State v. Skjonsby

impose court determine sentencing seeks that the trial the court system. At the sentence on defendant. While a imposing society’s interest to vindicate may an addiction court utilize evaluation to against those indi- appropriate sanctions making sentencing it in determina- criminally advise be cul- determined to viduals tion, must be however, the final determination made time, same pable. At the court itself. give full considera- must fair and particular circumstances of tion trial court erred conclude that the We Project The ABA defendants. individual it, effect, authority delegated its when Sentencing and Proce- Alternatives evalu- Nelson to the addiction sentence dures, supra, recognizes the fundamental Therefore, the sentence ator.4 we reverse significance of the sentence determina- for resentenc- and remand to the trial court tion: ing. consequences of a sentence are

‘The highest If too short or of order. LEVINE, ERICKSTAD, C.J., and wrong type, deprive it can the law GIERKE, JJ., concur. MESCHKE and result of its effectiveness dangerous

premature release of a improperly

criminal. If too severe or

conceived, the criminal it can reinforce lead to of the defendant and

tendencies by one who otherwise

a new offense seriously

might not have offended so

again.

‘The decision which enormously complex.

sentencing is also concerned, properly pre- and often

dominately, the future which can predicted particular offend- any single-valued approach to er. But Dakota, North Plaintiff STATE of sentencing A sentence is misdirected. Appellee, in some fashion limited in which is not particular offense accordance with incomparable system can lead to SKJONSBY, Defendant Richard W. contra,

brutality. Per a sentence or Appellant. pattern fails to sentences which No. 1149. Cr. gravity of the take due account of the re- seriously can undermine offense Supreme Court of North Dakota. spect for law.”’ Commonwealth A.2d 9 Pa. Knighton, 490 Dec.

(1980), Project Mini- quoting ABA On Jus-

mum For Criminal Standards

tice, Relating To: Sentenc- Standards Procedures, p. 1

ing And Alternatives

(1968). complexity importance

Because of the decision, statutory sentencing our necessary has it is

scheme determined that 32—07(2)(b),N.D.C.C.]; only hold that we who is con- 4. We do not hold that a defendant 12.1— trial court driving must be ordered influence of victed of while under the undergo directly, indirectly, undergo treat- required medical not be alcohol 32—02(l)(g)and ment. treatment Sections [see 12.1— Hoy, Fargo, Atty., Robert Garold State’s plaintiff appellee. Appearance by Quick, Bruce D. Bismarck. Nodland, Lucas, Lundberg, Schulz & Lervick, PC, Bismarck, for defendant and argued by B. Nodland. appellant; Irvin LEVINE, Justice. [Skjonsby] appeals W.

