20210056 - ndcourts.gov
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IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Ross Charles Thomas, ) Supreme Court No. 20210056
)
Petitioner and Appellant, ) Case No. 21-2020-CV-00053
)
vs. )
)
State of North Dakota, )
)
Respondent and Appellee. )
APPEAL FROM JUDGMENT DATED JANUARY 28, 2021
IN DISTRICT COURT, HETTINGER COUNTY, STATE OF NORTH DAKOTA
THE HONORABLE DANN GREENWOOD
BRIEF OF APPELLEE - ORAL ARGUMENT REQUESTED
\S\ Pat J. Merriman
Pat J. Merriman #07453
Asst. Hettinger County State's Attorney
336 Pacific Ave.
Mott, ND 58646
(701) 824-2329
Fax (701) 824-2413
FILED IN THE OFFICE OF THE
CLERK OF SUPREME COURT JUNE 14, 2021
STATE OF NORTH DAKOTA
20210056
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ………………………………………………………pp. 3-6
JURISDICTION …………………………………………….……..……….…………...¶ 1
STATEMENT OF THE ISSUES ……………………….………..……………..………¶ 2
STATEMENT OF THE CASE …………………………….…….…………………¶’s 3-8
STATEMENT OF THE FACTS …………………………….…….………………¶’s 9-13
REQUEST FOR ORAL ARGUMENT ………………………………………….……¶ 14
LAW AND ARGUMENT …………………………………….…….……………¶’s 15-57
I. The District Court correctly ruled that the expert testimony of attorney Thomas M.
Tuntland, proffered by Appellant, was irrelevant, inadmissible, subjective speculation,
usurped the role of the court, and invaded the province of the court because the objective
standard of what are the prevailing norms of attorney practice in North Dakota is a matter
of law solely for the court to determine; and the expert testimony of defense trial attorney
Bobbi Weiler was speculation regarding the effect (if any) of a DVR’s recordings on the
jury’s verdict in the underlying criminal matter and, in any event, no sufficient
foundation was ever laid by Appellant to substantiate the introduction of said “newly
discovered” evidence at the district court’s post-conviction relief hearing…….….¶ 15
II. The District Court properly denied Thomas’ Application for Post-Conviction Relief in
21-2020-CV-00053…………………………………….…………………......…….¶ 27
CONCLUSION……………………………………………………………………………..¶ 58
3
TABLE OF AUTHORITIES
CONSTITUTIONS
N.D. Const. art I, § 6 ……………………………….….………………….……………..¶ 1
NORTH DAKOTA RULES
N.D.R.App.P. 28(h) ……………………………………………….………..…………..¶ 14
N.D.R.Crim P. 33 ……………………………………………….……….……………..¶ 52
N.D.R.Evid 403 ……………………………………………………..…………………..¶ 35
N.D.R.Evid 702 …………………………………………………….…….……………..¶ 19
N.D.R.Evid 703 ……………………………………………………….……..…………..¶ 19
N.D.R.Evid 704 …………………………………………………………….…..………..¶ 19
NORTH DAKOTA STATE CASES
Brewer v. State, 2019 ND 69, 924 N.W.2d 87 ……………………..……..……..¶ 24, 44, 57
Cartwright v. Tong, 2017 ND 146, 896 N.W.2d 638………………………..…….……..¶ 19
City of West Fargo. V. Ekstrom, 2020 ND 37, 938 N.W.2d 915 …………...………….. ¶ 31
DeCouteau v. State, 2000 ND 44, 608 N.W.2d 240 ………………………..……… ¶ 56, 57
Flanagan v. State, 2006 ND 76, 712 N.W.2d 602 ………………………………………..¶ 39
Greywind v. State, 2004 ND 213, 689 N.W.2d 390 ………………………...…….……..¶ 52
Hunter v. State. 2020 ND 224, 949 N.W.2d 841 ………………………………….……..¶ 24
In the Matter of the Disciplinary Action Against William E. McKechnie,
2003 ND 37, 657 N.W.2d 287 (ND 2003) ………………….… ……………………..¶ 20, 26
In the Matter of the Disciplinary Action Against William E. McKechnie,
2003 ND 22, 656 N.W.2d 661 (ND 2003) ……………………………………..……..¶ 20, 26
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In Re Disciplinary Action Against Boulger, 2001 ND 210, 637 N.W.2d 710 …………..¶ 25
Laib v. State, 2005 ND 187, 705 N.W.2d 845 ………………………..……………...…..¶ 24
Larson v. Larson, 2016 ND 76, 878 N.W.2d 54 ……………………..……...………..¶ 17
Lindsey v. State, 2014 ND 174, 852 N.W.2d 383 …………………….…………..¶ 52, 53
Matthews v. State, 2005 ND 202, 706 N.W.2d 74 ……………………..……………..¶ 55
Middleton v. State. 2014 ND 144, 849 N.W.2d 196 ……………………..……….…..¶ 24
Peterka v. State, 2015 ND 156, 864 N.W.2d 745 ………………………..…… ……..¶ 33
Rourke v. State. 2018 ND 137, 912 N.W.2d 311 ………………………..…… ……..¶ 22
State v. Atkins, 2019 ND 145, 928 N.W.2d 441 ………………………..…… ……..¶ 52
State v. Cook, 2018 ND 100, 910 N.W.2d 179 ………………………..….…………..¶ 48
State v. Falconer, 2007 ND 89, 732 N.W.2d 703 ………………………..…..………..¶ 40
State v. Haugen, 2007 ND 195, 742 N.W.2d 796 ………………………..…..………..¶ 40
State v. Kuruc, 2014 ND 95, 846 N.W.2d 314 ………………………..……..………..¶ 17
State v. Olander, 1998 ND 50, 575 N.W.2d 658 ………………………..………...…..¶ 40
State v. Skaro, 474 N.W.2d 711, 714 (ND 1991) ……………………………..¶ 52, 56, 57
State v. Thomas, 2019 ND 194, 931 N.W.2d 192…………………..…………………..¶ 4
State v. Thomas, 2020 ND 30, 938 N.W.2d 897………………….…….………..¶ 4, 9, 30
State v. Wilson, 488 N.W.2d [618, 622 (N.D. 1992) ……………………………..¶ 56, 57
State v. Zajac, 2009 ND 119, 767 N.W.2d 825 ………………………...……..¶ 39, 40, 43
STATUTES
N.D.C.C. Chapter 12.1-04………………………………………………...……..……..¶ 53
N.D.C.C. §12.1-15-03 ……………………………………………………..…………..¶ 41
N.D.C.C. §12.1-17-02 ……………………………………………………..………..¶ 4, 33
5
N.D.C.C. §12.1-17-03 …………………………………………………………………..¶ 4
N.D.C.C. §12.1-17-04 …………………………………………………………………..¶ 4
N.D.C.C. §12.1-18-02 …………………………………………..…………………..¶ 4, 33
N.D.C.C. §12.1-32-01 ……………………………………...………………………..¶ 7, 51
N.D.C.C. §12.1-32-09 ……………………………………………….…………………..¶ 4
N.D.C.C. §28-01-46 …………………………………………………………..………..¶ 19
N.D.C.C. §29-01-07 ……………………………………………….……………..……..¶ 31
N.D.C.C. §29-28-03 ………………………………………………………………..……..¶ 1
N.D.C.C. §29-28-06 ………………………………………………..……..………..……..¶ 1
N.D.C.C. Chapter 29-32.1……………………………………………….………..¶ 15, 41, 51
N.D.C.C. §29-32.1-01 …………………………………………………………..¶ 1, 7, 39, 51
ND.C.C. §29-32.1-04 …………………………………………………….…..…………..¶ 36
N.D.C.C. §29-32.1-14 ………………………………………………….......….…………..¶ 1
UNITED STATES SUPREME COURT CASES
Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)…… ¶ 32, 33
Cuyler v. Sullivan, 446 U.S. 335, 346, 100 S. Ct. 1708, 1717 (1980)……..…………... ¶ 23
Powell v. Alabama. 287 U.S. 45, 68-69, 53 S. Ct. 55, 63-64 (1982)………...…………. ¶ 23
Strickland v. Washington, 466 U.S. 668 (1984) …………………..…….……¶22, 24, 26, 44
OTHER STATE COURT CASES
Hawkins v. Camm'n for Lawyer Discipline, 988 S.W.2d 927, 936 (Tex.Ct.App.1999)….¶25
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Transcript/Exhibit References:
To conform with the pleadings submitted by Appellant, the hearing on the State’s motion
seeking to exclude the petitioner’s expert in this case was conducted January 5, 2021. The
transcript of that motion hearing is referred to as [MH.] in this brief. The hearing on the
Defendant’s application for post-conviction relief was conducted January 15, 2021. The
transcript of that motion hearing is referred to as [Tr.] in this brief.
