Campbell v. State: No State Duty to Collect Third‑Party Digital Evidence and the Primacy of Strickland Prejudice in Postconviction Review

Introduction

In Campbell v. State, 2025 ND 152, the North Dakota Supreme Court affirmed the denial of Anthony Campbell’s application for postconviction relief following his 2016 murder conviction (affirmed on direct appeal in State v. Campbell, 2017 ND 246, 903 N.W.2d 97). After a prior remand for an evidentiary hearing (Campbell v. State, 2021 ND 45, 956 N.W.2d 387), the district court again rejected Campbell’s claims that he received ineffective assistance of counsel and that newly discovered evidence warranted a new trial.

The decision reiterates governing standards under Strickland v. Washington and clarifies several recurring postconviction issues, most notably: (1) the State has no duty under Rule 16 or Brady to collect third‑party digital evidence (such as cell‑phone records) it never obtained; (2) courts may resolve ineffective-assistance claims on the prejudice prong alone; and (3) absent record evidence of courtroom closure, visible restraints, or juror misconduct, related constitutional claims fail. The Court also addresses strategic evidentiary choices (Rule 404(b), expert/ultimate‑issue opinions under Rule 704), lesser‑included offense instructions where the defense denies any involvement, conflicts of interest under Rule 1.9 of the Rules of Professional Conduct, the attorney‑client privilege and expert disclosures, and the standard for newly discovered evidence.

Summary of the Opinion

Applying the Uniform Postconviction Procedure Act and established standards of review, the Court (Jensen, C.J.) affirmed the district court’s denial of relief. The Court held:

Ineffective-assistance claims failed because Campbell did not show either deficient performance or resulting prejudice under Strickland. Many claims faltered for lack of record support or were reasonably explained as strategic choices.
The State had no duty to collect cell‑phone records of witnesses; counsel’s failure to compel the State to gather such records did not establish ineffective assistance, and prejudice was not shown.
Evidentiary rulings concerning investigator testimony (ultimate opinions), Rule 404(b) evidence and limiting instructions, visible restraints, alleged courtroom closures, juror misconduct, closing argument, and unrequested forensic testing did not satisfy Strickland’s prejudice requirement.
No basis existed for a lesser‑included manslaughter instruction premised solely on intoxication, particularly where Campbell denied any involvement (reaffirming State v. Trieb).
No conflict of interest or privilege violation occurred regarding defense counsel’s prior representation of a witness and disclosures involving the defense investigator.
“Blood Item 12” was not newly discovered; it was disclosed and used at trial, and in any event was not material or likely to produce an acquittal.

