Brown v. State

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MAY 30, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 105Orlando Joseph Brown, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20220341
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable M. Jason McCarthy, Judge.
AFFIRMED.
Per Curiam.
Scott O. Diamond, Fargo, ND, for petitioner and appellant; submitted on brief.
Andrew C. Eyre, Assistant State’s Attorney, and Muriel E. Rott, third-year law
student, under the Rule on Limited Practice of Law by Law Students, Grand
Forks, ND, for respondent and appellee; submitted on brief.
Brown v. State
No. 20220341
Per Curiam.
[¶1] Orlando Joseph Brown appeals from a district court order denying his
application for post-conviction relief.
[¶2] A jury convicted Brown of aggravated assault and two counts of gross
sexual imposition. On direct appeal, Brown argued the district court abused
its discretion by allowing the State to introduce N.D.R.Ev. 404(b) evidence, and
this Court summarily affirmed under N.D.R.App.P. 35.1(a)(4). State v. Brown,
2020 ND 29, 938 N.W.2d 404.
[¶3] On appeal, Brown argues the district court improperly denied his
application for post-conviction relief because his trial counsel was ineffective
for failing to move to strike two jurors for cause and thereafter failing to use a
peremptory challenge to strike the same jurors.
[¶4] “[A]n attorney’s actions during voir dire are considered matters of trial
strategy.” Clark v. State, 2008 ND 234, ¶ 16, 758 N.W.2d 900 (upholding district
court’s finding defendant did not receive ineffective assistance of counsel
because counsel “failed to strike a juror”); see also Garcia v. State, 2004 ND 81,
¶ 8, 678 N.W.2d 568 (“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.” (quoting Breding v. State,
1998 ND 170, ¶ 9, 584 N.W.2d 493)).
[¶5] We summarily affirm under N.D.R.App.P. 35.1(a)(2).
[¶6] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
1