References to Appellant’s Appendix submitted to this honorable court will be as designated as
[App.] with relevant page/paragraph number(s). References to Appellee’s Appendix will be
designated as [App2.] with relevant page/paragraph number(s).
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JURISDICTION
[¶1] The state agrees that the district court had jurisdiction under N.D.C.C. §29-32.1-01 and,
that this honorable court has jurisdiction over the appeal of this matter pursuant to N.D. Const.
art. VI §6, N.D.C.C. §§29-32.1-14, 29-28-03 and 29-28-06.
STATEMENT OF ISSUES
[¶2] I. Whether the district court erred by granting the State’s motion to exclude expert and
lay witness testimony.
II. Whether the district court erred by denying Mr. Thomas’ petition for post-conviction
relief in case numbered 21-2020-CV-00053.
STATEMENT OF THE CASE
[¶3] Thomas appeals from Southwest District Court Judge Dann Greenwood’s order, dated
January 28, 2021, denying Thomas’ application for post-conviction relief stemming from
Thomas’ conviction in Hettinger County criminal case 21-2017-CR-00011. The district court
conducted the post-conviction hearing for this case on January 15, 2021.
[¶4] Because of Thomas' intricate claims for relief herein, the tortured history of his
prosecutions, and repeated post-conviction proceedings, are as follows:
a. On February 13, 2017, in Hettinger County case styled State v. Ross Thomas, 21-
CR-2017-CR-00006, he was charged with aggravated assault, a class C felony, in
violation of N.D.C.C. §12.1-17-02, the matter was consolidated with charges arising
from the same incident in 21-CR-2017-CR-00011, proceeded to jury trial (the first
trial) and he was acquitted of said aggravated assault by a jury on April 2, 2018; said
matter was not re-charged or pursued after his first direct appeal.
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b. On February 17, 2017, in State v. Ross Thomas, 21-CR-2017-CR-00011, he was
charged with count 1—Felonious Restraint, a class C felony in violation of N.D.C.C.
§12.1-18-02; count 2—Terrorizing, a class C felony in violation of N.D.C.C. §12.1-
17-04; and, count 3—Reckless Endangerment, a class C felony in violation of
N.D.C.C. §12.1-17-03; these charges were consolidated with the other charges,
referenced infra, and, on April 2, 2018, Thomas was acquitted by jury on said count 1
(Felonious Restraint), the jury hanged on count 2 (Terrorizing) and hew was
convicted of count 3 (Reckless Endangerment).
c. As a result of his conviction on count 3 in said 21-CR-2017-CR-00011, Thomas
appealed that conviction for Reckless Endangerment and, on July 11, 2019, this court
reversed and remanded the entire matter based on prejudicial error in the trial court’s
failure to conduct a sua sponte hearing for alleged juror misconduct; see, State v.
Thomas, 2019 ND 194, 931 N.W.2d 192.
d. After said remand in said 21-CR-2017-CR-00011, the state elected to re-try
Thomas in that case solely on its count 1 (felonious restraint) as a special dangerous
offender under N.D.C.C. §12.1-32-09[1][c], on April 17, 2019, he was convicted by a
jury of same which also found that he used a dangerous weapon or destructive device
in the commission of that offense (hereafter, the “second conviction”).
e. Accordingly, on the latter offense in 21-CR-2017-CR-00011, on May 2, 2019, he
was sentenced, as a special dangerous offender, to 10 years in the ND Dept. of
Corrections, 5 ½ years of that sentence were suspended, and Thomas was placed on
supervised probation, after his release, for 3 years.
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f. That second conviction and sentence in 21-CR-2017-CR-00011, referenced infra,
were affirmed by this court on February 12, 2020, in State v. Thomas, 2020 ND 30,
938 N.W.2d 897.
g. As stated, all other charges in State v. Ross Thomas, 21-CR-2017-CR-00011 (the
second appeal) were formally dismissed on March 4, 2020.
h. The companion case referenced above, 21-CR-2017-CR-00006 (aggravated
assault), was never re-opened and the jury acquittalwas never re-opened.
[¶ 5] As stated, the only matters before the court in the instant proceeding are the civil post-
conviction relief allegations raised by Thomas which are based upon the criminal jury trial held
in State v. Ross Thomas, 21-CR-2017-CR-00011 ("underlying criminal matter").
[¶ 6] In his application for post-conviction relief (see, App., p. 18 ¶7, pp. 20- 34, ¶’s 7[A]-
7[E]), Thomas claimed his attorney in the underlying criminal matter, Bobbi Weiler, provided
ineffective assistance of counsel because:
a. She did not submit a self-defense instruction in said underlying criminal matter
(App., p. 18, ¶7, pp. 20-24 ¶7[A]);
b. She did not produce a video recording at trial which prejudiced Thomas (App., p.
18, ¶7, pp. 25-26 ¶7[B]);
c. She did not raise request a “special verdict form” on the issue of double jeopardy
(App., p. 18, ¶7, pp. 26-27 ¶7[C]);
d. She failed to depose or produce at trial material witnesses Dolly Cook, Nolan
Gentry, Clinton Lilly, and Brett Chamberlain (App., p. 18, ¶7, pp. 27-28 ¶7[D]); and
10
e. She did not object or try to exclude evidence of prior bad acts – specifically
conduct of which Mr. Thomas had been acquitted in the first trial (App., p. 18, ¶7, pp.
28-31 ¶7[E]).
[¶ 7] At the post-conviction relief hearing in district court on January 15, 2021, Thomas
attempted to present expert testimony and, the following transpired:
a. Attorney Thomas M. Tuntland was endorsed, pre-hearing, as a witness for
Thomas and, his proposed testimony was that “Bobbi Weiler’s representation [of
Thomas at trial] was incompetent and didn’t properly represent [Thomas] at his
trial…[because] In malpractice suits against doctors for not performing medical care
improperly, courts have always allowed Plaintiffs to call another doctor as an expert
witness to explain why a doctors medical care was incompetent and not done
properly” and to prove-up Thomas’ claims of incompetence, “To prove such a claim,
he needs to be able to call an expert attorney. That expert attorney is Thomas M.
