Mbulu v. State

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JULY 7, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 138David Ntoto Mbulu, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20210224
Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Kirsten M. Sjue, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by VandeWalle, Justice.
Samuel A. Gereszek, Grand Forks, ND, for petitioner and appellant.
Nathan K. Madden, Assistant State’s Attorney, Williston, ND, for respondent
and appellee; submitted on brief.
Mbulu v. State
No. 20210224
VandeWalle, Justice.
[¶1] David Ntoto Mbulu appealed from a district court order granting his
application for post-conviction relief in part and denying it in part. We conclude
the district court did not err by denying Mbulu’s claims related to the jury
instructions for the conspiracy to commit gross sexual imposition charge.
However, we also conclude the court erred by summarily dismissing Mbulu’s
ineffective assistance of counsel claim related to the failure to call his co-
defendant as a witness during the criminal trial. We affirm in part, reverse in
part, and remand.
I
[¶2] In 2017, Mbulu was convicted of conspiracy to commit gross sexual
imposition, accomplice to gross sexual imposition, conspiracy to commit
murder, and attempted murder. His conviction was affirmed on appeal. State
v. Mbulu, 2018 ND 73, 908 N.W.2d 732.
[¶3] In 2018, Mbulu applied for post-conviction relief. He alleged various
claims of ineffective assistance of counsel, including that his trial counsel failed
to subpoena and call his co-defendant, Jean-Michael Kisi, to testify during the
trial. He claimed Kisi’s testimony would have resulted in a different outcome
on the conspiracy to commit gross sexual imposition and accomplice to gross
sexual imposition charges. Mbulu later moved to amend his application to
include claims that his trial and appellate attorneys were ineffective because
they failed to object to errors in the jury instructions for the conspiracy to
commit murder and conspiracy to commit gross sexual imposition charges,
which allowed him to potentially be convicted of non-cognizable offenses.
[¶4] The State moved for dismissal of Mbulu’s application for post-conviction
relief. The district court partially granted the State’s motion to dismiss,
including dismissing Mbulu’s claim that he received ineffective assistance of
counsel because his trial counsel failed to subpoena Kisi. The court granted
Mbulu’s motion to amend his application. The court denied the State’s motion
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to dismiss Mbulu’s claims about improper jury instructions related to the
conspiracy to commit murder and conspiracy to commit gross sexual imposition
charges.
[¶5] After an evidentiary hearing, the district court granted the application
in part and denied it in part. The court ruled Mbulu abandoned the jury
instruction argument related to the conspiracy to commit gross sexual
imposition charge. The court granted the application for relief on the jury
instruction issue related to the conspiracy to commit murder charge, and
ordered the conspiracy to commit murder conviction be vacated and remanded
for a new trial. Judgment was entered.
II
[¶6] Mbulu argues the district court erred by summarily dismissing his
ineffective assistance of counsel claim related to the failure to subpoena and
call Kisi as a witness during the criminal trial. He contends he presented
sufficient evidence to raise a genuine issue of material fact and entitled him to
an evidentiary hearing, including an affidavit from Kisi in which Kisi stated
that he acted spontaneously and alone regarding the gross sexual imposition
charges and that he was willing to waive his right against self-incrimination
and testify at Mbulu’s trial.
[¶7] A claim for post-conviction relief may be summarily dismissed if there
are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. Pinkney v. State, 2021 ND 155, ¶ 13, 963 N.W.2d
737. “If the State moves for summary dismissal, putting a petitioner to his
proof, a minimal burden shifts to the petitioner to support his application with
admissible evidence, by affidavit or other comparable means, to raise a genuine
issue of material fact.” Friesz v. State, 2022 ND 22, ¶ 7, 969 N.W.2d 465(quoting Morales v. State, 2020 ND 117, ¶ 3, 943 N.W.2d 761). “The party
opposing the motion for summary disposition is entitled to all reasonable
inferences at the preliminary stages of a post-conviction proceeding and is
entitled to an evidentiary hearing if a reasonable inference raises a genuine
issue of material fact.” Friesz, at ¶ 7 (quoting Davis v. State, 2013 ND 34, ¶ 25,
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827 N.W.2d 8). On appeal, the summary dismissal of a claim for post-conviction
relief is reviewed like an appeal from summary judgment. Pinkney, at ¶ 13.
