Smith v. State

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                  

Marquis Smith,                                           Petitioner and Appellee
     v.
State of North Dakota,                               Respondent and Appellant

                                 No. 20250127

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Lindsey R. Nieuwsma, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
INSTRUCTIONS.

Opinion of the Court by Jensen, Chief Justice.

Kyle R. Craig, Minot, ND, for petitioner and appellee.

Isaac O. Lees (argued) and Gabrielle J. Goter (on brief), Assistant State’s
Attorneys, Bismarck, ND, for respondent and appellant.
                                  Smith v. State
                                  No. 20250127

Jensen, Chief Justice.

[¶1] The State appeals from an order granting Marquis Smith’s application for
postconviction relief. The district court held Smith received ineffective assistance
of counsel when his attorney failed to object to evidence the State offered at his
trial under N.D.R.Ev. 404(b). We affirm in part, reverse in part, and remand for
further proceedings, concluding: (1) the court’s finding that trial counsel’s
representation fell below an objective standard of reasonableness under the first
prong of the Strickland test was not clearly erroneous; (2) the court’s conclusion
Smith was prejudiced under Strickland’s second prong is insufficiently explained
to permit appellate review; and (3) remand is appropriate to supplement the
record and address all of the grounds Smith raised in his application.

                                         I

[¶2] In 2018, a jury convicted Smith on two felony counts of gross sexual
imposition, finding Smith had sexual contact with the seven-year-old female
child of his girlfriend. On direct appeal, this Court affirmed the judgment of
conviction. State v. Smith, 

, 

. Smith was
represented on his direct appeal by his trial counsel and argued the district court
erred by failing to exclude evidence the State offered about Smith’s pornographic
website searches related to incest. We concluded Smith forfeited that issue by
“failing to move to exclude the evidence of the web browser history under
N.D.R.Ev. 404 in a motion in limine and to object at trial[.]” Id. ¶ 14. We declined
to address whether the admission of the evidence was obvious error because
Smith failed to develop an argument about obvious error on appeal. Id. ¶ 16.

[¶3] Smith subsequently applied for postconviction relief arguing he received
ineffective assistance of counsel for several reasons, including his counsel’s
failure to object at trial to the Rule 404(b) evidence and counsel’s failure to argue
on appeal the admission of the evidence was obvious error. Smith’s application
characterized the State’s case—in the absence of the Rule 404(b) evidence—as
consisting of little more than a child victim who repeatedly testified she could


                                         1
not remember what had happened. The record reflects that during her testimony,
the child victim correctly identified the setting where the sexual contact
occurred, what she was doing at the time, what she was wearing, some of the
clothing Smith was wearing, Smith as the adult present, and that something bad
happened she did not want to discuss. She also identified Smith in the
courtroom, and testified she told her mother and a child forensic interviewer
about the bad thing that had happened to her.

[¶4] The State introduced a video recording of the forensic child interview as
well as testimony from the interviewer explaining aspects of the recording. In
addition, the mother testified her daughter told her what had happened at the
earliest opportunity; this disclosure was witnessed by the child’s babysitter, who
also testified. The evidence also included: (1) Smith contacting the child’s mother
before the child told her about the incident to tell her the child was going to claim
she touched his penis, but that the claim would be untrue; (2) what could be
construed as an inconsistency between Smith claiming the incident never
happened, but if it did happen he mistook the seven-year-old child for his
girlfriend because he had taken a small amount of codeine in cough syrup for a
toothache; (3) what the State characterized as a “partial confession” when Smith
referred to touching the child before the police had told him the child had
reported that particular act of sexual contact; (4) Smith acknowledging the
incident occurred (despite passing it off as an “accident”); and (5) evidence
impeaching Smith’s credibility in the nature of testimony about recovered videos
of Smith’s girlfriend’s children bathing—which Smith had deleted from his
phone—coupled with Smith claiming he never bathed the children outside his
girlfriend’s presence, but the girlfriend denying knowledge of the videos.

[¶5] In addition, the State’s introduction of the pornographic website searches
consisted of less than two pages of a 284-page trial transcript. The State neither
relied upon nor mentioned the pornographic website searches in closing
argument.