Tuntland” [App., p. 102].
b. The State filed its Motion in Limine to preclude this testimony which was
sustained after a hearing on that motion conducted by the district court on January 5,
2021 [App., pp. 102-04; 107-14]; with said ruling being renewed by Judge
Greenwood at the district court’s hearing which is the subject of this appeal [Tr., pp.
3-4].
c. At that hearing on Thomas’ application for post-relief on January 15, 2021, he also
attempted to produce the testimony of attorney Weiler, herself, that, in her opinion,
after viewing a DVR produced at said hearing, there was relevant evidence depicted
on it, insofar as, it pertained to the state’s closing argument in the 2nd trial; however,
11
she did not have any idea what effect, if any, it might have had on the jurors at trial
and was mere speculation [Tr.. 25-26];
d. Thereafter, when Thomas' hearing counsel attempted to elaborate on the issue, the
following transpired:
1) Thomas’ hearing counsel attempted to ask Weiler if she thought the video
would have changed the jury’s verdict, the State objected as speculation and, the
district court sustained the objection. [Tr., 26-27].
2) The district court also determined that Thomas appeared to be arguing,
anew for the first time, that a DVR's contents taken from his ranch was newly
discovered evidence under N.D.C.C. §29-32.1-01 [1][a], but that was rejected by
Judge Greenwood [App., pp. 118, 122-23];
3) Further, the district court also ruled that there was a lack of foundation for
the DVR’s recordings to make them admissible at the hearing, and that the
recordings even appeared to the district court to have been "manipulated" [App.,
pp. 126-28]; and
4) Finally, the district court ruled that even if a sufficient foundation had
been laid by Thomas, it would have only been relevant to the issue of self-defense
he was trying to argue and Thomas was not entitled to assert same at the trial of
the underlying criminal matter [App., pp. 128-35].
[¶ 8] Thomas’ application for post-conviction relief was denied by the district court on January
28, 2021, and he has appealed that Order [App., pp. 115-42].
STATEMENT OF FACTS
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[¶ 9] Thomas was convicted in the re-trial of the underlying criminal matter in State v. Ross
Thomas, 21-CR-2017-CR-00011, of detaining and savagely threatening and injuring his
acquaintance Tyrell Crawford (the victim); and, thereafter, the jury found him guilty of
Felonious Restraint, as a dangerous special offender. That 2nd trial commenced on April 16,
2019, Thomas was convicted of these charges 3 days later on April 19, 2019, and he was
sentenced on May 3, 2019, as stated above. (Register of Actions, Felony Jury Trial, docket sheet;
A12; Verdict, docket sheet no. 376; A14; and Criminal Judgment, docket sheet no. 385; A12;
Judgment; A46-48). Again, that conviction was affirmed by this honorable court on February 12,
2020, in State v. Thomas, 2020 ND 30, supra.
[¶ 10] Thomas’ actual defense at that criminal trial was geared solely around the fact that the
victim (Crawford) was an unsavory character, Thomas was convinced that the latter had stolen
property from him on/about February 5-6, 2017, Crawford would steal from him again, Thomas
had warned him to stay off his property and, the victim was “high” the evening of February 7,
2017, at/about 10:30 PM, causing Thomas to fear for his safety but, not resulting in any injury or
danger [Tr., pp. 19-20]. However, the district court disagreed after hearing evidence at the post-
conviction relief hearing [App., pp. 128-35].
[¶ 11] Thomas also now attempts to speculate that despite losing his direct appeal of the
underlying criminal matter in State v. Thomas, 2020 ND 30, supra, he should be allowed to re-
argue the evidence submitted in that trial in this post-conviction relief proceeding because his
trial attorney failed to call witnesses James Kibble, Gordon Lewis, Nolan Gentry and Dolly Cook
who were staying at the Thomas ranch at that time [App., p. 18, 27-28].
[¶ 12] At this juncture, the state notes that Thomas relies on the aforementioned DVR to bolster
this argument but, this court should note that Thomas and all underlying trial counsel (including
13
Ms. Weiler) were informed of the DVR’s seizure from the Thomas ranch on March 20, 2017, by
then States Attorney Amy Pikovsky, shortly after charges were filed in State v. Thomas, 21-
2017-CR-00011 and, over 2 years before the re-trial by the subsequent States Attorney’s office,
by the undersigned, commencing on April 16, 2019 [App., p. 3, Index #21, p. 5, Index #54,
Affidavit of Compliance with Defendant’s Written Request for Discovery and Production of
Documents & Tangible Objects; App2., pp. 3-4, Item #9; p. 6, Item #22; Tr., pp. 41-42].
Thereafter,
a. Prior to February 18, 2019, the defense never asked to review the device but, on
that date, for the first time, informed the newly elected Hettinger County State’s
Attorney that Thomas was aware that there was a surveillance video(s) that he had
never been given and, alleging that there were 4 cameras at his home/ranch on the
date of the charged offense [Tr., p. 41; App2., p. 11];1
b. Further, Thomas' attorney Weiler testified that, at that time, she knew that a DVR
existed, forensic technology did not exist for the BCI to review the entire digital drive
off the seized DVR, special equipment to view the videos (if any) would be needed,
there was nothing of relevance found by investigators, BCI had been "advised to look
for the specific day and time that the incident occurred" and, "there was no video to
"show the victim or subjects for the specified date and time," i.e., February 7, 2017, at
some time after 10:30 PM [Tr., pp. 42-43];
c. The state told Ms. Welier that he had just taken office, had a lot of discovery to go
through before the re-trial but, would check on the situation and respond ASAP
[App2., p. 11];
1 Designated as Exhibit 8 at the Thomas PCR hearing on January 15, 2021.
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d. On March 6, 2019 (over 1 month before re-trial was set to commence), the state
advised defense counsel that it had discussed the matter with BCI SA Helmer who
advised that there was nothing of evidentiary value recovered from any DVR seized
from the Thomas' ranch, that the state did not intend to use anything from a DVR at
trial and, BCI SA Helmer was contacted to assist defense counsel if she wanted to
attempt to have her own personnel review the DVR or attempt to recover any video
[App., pp. 45-46];
e. On that same date, BCI SA’s Helmer and Helfrich advised that: neither of them
could find any video on any DVR that had power to it, but, also pointed out that they
had only reviewed it for the specific date and time of the events at the Thomas ranch
for which Thomas was charged (February 7, 2017 at/about 10:30 PM MT), had found
nothing of evidentiary value and, more specifically, they could find no video that
showed the victim or victim or subjects for the specified day and time and, they also
advised that a 2nd DVR had no power cable and, therefore, had not been reviewed
[App., pp. 45-47];
f. All of this information was forwarded to defense counsel and, on that same date,
she requested a copy of any DVR material recovered by BCI and, was advised by SA
Helmer that the BCI's Williston office was the only place of which he was aware that
could assist her in the matter if she wanted to have her own personnel perform that
function as BCI could not help [App., p. 47, 50, 55];
g. Again, defense counsel was advised that was not possible, there was nothing of
evidentiary value regarding the date/time of the offense and the state did not intend to
introduce any images from a DVR; but, if she wanted to review it, Minot was the BCI
15
office where the device was stored or, it could be transferred to Williston for
additional forensics if she wanted to arrange for same [App., p. 45];
h. Defense counsel persisted in her curiosity to view the device(s), the state
explained it could not produce anything for her but, it would be happy to stipulate that
she could either review the device herself or, perform any testing that she deemed
necessary (since the trial was 1 month away) but, that a continuance of trial was likely
to occur [App., p. 50];
i. The state reminded her that she could have unfettered access to any evidence in its
possession but, it could not access any data she was demanding because specialized
software was necessary and, to recover any data would require another continuance of
trial because of a lengthy delay imposed by these forensic activities [App., pp. 47, 50,
54-55, 60, 62, 66, 68];
j. Finally, at 3:30 PM on March 20, 2019, the state told defense counsel that she could
have access to the DVR(s) in Dickinson but, if she wanted forensic help from BCI,
that was going to require a trip to Minot; however, if the defendant intended to persist
in demanding a “download” of any data from the DVR, it would take an inordinate
amount of time and, the defendant had already “had over 2 years to make this request
if he really thinks there's something on here.” [App., p. 60, 66]; and
k. Ms. Weiler stated that she could not seek a continuance because she discussed it
with Thomas and, instead, he opted to proceed to trial without the DVR download
[Tr., pp. 23-24; 49].