[¶8] To prevail on a claim of ineffective assistance of counsel, the applicant
for post-conviction relief 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.” Yoney v. State, 2021 ND 132, ¶ 7, 962 N.W.2d 617 (quoting
Olson v. State, 2019 ND 135, ¶ 19, 927 N.W.2d 444). There is a presumption
that the counsel’s representation fell within the wide range of reasonable
professional assistance. Heckelsmiller v. State, 2004 ND 191, ¶ 3, 687 N.W.2d
454. We have said the record and transcripts generally are not adequate to
determine whether summary disposition is appropriate on claims of ineffective
assistance of counsel. Stein v. State, 2018 ND 264, ¶ 8, 920 N.W.2d 477.
[¶9] The district court granted the State’s motion to dismiss Mbulu’s claim
that he received ineffective assistance of counsel because his trial counsel
failed to subpoena Kisi. The court explained the decision not to call Kisi as a
witness was a trial strategy which was evidenced by trial counsel’s argument
opposing consolidation of Mbulu’s and Kisi’s cases, in which counsel argued
Kisi could not be compelled to testify and be subjected to cross-examination if
the cases were joined. The court stated that to the extent Kisi’s affidavit
contradicted the testimony Kisi gave at his own trial those contradictions could
not be used to create a genuine issue of material fact. The court noted Kisi was
tried after Mbulu and any statement Kisi made in Mbulu’s trial would have
been used against him at his own trial, and Mbulu failed to provide an affidavit
from Kisi’s trial counsel indicating he would have allowed Kisi to waive the
privilege against self-incrimination and testify. The court concluded Mbulu
failed to show a genuine issue of fact that his trial counsel’s failure to call Kisi
fell below an objective standard of reasonableness or that the outcome of the
proceeding would have been different.
[¶10] Mbulu presented an affidavit from Kisi as evidence supporting his claim.
In the affidavit, Kisi claimed he would have waived the right against self-
incrimination and agreed to testify at Mbulu’s trial. He explained his version
3
of the events leading to the charges. Kisi stated he was traveling with Mbulu
and the victim in a vehicle, he stopped the vehicle, and Mbulu physically
removed the victim from the vehicle. He alleged Mbulu and the victim got into
a verbal and physical altercation, he tried to separate Mbulu and the victim,
the victim’s pants started to come off, and Mbulu went back to the vehicle. Kisi
stated that he was trying to calm the victim down and he “inappropriately
touched or fingered” the victim before he got back into the vehicle.
[¶11] The State charged Mbulu with conspiracy to commit gross sexual
imposition, alleging Mbulu agreed with Kisi to commit gross sexual imposition
against the victim and engaged in one or more overt acts to further that
objective. The State also charged Mbulu with accomplice to gross sexual
imposition, alleging Mbulu, acting as a co-conspirator or with the intent that
an offense be committed, aided Kisi in committing the offense of gross sexual
imposition by physically restraining the victim while Kisi engaged in a sexual
act. Mbulu filed an affidavit from Kisi providing evidence of what Kisi would
have testified to if called as a witness and how that testimony likely would
have led to a different result on the conspiracy to commit and accomplice to
gross sexual imposition charges. Giving Mbulu all reasonable inferences, the
affidavit from Kisi creates a genuine issue of material fact about whether
Mbulu’s trial counsel’s representation fell below an objective standard of
reasonableness.
[¶12] The district court stated it appeared Mbulu’s trial counsel at least
considered calling Kisi as a witness because one of the grounds for opposing
consolidation of Mbulu’s and Kisi’s trials was that Mbulu would be unable to
compel Kisi to testify if the cases were joined. The court concluded “[t]he
ultimate decision not to call Kisi as a witness was clearly a matter of trial
strategy and within the range of choices that a reasonable attorney would
make.” However, there was no testimony from Mbulu’s trial attorneys that this
was trial strategy or about why Kisi was not called as a witness.
[¶13] The district court also noted Kisi’s statements in his affidavit contradict
the testimony he gave at his own trial and any statements Kisi made at
Mbulu’s trial would have been used against him by the State at his own trial,
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which is something “any reasonable criminal defense attorney would not have
allowed to occur.” The court further stated Mbulu did not provide an affidavit
from Kisi’s trial counsel indicating that he would have advised or permitted
Kisi to waive his Fifth Amendment privilege against self-incrimination in
order to testify. The privilege against self-incrimination belongs to the witness,
and it is the witness’s decision whether to waive it. See Rogers v. United States,
340 U.S. 367, 371 (1951) (stating the privilege against self-incrimination is
solely for the benefit of the witness and is purely a personal privilege of the
witness). The decision to waive the privilege against self-incrimination
belonged to Kisi and he could have ignored any advice from his attorney.