[¶6] After an evidentiary hearing, the district court granted Smith’s
application. Applying the two-prong test under Strickland v. Washington, 

 (1984), the court held trial counsel’s failure to present an adequate pretrial


                                         2
objection, failure to object at trial, and failure to request a limiting or cautionary
instruction on the pornographic website search evidence all constituted legal
errors which fell below an objective standard of reasonableness under
Strickland’s first prong. In doing so, the district court relied in large part on this
Court’s decision in Brewer v. State, 

, 

.

[¶7] With respect to Strickland’s second prejudice prong, the district court’s
analysis consisted of two paragraphs that did not include an explicit assessment
of the remaining evidence presented against Smith in the absence of the
pornographic website search evidence. Rather, the court summarily concluded:
“As in Brewer, Mr. Smith ‘was prejudiced by the failure to object at trial
regardless of whether the objection would have been sustained or overruled.’ . .
. It is abundantly clear that these omissions were prejudicial to Mr. Smith, both
at the district court level and on appeal.”

[¶8] The State filed a timely appeal of the order granting Smith’s application
for postconviction relief.

                                         II

[¶9] The State first argues the district court erred by finding Smith satisfied the
first prong of the Strickland test. “The question of ineffective assistance of counsel
is a mixed question of law and fact and is fully reviewable on appeal.” Thomas v.
State, 

, 

. The court’s findings of fact regarding a
claim of ineffective assistance of counsel will not be disturbed on appeal unless
clearly erroneous under N.D.R.Civ.P. 52(a). Brewer, 

. “A finding
is clearly erroneous if it is induced by an erroneous view of the law, if it is not
supported by any evidence, or if, although there is some evidence to support it,
a reviewing court is left with a definite and firm conviction a mistake has been
made.” 

 (quoting Middleton v. State, 

, 

).

[¶10] In Brewer, trial counsel brought a pretrial motion in limine to exclude Rule
404(b) evidence in a gross sexual imposition case, the motion in limine was
denied, and then counsel failed to renew the objection at trial when the State
offered the evidence. Brewer, 

. This Court “conclude[d] failing to



                                          3
object at trial because of reliance on the record made in a pretrial motion is a
basic legal error that satisfies Strickland’s prong one.” Id. ¶ 8.

[¶11] The errors here went beyond those involved in Brewer. Counsel not only
failed to object to the Rule 404(b) evidence when it was offered at trial, but failed
to attempt to exclude the evidence under Rule 404(b) prior to trial. Counsel had
filed a pretrial motion in limine requesting exclusion of the pornographic
website search evidence under Rules 401 and 403 of the North Dakota Rules of
Evidence. After the State filed a notice of intent to use the evidence under Rule
404(b), the trial court advised counsel it would not consider the Rule 404(b) issue
in the pending motion in limine and told counsel it would address the Rule
404(b) issue if and when a written response was filed to the State’s notice of
intent. Counsel never filed a written response to the State’s notice of intent.
Counsel then failed to object at trial when the State offered the evidence, either
within or outside the presence of the jury. He also failed to request a curative or
limiting instruction after the State introduced the evidence at trial. Finally, on
direct appeal, counsel failed to develop an argument about obvious error.

[¶12] Counsel’s cumulative failures prevented both the trial court and this Court
from conducting the full Rule 404(b) analysis that this Court has repeatedly
emphasized must be performed. See, e.g., Brewer, 

 (collecting
cases where criminal convictions were reversed due to the lack of a proper Rule
404(b) analysis). Counsel’s errors satisfy Strickland’s first prong. The district
court did not err when it concluded counsel’s representation fell below an
objective standard of reasonableness.

                                        III

[¶13] The State next argues the district court erred by concluding Smith satisfied
Strickland’s prejudice prong. Under Strickland’s second prong, an applicant for
postconviction relief must “show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” 

. Importantly, “the prejudicial effect of counsel’s errors
must be assessed within the context of the remaining evidence properly
presented and the overall conduct of the trial.” Brewer, 

 (emphasis


                                         4
added) (cleaned up). To evaluate a claim of prejudice, the “court considers not
only the evidence introduced up to that point in the trial, but must consider the
probability of a different result in light of the evidence presented and the overall
conduct of the entire trial before and after the claimed error.” 