16
[¶ 13] Thomas laid no adequate foundation at Judge Greenwood’s hearing on his post-
conviction relief hearing for either the DVR or any information stored on it and, the state
objected to its consideration as evidence by the district court because:
a. The device was returned to Thomas’ ex-wife Anette Faye Horn on June 22, 2020,
after the criminal trial court’s evidence disposition hearing on June 19, 2020 [Tr., p.
9; App2., pp. 24-26];
b. Horn could not provide a date, but she believed that within a couple of weeks,
thereafter, she delivered the DVR to Amanda Warwick [TR, pp. 9-10];
c. There was no chain of custody laid for the device between that date and the date
of the district court’s hearing (over 6 months later) on Thomas’ post-conviction relief
hearing [Tr., pp. 7-8, 42-43, 53-63, 64-68];
c. Neither Thomas, nor his witnesses Bobbi Weiler, Annette Horn, Amanda
Warwick, or Cassy Larson could lay a foundation or qualify themselves as experts on
the issue of the reliability or validity of the recordings [Tr., infra];
d. Warwick testified that she picked the DVR up from Horn on June 27, 2020, easily
recovered video with the use of a flash drive, maintained possession of the hard drive
until turning it over to hearing counsel on December 30, 2020, remembered that the
time stamp on the recovered recordings was the morning of February 3, 2017, and, 3
cameras were operating [Tr., pp. 53-58];
e. However, she also admitted that she had no specialized electronic abilities, there
was only her word to verify chain of custody between June 27th and December 30th,
2020, making her credibility crucial [Tr., pp. 58-59];
17
f. Unfortunately, she also admitted that she had attempted to interfere in Thomas'
2nd criminal re-trial by publishing hearsay, libelous remarks to potential jurors by
Internet and direct mail, had no training or work experience in dealing with electronic
recordings, was a repeated, confessed methamphetamine user, tested positive for
continued methamphetamine use while on felony probation twice in December, 2020,
had no personal knowledge of any events occurring in the morning of February 3,
2017, could not verify that her download of the DVR was accurate/reliable, or that the
date/time depicted was accurate [Tr., pp. 59-63];
g. Thomas' witness Cassy Larson added nothing to the district court's analysis other
than she was hearing counsel's assistant and, the DVR had been delivered to her by
Warwick on December 30, 2020, and, thereafter, she downloaded "copies" of
Warwick's video onto her cell phone [Tr., pp. 64-68];
h. The only competent, relevant testimony presented to the district court was from
Thomas' trial attorney Bobbi Weiler who stated that the DVR appeared to be from
February 3, 2017 at 9 AM, almost five days prior to the date of Thomas'
criminal activity [Tr., pp. 42-43];
i. Weiler also testified that even if the DVR could be authenticated, its only
relevance would be to rebut the state's rebuttal argument, precipitated by Weiler's
own cross examination, in the underlying criminal matter, of BCI SA Helmer [Tr., pp.
44; 79]; and
j. Weiler could not testify to anything other than speculate that Thomas' victim
might have disconnected one of the four cameras transmitting to the DVR over 4 days
before the criminal matter and, she could not even be sure of that [Tr., p. 44].
18
REQUEST FOR ORAL ARGUMENT
[¶ 14] Thomas has requested this Court schedule oral argument in this case pursuant to
N.D.R.App.P. 28(h). Because the Appellant has requested oral argument, the State so requests to
be present and argue on behalf of the Appellee.
LAW AND ARGUMENT
I. The District Court correctly ruled that the expert testimony of attorney Thomas
M. Tuntland, proffered by Appellant, was irrelevant, inadmissible, subjective
speculation, usurped the role of the court, and invaded the province of the court
because the objective standard of what are the prevailing norms of attorney practice
in North Dakota is a matter of law solely for the court to determine; and the expert
testimony of defense trial attorney Bobbi Weiler was speculation regarding the
effect (if any) of a DVR’s recordings on the jury’s verdict in the underlying criminal
matter and, in any event, no sufficient foundation was ever laid by Appellant to
substantiate the introduction of said “newly discovered” evidence at the district
court’s post-conviction relief hearing.
[¶ 15] Prior to the hearing on Thomas’ application for relief under N.D.C.C. Chapter 29-32.1 in
the district court, Thomas notified the state that he intended to call North Dakota attorney
Thomas M. Tuntland to express his expert opinion “[o]n a defense attorney's duties and
obligations during a jury trial to request jury instructions on all elements of the crimes charged
and to also request jury instructions on any justification, excuse, or affirmative defense that is
applicable to the crime or crimes charges.” Thereafter, the state moved, in limine, to preclude
such testimony because it was not relevant and usurped the role of the court [App., p. 80, pp.
100, 102-04].
19
[¶16] The state’s motion was sustained, after hearing on January 4, 2021, with Judge
Greenwood then, correctly, ruled that such testimony was not admissible citing the standard of
review for defense trial counsel’s performance (complained of by Thomas) was objective, solely
for the hearing court to determine; and, such proffered testimony was irrelevant, inadmissible,
nothing more than subjective opinion and usurped the role of the Court [App., pp. 107-14].
[¶17] Thomas concedes, and the state agrees, that he has a heavy burden to convince this court
that Judge Greenwood was in error in his ruling on the state’s said motion in limine because a
district court has broad discretion when making evidentiary decisions about what is/not relevant
for it to consider. In fact, the lower court may only be reversed when it abuses its discretion, i.e.,
acts arbitrarily, unconscionably, or unreasonably, or, it misinterprets or misapplies the law, or
when its decision is not based on a rational mental process leading to a reasoned decision. See,
State v. Kuruc, 2014 ND 95, ¶ 26, 846 N.W.2d 314; Larson v. Larson, 2016 ND 76, ¶ 32, 878
N.W.2d 54.
[¶18] However, Thomas then appears to attempt to cite the ND Rules of Evidence regarding the
foundation for a lay/expert opinion (Rules 701 and 704), for the blanket proposition that a trial
judge loses his discretion, per se, on the matters of foundation, relevance and admissibility just
because testimony is offered by a party litigant. Thomas continues to ignore the fact that it is the
district judge’s opinion, not that of lay/expert witness on the issue of competence of trial counsel,
that is all that is either relevant or admissible at the underlying hearing. And, speculation that
another attorney’s testimony would “be helpful” is simply self-serving and irrelevant.