[¶14] To the extent the district court weighed the credibility of Kisi’s affidavit,
it was improper. When the court decides a motion for summary dismissal, it is
required to view the evidence in the light most favorable to the opposing party
and it is not permitted to weigh the evidence or determine credibility. Cf.
Schaefer v. Souris River Telecomms. Coop., 2000 ND 187, ¶ 8, 618 N.W.2d 175(stating a court is not permitted to weigh evidence or determine credibility in
considering evidence submitted for a motion for summary judgment; rather,
the evidence is viewed in the light most favorable to the opposing party).
[¶15] Mbulu presented sufficient evidence to create a genuine issue of material
fact regarding his attorney’s failure to subpoena and call Kisi as a witness.
Mbulu is entitled to an evidentiary hearing on this issue. We conclude the
district court erred by summarily dismissing Mbulu’s ineffective assistance
claim related to calling Kisi as a witness.
III
[¶16] Mbulu argues the district court erred by dismissing his claim related to
the jury instructions on the conspiracy to commit gross sexual imposition
charge. He contends the claim was intertwined with his claim about the jury
instructions on the conspiracy to commit murder charge, and the court erred
by concluding he abandoned the claim.
[¶17] Mbulu asserted claims for relief related to the jury instructions on the
conspiracy to commit gross sexual imposition charge and the conspiracy to
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commit murder charge. The district court denied relief on the claim related to
the jury instructions on the conspiracy to commit gross sexual imposition
charge, concluding Mbulu abandoned the claim. The court ruled, “[W]ith
regard to the Conspiracy to Commit Gross Sexual Imposition jury instruction,
the Court concludes that Petitioner abandoned his claim for relief on that issue
by failing to pursue or develop it in any way since the Court’s order granting
amendment of his application for post-conviction relief and denying summary
disposition on December 19, 2019.” The court noted Mbulu did not present any
testimony, evidence, or argument related to the claim during the evidentiary
hearing and he did not raise or address the issue in his post-hearing brief.
[¶18] However, the district court granted Mbulu’s claim for relief related to the
jury instructions on the conspiracy to commit murder charge. While Mbulu’s
application was pending and after the parties filed their post-hearing briefs in
the district court, this Court issued its decision in Pemberton v. State, 2021 ND
85, ¶¶ 13, 17, 959 N.W.2d 891, in which we held attempted “knowing” murder
is not a cognizable offense and the jury instructions in that case, which
included the word “knowingly,” allowed the jury to find the defendant guilty of
a non-cognizable offense. Citing Pemberton, the district court concluded the
jury instructions for the conspiracy to commit murder charge were improper
because they included the word “knowing.” The court reversed Mbulu’s
conviction for conspiracy to commit murder and remanded for a new trial.
[¶19] On appeal, Mbulu argues the district court improperly separated the
issues related to the jury instructions for the two conspiracy charges to comply
with the ruling in Pemberton, he did not have notice or an opportunity to be
heard on the Pemberton issue, and he claims he should be afforded the proper
due process to address the Pemberton case and its impact on the two conspiracy
charges. The State did not appeal, but it also argues the district court
improperly applied Pemberton without giving the parties an opportunity to
address the issue.
[¶20] Mbulu first argued in his motion to amend his application for post-
conviction relief that the jury instructions related to the conspiracy to commit
gross sexual imposition charge were improper and allowed the jury to
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potentially convict him of a non-cognizable offense. He claimed his argument
on the conspiracy to commit murder conviction also applied to the conspiracy
to commit gross sexual imposition conviction. He explained conspiracy is a
specific intent crime requiring an intent to achieve a particular result that is
criminal, the jury instruction on the conspiracy to commit gross sexual
imposition charge eliminated the intent element of the offense, the intent
element for gross sexual imposition is “willfully,” and the instructions should
have included that the conspirators agreed to “intentionally compel.” He
claimed the instructions allowed the jury to find him guilty of a non-cognizable
offense because the district court did not provide the jury with an instruction
as to the intent required for conspiracy to commit gross sexual imposition.
[¶21] The district court granted Mbulu’s motion to amend his application. The
court also ordered there were genuine issues of material fact regarding the jury
instructions on the conspiracy to commit murder and conspiracy to commit
gross sexual imposition charges, and an evidentiary hearing was warranted on
those issues.
