DocketNumber： Civil 970401
Citation Numbers： 1998 ND 170, 584 N.W.2d 493, 1998 N.D. LEXIS 176, 1998 WL 612804
Judges： De Walle, Maring, Meschke, Neumann, Sandstrom
Filed Date： 9/15/1998
Status： Precedential
Modified Date： 10/19/2024
[¶ 1] Damien David Breding appealed from a district court order denying his application for post-conviction relief. We affirm.
[¶ 2] In 1994, a jury found Breding guilty on two counts of murder and one count of attempted murder. The jury found Breding, at age 16, purposely set fire to the home of Bradley and Paula Peterson in Powers Lake during the early morning hours of March 31, 1991. The Petersons’ twin six-year-old daughters died in the fire and Bradley Peterson was injured. Breding’s convictions were affirmed on appeal by this court in State v. Breding, 526 N.W.2d 465 (N.D.1995). That opinion contains a detailed account of the facts, which will not be repeated here except
[¶ 3] In requesting post-conviction relief, Breding claims his constitutional right to effective assistance of counsel at the criminal trial was violated when: (1) counsel failed to object to Bradley Peterson’s hypnotically enhanced testimony or to attack the credibility of such testimony; (2) counsel failed to object to the introduction of out-of-court statements made by Breding to investigating officers; and (3) counsel failed to introduce evidence of Bradley Peterson’s careless smoking habits as a possible cause of the fire. The district court rejected these arguments, concluding Breding received effective assistance of counsel during the criminal trial proceedings.
[¶ 4] The burden of establishing grounds for post-conviction relief rests upon the applicant. State v. Kunkel, 366 N.W.2d 799, 803 (N.D.1985). Effective assistance of counsel is guaranteed to a defendant under the Sixth Amendment to the United States Constitution, applied to the states through the Fourteen Amendment, and by Article I, Section 12 of the North Dakota Constitution. State v. Ricehill, 415 N.W.2d 481, 484 (N.D.1987). The issue of ineffective assistance of counsel is a mixed question of law and fact which is fully renewable by this court. Falcon v. State, 1997 ND 200, ¶21, 570 N.W.2d 719. However, a trial court’s findings of fact in actions for post-conviction relief will not be disturbed unless clearly erroneous, pursuant to N.D.R.Civ.P. 52(a). Frey v. State, 509 N.W.2d 261, 263 (N.D.1993). We summarized our standard for reviewing a claim of ineffective assistance of counsel in Stoppleworth v. State, 501 N.W.2d 325, 327 (N.D. 1993):
“When a defendant raises an ineffective-assistance-of-counsel argument, it is the defendant’s burden to prove that counsel’s assistance was ineffective at trial. State v. Skaro, 474 N.W.2d 711, 714 (N.D.1991). In carrying that burden, the defendant must establish two elements. ‘First, the defendant must prove that the counsel’s performance was deficient. Second, the defendant must prove that the deficient performance prejudiced the defendant.’ State v. Wilson, 488 N.W.2d 618, 622 (N.D. 1992) [citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]. In attempting to prove the first element, ‘the defendant must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”’ State v. Skaro, 474 N.W.2d at 715 (quoting Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065). The second element requires the defendant to prove that, ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ Id. (quoting Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068). See also State v. Bowers, 426 N.W.2d 293, 295 (N.D. 1988); State v. Thompson, 359 N.W.2d 374, 377 (N.D.1985).”
I
Hypnotically Enhanced Testimony
[¶ 5] Bradley Peterson, the father of the deceased victims, testified at trial about waking to what he thought was the sound of liquid pouring and then an explosion with an instant fire. Prior to testifying at the trial, Peterson underwent a hypnosis session to enhance his recall of what happened when he awoke on the morning of the fire. The jury was never informed of the hypnosis session, and Breding’s trial counsel did not attempt to discredit Peterson’s testimony on the ground that it had been hypnotically enhanced. Breding asserts his trial counsel’s failure to inform the jury of the hypnosis session and failure to attempt to discredit Peterson’s testimony as a product of hypnosis constituted ineffective assistance of counsel.
[¶ 6] We approved the introduction of hypnotically enhanced recall testimony in State v. Brown, 337 N.W.2d 138, 151 (N.D.1983):
“[Hjaving weighed the benefits of hypnotically induced recall testimony against the inherent risks, we are not convinced that a witness should be rendered incompetent to testify merely because he or she was hypnotized during the investigatory phase of a criminal case. Rule 601 of the North Dakota Rules of Evidence provides that ‘Every person is competent to be a witness except as otherwise provided in these*496 rules.’ Our rules of evidence do not provide that a previously hypnotized witness is incompetent to testify. We believe that an attack on credibility is the proper method of determining the value of hypnotically induced testimony. See Rule 607, N.D.R.Ev.; Chapman, supra, 638 P.2d at 1284. Accordingly, we align ourselves with the majority of jurisdictions which have held that hypnosis affects credibility but not admissibility.”