Richard denying of the district court from an order post-conviction relief. application for affirm. We shooting incident arises from a This case 26, 1980. The occurred on March in detail in facts are set out State (N.D.1982) Skjonsby, 319 N.W.2d Skjonsby, 338 [“Skjonsby State I”] (N.D.1983) [“Skjonsby N.W.2d II”]. for the Skjonsby was tried and convicted Kurtz murder of Michael [Kurtz] attempted murder of Charlotte His convictions were affirmed [Charlotte]. I, Skjonsby supra. appeal to this court. applied subsequently County post-con- District Court of Cass 29-32, Chapter pursuant relief viction that he was asserted N.D.C.C.1 of counsel denied effective assistance 29-32, [codified N.D.Sess.Laws Ch. 366 Legislature repealed Chapter Act. See 1985 1. The 1985 29-32.1, pro- present N.D.C.C., Chapter updated replaced N.D.C.C.]. ver- it prior ceeding to the effective commenced Uniform Procedure sion of the Post-Conviction incapable assisting mentally competent that he Whether a defendant is defense, question psychiatric and that stand trial is of fact for own performed upon judge. Heger, evaluation at the State (N.D.1982). Hospital was because invalid two participating doctors were that time en- this We review issue within the con counterfeiting in gaged illegal activities. text of the Uniform Post-Conviction Proce Skjonsby trial not afford The court did Act, Chapter 29-32, dure N.D.C.C. The evidentiary hearing, summarily but dis- establishing post-con burden of for basis Skjonsby’s application. re- missed We upon petitioning rests viction relief de holding appeal, Skjonsby versed on Kunkel, 799, fendant. v. N.W.2d evidentiary hearing entitled on was to an (N.D.1985). Proceedings under Act allegations. his remanded to the dis- We nature, are in civil and all rules and stat evidentiary hearing for limit- trict court utes in applicable proceedings civil are by Skjonsby raised ed to the three issues parties. v. available Varnson Sa appointed judge to and a different district tran, 533, (N.D.1985). 368 N.W.2d evidentiary hearing. preside over Thus, findings by factual made the trial II, Skjonsby supra. post-conviction proceedings in will appeal they not on unless be disturbed are hearing evidentiary was conducted 52(a), clearly erroneous. Rule N.D.R. 18-28,1985. Skjonsby represent- was June Civ.P.; Satran, supra. Varnson On by court-appointed thirty counsel. ed Over appeal, complaining party bears the witnesses testified and were exhibits demonstrating burden of that error exists receiving received into After evidence. findings E.g., the trial court’s of fact. issues, legal on the briefs trial court Hamill, 55, Johnson v. 392 N.W.2d its decision issued memorandum order and (N.D.1986); Industries, Byron Gerring post-conviction denying application Inc., (N.D.1982). relief. Skjonsby contends the results Skjonsby appeal: two issues raises on psychological tests conducted before trial ineffective assistance of counsel and his that, misinterpreted were review to assist incompetence mental in his de- by Skjonsby’s experts, new these tests Although fense. these issues as formulat- Skjonsby show that was at the time of trial interrelated, by Skjonsby ed are somewhat suffering from a disease or mental defect separately. we will address each which him rendered unable to assist his separate own defense. On three occasions Ability I. Assist Defense trial, Multiphasic before the Minnesota Per- sonality Inventory was adminis- Skjonsby [“MMPI”] asserts that the trial court Skjonsby. tered to Two of these tests finding mentally erred in he was com- by private Harper, were administered Dr. petent to assist in his own defense. The Skjons- psychologist retained on behalf provision is 12.- statutory relevant Section by, the third was administered 1-04-04, N.D.C.C.: Hospital. staff at the State It was the “12.1-Oj-Oj. Disposition mental- opinion Harper Hospi- of Dr. the State who, person ly No as defendants. unfit Skjonsby tal not at that time staff was defect, a result of mental disease or suffering from a mental disease or defect capacity proceed- lacks to understand the incapable assisting rendered ings against him or to assist in his own in his defense. tried, convicted, defense shall be or sen- particularly the conclu- Skjonsby tenced the commission an offense attacks Harper MMPI long incapacity so endures.” sion of Dr. that the conduct- such 29-32.1, State, (N.D.1985). Chapter gov- n. 1 date of therefore 29-32, by Chapter N.D.C.C. erned See Jensen November, 1980, personal contact shortly before ed in Skjons- who had conducted produced an invalid result because interviews and adminis- “faking” Harper psychiatric testing tes- tered In test. Dr. at that time. support regard, important it is the test results would to note that at tified that either did raise the issue of possible two theories: “faking” inability mentally ill or mental to assist in his seriously he was defense. fact, filing information it was not until Based other an amended test. available, including post-conviction brief in the initial proceed- extensive inter- ings, Skjonsby, February his examination views with results, first personal obser- asserted that had been unable to other test Thus, in vations, Harper Skjons- expert assist his defense. Dr. concluded that the testimony intentionally the of Dr. and Dr. Erick- had “faked” November Rasmussen upon son not personal was based contact MMPI. testing Skjonsby of in 1980 [inasmuch post-conviction hearing Skjonsby At the neither of them met Skjonsby until more Rasmussen, presented the of Dr. years later], upon than two af- but rather Erickson, psy- a psychotherapist, a and Dr. Skjonsby’s ter-the-fact