[¶22] During the evidentiary hearing, one of Mbulu’s trial attorneys testified
about her decisions related to the jury instructions for conspiracy to commit
murder charge. Mbulu did not ask her about the jury instructions for
conspiracy to commit gross sexual imposition. Mbulu’s appellate counsel also
testified about conspiracy to commit murder and whether there was an
appealable issue related to the instructions for that offense. His appellate
counsel was not asked about the instructions for conspiracy to commit gross
sexual imposition.
[¶23] In his post-hearing brief, Mbulu did not make any specific arguments
about the jury instructions for conspiracy to commit gross sexual imposition.
His started his brief by stating:
[O]nly two issues remain for the Courts consideration, which is 1)
Whether Mr. Mbulu received ineffective assistance of counsel from
his trial attorney or appellate attorneys based on a failure to object
to jury instructions relating to [a conspiracy to commit] murder
7
charge and 2) Whether his trial lawyer was ineffective for failing
to raise issues relating to Mr. Mbulu’s mental state.
His arguments about the jury instructions were related to the conspiracy to
commit murder charge. He claimed that including the culpability level of
“knowing” in the jury instructions permitted the jury to find him guilty of
conspiracy to knowingly commit murder, which is a non-cognizable offense.
[¶24] Although Mbulu contends on appeal that his arguments about the two
conspiracy charges were intertwined and that the district court erred by
separating the two issues, the jury instructions for the two offenses were
different. The jury received an instruction defining the different levels of
culpability, including definitions for “knowingly” and “willfully.” The
instructions for conspiracy to commit murder informed the jury that the State’s
burden of proof was established if the evidence showed beyond a reasonable
doubt that Mbulu agreed with Kisi “to intentionally or knowingly kill” the
victim and Mbulu or Kisi engaged in one or more overt acts to further the
objectives of the conspiracy. The final jury instructions for conspiracy to
commit gross sexual imposition contained very different language, stating:
A person who agrees with one or more other persons to
compel a person to engage in a sexual act with another by
compelling them to submit through the use of force or by the threat
of imminent death, serious bodily injury, or kidnapping to be
inflicted on any human being, and where one or more of those
persons engages in one or more over[t] acts to further the objective
of the conspiracy is guilty of Conspiracy to Commit Gross Sexual
Imposition.
Essential elements:
The State’s burden of proof is established if the evidence
shows beyond a reasonable doubt, the following essential
elements:
1) On or about November 20, 2015, in Williams County, North
Dakota;
2) The Defendant, David Mbulu, agreed with Jean-Michael Kisi to
compel [the victim], to engage in a sexual act with another by
compelling [the victim] to submit by force or by threat of imminent
8
death, serious bodily injury, or kidnapping to be inflicted on [the
victim], a human being; and
3) The Defendant and/or Jean-Michael Kisi engaged in one or more
overt acts to further the objectives of the conspiracy.
The conspiracy to commit gross sexual imposition instruction did not use the
words “knowingly” or “willfully.”
[¶25] Because the instructions for the two conspiracy charges are different and
do not use the same language, Mbulu’s argument about being convicted of a
non-cognizable offense based on the word “knowingly” being included in the
jury instruction for the conspiracy to commit murder charge does not apply to
the jury instruction for the conspiracy to commit gross sexual imposition
charge. By failing to present any evidence or make any argument specifically
about the conspiracy to commit gross sexual imposition instructions at the
evidentiary hearing or in his post-hearing brief, Mbulu abandoned the issue.
See Berg v. Dakota Boys Ranch Ass’n, 2001 ND 122, ¶ 13, 629 N.W.2d 563(stating issue was abandoned at trial when no argument was offered and party
failed to present evidence supporting the issue); Livingood v. Meece, 477
N.W.2d 183, 195 (N.D. 1991) (holding district court did not err in dismissing
claim because the claim was abandoned when argument was not further
developed or addressed after the claim was made in the complaint).
[¶26] We conclude the district court did not err by dismissing Mbulu’s claim
that the jury was improperly instructed on the conspiracy to commit gross
sexual imposition charge. Because the district court granted Mbulu’s claim for
relief related to the conspiracy to commit murder charge and the State did not
appeal the court’s decision, we will not consider whether the court’s decision
should be reversed and remanded to give the parties an opportunity to address
the Pemberton opinion.
IV
[¶27] We affirm the order in part, reverse in part, and remand.
[¶28] Jon J. Jensen, C.J.
Gerald W. VandeWalle
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Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
10