Breding claims an attorney’s failure to attack the credibility of hypnotically enhanced testimony is, per se, deficient lawyering. We disagree.
[¶ 7] Breding’s trial lawyer filed a preliminary motion in limine to restrict Bradley Peterson’s testimony and hired an expert to review a video tape of the hypnosis session. At the post-conviction proceedings, Breding’s trial counsel testified that after discussing the hypnosis issue with his expert and reviewing the law he concluded Peterson’s testimony would be admissible and that “I couldn’t blow it out of the water.” He said his expert would not conclude Peterson’s testimony could be discredited because of the hypnosis session. Breding’s trial counsel concluded, as a matter of trial strategy, it was better not to inform the jury about the hypnosis to avoid the possibility the jury would give more, rather than less, credibility to the testimony because it had been hypnotically enhanced and thereby “divinely inspired.”
[¶ 8] A similar ineffective assistance of counsel argument was rejected by the United States Court of Appeals for the Eleventh Circuit in Spaziano v. Singletary, 36 F.3d 1028, 1039-1040 (11th Cir.1994), cert. denied, 513 U.S. 1115, 115 S.Ct. 911, 130 L.Ed.2d 793 (1995):
“[Cjounsel made a strategic decision to keep from the jury the fact of the hypnosis ... Counsel decided to pursue the strategy he did because he had abundant information to use in impeaching Dilisio, and he did not want to risk having the jury think that Dilisio’s testimony .was more rehable because it had been hypnotically refreshed ... [CJounsel’s strategic decision to keep from the jury the evidence of hypnosis was not one of those relatively rare strategic decisions that is outside the wide range of reasonable professtonal assistance.
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“Counsel also knew that, as Spaziano concedes in his brief: ‘[tjhere is a public misconception that hypnosis acts as a truth serum, preventing a hypnotized witness from lying.’ Based upon that knowledge and his extensive experience as a criminal defense attorney, counsel made the strategic decision to keep from the jury the fact that Dilisio had been hypnotized.
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“Another factor requiring deference to counsel’s judgment call in this case is that it was a decision based upon his perception of how the jury would react to the evidence of hypnosis. We have held that a defense attorney’s sense of the jury’s reaction to testimony or evidence is a sound basis on which to make strategic decisions.”
[¶ 9] Breding’s trial counsel attacked Peterson’s credibility by emphasizing Peterson had been heavily drinking before falling asleep and was suddenly jolted awake by the fire. As a matter of strategy, he did not want to add legitimacy to Peterson’s testimony by the fact it was hypnotically enhanced. 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. Frey, 509 N.W.2d at 263. We conclude Breding has failed to demonstrate he received ineffective assistance of counsel because his trial lawyer did not attempt to discredit Peterson’s testimony on the ground it had been hypnotically enhanced.
II
Breding’s Out-of-Court Statements
[¶ 10] Statements made by Breding during interviews of him by investigators were introduced into evidence. Breding asserts his trial counsel’s failure to object to the admission of these statements constituted ineffective assistance of counsel. The need for additional representation protection of children has been recognized by our Legisla
“1. Except as otherwise provided under this chapter, a party is entitled to representation by legal counsel at all stages of any proceedings under this chapter and, if as a needy person he is unable to employ counsel, to have the court provide counsel for him. If the party appears without counsel the court shall ascertain whether he knows of his right thereto and to be provided with counsel by the court if he is a needy person. The court may continue the proceeding to enable a ' party to obtain counsel and shall provide counsel for an unrepresented needy person upon his request. Counsel must be provided for a child not represented by his parent, guardian, or custodian. If the interests of two or more parties conflict, separate counsel must be provided for each of them.”1
The “stages of any proceedings” under N.D.C.C. 27-20-26 are not limited to those instances which take place in the courtroom, but include circumstances such as interrogation, where the officer has focused his investigation on a particular suspect and is intent on gathering evidence. In Interest of B.S., 496 N.W.2d 31, 32 (N.D.1993). If a minor is not represented by a parent, guardian, or custodian during interrogation when the investigation has focused upon him, he has a right to have an attorney present and that right cannot be waived. Id. at 32-33. If, however, the minor is represented by a parent, guardian, or custodian during the interrogation, the minor has a right to have an attorney present, but that right can be waived if the waiver is knowingly, intelligently, and voluntarily made. Id. at 33. N.D.C.C. 27-20-27(2) directs: “An extrajudicial statement, if obtained in the course of violation of this chapter or which would be constitutionally inadmissible in a criminal proceeding, may not be used against” a juvenile. State v. Ellvanger, 453 N.W.2d 810, 813 (N.D.1990).