review of test find- chiatrist, disputed Harper’s who Dr. results. ings. inter- They each testified that their Questions of pretation credibility the MMPI led of witnesses are results fact, Skjonsby including not fake the for the finder the evalua conclusion that did expert testimony. and that indeed tion of test witness Johnson November Hamill, supra, a mental or defect N.W.2d at 59. We suffered from disease previously him assist discussed our review of rendered unable to have 1980which the trial faced cases where court was with defense. opinions by conflicting expert witnesses: presented evi- also additional Each side “ ‘The trial court was thus confronted regarding Skjonsby’s physical and dence experts”. with a classic “battle of the during his trial mental condition before and Consequently, this is a case where the According arguably upon have relied court could hearing, virtually at the introduced records However, expert party’s witness. either significant who had contact every person observing hearing testimony, the during his before and demeanor, judging witnesses’ the profes- including numerous mental health rely credibility, the chose to their sionals, physician who treated a expert. Such the defendants’ Jail, County original trial the Cass views of permissible two choice between counsel, was of Skjonsby’s judge, and clearly not weight of the evidence is appear not opinion that did John- erroneous.’ omitted.]” [Citations or suffering any disease be from mental Hamill, supra, N.W.2d at 59 son v. competent he was to stand defect and Byron Gerring Indus- [quoting from wit- Skjonsby also various trial. Inc., tries, 822]. regarding Skjonsby’s testified nesses who loss, ulcer, weight bleeding de- excessive finding that the trial court’s conclude We prescribed dur- pression, and medications suffering Skjonsby was not ing trial. his incarceration before ren- or defect in 1980 which mental disease in his own incapable assisting dered weighed The trial court the conflict clearly erroneous. is not defense ing Skjonsby and found that evidence suffering from a disease mental Assistance Counsel II. Ineffective incapable of was not in 1980 and defect he was denied Skjonsby contends that holding, the defense. In so assisting in his right assist- to effective Amendment was Sixth evidence court noted that State’s Thompson, had of counsel. who ance primarily from witnesses derived that, presumption (N.D.1985), under we dis- come the circumstances, challenged action appropriate judg- cussed standards for “might sound trial be considered strate- ing assistance of a claim ineffective ’ at 2065-66 gy.” Id. S.Ct. [citation counsel, Supreme as enunciated omitted]. in Strickland v. Court of the United States 668, 104 S.Ct. element— Washington, examining 466 U.S. “In the second performance (1984): the deficient 80 L.Ed.2d 674 whether inquire, considering prejudicial must —we Strickland, held “In the Court that ‘[t]he totality of the evidence before any claim inef- judging for benchmark jury, a reason- judge or ‘whether there is must whether counsel’s fectiveness that, errors, probability absent able proper undermined the func- conduct so have a reason- the factfinder would had process the adversarial tioning of respecting guilt.’ Id. 104 able doubt having relied on as the trial cannot be It is the defendant’s bur- S.Ct. at 2069. produced just Id. 104 S.Ct. at result.’ to ‘show that there is a reasonable den two-part 2064. The established Court that, unpro- probability but determining test whether counsel’s errors, pro- the result of the fessional require so assistance was defective to ceeding different. A would have been of a conviction: reversal probability is probability a reasonable “ ‘First, the defendant must show that to confidence in undermine sufficient performance was deficient. counsel’s 2068.” outcome.’ Id. 104 S.Ct. at showing that requires counsel This specific identify the The defendant must errors so serious that counsel made counsel that are al acts or omissions of functioning as the ‘counsel’ was not to of reason leged not have been result by guaranteed the defendant the Sixth professional judgment. able Strickland Second, the defendant Amendment. 690, Washington, supra, U.S. at perform- deficient must show 2066, 695; at at 80 L.Ed.2d State v. S.Ct. prejudiced the defense. This re- ance at 378. Thompson, supra, N.W.2d quires showing that counsel’s errors upon the defendant estab The burden deprive the de- were so serious as to two-part test elements of the and lish both of a fair a trial whose fendant to do so is fatal his ineffective failure result is reliable.’ Id. of claim. assistance State v. examining that in “Strickland directs 295, Gutsche, (N.D.1987); 405 N.W.2d per- counsel’s first element—whether Micko, (N.D. 741, State v. ‘[¡Judicial scruti- formance was Thus, 1986). reviewing need court deficient— ny performance be of must counsel’s inquiry components of the if address both at 2065. highly Id. 104 S.Ct. deferential.’ an insufficient the defendant makes show attorney perform- measure of proper Washington, ing on one. Strickland pre- ‘simply ance under at supra, reasonableness U.S. at S.Ct. 699; Micko, norms,’ considering 80 L.Ed.2d vailing professional 746-747. from defense all the circumstances at the time. Id. perspective counsel’s Skjonsby has taken what amounts a easy too However, it is all because approach “shotgun” raising in numerous second-guess an unsuccessful incompetence improper of allegations distorting through effects defense attorneys the various who at conduct inquiry making ‘a hindsight, in represented have one time another presumption that indulge strong must a order to in this case. connection with per- within the wide put counsel’s conduct falls Skjonsby’s allegations proper in range professional spective, assist- circumstanc- of reasonable a brief review the ance; culminating appropriate. is, es in his trial is must over- shooting neys placed on March and others. Garaas in Shortly after position, unenviable attorney Brian most faced with Skjonsby retained client, Skjonsby, eyewitness, Char- possibility Nelson considered Nelson. lotte, had told various who inconsistent sto- presenting “mental defense and state” past in but who ries now insisted that Harper Dr. hired Dr. to evalu- Sharbo shooting Charlotte had been acciden- apparent, It soon became Skjonsby. ate shooting of tal and that the Kurtz had been however, Skjonsby would financial- be , self-defense. Garaas conducted interviews Thus, ly to retain Nelson. Robert unable investigations preparation aid in and. Wayne appoint- Anderson Ramio and were pursued also Skjonsby’s defense. Garaas Skjonsby represent pursuant ed to the earlier contacts with Dr. Sharbo and public contract then in effect defender arranged Harper. Dr. Garaas During the Ramio County. Cass time that Harper shortly interviewed Dr. attorneys served as his Anderson November, Having before record, being was also visited Skjonsby April tested and examined Kraemer, jail by who had Fred Harper November of Dr. advised Ga- represented him on other Kraem- matters. suffering raas that was not romantically involved er was at the time defect, compe- a mental disease or and was Skjonsby, Richard with Charlotte whom in his Harper tent to assist defense. Dr. Skjonsby considered to be his common-law opined was not suffer- also wife, in a representing Charlotte ing from a mental disease or defect on Hotel, against tort the Biltmore action 26, 1980, provide any March which would Al- shooting had where the occurred. capacity for a diminished mental de- basis though by the court she had been ordered Harper’s Dr. con- fense. conclusions were Skjonsby, any not to contact with have opinions with the of sistent of the staff him on occasions Charlotte visited several Hospital. the ex- Because none of Hospital in while he was at the State perts Skjonsby who had examined was able Jamestown. support defense mental to a based defect, Garaas, by of Due disease or behalf to the continual interference previously no- Skjonsby, withdrew the filed Kraemer, attorney-client Charlotte and rely upon insanity to de- of intent tice relationship Skjonsby and his between 12.2, Rule N.D.R.Crim.P. fense. See deteriorated, and court-appointed counsel discharge them. Skjonsby attempted to proceeded trial with The case to Garaas withdraw, sought Ramio Anderson to and Skjons- presenting a defense based considerations, per- citing and were ethical he in self-de- by’s claim that shot Kurtz Kraemer, had in the mitted who to do so. and that Charlotte had been shot fense defender public meantime succeeded fought accidentally while he and Kurtz for represent contract, appointed to was gun. particular importance was Of pointed out quickly Skjonsby. The State belonged gun Skjonsby’s assertion that the of interest which conflicts obvious story to Kurtz. Charlotte corroborated allowed to if Kraemer-were would arise trial, although testimony her was in at and Skjonsby, as counsel continue her before contradiction days of his within month-long removed grand Following was jury.2 Kraemer a murder of appointment. Skjonsby was convicted of the attempted murder of Char- and the Kurtz appointed was then Garaas Jonathon lotte. time, Skjons- By that Skjonsby. represent allega- numerous, conflicting Skjonsby plethora sto- now raises by presented had the attor- challenging the actions of shooting to his attor- tions concerning the ries II, Skjonsby at 629. perju- pleaded guilty subsequently See 2. Charlotte trial. her ry with in connection throughout represented him uct of Fred or Jonathan neys Kraemer Ga- who previously noted, raas, product his case. As of Richard course of but by Skjonsby regarding Skjonsby raised further the claims Charlotte that closely assistance of counsel are participant ineffective Richard was full that he with his claim that suffered story interwoven do- by unencumbered the so-called from a mental disease or defect which ren- mination of Charlotte.” in his dered unable to assist defense. participation Skjonsby’s in the fabrication Skjonsby extent claims that To the perjured story question is a of fact. n attorneys advantage took of him and ample support is There evidence to the trial defense inappropriate because issue, findings court’s of fact on this mentally appropri- make was unable findings we conclude that not are clear- himself, affirmance of ate decisions our 52(a), ly erroneous. Rule N.D.R.Civ.P. finding Skjonsby was the trial court’s light findings of the court’s large- capable assisting in his defense Skjonsby did not suffer a mental dis- ly dispositive of this issue. ability or defect ease which affected his assist his defense and that predominant issue raised willing knowing participant in the alleged to his inabil relates and perjurious presentation fabrication for himself ity to make rational choices theory, only the self-defense one substan- story self-defense his claim allegation tial of ineffective assistance of entirely by others and that he concocted remains. Skjonsby contends that story go along was forced basing Skjonsby’s erred in Garaas defense times assert trial. has at various upon self-defense the evidence because did Kraemer, Garaas, Charlotte, ed that support it. effect contends thereof, some combination invented that Garaas realized