[¶14] The record does not reflect that the district court conducted the required
assessment of the evidence before concluding counsel’s errors prejudiced Smith
and changed the outcome of the proceeding. Instead, the record suggests the
district court may have interpreted some of this Court’s past decisions referring
to the “inherent prejudicial effect” of Rule 404(b) evidence as adopting a per se
rule of prejudice under Strickland. See, e.g., State v. Osier, 

, 

 (noting that Rule 404(b) “acknowledges the inherent prejudicial
effect prior bad act evidence may have on the trier of fact”); State v. Shaw, 

, 

 (same).

[¶15] Our past comments about the prejudice inherent in Rule 404(b) evidence
have been made to explain the importance of conducting the obligatory three-step analysis required by Rule 404(b) and—even when the evidence meets that
test—the need to perform Rule 403’s balancing test to determine if the evidence
should still be excluded because of the danger of unfair prejudice. But we have
not adopted a per se rule of prejudice under Strickland when prejudicial evidence
is admitted under Rule 404(b). “Even when the district court errs by failing to
make a record of the Rule 404(b) three-step analysis and Rule 403 balancing test,
the error may be harmless if there is sufficient evidence to support the conviction
independent from the prior bad acts evidence.” State v. Van Halsey, 

, 

.

[¶16] Prejudice under Rule 404(b) and prejudice under the second prong of
Strickland involve different legal standards in different contexts. Rule 404(b), in
relevant part, focuses on whether the probative value of prior bad acts is
substantially outweighed by the danger of unfair prejudice under Rule 403.
Strickland’s second prong, on the other hand, evaluates whether counsel’s
deficient performance prejudiced a defendant by showing a reasonable
probability the outcome of the proceeding would have been different. The
prejudice of the erroneous admission of Rule 404(b) evidence, in the Strickland


                                         5
context, still requires a court to assess “the probability of a different result in
light of the evidence presented and the overall conduct of the entire trial before
and after the claimed error.” Brewer, 

. In Brewer, we discussed
the admission of the Rule 404(b) evidence in the context of the overall trial before
concluding its admission undermined our confidence in the verdict. See id. ¶ 13.

[¶17] The district court erred when it concluded Smith was prejudiced by
counsel’s errors without first conducting the required assessment of the
remaining evidence and overall conduct of the trial under Strickland’s prejudice
prong.

                                        IV

[¶18] After Smith’s application for postconviction relief was filed, but before the
court issued its order granting the application, the video recording of the child
victim’s forensic interview was destroyed, presumably pursuant to N.D.R.Ct.
6.4. If the existing record can be supplemented with the video, the video will be
an important piece of evidence to consider when conducting the assessment
required under Strickland’s prejudice prong.

[¶19] At oral argument, the State indicated the video recording of the forensic
interview may still be available. The Uniform Postconviction Procedure Act
encourages the introduction of additional evidence to evaluate claims, when
necessary. See Overlie v. State, 

, 

; see also State v.
Frederick, 

, 

 (discussing the parties’ ability
to reconstruct or supplement an inadequate record that may affect a defendant’s
substantial rights). We decline to conduct our own assessment of the evidence
under Strickland’s prejudice prong when there is a possibility the record can be
supplemented with the video recording. Instead, we remand this case to the
district court to supplement the record with the video recording of the forensic
interview, if possible, before performing the assessment required under
Strickland’s prejudice prong.




                                         6
                                        V

[¶20] We affirm the district court’s determination that Smith’s counsel’s
representation fell below an objective standard of reasonableness. We reverse the
court’s determination that Smith demonstrated he was prejudiced by counsel’s
errors because the court failed to assess the prejudicial effect of counsel’s errors
within the context of the remaining evidence properly presented and the overall
conduct of the trial. We remand with instructions to supplement the record, if
possible, before conducting the assessment required under Strickland’s prejudice
prong.

[¶21] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




                                         7