Broadwell v. State, 2014 ND 6

Background

In August 2011 Broadwell was arrested after two acquaintances accused him of assault, threats, and breaking into their home; a neighbor later identified a person with Broadwell’s build leaving the victims’ residence. Hat, sunglasses, and a knife were recovered and sent for latent print and DNA testing.
Broadwell was tried by jury and convicted of burglary, terrorizing, making a false report, giving false information to law enforcement, simple assault, and disorderly conduct.
Broadwell’s direct appeal was dismissed pursuant to his attorney’s motion. He then filed a postconviction relief application alleging ineffective assistance of counsel and prosecutorial misconduct, among other claims.
After an evidentiary hearing the district court denied postconviction relief; Broadwell appealed that denial to the North Dakota Supreme Court.
The Supreme Court reviewed the ineffective assistance and prosecutorial misconduct claims, focusing primarily on whether Broadwell proved prejudice under Strickland and whether alleged prosecutorial errors affected his right to a fair trial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance of counsel (general)	Counsel failed to pursue/disclose DNA, failed to exclude or object to prior crimes evidence, failed to present exculpatory evidence, and failed to challenge eyewitness ID	Counsel did request discovery, had the DNA report by trial, made tactical decisions about objections/limiting instructions, and could not identify how different conduct would have changed the outcome	Denied — Broadwell failed to prove prejudice under Strickland; district court findings supported by hearing testimony
Timely disclosure of DNA report (prosecutorial misconduct)	Prosecutor failed to disclose DNA report timely, undermining fairness	Trial counsel had the DNA report by trial and elicited testimony showing Broadwell’s DNA did not match; no prejudice shown	Denied — even assuming late disclosure, Broadwell was not prejudiced because counsel had report and used it at trial
State’s failure to call alibi witness (prosecutorial misconduct)	Prosecutor’s decision not to call a witness deprived Broadwell of an alibi and was misconduct	State’s choice not to call witnesses is not misconduct; Broadwell cites no authority showing a constitutional violation	Denied — meritless; failure to call a witness is not prosecutorial misconduct as argued
Consideration of issues not presented below	Broadwell raised additional arguments on appeal that were not presented to the district court	Issues not raised below should not be considered on appeal	Declined to address claims not raised below; affirmed district court order

Key Cases Cited

Lund v. Lund, 795 N.W.2d 318 (N.D. 2011) (treats attempted appeal from order as appeal from subsequently entered consistent judgment)
Moore v. State, 734 N.W.2d 336 (N.D. 2007) (postconviction proceedings are civil and petitioner bears burden)
Ellis v. State, 660 N.W.2d 603 (N.D. 2003) (postconviction factual findings reviewed for clear error)
Hill v. State, 615 N.W.2d 135 (N.D. 2000) (standard for review of postconviction factual findings)
Cue v. State, 663 N.W.2d 637 (N.D. 2003) (definition of clearly erroneous in postconviction context)
Garcia v. State, 678 N.W.2d 568 (N.D. 2004) (ineffective assistance is mixed question of law and fact; Strickland standard applies)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (counsel performance and prejudice test for ineffective assistance)
Coppage v. State, 826 N.W.2d 320 (N.D. 2013) (prejudice assessed in context of entire record; not presumed except in extreme cases)
State v. McLain, 403 N.W.2d 16 (N.D. 1987) (courts may dispose of ineffective assistance claims by addressing either Strickland prong)
State v. Evans, 838 N.W.2d 605 (N.D. 2013) (standard for reviewing preserved prosecutorial misconduct claims)
State v. Muhle, 737 N.W.2d 647 (N.D. 2007) (obvious error analysis for unpreserved prosecutorial misconduct on direct appeal)
State v. Demarais, 770 N.W.2d 246 (N.D. 2009) (party must provide persuasive authority; bare assertions insufficient)
Frison v. Ohlhauser, 812 N.W.2d 445 (N.D. 2012) (issues not raised below generally not considered on appeal)