that should have partic story forced him to self-defense shooting self-defense version of the was a Skjons- ipate presentation in its at trial.3 fabrication should have conducted fur- in the by’s complicity asserted lack fabri investigations ther which would have dem- perjury cation of this is belied more falsity story. onstrated the At its just the of his mental state. than evidence essence, question presented is whether a tape introduced into evidence The State attorney, an faced with the circumstances recording made which had been Char here, presented duty had a to his disbelieve her Skjonsby during one of illicit lotte and inquiry and conduct specifically client an Hospital on visits to the State June 1980. telling determine whether his client was tape court found that this record The trial the truth. ing previously, markedly We have albeit a attempt first on the “appears to be the context, implied attorney different that an get Richard their part of and Charlotte generally rely is entitled to the truth presenta- story straight purposes representations of his fulness client’s hear I do from tion at trial.... What formulating legal strategy. In Martinson of a development false tape is the (N.D. Hjellum, Bros. v. story, the incidents of story, the trial 1985), attorney, Hjellum, settled a fore 26, 1980, partic- full with the March clients, against action the Mar- closure his ipation Richard and Charlotte of both tinsons, through pro agreement an of some of Skjonsby and the correction could deficiency judgment that no This leads vided story by himself. Richard story sought if the net worth was Martinsons’ me to the that conclusion $90,000. Acting upon his clients’ prod- not the than presented at less the trial story. fense apparently concedes Ga- now fabricating the raas was not self-de- involved in and Disciplinary pro- their net was less “The law Rules assurances that worth $90,000, Hjellum fraudulent, false, settlement per- than advised hibit the use of or possi- on these terms abandoned other testimony lawyer or A jured evidence. The a ble defenses. Martinsons submitted knowingly participates who in introduc- showing net financial statement worth testimony tion of such or evidence is $46,000, investigation, oppos- but after should, subject discipline. lawyer A ing party net worth established their however, present any admissible evi- $90,000 deficiency exceeded obtained a dence his client desires to have judgment against Martinsons. knows, or unless from facts within his subsequently Hjellum for Martinsons sued know, knowledge should that such testi- malpractice, neg- alleging that he had been false, fraudulent, mony or evidence is ligent pursue failing other available perjured.” affirming in fa- judgment defenses. In Thus, attorney prohibited an from Hjellum, vor of we stated: client, presenting testimony on behalf of a finding agree with the trial court’s “[W]e unless he or she knows or should know Hjellum’s strategy, he reason- that under perjured. that the In the ab- protected ably he had his clients believed knowledge, duty repre- sence of such deficiency judgment by from virtue of zealously sent one’s client within the agreement would not Oakes attorney requires bounds of the law deficiency judgment if the Martin- seek a present any admissible evidence the client $90,000. were sons’ net assets less than presented. desires to”have Hjellum that the John Martinson assured ap Numerous courts have discussed the a true financial statement would show propriate assessing standard for whether $90,000. Hjellum net of less than worth “knew” client would that the strategy decided to set settlement perjury. example, commit For Johnson clients rather this assurance (D.C. States, A.2d United nonseverability defense than on the 1979), the fact concluded appli- to be which he believed of doubtful trial testimo that the defendant’s intended agreement.” cation to the December 1977 prior state ny was inconsistent with his Hjellum, supra, 359 Bros. v. Martinson that the ments was insufficient to establish Although Martinson N.W.2d at 874. perjurious: would be defendant’s context, different it does arises within a in- agree appellant that the “We for the that an provide support conclusion proffered consistency between his two attorney may generally rely to establish was insufficient defenses representations. of his client’s truthfulness tes- proffer, intended the second determining attorney’s obli false that the trial timony, was gations potential when with contrary was conclusion to the court’s must look to the perjury, we also client speaks to 7.7 on surmise. Section based applicable Canon 7 of ethical standards. falsity of the in which situation the Re Code of Professional the North Dakota testimony 4 known and not is defendant’s lawyer “A sponsibility provides that Likewise, previ- suspected. our merely zealously a client within represent should arose problem in which cases this ous doing, how the of the law.” In so bounds attorney the situations which involved ever, per may knowingly not use lawyer investigation knew, independent based DR 7- jured testimony or evidence. false prior with or on discussions the case Elaborating upon 102(A)(4), N.D.C.P.R. testimony client, that the defendant’s the knowingly against prohibition this use of that we It was in context false. testimony, perjured Ethical Consideration could, consistent attorney the held that 7-26 states: 1, 1988, adopted Rules of Profes- recently Dakota North January Profes- the Code of 4. Effective replaced sional Conduct. Responsibility will be sional 826 right, See, limit his or Other are in accord. e.g., the defendant’s cases In re

