Thomas v. State, 964 N.W.2d 739

Ross Thomas was charged with felonious restraint, terrorizing, aggravated assault, and reckless endangerment; a jury convicted him of terrorizing but the conviction was reversed for juror-misconduct error; on retrial he was convicted of felonious restraint and sentenced to ten years.
Thomas filed a postconviction petition alleging ineffective assistance of trial counsel: failure to request a self‑defense instruction, failure to obtain/offer video surveillance, failure to call/depose witnesses, and failure to argue double jeopardy.
Thomas sought to call a defense‑trial practice expert (Attorney Tuntland) to opine on whether trial counsel’s performance met prevailing professional standards; the State moved to exclude that testimony.
The district court excluded the proposed expert testimony as impermissibly opining on legal questions (the objective standard of reasonableness) and held an evidentiary hearing at which trial counsel testified about strategy and the video evidence; Thomas had declined a continuance to obtain the video before trial.
The district court denied relief, finding counsel’s choices were strategic and not deficient and that Thomas failed to show prejudice; the Supreme Court of North Dakota affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of expert testimony on counsel performance	Thomas: proposed expert should be allowed to opine on whether counsel’s actions were objectively unreasonable under Strickland	State: expert would improperly opine on legal questions and usurp the court’s role	Court: exclusion was not an abuse of discretion because the expert would address the legal question of objective reasonableness (a matter for the court) and no offer of proof was made
Failure to request self‑defense instruction	Thomas: counsel ineffective for not requesting instruction; pointing a gun was self‑defense	State: evidence showed extended conduct after alleged justification ended; instruction was inappropriate	Court: counsel reasonably declined to request self‑defense; no deficient performance or prejudice shown
Failure to obtain/offer video surveillance	Thomas: counsel ineffective for not securing and presenting video that might support self‑defense	State: counsel knew of video, discussed continuance with Thomas, who refused to delay trial	Court: counsel’s conduct not constitutionally deficient; video was not newly discovered and Thomas refused continuance
Other claims (bad acts, double jeopardy, witnesses)	Thomas asserted additional counsel errors	State argued claims were not developed/briefed	Court: declined to address claims that were not raised at hearing or inadequately briefed

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong test for ineffective assistance: deficient performance and prejudice)
Hunter v. State, 949 N.W.2d 841 (N.D. 2020) (standards for postconviction relief and ineffective assistance analysis)
State v. Samshal, 838 N.W.2d 463 (N.D. 2013) (defendant entitled to instruction only if evidence supports defense and creates reasonable doubt)
State v. Pico, 914 N.W.2d 95 (Wis. 2018) (Strickland expert testimony admissible only on factual matters, not on legal question of reasonableness)
In re Disciplinary Action Against McKechnie, 656 N.W.2d 661 (N.D. 2003) (expert testimony on interpretation/violation of professional conduct rules is inappropriate)
United States v. Bull, 8 F.4th 762 (8th Cir. 2021) (expert testimony on matters of law is inadmissible because legal questions are for the judge)
Williston Farm Equip., Inc. v. Steiger Tractor, Inc., 504 N.W.2d 545 (N.D. 1993) (absence of offer of proof limits appellate review of excluded evidence)