[¶ 11] The mere presence of a parent does not constitute representation. State v. Grenz, 243 N.W.2d 375, 380 (N.D.1976). To represent the interests of their child, parents must, at the very least, understand it was their role to advise the child at the interrogation and they must take an active role in the proceeding, rather than simply being present and answering questions directed to them by the interrogating officer. In.Interest of B.S., 496 N.W.2d at 33-34.
[¶ 12] The initial questioning of Breding by a deputy sheriff about 5 a.m. on the morning of the fire was for general investigatory purposes. Breding babysat the Peterson girls the night before the fire, and neighbors saw him in the area around the time the fire started shortly before 2 a.m. the following morning. The deputy testified he was seeking general information that morning and the investigation had not focused upon Breding, who was not then a suspect.
[¶ 13] Breding was later questioned on April 4 and again on April 5, 1991. Investigating Officer Dallas Carlson testified at the post-conviction healing that the investigation had not focused upon Breding as a possible suspect until the April 5, 1991 interview. Miranda warnings were read to Breding on both April 4 and 5 and both Breding and his mother, who was present at the interrogations, signed waiver forms consenting to the interrogations and waiving the right to counsel. Carlson testified Breding’s mother was very actively involved during the interviews and the questioning was like “interviewing two people at the same time.” Carlson testified Breding’s mother answered many of the questions at both interrogations, was actively involved, and, in his view, was acting on behalf of her son. Under these circumstances, Breding’s trial lawyer concluded Breding’s rights had not been violated and Breding’s statements were admissible in court.
Ill
Evidence of Bradley Peterson’s Careless Smoking
[¶ 15] In support of his post-conviction petition, Breding submitted affidavits of persons purportedly having knowledge that Bradley Peterson was a careless smoker and had a habit of burning things by falling-asleep while holding a cigarette, especially after he had consumed substantial amounts of intoxicating beverages. Breding asserts his trial lawyer provided ineffective assistance of counsel by failing to introduce instances of Peterson’s careless smoking to raise an inference that Peterson started the fire with a cigarette.
[¶ 16] Breding’s trial lawyer testified at the post-conviction proceedings that he had heard rumors about Peterson’s careless smoking. He hired an investigator, who explored the rumors of careless smoking by Peterson but was unable to uncover good evidence of it. At the trial, Breding’s expert witness testified the fire was not started with an accelerant but was an accidental fire that could have been started with smoking material. Breding’s trial lawyer argued to the jury Bradley Peterson had been heavily drinking prior to falling asleep and was a smoker. He argued “the fire was started either by a cigarette discarded by an intoxicated Bradley, or by Paula [the girls’ mother] because of the couple’s failing marriage.” Breding, 526 N.W.2d at 471. The lawyer’s argument was contradicted by Peterson’s testimony that he had not smoked a cigarette before falling asleep that morning.
[¶ 17] We conclude Breding has failed to demonstrate his trial lawyer, under these circumstances, provided ineffective assistance of counsel by not offering additional instances of Peterson’s careless smoking.
IV
Newly Discovered Evidence
[¶ 18] Breding also submitted affidavits stating Bradley Peterson carelessly started a fire in a trailer home in Minnesota several years after Breding’s criminal trial. The firemen were able to extinguish the fire in Peterson’s bed before it caused more extensive damage to the trailer home. Breding asserts this incident constitutes newly discovered evidence of Peterson’s propensity to start fires and justifies a new trial for Bred-ing on the criminal charges.
[¶ 19] Grounds for post-conviction relief include the situation where “[ejvidence, not previously presented and heard, exists requiring vacation of the conviction or the sentence in the interest of justice.” N.D.C.C. 29 — 32.1—01(l)(e). This ground is similar to a request for a new trial based on newly discovered evidence under N.D.R.Crim.P. 33 and requires the same showing to obtain a new trial. See Schlickenmayer, 364 N.W.2d at 111.
[¶ 20] Breding’s presentation of this issue to the district court was scant and confusing. In a single sentence added to his ineffective assistance of counsel issue in the application for post-conviction relief, Breding states that Peterson’s starting a home fire subsequent to the original trial “should be further grounds for relief in terms of complete dismissal or new trial.” However, throughout the post-conviction proceedings and in presenting final arguments to the district court Breding treated this post-trial fire evidence as simply one additional indication that Peterson was a careless smoker and that Breding’s trial law
[¶ 21] In its order, the trial court stated, “[e]vidence of fires subsequent to the trial was excluded by this court as it is not relevant to the ineffective assistance of counsel. [Trial counsel] could not know of future events.” Breding has not identified any place in the record showing his post-conviction lawyer ever attempted to clarify to the trial court that she was raising a newly discovered evidence issue separate and apart from the ineffective assistance of counsel issue. Under these circumstances, we conclude Breding did not meet the burden of proving his right to a new trial on the ground of newly discovered evidence.
[¶ 22] The trial court’s denial of the request for posteonviction relief is affirmed.
. Amendments, not relevant to these proceedings, were adopted by the Legislature in 1995. S.L.1995, Chapter 124, Section 13.