with Subpoena, 958, Jury F.Supp. accordance with Grand representation her 7.7_ Where, (D.Mass.1985)(“It here, veracity fundamentally is in- § obligation require is consistent an falsity of defendant’s or attorney not the truth or falsity the ethical dilemma does to ascertain conjectural, long omit- his client’s So footnotes assertions. as the at- arise.” [Citations torney does not have obvious indications of ted]. perjury, the attorney client’s fraud or is States, 414 A.2d See also Butler United obligated not undertake an independent (D.C.1980). 844, 850 advancing determination before his client’s Scurr, Similarly, in Whiteside Schultheis, position.”); People v. P.2d (8th 1323, Cir.1984), rev’d sub. F.2d (“A (Colo.1981) inconsistency mere Whiteside, grounds, Nix v. nom on other story the client’s is insufficient in and of 106 S.Ct. 89 L.Ed.2d 475 U.S. itself to the conclusion support that a wit- (1986), Appeals the United States Court of testimony.”); ness will offer false Com- Eighth mere for the Circuit stated that Wolfe, Pa.Super. 187, monwealth v. conjecture, or inconsistent state- suspicion, (1982)(“it 447 A.2d 310 n. 7 is crucial that the are insufficient establish ments type lawyer in this of situation falsely: testify client will know actual in- perjury for sure that argues first “Appellant volved; it”). merely suspect he must not improperly acted on of mere basis Appeals The United Court of States appellant testify suspicion that would Circuit, the Third rel. United States ex falsely. why The reason counsel be- Johnson, (3d Wilcox 555 F.2d to testi- lieves that the defendant intends Cir.1977), an attorney has stressed that important ques- fy falsely is threshold usurp of the judge the function or ‘ .,. veracity tion because “[w]here jury weigh the evidence determine falsity or defendant’s guilt or innocence: the ethical dilemma does not conjectural, ’ “If faced with this situa- States, 414 v. United arise.” Butler tion in fact to discuss with Trial were 850, citing Johnson v. United A.2d Judge his client his belief that intended States, 404 A.2d at 164. ABA Mod- Both himself, possessing perjure without ABA Defense Proposed el Rule 3.3 and belief, firm factual basis for presuppose 4-7.7 Function Standard duty violating imposed would be knows that the defend- defense counsel counsel. him as defense While de- testimony will be false on the basis ant’s fense counsel in a criminal case assumes pri- independent investigation either or a dual role as a ‘zealous advocate’ and as or or discussions with court,’ an ‘officer of the neither role suspicion or Mere inconsistent both. would disclosure to the countenance by the defendant alone are statements private conjectures Court of counsel’s to establish that the defend- insufficient guilt about the or innocence his client. testimony would have been ant’s judge jury is the role of the if, only must act but false.... Counsel facts, not that of attor- determine the if, firm he or she has ‘a factual basis’ ney. believing intends to adversary sys- “It to our falsely.... is essential testify falsely or has testified ability tem to communicate case in which this factual that a client’s It will be a rare freely re- in confidence with counsel requirement is met. Counsel must and fact, When attor- they are not be maintained inviolate. member that triers ney unnecessarily discloses the confi- In most a client’s but advocates. cases client, chilling he creates a question for the dences of his credibility will be a trust effect inhibits mutual jury.” [Citations, omitted]. “A close look at the role of counsel necessary to effective and independence relationship apparent It is her to her client reinforces representation. a mere un- attorney attorney not volunteer this conclusion. An in civil liti- opinion that his client’s gation agent parties; substantiated is not an of adverse perjured. innocence are protestations of in a criminal matter is defense counsel undermine a cornerstone To do so would prosecution. Lawyers not an arm of the justice.” system of criminal of our perform the functions of are Instead, judges jurors. they or are advo- Whiteside, v. See also State primary responsibility cates whose is to Lloyd, (Iowa 1978); 468, vigor- 244, (1981). pursue their clients’ interests as 535, Md.App. 429 A.2d possible ously as within bounds of becoming a trier danger of counsel The compel attorneys To to monitor the law. recognized by at least four of fact has been behavior, pursue vigor- their clients’ Supreme Court. a con- justices of the might ously any suspicions that occur to Whiteside, 157, to Nix v. 475 U.S. currence possible wrongdoing by their them about 1006, 123, L.Ed.2d 106 S.Ct. clients, against develop and to evidence Blackmun, joined by (1986), Jus- Justice people they represent, under- would Stevens, Brennan, Marshall, not- tices mine the fundamental character of the adopt ‘the role of “attorneys who ed that attorney-client relationship and bastard- facts,’ judge jury or to determine Impos- of defense counsel. ize the role depriving their clients pose danger ... ing obligations attorneys on also loyal advocacy required such zealous and of the pressure clients to con- Amendment.” create by the Sixth would [Citation ex United States omitted; quoting lawyers footnote ceal information from their Johnson, supra sepa- In a rel. Wilcox judgments try to make the tactical ]. concurring opinion, Justice Stevens only rate attor- about the use of evidence change certainty that a lawyer’s “A added: make. neys fully equipped to are harbinger recollection is in his client’s impose unlikely that courts would seems judicial review perjury well as intended have such counsel that would duties on —as tem- apparent certainty of such that attor- negative effects. It follows —should that, reflec- after pered by the realization Rule interpret Disciplinary neys should (or may recall tion, witness the most honest 102(B)(1) upon them no imposing 7— recalls) that he details sincerely believe suspicion obligation at all until after Whiteside, overlooked.” Nix previously might fraud have committed that a client 190-191, at supra, 475 U.S. at 106 S.Ct. into an converted perjury has been J., (Stevens, concur- L.Ed.2d at 150 by information conclusion undeniable ring).5 in the normal acquired has and without representation course of policies supporting underlying The client’s credi- investigating her actively by Professor enunciated rule have been Brazil, Unanticipated Client bility.” Brazil: under the of counsel Whiteside, assistance Supreme Court him effective supra, the In Nix v. Amendment. Sixth similar issue. a somewhat ineffective assistance claimed counsel’s Supreme The defendant concluded that Court- The attorney partic- accepted refused to standards of counsel because "well within fell conduct clearly perjured range presenting reason- ipate professional conduct and testify falsely. acceptable under not to persuaded professional the client conduct able Whiteside,supra, U.S. at being of his intention the client Nix v. advised Strickland." After to ad- L.Ed.2d at 137. testify falsely, threatened 106 S.Ct. that, most, actions perjured counsel’s nature discerned court of the Court only vise the presenting testimony, prevented testimony. the defendant testimony, impeach false no had capitulated Because the defendant The client false from the case. withdraw testimony, ac- present "right” false anticipated testi- present false and did not contemplated conviction, depriving of the sought his client tions in Upon mony. the Amendment’s the Sixth perjury not violate upon as- did corpus his relief based habeas federal of counsel. assistance guarantee of effective attorney's denied conduct had sertion that 828 Isaac, 107, 133-134, Engle v. the Rules Cf. U.S. Collision

