Coppage v. State
2014 ND 42
| N.D. | 2014Background
- Ernest Coppage was tried and convicted by a jury of attempted murder and aggravated assault for a 2006 domestic attack; the trial included cross-examination about a 2004 misdemeanor domestic-assault conviction admitted to impeach Coppage.
- Coppage exhausted direct appeal (affirmed), pursued multiple post-conviction petitions, and obtained partial relief on remand before this appeal; the litigation history includes Coppage I, II, and III decisions by the North Dakota Supreme Court.
- On remand, the district court found some counsel ineffective but concluded Coppage failed to show a reasonable probability the outcomes (trial, appeal, prior PCR) would have been different, and denied relief.
- While this appeal was pending, this Court decided Dominguez, holding attempted murder as defined by N.D.C.C. § 12.1-16-01(1)(b) (murder by extreme indifference) cannot support an attempt conviction because that form of murder does not require intent to kill.
- The jury instructions and prosecutor’s argument in Coppage’s trial made clear the State relied on the § 12.1-16-01(1)(b) theory (extreme indifference) for attempted murder.
- The Court concluded attempted murder under §§ 12.1-06-01 and 12.1-16-01(1)(b) is not a cognizable offense, vacated the attempted-murder conviction, reinstated aggravated assault, and remanded for resentencing.
Issues
| Issue | Coppage's Argument | State's Argument | Held |
|---|---|---|---|
| Ineffective assistance of counsel (trial, appellate, first PCR) | Counsel erred by failing to request a limiting instruction and by not raising issues on appeal/PCR; this prejudiced trial results | Even if deficient, no reasonable probability outcome would differ given the residual aggravated-assault conviction and record | Court: Coppage failed to show prejudice; ineffective-assistance claims denied (as to relief sought) |
| Prosecutorial misconduct (use of prior misdemeanor, impeachment and closing argument) | Prosecutor improperly engineered admission of prior misdemeanor and repeatedly labeled Coppage a liar, prejudicing trial | State: conduct did not misstate law/facts, no prejudice, objections lacking so plain-error review | Court: Prosecutor’s conduct did not deprive Coppage of a fair trial; no relief granted |
| Validity of attempted-murder charge under § 12.1-16-01(1)(b) (extreme indifference) | (Not raised by Coppage originally) Trial and verdict relied on extreme-indifference theory | State previously argued § 12.1-16-01(1)(b) supports attempted murder because it requires intentional conduct manifesting extreme indifference | Court: Following Dominguez/Borner/Whitman, attempted murder under § 12.1-16-01(1)(b) is not a cognizable offense; obvious error noticed; attempted-murder conviction vacated |
| Remedy / effect on aggravated-assault conviction | Coppage sought relief and a new trial for attempted murder; he conceded aggravated assault was supported | State urged judgment should stand or retrial permitted on proper charging instrument | Court: Vacated attempted-murder judgment, reinstated jury’s aggravated-assault verdict, remanded to enter judgment and resentence on aggravated assault; retrial not required on that count |
Key Cases Cited
- Dominguez v. State, 840 N.W.2d 596 (N.D. 2013) (attempted murder under § 12.1-16-01(1)(b) is not a cognizable offense)
- State v. Borner, 836 N.W.2d 383 (N.D. 2013) (majority analysis that extreme-indifference murder is a general-intent crime incompatible with attempt)
- State v. Whitman, 838 N.W.2d 401 (N.D. 2013) (procedural authority to notice obvious error and effect of invalid charges)
- Coppage v. State, 751 N.W.2d 254 (N.D. 2008) (Coppage I) (direct-appeal decision upholding convictions under prior law)
- Coppage v. State, 807 N.W.2d 585 (N.D. 2011) (Coppage II) (remand for evidentiary hearing on post-conviction claims)
- Coppage v. State, 826 N.W.2d 320 (N.D. 2013) (Coppage III) (directed standards for evaluating counsel deficiency and prejudice on remand)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-pronged test for ineffective assistance of counsel)
- State v. Chacano, 826 N.W.2d 294 (N.D. 2013) (standards for noticing obvious or plain error and prejudice from prosecutorial comments)