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State v. Roberson11/30/1998
ecause his trial attorney failed to object to instances of prosecutorial misconduct.
[ ] To establish an ineffective assistance of counsel claim, the defendant must show the representation fell below an objective standard of reasonableness and there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different. State v. Touche, 549 N.W.2d 193, 195 (N.D. 1996). The North Dakota Supreme Court has repeatedly said ineffective assistance of counsel claims generally should be raised in post-conviction proceedings where an evidentiary record can be made. See, e.g., State v. Ricehill, 415 N.W.2d 481 (N.D. 1987). Nevertheless, when an ineffective assistance of counsel argument is raised on direct appeal, the appellate court will review the entire record to determine if assistance of counsel was plainly defective, requiring a reversal of the conviction. State v. Norman, 507 N.W.2d 522, 525 (N.D. 1993). Unless the record affirmatively shows ineffectiveness of constitutional dimensions, the defendant must provide the court with some evidence in the record to support the claim. State v. McDonell, 550 N.W.2d 62, 65 (N.D. 1996). Some form of proof is required, and the representations and assertions of new counsel are not enough. State v. Falcon, 546 N.W.2d 835, 837 (N.D. 1996). The North Dakota Supreme Court has recognized the futility of considering ineffective assistance of counsel claims that have not been examined by the trial court, noting " ithout a record scrutinizing the reasons underlying counsel's conduct, adjudging it subpar is virtually impossible." State v. Torres, 529 N.W.2d 853, 856 (N.D. 1995) (citations omitted). When the record on direct appeal is inadequate to show defective assistance, the defendant may pursue the ineffectiveness claim at a post-conviction proceeding where an adequate record can be made. State v. Bengson, 541 N.W.2d 702, 703 (N.D. 1996).
[ ] Roberson asserts it was obvious error of constitutional dimensions under N.D.R.Crim.P. 52(b) for his trial attorney to fail to object to the prosecutor's opening statement that "he would not call out of state witnesses since they would be the same as police officers that would be testifying." Roberson mischaracterizes the prosecutor's remarks. What the prosecutor actually told the jury was:
" here were some other people, but I will only be calling Mr. Carman. I wouldn't call the other people from out of state. Mr. Carman will cover the same evidence as the other witnesses."
[ ] While we do not approve of the prosecutor's comment about Carman "cover the same evidence" as other uncalled witnesses, its prejudicial effect, if any, was minimal. The jury was instructed "arguments of the attorneys" must not be considered as evidence. A jury is presumed to follow instructions provided by the court. State v. Asbridge, 555 N.W.2d 571, 575 (N.D. 1996). Under these circumstances, we cannot say trial counsel's failure to object was obvious error of constitutional dimensions to establish ineffective assistance of counsel.
[ ] Roberson asserts it was obvious error of constitutional dimensions for his trial counsel to fail to object or ask for a curative instruction when a law enforcement officer testified he asked Roberson to take a blood alcohol test before Roberson was formally placed under arrest, and Roberson refused. Roberson claims this was in violation of N.D.C.C. § 39-20-01. See Throlson v. Backes, 466 N.W.2d 124, 128 (N.D. 1991) (holding if defendant is not advised he is or will be charged with DUI, a failure to submit to chemical test is not a "refusal" under N.D.C.C. ch. 39-20). We reject Roberson's argument. The jury was not instructed th
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