Perjury of 1558, 1574-1575, Evidence, 71 L.Ed.2d Ethics, S.Ct. and Constitutional (1982). (1979). fair assessment of Law, A 44 Mo.L.Rev. of counsel’s truth.” consistently throughout tation with though Skjonsby had told a deferential Charlotte’s numerous other flicting the best tal at his trial. dict Skjonsby himself has admitted es which now for have ting self-defense story defense It has now been Skjonsby, not sel, have sight may guilty Skjonsby’s Trial It is within health shooting however, nor of the bizarre the truth. Garaas was also example, the self-defense assessing corroborating realized the knowledge defense. With the wisdom hind- insisted and insisted it stories to his counsel, however, chosen at By the time of possible self-defense perspective'at her perjury charges, entirely professionals, assertion that Garaas should performance was in self-defense. Kurtz; theory was did now Garaas’s must be conclusively demonstrate falsity conclusively not, alternative. trial context the self-defense version different upon presenting Skjonsby’s be the ultimate story Charlotte prior theory, post-trial in the fall of apparent decision to trial, however, versions of “the Garaas’s of the self-defense the time: and the in gun must be evaluated from was untruthful. attorneys, that we was support thereby variety of not have been untrue; picture. our belonged that he has established, Trial claim faced occurrenc- police, represen- jury that scrutiny proceed pleaded review highly admit- coun- some men- with con- ver- lied she Al- raas’s decision fense. When cumstances at Strickland burden nied effective assistance of cooperation, clude that L.Ed.2d effects of of counsel Thompson, supra, 359 N.W.2d The Trial for Life: Effective Assistance provide effective assistance client N.Y.U.L.Rev. the defendant must overcome case, Even the sidered sumption cumstances cause of the difficulties inherent mak ing duct, counsel’s of Counsel Death be made sonable attorneys (1955)]. performance requires that duct falls within the wide fects of 689-690, 104 strong presumption that counsel’s con Louisiana, S.Ct., Applying challenged at sound evaluation, professional hindsight, the same demonstrating hindsight, presented in this to that, There are countless perspective would to 694-695; ^[158] Washington, viewed eliminate evaluate the supra, 350 this standard to counsel’s under the rely, S.Ct. action not defend a at 164 without way. best has failed to strategy.’ to reconstruct a court from the we believe see assistance; defense of self-de Penalty at at the time. Be the (1983).” criminal defense that he was de See ‘might be supra, 466 challenged U.S., counsel [100 Skjonsby’s also 2065-2066, circumstances, conduct range of case, distorting must every Goodpaster, perspective See Michel distorting any given Cases, particular [ ] L.Ed. State v. meet ways we in indulge that at effort U.S. con con con pre rea full Ga- cir cir ef is, per- scrutiny of counsel’s “Judicial that the made a reasonable determination highly must deferential. formance theory was the most desirable self-defense tempting a defendant present all too trial. alternative to Viewed second-guess after no perspective, counsel’s assistance we see evidence from that sentence, and it is that the self-de conviction or adverse knew in 1980 that Garaas court, examining easy theory coun- all too fense support it His proved unsuc- was a fabrication. sel’s defense after it has would theory cessful, proceed on that was a particular act decision to conclude that strategy. of trial unreasonable. matter or omission counsel was illuminating particularly disappear. on this would If story We find should be true, found to be it would in his demonstrate words of Justice Stevens issue the Tipton that what least wanted was a fair Whiteside, concurring su- opinion to Nix v. really sought trial —that what he was an 1007, at pra, 475 U.S. at 106 S.Ct. unfair a ‘fixed’ trial. L.Ed.2d at 150: Tipton, “The courts will not hear taught Holmes us that a word “Justice else, anyone complain that he was denied living thought. A is but the skin of a a fair trial because he failed in his at- may life of its own. ‘fact’ also have a tempt prostitute justice and have an perspective appellate From the of Warden, unfair Tipton trial.” judge, case has tried and after a been 344 A.2d at 207. evidence has sifted another been In McNeil, Commonwealth v. 506 Pa. as clear judge, particular may fact be (1985), Supreme A.2d 802 crystal or a piece and certain as a of Pennsylvania Court of however, lawyer, small diamond. A trial remarkably circumstances in similar to the of sand must often deal with mixtures stant rape, case. At his trial for McNeil pebble that seems clay. Even a testified that he did not know the victim. enough glance may take on clear at first conviction, however, After his McNeil re gravel.” hue in a handful of a different testimony canted his trial and admitted that he knew the victim. He further al it now be “as clear and certain While victim, leged that the in concert with the piece crystal” as a that the self-defense complainant charge rape in another lie, theory upon counsel was based a total McNeil, against conspir had entered into a dealing with “mix- at the time of trial was acy falsely rape. accuse clay.” tures of sand and appeal, alleged McNeil that his On attor- incongruous grant It would a new be ney had failed to render effective assist- upon allegations of trial to based ance of counsel because the had ineffective assistance of counsel which to interview a witness who failed would underpinnings Skjonsby’s have their McNeil have testified that and the victim knowing, willing, perjury. and blatant initially knew each other. The court ad- must be remembered that the ultimate fo- performance: dressed counsel’s inquiry alleged cus of an into the ineffec- undoubtedly “It is true that a defense tiveness of counsel must be the fun- attorney’s investigate poten- failure to challenged pro- damental fairness of the tially defenses or failure to meritorious ceeding. Washington, Strickland v. su- testimony interview witnesses whose pra, U.S. S.Ct. exculpatory prove could beneficial and 699; Thompson, supra, L.Ed.2d at can constitute ineffective assistance pre- 359 N.W.2d at 377. It borders if counsel no reasonable basis exists failure_ However, the val- posterous to level an attack particular of a defense or witness’ ue proceeding fairness of a based judged abstractly in the is not perjury. upon his own might vacuum of what have been but Warden, Md.App. Tipton is; accordingly, reality of what (1975), 344 A.2d 204 a convicted defendant must sustain his burden that he had been denied effective asserted the ‘road not taken’ or the proving how counsel and a fair trial when assistance of uninterviewed witness failed, promised, his counsel to bribe under the would have been beneficial judge to “fix” the outcome. The his case.... and circumstances of facts Special Appeals sternly rejected Court of reality, appel- “Exposed light his contentions: assistance of claim of ineffective lee’s Tipton’s story “If that his trial was to evaporates. The critical factor conspir- by bribery fixed should be found be ‘victims’ the newfound defense, and Mr. Gore’s tes- false, acy/consent’ premise of his claim then the defense, hearing findings and support exemplary, that was its to would timony clear, concise, are and illu- been beneficial because it conclusions not have minating. utterly disastrously have would appellee’s contradicted trial denying The the court order of trial know the victim.” that he did not application post-conviction for relief is af- McNeil, Commonwealth v. firmed. in original). (emphasis A.2d Justice, WALLE, concurring VANDE in inequity The then addressed the court result. granted result if McNeil were which would presented: a new trial under truth flagrant affront to the would A.2d 1365 claims, fendant, verse to him.’ 484 for at 807-808 monwealth will not guised to offer new trial on account case assistance.’ wealth v. The criminal Court and “Having freely a new false, appellee stands ineffective assistance of counsel determining process create a situation wherein thus under testimony which by design, could build tolerate such Szuchon, trial if the verdict were attempts (footnote guaranteeing himself a basis (1984), to ‘hold otherwise As justice system cannot and the rubric of ‘ineffective McNeil, supra, we A.2d at 1377.” Com stated in ^[506] the circumstances omitted). deliberately chosen his an integrity of the reap Pa. own obvious now asserts before thinly a windfall [228], 484 Common 487 A.2d perjury. into this dis ad de consistent lished law in North inconsistent with his contention defenses of guish defendant is entitled to an instruction decisions such actions no have been by’s majority. which voluntary manslaughter as majority of the court conclude that because such conclusion ed offense to murder as I such evidence, concur 113 N.W. “extreme Skjonsby’s were Thiel, instruction was or inconsistent. write decision in justified. is In in the which apparently contrary whether such defenses are as emotional retrospect (N.D.1982), self-defense or trial counsel State v. (1907), there result reached In Dakota, attempted State v. a disturbance” warranted. That which held that a Hazlett, result I the instruction we a any support a lesser includ- (N.D.1987), requested defense was although appeared accidental, Skjonsby, to distin- to estab- specially Skjons- on all prior N.D. may on despite I am concerned because reap not allowed to Just McNeil was attempt our decision in in Thiel reconcile Skjons- perjury, from his deliberate benefit may the latter decision neverthe- Skjonsby, may gain advantage because not now to mean that inconsistent de- less read attempt to subvert of his deliberate permissible fenses not or that substan- are through per- process his own truth-finding must exist before an instruc- tial evidence jury at his trial. inconsistent defense is warrant- tion Skjonsby’s thoroughly reviewed We have imposed appear to have ed. remaining allegations of ineffective assist- requirements such an too instruc- strict find them to be with- ance of counsel and tion. has out merit. We conclude however, not, us in That before demonstrating issue failed meet his burden Rather, argues performance was constitu- instance. that counsel’s counsel, others, including his trial in- tionally deficient. theory and forced vented the self-defense we to com- concluding point, As a wish that his counsel participate, him to exceptional its mend trial court the self-defense should have realized that complex difficult handling of a most should have theory a fabrication which case. Review of record demonstrates investigations would led further every possible extended falsity that theo- have demonstrated defendant, protection courtesy and ry- allowing Skjonsby even to the extent majority is said what addition himself to cross-examine witnesses. counsel, if he obvious that trial opinion,it is lengthy evidentiary court's conduct theory, the self-defense would invented in- requested the court for an