20
[¶19] In particular, Thomas’ bold proposition that a “a criminal law attorney in the State of
North Dakota for over forty years was not enough to qualify [Thomas] Tuntland as an expert” on
the issue of a separate attorney’s competence is absurd. Thomas simply persists in his novel idea
that trial counsel and medical doctors are synonymous under NDREv. 702, 703 and 704 when it
comes to the issue of malpractice. Simply put, the elements of medical malpractice require expert
testimony to assist the finder-of-fact even at the outset of the suit. See, Cartwright v. Tong, 2017
ND 146, ¶ 10, 896 N.W.2d 638 (pre-requisite for medical malpractice claims includes the
mandatory requirement of N.D.C.C. § 28-01-46 to procure an affidavit containing an admissible
expert opinion to support a prima facie case of professional negligence).
[¶ 20] Thomas also fails to distinguish In the Matter of the Disciplinary Action Against William
E. McKechnie, 2003 ND 37, 657 N.W.2d 287 (ND 2003); and In the Matter of the Disciplinary
Action Against William E. McKechnie, 2003 ND 22, 656 N.W.2d 661 (ND 2003) in the genre of
ineffective assistance of criminal trial counsel claims. His analysis is confusing but, appears to be
that in attorney discipline hearings, interpretation of the North Dakota Rules of Professional
Conduct falls solely under the purview of the tribunal, whereas, interpretation of a defense
attorney’s conduct, at trial, which is controlled specifically by those same rules, is not.
[¶ 21] Thomas attempts to draw the distinction that the facts demonstrating an attorney’s
incompetence are, somehow, different than the standard to which that attorney was supposed to
perform and, therefore, a post-conviction relief proceeding, where ineffective assistance of
counsel is alleged, will now become a battle of the experts which will give the losing applicant
another grounds for an appeal because his/her “expert” had better credentials at the hearing.
[¶22] Thomas’ additional musings about objective reasonableness, burdens of persuasion, and
subjective testimony about what current norms of the legal profession, likely prejudice and,
21
ineffective assistance are simply more speculation. As Judge Greenwood correctly noted in his
order granting the state’s motion in limine dated January, 11, 2021,“To succeed 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.” Citing,
Rourke v. State. 2018 ND 137, 5, 912 N.W.2d 311; Hunter v. State. 2020 ND 224, ¶10, 949
N.W.2d 841; Strickland v. Washington. 466 U.S. 668, 104 S.Ct. 2052 [App., p. 108].
[¶23] The proper measure of attorney performance remains simply reasonableness under
prevailing professional norms, i.e., those norms set out in the ND Rules of Professional Conduct,
to wit: “to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to
avoid conflicts of interest. See, Cuyler v. Sullivan, 446 U.S. 335, 346, 100 S. Ct. 1708, 1717
(1980); to advocate the defendant’s cause and the more particular duties to consult with the
defendant on important decisions and to keep the defendant informed of important developments
in the course of the prosecution; bear such skill and knowledge as will render the trial a reliable
adversarial testing process. See, Powell v. Alabama. 287 U.S. 45, 68-69, 53 S. Ct. 55, 63-64
(1982).
[¶24] Judge Greenwood also noted that:
a. Thomas must establish the first prong of Srickland, supra, by “overcome[ing] the
'strong presumption' that trial counsel's representation fell within the wide range of
reasonable professional assistance, and courts must consciously attempt to limit the
distorting effect of hindsight.” Hunter, at ¶ 12, citing, Rourke v. State, supra; Laib v.
State, 2005 ND 187, ¶9, 705 N.W.2d 845.
22
b. An unsuccessful trial strategy does not make for defective assistance of counsel.
Brewer v. State, 2019 ND 69, ¶6, 924 N.W.2d 87.
c. Thomas had failed to establish the second prong of Strickland, supra, “the
defendant must specify how and where trial counsel was incompetent and the
probable different result.” Brewer, at ¶ 9; Middleton v. State. 2014 ND 144, ¶ 6, 849
N.W.2d 196.
d. “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.” (emphasis added) Rourke, at ¶ 6.
[¶25] Judge Greenwood also found that “After hours of independent research, this Court was
unable to find even one case, whether State or Federal, where the admissibility of opinion
evidence of what is that objective standard in an action for post-conviction relief was addressed.”
[App., pp. 110-11]. Therefore, the court ruled that “expert testimony regarding the interpretation
of the rules of professional conduct and whether a rule has been violated is inappropriate in a
disciplinary proceeding. Citing, In Re Disciplinary Action Against Boulger, 2001 ND 210, ¶ 13,
637 N.W.2d 710. Because “Interpretation of the rules of professional conduct, like interpretation
of statutes, is a question of law for a court to decide”. Citing, Hawkins v. Camm'n for Lawyer
Discipline, 988 S.W.2d 927, 936 (Tex.Ct.App.1999) [App., p. 111].
[¶26] Simply put, the district court correctly held that “the Strickland case and the Nix case2
make it clear that the rules of professional conduct are precisely what are to be addressed in a
petition for post-conviction relief. This Court concludes the rulings in the McKechnie cases are
dispositive”; “From the foregoing, this Court concludes that the objective standard of what are
2 Nix v. Whiteside, 475 US 157, 165-171, 106 S.Ct. 988; 89 L. Ed. 2d 123 (1986).
23
the prevailing norms of practice is a matter of law solely for the Court to determine. If allowed,
the proffered testimony, albeit purportedly based upon a review of facts, will provide nothing
more than opinion. Neither is the Court persuaded that the proffered opinion testimony is
relevant to the question of whether the conduct of Petitioner's trial counsel fell below such
standard is admissible. While this Court concludes that whether the conduct of Petitioner's trial
counsel fell below the applicable standard is a question of fact, the Court is not persuaded that
opinion evidence is admissible to resolve that question” [App, pp. 112].
II. The District Court properly denied Thomas’ Application for Post-Conviction
Relief in 21-2020-CV-00053.
[¶27] Thomas cites a mishmash of propositions for the alleged ineffective assistance of his trial
counsel and, although current appellant counsel attempts to make the argument more coherent,
the state will break down his high points in a more comprehensive manner to aid this court.
-Standard of Review-
[¶28] Thomas correctly points out that this Court must apply a “clearly erroneous” standard in
evaluating Judge Greenwood’s ruling which is found in N.D.R.Civ.P. Rule 52[a][6], i.e., “clearly
erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge
the witnesses' credibility” at the trial/hearing. In that regard, a finding of fact 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 the finding, a reviewing court is left with a definite
and firm conviction a mistake has been made. Roe v. State, 2017 ND 65, ¶ 5, 891 N.W.2d 745.
-Double Jeopardy-
[¶29] Thomas incorrectly opines that he preserved an ineffective assistance of counsel claim
based on double-jeopardy [see, his trial counsel’s testimony in the district court, [Tr., pp. 29-30].
24
As the district court stated in its final order, "at the hearing, Thomas offered no evidence on the
issues of counsel's alleged failure to assert a double jeopardy defense or, to attempt to exclude
evidence of other bad acts. In fact, the only evidence was from Thomas’ trial counsel Bobbi
Weiler who testified that she did not believe a self-defense claim was viable. Therefore, the
Court will not address those issues as Thomas has not sustained his burden to prove the same"
[App., pp. 116].
[¶30] Regardless, in the appeal of trial #2 in the underlying criminal matter, this court sustained
Thomas' conviction having no trouble with Weiler’s trial strategy, the state’s method of charging
or, the court’s instructions. See, State v. Thomas, 2020 ND 30, supra.
