998 N.W.2d 797
N.D.2023Background
- Jean‑Michael Kisi was convicted by a jury of gross sexual imposition and accomplice to attempted murder; the convictions were previously affirmed on direct appeal.
- Kisi filed a postconviction relief application arguing (1) accomplice to attempted "knowing" murder is a non‑cognizable offense, and (2) trial counsel was ineffective, the district court followed improper procedures, and the State committed prosecutorial misconduct.
- The State moved for summary dismissal; the district court dismissed the collateral claims on the record and held an evidentiary hearing only on the non‑cognizable‑offense issue.
- After the hearing the court concluded that accomplice to attempted knowing murder is non‑cognizable but that the erroneous inclusion of "knowing" in the jury instruction was harmless beyond a reasonable doubt because the jury necessarily found intent to kill.
- The district court summarily dismissed Kisi’s ineffective‑assistance, improper procedure, and prosecutorial‑misconduct claims as presenting no genuine issue of material fact; the Supreme Court of North Dakota affirmed.
Issues
| Issue | Kisi's Argument | State's Argument | Held |
|---|---|---|---|
| Whether accomplice to attempted "knowing" murder is a cognizable offense | "Knowing" as the mens rea makes attempted knowing murder non‑cognizable; instruction including "knowing" rendered conviction illegal | If erroneous, inclusion of "knowing" was harmless because evidence and closing showed intent to kill | Court: Attempted knowing murder is non‑cognizable, but the error was harmless beyond a reasonable doubt — conviction stands (jury found intent) |
| Ineffective assistance for closing argument and statements said to harm defense | Counsel’s closing and certain on‑record statements were prejudicial and fell below reasonable standards | Statements were trial strategy and tactics visible on the record; no genuine factual dispute | Court: Summary dismissal affirmed — counsel acted within reasonable professional judgment; no reasonable probability of different outcome |
| Ineffective assistance for cross‑examining victim (eliciting penetration testimony) | Cross‑examination needlessly elicited harmful testimony and violated right to fair trial | Questioning was tactical to address existing evidence (EMS report, DNA, evidence of penetration); risk was reasonable | Court: Summary dismissal affirmed — cross‑examination was reasonable trial strategy; no genuine issue of material fact |
| Improper trial procedure and prosecutorial misconduct | Trial court procedure and prosecutor’s conduct violated rights and warrant relief | Record does not support genuine factual disputes on these claims | Court: Summary dismissal affirmed — no genuine issues of material fact; claims denied |
Key Cases Cited
- Pemberton v. State, 959 N.W.2d 891 (N.D. 2021) (held attempted knowing murder is not a cognizable offense; addressed harmless‑error review)
- Dominguez v. State, 840 N.W.2d 596 (N.D. 2013) (explains attempt requires intent to complete underlying offense; harmless‑error principles)
- State v. Swanson, 930 N.W.2d 645 (N.D. 2019) (distinguishes intentional and knowing mens rea in murder context)
- Mbulu v. State, 977 N.W.2d 305 (N.D. 2022) (addresses jury instruction issues and procedural posture for postconviction claims)
- Rose v. Clark, 478 U.S. 570 (U.S. 1986) (explains circumstances where erroneous instructions are superfluous because evidence conclusively establishes elements)
- Wootan v. State, 994 N.W.2d 347 (N.D. 2023) (discusses standards for summary dismissal of postconviction ineffective‑assistance claims)