have voluntary manslaughter as a

struction several he therein

result of the factors establish emotional dis-

asserted to extreme Skjonsby,

turbance. State Rather, likely it is that the trial coun- 779.

sel, faced with a client who insisted accident, in self-defense or an

action was recognized voluntary that a

nevertheless appropri-

manslaughter defense more was such requested an instruction

ate Although requested

the trial court. denied, responsibility is

instruction was but, as the lower

not his trial recog- majority and the

court concluded

nizes, “was a Skjonsby, that of who knowing in the fa-

willing participant perjurious presentation

brication theory, ...”

self-defense crime, should have that a

the defense been committed, only

if one was manslaughter of “ex-

voluntary as a result The failure emotional disturbance.”

treme is, solely on how- defend that rationale

ever, responsibility Skjonsby, not counsel. WATER

ALL SEASONS USERS ASSOCIATION, INC., Plaintiff Appellant, COMPA- IMPROVEMENT

NORTHERN Company Fireman’s NY and Insurance Newark, Jersey, New Defendants

Appellees. CORPORATION, De

CERTAINTEED Plaintiff, Party Third fendant and

KBM, INC., Party Defendant. Third No.

Civ. Dakota. North

Supreme Court 4, 1988.

Jan.

Case Details

Case Name: State v. Skjonsby

Court Name: North Dakota Supreme Court

Date Published: Dec 29, 1987

Citation: 417 N.W.2d 818

Docket Number: Cr. 1149

Court Abbreviation: N.D.