[¶31] N.D.C.C. §29-01-07 states that "No person can be twice put in jeopardy for the same
offense, nor can any person be subjected to a second prosecution for a public offense for which
that person has once been prosecuted and convicted, or acquitted, or put in jeopardy, except as is
provided by law for new trials". However, North Dakota strictly construes double jeopardy and,
if a defendant's own actions are successful in reversing a conviction, he may not, then, claim
double jeopardy in a re-trial. City of West Fargo. V. Ekstrom, 2020 ND 37, ¶35, 938 N.W.2d 915
(a mistrial requested by defendant).
[¶32] Thomas' argument is an erroneous interpretation of the "same elements" test first opined
in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), wherein, he
complains that he was acquitted of aggravated assault in trial #1 (in case numbered 21-2017-CR-
0006), the state chose not to re-try that count in trial #2 (along with the felonious restraint count
in the underlying criminal matter 21-2017-00011) and, since the elements of those two crimes
are synonymous, the state could not bring the charges ab initio.
25
[¶33] In construing the same elements test enumerated in Blockburger, supra, this court has
already held that if the Century Code clearly establishes two separate offenses, albeit with some
of the the same elements, as long as one crime has an additional element, double jeopardy does
not apply under Blockberger. See generally, Peterka v. State, 2015 ND 156, ¶ 1, 864 N.W.2d
745. In that regard, a simple review of N.D.C.C. §§12.1-17-02 (aggravated assault) and 12.1-18-
02[2] (felonious restraint) demonstrates that the former requires that a defendant actually "cause
serious bodily injury to another human being" or "fire a firearm at another human being";
whereas, the latter only requires that a defendant "knowingly restrain another under terrorizing
circumstances or under circumstances exposing him to risk of serious bodily injury". Again,
there is no valid double jeopardy argument as posed by Thomas. Peterka, infra.
[¶34] To adequately assist this honorable court, in truth and fact, what actually happened in
Thomas’ underlying criminal prosecutions was that:
a) The aggravated assault count listed in a companion case, State v. Thomas, 21-2017-
CR-00006 was dismissed on March 4, 2020, by the state, before the underlying
criminal trial giving rise to the instant matter [App2., p. 27]; and
b) The other two counts in the underlying criminal matter, referenced in this instant
case (class C felony terrorizing and class C felony reckless endangerment), had also
both been dismissed pre-trial [App., p. 4].
c) In prosecuting Thomas solely on the reckless endangerment charge, albeit as a
special dangerous offender, there was nothing amiss. See, State v. Thomas, supra
(Thomas’ criminal conviction affirmed).
[¶35] Thus, even assuming, arguendo, Thomas’ actions were “bad acts” on February 7, 2017,
(instead of simply the elements of felonious restraint), the state is at a loss to understand his
26
argument that the prosecution displaying (by testimony, cross-examination or documentary
evidence) these bad acts to the jury somehow introduced irrelevant evidence which caused its
“probative value [to] substantially outweigh the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence” as required by NDREvid 403.
[¶36] Thomas’ conclusory argument that he did not focus on these claims at the post-conviction
hearing held in this matter because his verified application included detailed facts (including
transcripts), law, and argument with respect to the issue of double jeopardy and the use of
character evidence for which he had been previously acquitted is simply without merit too as
required by N.D.C.C. §29-32.1-04 and, again, there was nothing for the district court to review.
[¶37] As the district court also pointed out in its order denying Thomas’ PCR relief, his own
testimony at trial raised these same “bad acts” when he was trying to establish that he was only
committing said “bad acts” in fear for his own safety [App., pp. 130-31, 138-39].
[¶38] And, the state cannot be held accountable for simply introducing relevant, competent
evidence at trial referring to Thomas actively assaulting and causing the victim (Mr. Crawford)
to suffer from extreme exposure and attendant injuries, hence, why his trial counsel did not
object at trial #2.
[¶39] Simply put, the foregoing matters of double jeopardy and/or instruction error for failing
to propose instructions on the issue should have been raised on the direct appeal of Thomas’
conviction in the underlying criminal matter. Flanagan v. State, 2006 ND 76, 712 N.W.2d 602
(instructional error is properly raised in direct appeal not post-conviction relief under N.D.C.C.
Chap. 29-32.1-01 and, this applies even in the context of a double jeopardy claim). Therefore,
the argument that Judge Greenwood’s factual findings on those two issues were clearly
27
erroneous is simply not supported by the record in this matter. State v. Zajac, 2009 ND 119, ¶12,
767 N.W.2d 825.
[¶40] Thomas’ trial counsel was simply not ineffective because he was not entitled to a jury
instruction because this honorable court, “reviews jury instructions as a whole to determine
whether the instructions fairly and adequately informed the jury of the applicable law. The
district court is not required to instruct the jury in the exact language sought by a party if the
instructions are not misleading or confusing, and if they fairly advise the jury of the law on the
essential issues of the case.” Only when a particular jury instruction “read as a whole, is
erroneous, relates to a subject central to the case, and affects the substantial rights of the
defendant, it is grounds for reversal.” Zajac, infra; citing, State v. Haugen, 2007 ND 195, ¶ 6,
742 N.W.2d 796; State v. Falconer, 2007 ND 89, ¶ 13, 732 N.W.2d 703; State v. Olander, 1998
ND 50, ¶ 18, 575 N.W.2d 658.
-Self Defense-
[¶41] Thomas also alleges ineffective assistance of trial counsel for failing to propose
instruction(s) on the issue of his use of force as self-defense, presumably, under N.D.C.C. §12.1-
05-03, which is also without merit. The foregoing Century Code definition of self-defense reads,
in pertinent part, as follows:
Self-defense. A person is justified in using force upon another person to defend
himself against danger of imminent unlawful bodily injury…except that…2. A person
is not justified in using force if:
a. He intentionally provokes unlawful action by another person to cause bodily
injury or death to such other person; or
b. He has entered into a mutual combat with another person or is the initial
aggressor unless he is resisting force which is clearly excessive in the
circumstances…
28
[¶42] As the district court correctly noted in its Order denying Thomas’ application under
N.D.C.C. Chap. 29-32.1, Thomas’ trial counsel was not ineffective in failing to ask for a self-
defense instruction because she did not believe that self-defense was an issue at trial:
a. Defense counsel testified that “I disagree with that statement that Mr. Thomas
was…laid any defense for self-defense…[b]ecause this incident is alleged to have
occurred over several hours” and Thomas did not testify that he pointed a gun at the
victim immediately ending any altercation [Tr., p. 29];
b. She also specifically testified that “if the incident had to -- had ended immediately
after Mr. Thomas pointing the gun or grabbing the gun, then I would have argued
self-defense, but there were several other hours that had gone on, and Mr. Thomas, in
his testimony, admitted that he had went after the alleged victim after he had escaped
from the house and went and found him and spent time looking for him, and then got
him back in the vehicle and drove it back to the house, and so in my opinion self-
defense was not appropriate, nor would I have grounds to have asked for it from the
Court.” [Tr., p. 30]; and
c. She further clarified that “I would have requested a self-defense instruction
had the incident stopped right after Mr. Crawford came in the house that Mr. Thomas
had pointed or grabbed the gun at that point, and Mr. -- it would have ended it, and
Mr. Crawford would have left at that point, I would have requested a self-defense
instruction [Tr., p. 30].
