BROWN v. STATE (2023)

[¶1] Orlando Joseph Brown appeals from a district court order denying his application for post-conviction relief.

[¶2] A jury convicted Brown of aggravated assault and two counts of gross sexual imposition. On direct appeal, Brown argued the district court abused its discretion by allowing the State to introduce N.D.R.Ev. 404(b) evidence, and this Court summarily affirmed under N.D.R.App.P. 35.1(a)(4). State v. Brown, 2020 ND 29, 938 N.W.2d 404.

[¶3] On appeal, Brown argues the district court improperly denied his application for post-conviction relief because his trial counsel was ineffective for failing to move to strike two jurors for cause and thereafter failing to use a peremptory challenge to strike the same jurors.

[¶4] “[A]n attorney's actions during voir dire are considered matters of trial strategy.” Clark v. State, 2008 ND 234, ¶ 16, 758 N.W.2d 900 (upholding district court's finding defendant did not receive ineffective assistance of counsel because counsel “failed to strike a juror”); see also Garcia v. State, 2004 ND 81, ¶ 8, 678 N.W.2d 568 (“An unsuccessful trial strategy does not make defense counsel's assistance defective, and we will not second-guess counsel's defense strategy through the distorting effects of hindsight.” (quoting Breding v. State, 1998 ND 170, ¶ 9, 584 N.W.2d 493)).

[¶5] We summarily affirm under N.D.R.App.P. 35.1(a)(2).

Per Curiam.

[¶6] Jon J. Jensen, C.J. Daniel J. Crothers Lisa Fair McEvers Jerod E. Tufte Douglas A. Bahr