Leavitt v. State
2017 ND 173
| N.D. | 2017Background
- In 2014 a jury convicted Heather Leavitt of attempted murder; the conviction was affirmed on direct appeal in State v. Leavitt.
- Investigation: victim Timothy Leavitt was stabbed, described attacker ambiguously (possible ponytail, similar stature to his wife), noted a knife matching a set in his wife's possession was missing; bloody footprints and other physical evidence were found.
- Police obtained warrants to search Heather Leavitt’s person, home, vehicle, and cell phone; the cell-phone search was later conceded by the State and suppressed, but other searches were executed and evidence admitted at trial.
- In March 2016 Leavitt filed a post-conviction application alleging ineffective assistance of trial counsel, principally for failing to pursue a Franks hearing to challenge the affidavit supporting the search warrant and for failing to call Officer Bloyer as a witness.
- The State moved for summary disposition; Leavitt submitted supplemental materials. The district court granted the State’s motion and summarily dismissed the post-conviction application. Leavitt appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for not pursuing a Franks hearing | Leavitt: affidavit contained false/misleading statements (misstating victim’s descriptions) so counsel should have sought a Franks hearing | State: Leavitt failed to show a substantial preliminary showing of intentional/reckless falsehoods or that disputed statements were necessary to probable cause | Court: No genuine issue of material fact on prejudice or entitlement to a Franks hearing; summary dismissal affirmed |
| Whether omissions/inconsistencies in the affidavit entitled Leavitt to a Franks hearing | Leavitt: recorded interview contradicts affidavit phrasing (pony-tail, stature, gender, "identical" knife) | State: affidavit also recorded that victim could not identify attacker and did not know attacker(s), so disputed wording does not show deliberate/reckless falsehoods necessary for Franks | Court: Isolated imprecisions did not meet Franks threshold; no hearing required |
| Whether counsel was ineffective for failing to call Officer Bloyer | Leavitt: Bloyer could have testified victim described attacker as male and about 5'11", which might have aided defense | State: Leavitt was put to proof by motion and provided no admissible evidence of what Bloyer would have testified to or how it would change outcome | Court: Speculation insufficient; Leavitt failed to show prejudice or raise material fact; summary dismissal proper |
| Whether the district court erred in summarily dismissing the post-conviction application | Leavitt: factual disputes and potential prejudice warrant evidentiary hearing | State: petitioner failed to present competent admissible evidence to meet Strickland burden once put to proof | Court: Applying Strickland and summary-judgment standards, court correctly dismissed for lack of genuine factual disputes and lack of demonstrated prejudice |
Key Cases Cited
- State v. Leavitt, 2015 ND 146, 864 N.W.2d 472 (summarizing underlying facts and prior appeal)
- Franks v. Delaware, 438 U.S. 154 (1978) (standard for requiring an evidentiary hearing when an affidavit contains alleged false or misleading statements)
- State v. Rogahn, 2016 ND 93, 879 N.W.2d 454 (explaining Franks standard in North Dakota)
- Ude v. State, 2009 ND 71, 764 N.W.2d 419 (standards for opposing summary dismissal of ineffective-assistance claims)
- Delvo v. State, 2010 ND 78, 782 N.W.2d 72 (petitioner must present competent admissible evidence when put to proof)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- Peterka v. State, 2015 ND 156, 864 N.W.2d 745 (petitioner must specify how counsel was incompetent and the probable different result)