[¶43] Unfortunately for Thomas, as Judge Greenwood stated, that there was simply no
evidence, other than, Thomas own testimony that he pointed a gun at the victim and, the credible
evidence presented at trial was that, at that time, the victim came into the Thomas residence
29
invited and displaying no ill intent. Therefore, Judge Greenwood, in reviewing the jury
instructions actually given at trial, in the light must favorable to Thomas but, in the context of
Zajac, supra, found no basis for a self-defense instruction [App., pp. 129-35].
[¶44] Therefore, Judge Greenwood, in reviewing Thomas’ instant complaints about trial
counsel, could not find that the prejudice prong of Strickland, supra, had been satisfied and,
therefore, trial counsel was not ineffective because her trial strategy was sound. See, Brewer v.
State, at ¶6 (an unsuccessful trial strategy does not make for defective assistance of counsel)
[App., pp. 129-35].
[¶45] The state deals with Thomas’ argument that Judge Greenwood’s refusal to allow
Thomas’ trial counsel to testify about the prejudicial effect of an alleged DVR recording, in the
next section of this brief, however, suffice it to say that there was nothing depicted in that/those
video(s) which warranted the giving of a self-defense instruction either.
-Newly Discovered Video Evidence-
[¶46] Thomas contends that the state did not make reasonable accommodations for his trial
counsel to view certain DVR “recordings” seized by the ND BCI on their search warrant.
Therefore, he alleges that his trial attorney was ineffective because she did not object and/or
preserve the issue of the “newly discovered evidence”, accepted the State’s determination that
there was nothing of evidentiary value on the video and/or did not seek a continuance to deal
with the extremely late disclosure of the video by the State [Tr., p. 49].
[¶47] Unfortunately, Thomas’ assertions are not borne-out by the record. Between February 18,
and March 20, 2019, underlying defense counsel and the state corresponded about these DVR
matters and, the following is what actually transpired demonstrating his trial counsel’s diligence
and then strategy to avoid the issue and let the matter drop in favor of a speedy trial:
30
a. Defense counsel did request, for the first time since 2017, to view/examine the
contents of these 2 DVR’s on February 18, 2019, but, the state’s expert, the ND BCI
forensics agent Pat Helfrich, related that BCI could only access the data she was
wanting to review with specialized software which he did not possess at that time
[App., pp. 54, 60, 66].
b. BCI offered to allow Defense counsel or her own investigator to travel to BCI’s
Minot office where the devices were being stored [App., pp. 48, 51, 57, 60, 63, 66,
69].
c. The BCI expert stated that both he and the investigator “did find videos on one of
the DVR's (the one that they had power to) and, had “cloned the HDD of the DVR
and used that in the DVR to view the videos”. Since he was looking for any video
from the exact date and time of the instant offense, “there was no video that showed
the victim or subjects for the specified day and time. There was videos [sic] but again
nothing of evidentiary value.” [App., p. 46]
d. The BCI expert also noted that the “second DVR had no power cable and I was
unable to view the contents of that” [App., pp. 45-46, 48, 52, 57, 70].
[¶48] In addition, Thomas’ license with what he claims are depicted on the video now ignores
the foundational requirement that he was forced to prove prior to moving for their admission as
consideration by judge Greenwood. See, State v. Cook, 2018 ND 100, 910 N.W.2d 179 (drug
possession case where defendant alleged foundation and chain of custody defects with the state’s
evidence).
This Court has held that a proper chain of custody is a foundational requirement to
account for the whereabouts of physical evidence up until the time it is admitted at
trial to ensure that the physical evidence is in substantially the same condition at the
time it is admitted into evidence… If the district court is reasonably satisfied that the
31
item offered is what it is purported to be and that the condition of the item is
substantially unchanged, it is properly admissible into evidence. Any defect in the
chain of custody goes to the weight of the evidence rather than the admissibility of
the evidence. The admission or exclusion of physical evidence is within the sound
discretion of the district court, and the district court's decision thereon will not
be disturbed on appeal absent an abuse of discretion. Cook, at ¶12.
[¶49] What actually transpired in the underlying application for post-conviction relief in district
court can be accurately summarized as stated above:
a. The DVR was returned to Thomas’ ex-wife Annette Horn on June 22, 2020, after
a Motion to Return Property seized pursuant to search warrant was heard by Judge
Greenwood in the underlying criminal matter [App2., pp. 24-26; Tr., pp. 5-6];
b. Horn testified in the district court post-conviction relief matter that, thereafter, she
never inspected the DVR during the time it was in her custody, delivered it to
Amanda Warwick (exact date unknown), did not see it again until December 31,
2020, and had no idea what was depicted on it [Tr., pp. 7-8, 9-10];
c. Thomas, himself, had no idea what had transpired regarding chain of custody [Tr.,
pp. 14, 20];
d. Attorney Bobbi Weiler could add nothing to the chain of custody or authenticity
of any recordings except to testify, over the state’s objection that the DVR recording
tendered by Thomas at the district court hearing appeared to be from February 3,
2017 at 9 AM, almost five days prior to the date of Thomas' criminal activity [Tr.,
pp. 42-43];
e. And, again, the DVR's only relevance would be to rebut the state's rebuttal
argument which was precipitated by Weiler's own cross examination of state's witness
BCI SA Helmer, in the underlying criminal matter [Tr., pp. 44]; and
32
f. Even at that, Weiler could still only speculate that Thomas' victim might have
disconnected one of the four cameras transmitting to the DVR over 4 days before the
criminal matter and, she could not even be sure of that [Tr., p. 44].
[¶50] So, Thomas’ conclusory and self-serving claims that the DVR’s recordings showed that
over 4 days before his attack on the victim, Tyrel Crawford (the victim) walked up to one of the
cameras linked to his security DVR, it then appeared to jostle, and, thereafter, the video no
longer recorded are mere conclusory speculation on his part and, even by his own trial attorney's
admission, certainly, do not demonstrate a justification for self-defense [Tr., pp. 30-32].
[¶51] As stated, even assuming that the DVR recording(s) is/was relevant at Thomas’
underlying criminal trial, he had knowledge of, and access to, the recordings and his trial counsel
exercised her strategy to forego examination of the DVR and its recording to avoid a continuance
[Tr., pp. 17-19].
[¶52] In the context of a post-conviction relief motion under N.D.C.C. Chapter 29-32.1, newly
discovered evidence or state misconduct in providing recordings or reports are not favored and, a
heavy burden is place on an applicant to show manifest injustice. Lindsey v. State, 2014 ND 174,
852 N.W.2d 383 (summary dismissal of PCR application after guilty plea affirmed); State v.
Atkins, 2019 ND 145, ¶17, 928 N.W.2d 441 (applicant has the same burden as NDRCrim P 33
which requires vacation of the conviction or sentence in the interest of justice and, remand for
new trial only if the district court abuses its discretion in its ruling on the matter after finding that
the defendant did not use due diligence in pursuing that information); State v. Skaro, 474 N.W.2d
711, 714 (ND 1991) (even where evidence is newly discovered, the applicant has the burden to
prove that it would have produced an acquittal in the event of a retrial).
Post-conviction relief may be granted on grounds of newly discovered evidence when
evidence, not previously presented and heard, exists requiring vacation of the
33
conviction or sentence in the interest of justice. We have said this ground for relief 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 proof to prevail. A defendant…under
N.D.C.C. § 29–32.1–01(1)(e) must demonstrate a manifest injustice…We have also
explained the manifest injustice analysis for newly discovered evidence is similar to
the N.D.R.Crim.P. 33 analysis…The defendant must show (1) the evidence was
discovered after [conviction], (2) the failure to learn about the evidence before the
plea was not the result of the defendant's lack of diligence, (3) the newly discovered
evidence is material to what would have been the issues at trial, and (4) the weight
and quality of the newly discovered evidence would likely result in an acquittal at
trial. Lindsey at ¶ 29.
