Kinsella v. State, 2013 ND 238

Background

In 2010 a jury convicted Billy Joe Kinsella of sexually assaulting his 16‑year‑old stepdaughter; DNA evidence from bed sheets at the residence was introduced and matched Kinsella.
Kinsella appealed and this court affirmed his conviction in State v. Kinsella, 2011 ND 88, 796 N.W.2d 678.
Kinsella then filed a post‑conviction petition alleging ineffective assistance of trial counsel on multiple grounds and sought a new trial and suppression of allegedly unlawfully obtained evidence.
At the post‑conviction hearing Kinsella raised seven principal complaints about counsel: failure to move to suppress household evidence (consent), failure to suppress Miranda statements, absence from an April 14 conference, improper handling of jury questions, failure to advise re: testifying, failure to test sheets for wife’s DNA, and general inadequate preparation/impeachment.
The district court denied relief; the Supreme Court reviewed the Strickland standard and affirmed, concluding Kinsella failed to show deficient performance or resulting prejudice.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Failure to move to suppress bed‑sheet evidence (consent)	Lori’s consent was involuntary because detective threatened to involve social services; counsel should have moved to suppress.	Counsel reasonably relied on police reports showing consent and was unaware consent would be contested; statement about social services reflected factual reality; no basis for suppression.	Held for State — counsel’s decision not to move to suppress was reasonable; Kinsella failed to show a meritorious Fourth Amendment claim or prejudice.
Failure to suppress alleged Miranda violations	Counsel failed to file motion to suppress statements made during interview.	Detective properly Mirandized Kinsella per trial testimony; Kinsella denied the allegations and counsel saw no incriminating statements to suppress.	Held for State — no deficient performance shown; no prejudice shown.
Trial court conference April 14 held without Kinsella present	Court held a hearing and counsel proceeded without informing/including Kinsella.	Conference arose on short notice; counsel acted reasonably, obtained continuance; issue not raised on direct appeal (misuse of process).	Held for State — claim barred by misuse of process and counsel’s conduct was not deficient.
Procedure responding to jury questions / bringing jury into courtroom	Counsel failed to insist statutory right to have jury brought into court and information given in presence of defendant.	Court answered jury in open court with parties present; jury did not request testimony or to be brought into court; counsel accepted response as adequate.	Held for State — counsel’s conduct reasonable and did not prejudice defendant.
Failure to advise re: defendant’s right to testify	Counsel failed to advise Kinsella of right to testify or not to testify.	Kinsella testified at trial; counsel discussed strategy and told him he could remain silent but that testifying was necessary to present alibi/timeline.	Held for State — counsel’s conduct reasonable; choice to testify was strategic and not deficient.
Failure to test sheets for wife’s (Lori) DNA	Counsel should have had independent DNA testing to show alternative source.	Counsel elicited testimony that Lori’s DNA could be present; additional testing speculative and would not likely change result.	Held for State — no ineffective assistance; speculative prejudice.
General trial preparation and impeachment failures	Counsel failed to enter exculpatory lab report, impeach witnesses, obtain phone records, or pursue other investigatory steps.	Many choices were trial strategy; some evidence (no semen on swabs) would not negate charged element (sexual contact); impeachment choices reasonable.	Held for State — claimant fails to overcome presumption of reasonable strategy and show prejudice.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (established two‑prong test for ineffective assistance: deficient performance and prejudice)
Kimmelman v. Morrison, 477 U.S. 365 (failure to litigate Fourth Amendment claim requires showing the suppression claim was meritorious and prejudicial)
Miranda v. Arizona, 384 U.S. 436 (defendant must be advised of rights prior to custodial interrogation)
Schneckloth v. Bustamonte, 412 U.S. 218 (consent to search must be voluntary under totality of circumstances)
Payton v. New York, 445 U.S. 573 (warrantless entries into a home are presumptively unreasonable)
State v. Kinsella, 796 N.W.2d 678 (N.D. 2011) (direct appeal affirming conviction; cited here for factual and procedural history)
Klose v. State, 705 N.W.2d 809 (N.D. 2005) (discusses burden and deference in ineffective assistance review)