I told him that he was under arrest.
He asked for what. I explained. And then at that time he was
brought back to his vehicle. During that process, no information
was obtained that was pertinent to this case or evidentiary value
or exculpatory. He basically, in summary, stated that he would like
to speak with a lawyer or have a lawyer. So at that time anything
relevant to this case was never discussed.
Wickham’s trial counsel did not object to this statement, nor did counsel
request a curative instruction or move for a mistrial. Further, the record
reflects that the jury heard Detective Lahr’s comment twice. During its
deliberations, the jury asked to hear Detective Lahr’s testimony again
regarding his interactions with Wickham. The court allowed Detective Lahr’s
testimony to be read back to the jury, including the comment about Wickham
asking to speak with a lawyer.
[¶8] Here, the State concedes that Detective Lahr’s testimony about
Wickham’s request for counsel broached an improper topic. Although the
prosecution did not use the statement to impeach Wickham or reference the
statement during its argument, we assume for purposes of our decision that
this testimony standing alone was an improper comment on Wickham’s post-
arrest silence. Doyle, 426 U.S. at 617; State v. Anderson, 2016 ND 28, ¶ 14, 875
N.W.2d 496. When raised on direct appeal, a Doyle violation is subject to
harmless error analysis. State v. Wilder, 2018 ND 93, ¶ 13. In that context, if
the State proves beyond a reasonable doubt that the comments did not
contribute to the verdict, a reversible error did not occur to warrant a new trial
for the defendant. Id. We have set forth the following factors to consider in
deciding whether an improper comment about a defendant’s post-arrest silence
was harmless error:
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1. The use to which the prosecution puts the post arrest silence.
2. Who elected to pursue the line of questioning.
3. The quantum of other evidence indicative of guilt.
4. The intensity and frequency of the reference.
5. The availability to the trial judge of an opportunity to grant a
motion for mistrial or to give curative instructions.
Wilder, at ¶ 9. When failure to object to a Doyle violation is raised in the context
of an ineffective assistance of counsel claim on postconviction relief, as it was
here, the applicant retains the burden to establish both Strickland prongs.
Because harmless error and Strickland prejudice are closely related inquiries,
we conclude these factors must be considered in determining whether prejudice
has been established.
[¶9] The district court did not consider the non-exclusive list of factors
outlined above. Because the court failed to consider these factors in
determining the prejudicial effect of trial counsel’s error, we conclude that the
court erred in its application of the law under prong two of the Strickland test.
[¶10] Further, the court’s findings under the prejudice prong were induced by
an erroneous view of the law and are not supported by the record. First, in
finding the prejudice prong to be satisfied, the court applied a subjective
standard: “Had [trial counsel] objected, the outcome would have been different.
This Court would have granted a mistrial in the circumstances of this case.” In
determining whether there was a reasonable probability that the outcome of
the proceedings would have been different absent counsel’s errors, an objective
standard applies. In a postconviction proceeding, the court should consider not
what the postconviction judge would have done if trial counsel had objected,
but rather whether the failure to object raises a reasonable probability the
result of the trial would have been different. Thus, this finding was induced by
an erroneous view of the law. Second, the court found that “[h]ad the jury not
heard this testimony, especially for a second time, there is a reasonable
probability the jury could have remained deadlocked and a mistrial would have
been ordered.” We conclude the record does not support this finding.
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[¶11] We have affirmed the refusal to grant a defendant a new trial when the
improper comments on a defendant’s post-arrest silence were “few and brief”
or “only three words.” Wilder, 2018 ND 93, ¶¶ 9, 13; State v. Anderson, 2016
ND 28, ¶¶ 15–16, 875 N.W.2d 496. Further, if the “State did not refer to his
silence at any other time during the trial or in closing arguments” or there is
“ample evidence” from the entire record indicative of guilt notwithstanding the
improper comment, the Doyle violation is harmless error. Wilder, at ¶ 13;
Anderson, at ¶¶ 15–16; see also State v. Aguero, 2010 ND 210, ¶¶ 32–34, 791
N.W.2d 1; State v. Hill, 1999 ND 26, ¶¶ 19–21, 590 N.W.2d 187. Lastly, if the
applicant fails to show a reasonable probability that the comments contributed
to the verdict, the prejudice prong of the Strickland test is not satisfied. See
Wilder, at ¶ 13.
[¶12] Here, although the improper comment was made by a State witness, the
State did not elicit the statement about Wickham’s invocation of counsel.
Instead, the witness included the comment in a lengthy narrative during which
the improper comment was made in passing. Further, only one statement was
made about Wickham’s post-arrest invocation of his right to counsel. The
record demonstrates that the State did not follow up or elicit more testimony
regarding the detective’s comment, nor did the State refer to his invocation of
counsel at any other time during the trial or in closing arguments.
[¶13] Additionally, we conclude that the court underestimated the quantum of
other evidence indicative of guilt. The court found that because the jury was
struggling to reach a unanimous verdict before Detective Lahr’s testimony was
read back to the jury, “the Court has to assume” it was the jury hearing the
improper comment for a second time that led it to reach a verdict. This finding
is clearly erroneous. This was a three-day jury trial during which the jury
heard testimony from eight State witnesses. Detective Lahr’s testimony
spanned over 60 pages of the trial transcript. The improper comment was made
near the end of Detective Lahr’s direct examination. The record reflects that
all of Detective Lahr’s testimony was read back to the jury, other than his
testimony establishing his qualifications. The jury also heard testimony from
the victim describing the details of the assault, heard testimony from a medical
examiner that the victim’s injuries were consistent with forced penetration,
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and heard from three other witnesses that DNA matching Wickham’s Y
chromosomal profile was found in the victim’s underpants. Therefore, it was
clearly erroneous to find this isolated comment, without further elaboration
and no reference in the State’s argument, contributed to the jury’s verdict. We
are left with a definite and firm conviction the district court was mistaken in
finding the trial counsel’s failure to object raises a reasonable probability of a
different result. We therefore reverse the court’s order granting Wickham a
new trial.
III
[¶14] We reverse the district court order granting postconviction relief.
[¶15] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Bruce B. Haskell, S.J.
[¶16] The Honorable Bruce B. Haskell, Surrogate Judge, sitting in place of
VandeWalle, J., disqualified.
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