The task of weighing the evidence and judging the credibility of witnesses belongs
exclusively to the trier of fact, and we do not reweigh credibility or resolve conflicts
in the evidence. Atkins, at ¶ 18; citing, Greywind v. State, 2004 ND 213, ¶ 22, 689
N.W.2d 390.
It is easy for new counsel on appeal (or for an appellate judge, for that matter) to go
through a transcript and find matters that could have been explored further, questions
that could have been asked but were not, questions that were asked that should not
have been asked, objections that could have been made that were not, and witnesses
who could have been called but were not or witnesses who would have been better
left uncalled. Hindsight is perfect and criticism is easy. But the lawyer engaged in a
trial, who has made an investigation of the facts and has talked to the witnesses, may
have his own reasons and they may be very good reasons for not asking a question or
making an objection or calling a witness. In all fairness, courts must pay some respect
to the right and duty of attorneys, whether court-appointed or not, to use judgment in
the heat of a trial, and we must have some doubts about the accuracy of second-
guesses later on. Thus, we should scrutinize trial counsel's conduct with a great deal
of deference and consciously attempt to limit the distorting effect of hindsight.
Skaro, at p. 717.
[¶53] In Lindsey, her treating psychologist was arrested and convicted for possessing child
pornography after her plea and, therefore, the defendant claimed that he not in a position to
evaluate her psychological condition because “he was [admittedly] mentally ill at the time of the
evaluation and had she known this information, she could have made a stronger case and would
not have taken the guilty plea. She also notes other courts have granted new trials for other
defendants based on the subsequent child pornography convictions of Dr. Belanger.” Lindsey, at
¶ 30. This court disagreed ruling that “Lindsey arguably may have satisfied some of the
34
requirements, but we conclude she has not established that ‘the weight and quality of the newly
discovered evidence would likely result in an acquittal at trial.’” Id, at ¶ 31. In addition, the court
also ruled that:
Lindsey contends the State engaged in prosecutorial misconduct when it failed to
produce to her defense counsel any video or audio recordings of her interviews with
Dr. Belanger…Lindsey contends the State's prosecutorial misconduct was
“devastating” to her defense because, based on the State's failure to provide audio or
video recordings of her interviews, the State should not have been permitted to use
Dr. Belanger's report at that time. She asserts her discussions on recordings contradict
elements of Dr. Belanger's final evaluation. Lindsey, however, concedes that before
she had pleaded guilty, her counsel had made a motion in limine based on the State's
failure to comply with N.D.C.C. ch. 12.1–04.1 and the State had responded that the
failure to produce the recordings was an oversight. She thus knew of a potential
evidentiary issue when she pleaded guilty. Id, at ¶’s 33-34.
-Failure to Produce Beneficial Witnesses/Argument-
[¶54] Thomas also opines that his underlying trial attorney’s strategy was to acquiesce in the
state’s theory of “vigilante justice” as the trial theme in the underlying criminal matter because
one of his prior attorneys in trial #1 called fact witnesses Clinton Lilly, Dolly Cook, Nolan
Gentry, or Brett Chamberlain and, Bobbi Weiler should have also done so. Attorney Weiler
disagreed:
a. Clinton Lilly's testimony, by stipulation, included "seeing the victim the night
before with a backpack full of money"; which Weiler believed would play into the
state's theme that Thomas committed felonious restraint, including the torture of the
victim, in retaliation for money that had gone missing at the Thomas' ranch during the
time the victim had previously been present [Tr., p. 35].
b. No testimony was presented to the district court about the need to call Cook,
Gentry or Chamberlain, but, attorney Weiler testified that, during the trial, she and
Thomas "had numerous discussions" about witnesses and, "Mr. Thomas was actively
35
involved in his case, [she] sent numerous letters, and so [she's] assuming we did" [Tr.,
p. 36].
[¶55] Therefore, Thomas fails on alleging the foregoing as a grounds of ineffective assistance
of counsel because he has wholly to explain exactly what these people might have actually
testified to that would have been to his benefit in the underlying criminal matter. See, Matthews
v. State, 2005 ND 202, 706 N.W.2d 74.
[¶56] Nor, how the results in the underlying criminal matter would have been different had
these potential witnesses testified, Id.; or how the failure to call these witnesses was simply not
the presumed trial strategy employed by underlying trial counsel and, not an appropriate grounds
for relief. See, DeCouteau v. State, 2000 ND 44, ¶12, 608 N.W.2d 240. As stated in DeCouteau,
“It is for trial counsel and not appellate courts to determine trial strategy and tactics…We will
not second-guess the trial strategy and tactics of the attorney. Instead, we follow our cautious
directive” that it is easy for appellate courts and other attorneys to opine that trial strategy could
have been different because “Hindsight is perfect and criticism is easy. But the lawyer engaged
in a trial, who has made an investigation of the facts and has talked to the witnesses, may have
his own reasons and they may be very good reasons for not asking a question or making an
objection or calling a witness. In all fairness, courts must pay some respect to the right and duty
of attorneys, whether court-appointed or not, to use judgment in the heat of a trial, and we must
have some doubts about the accuracy of second-guesses later on.” Id, citing, State v. Wilson, 488
N.W.2d [618, 622 (N.D. 1992); State v. Skaro, at p. 716.
[¶57] For the same reasons cited infra, Thomas’ opinion that his trial counsel failed to
file/argue a motion in limine regarding bad acts evidence pertaining to him is also without merit
because he ignores the fact that his attorney did argue motions regarding relevant prior bad acts
36
evidence but, only as they pertained to the victim in this matter. Again, this is presumed trial
strategy and is not a grounds for this court to reverse Judge Greenwood’s ruling. Brewer v. State,
at ¶6; DeCouteau, supra; State v. Wilson, supra; State v. Skaro, supra.
CONCLUSION
[¶58] For the above stated reasons, Thomas’ appeal should be denied. Therefore, the State of
North Dakota respectfully requests that this Court AFFIRM the district court’s Order Denying
Petitioner’s Amended Application for Post-Conviction Relief.
Dated this 14th day of June, 2021.
\S\ Pat J. Merriman
Pat J. Merriman #07453
Asst. Hettinger County State's Attorney
336 Pacific Ave.
Mott, ND 58646
(701) 824-2329
Fax (701) 824-2413
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Ross Charles Thomas, ) Supreme Court No. 20210056
)
Petitioner and Appellant, ) Case No. 21-2020-CV-00053
)
vs. )
)
State of North Dakota, )
)
Respondent and Appellee. )
CERTIFICATE OF COMPLIANCE
[¶1] The State of North Dakota, by and through Assistant State's Attorney Pat J. Merriman
hereby certifies that the attached brief complies with the page limitation as set forth in Rule 32 of
the North Dakota Rules of Appellate Procedure. The electronically filed brief contains 36
numbered pages.
Dated this 14th day of June, 2021.
\S\ Pat J. Merriman
Pat J. Merriman #07453
Asst. Hettinger County State's Attorney
336 Pacific Ave.
Mott, ND 58646
(701) 824-2329
Fax (701) 824-2413