Analysis

Precedents Cited and Their Role

Strickland v. Washington, 466 U.S. 668 (1984): The backbone of ineffective-assistance claims. The Court reiterated that a petitioner must show both deficient performance and a reasonable probability of a different outcome but may lose if either prong fails. The Court also emphasized the “prejudice-first” path: courts need not address both prongs and are encouraged to resolve on one prong where appropriate (citing Samaniego v. State, 2024 ND 187, ¶ 9, 12 N.W.3d 827; Rourke v. State, 2018 ND 137, ¶ 6, 912 N.W.2d 311).
Standards of review: Factual findings are reviewed for clear error; questions of law de novo (Gaddie v. State, 2024 ND 170, ¶ 8, 11 N.W.3d 21). The Court defers to the district court’s credibility determinations and factual assessments.
No duty to collect evidence for the defense: The Court relied on State v. Steffes, 500 N.W.2d 608, 612 (N.D. 1993), and State v. Schmidt, 2012 ND 120, 817 N.W.2d 332, to underscore that Rule 16 and Brady do not impose a duty on the State to collect third‑party evidence it never obtained. Brady applies to suppression of evidence in the State’s possession, not uncollected materials. In Campbell, this defeated any premise that the State had to secure witnesses’ cell‑phone records (¶¶ 10–13).
Evidentiary discretion and opinion testimony: Trial courts have broad discretion in evidentiary rulings (State v. Wangstad, 2018 ND 217, ¶ 6, 917 N.W.2d 515). While Rule 704 allows opinions embracing ultimate issues, the Court did not need to decide whether excluding the investigator’s opinion was an abuse; it disposed of the claim on lack of prejudice (¶¶ 14–16).
Rule 404(b) and limiting instructions: The Court emphasized that prior‑bad‑act evidence is inadmissible to prove propensity but may be permitted for other purposes (Shaw, 2016 ND 171; Aabrekke, 2011 ND 131). A limiting instruction generally cures potential prejudice (Coppage v. State, 2014 ND 42, ¶ 17, 843 N.W.2d 291). In Campbell, a limiting instruction was given and was deemed adequate (¶¶ 17–20).
Visible restraints: Deck v. Missouri, 544 U.S. 622 (2005), forbids routine visible shackling absent trial‑specific justification. But absent evidence the jury saw restraints, error is harmless (Deck; State v. Aguero, 2010 ND 210). Campbell failed to show any juror saw restraints (¶¶ 21–22).
Public trial claims: A Waller v. Georgia analysis begins only if there was an actual courtroom closure (State v. Morales, 2019 ND 206; State v. Martinez, 2021 ND 42). Campbell provided no record evidence of a closure; hallway or chambers discussions outside the jury’s presence are not closures (¶¶ 23–26).
Juror misconduct and prejudice: Mere assertions without record support are insufficient; prejudice must be shown (Garcia v. State, 2004 ND 81; DeCoteau v. State, 1998 ND 199; Mertz v. State, 535 N.W.2d 834 (N.D. 1995)). Campbell’s claims lacked evidentiary support (¶¶ 27–30).
Closing argument limits: Arguments must rest on evidence and fair inferences (State v. Rivet, 2008 ND 145). Jury instructions mitigate possible prejudice and jurors are presumed to follow them (State v. Patterson, 2014 ND 193). Here, contextualized remarks and instructions dispelled prejudice (¶¶ 31–34).
Lesser‑included offenses with intoxication: State v. Trieb, 315 N.W.2d 649 (N.D. 1982), holds intoxication alone does not warrant a reckless manslaughter instruction where murder is charged. Campbell’s denial of any involvement further undermined the request (¶¶ 38–40).
Conflicts and privilege: Rule 1.9 bars adverse, substantially related successive representations absent consent; the Court found no substantial relation or material adversity (¶¶ 41–43). Privilege protects confidential communications, not underlying facts or expert observations; admissions of a party opponent are admissible (N.D.R.Ev. 502; N.D.R. Prof. Conduct 1.6; Knoff v. American Crystal Sugar Co., 380 N.W.2d 313, 320 (N.D. 1986)) (¶¶ 44–46).
Newly discovered evidence: N.D.C.C. § 29‑32.1‑01(1)(e) requires material, outcome‑probative evidence not previously presented; review is for abuse of discretion (Kovalevich v. State, 2018 ND 184; Ramsey v. State, 2013 ND 127). “Blood Item 12” was disclosed and argued at trial and was not material or likely to produce an acquittal (¶¶ 47–48).

Legal Reasoning and Application

1) Alternative Suspects and Uncalled Witnesses

Campbell faulted counsel for not calling a purported alternative suspect and the victim’s brother. The district court found the alternative‑suspect theory undeveloped and speculative; the suspect could have asserted the Fifth Amendment; and counsel reasonably declined to call the victim’s brother due to concerns about his mental state and unpredictability. The Supreme Court emphasized deference to strategic decisions made after investigation (Noorlun v. State) and the need for specific proffers of testimony and prejudice (Lindeman; Damron). No clear error was found (¶¶ 8–9).

2) Cell‑Phone Records and the No‑Duty‑to‑Collect Rule

Campbell argued counsel should have forced the State to produce witnesses’ cell‑phone records to impeach timelines. The Court highlighted that police have no duty to collect evidence for the defense (Steffes) and that Brady applies to suppression of evidence in the State’s possession, not evidence never obtained (Schmidt). The assertion that the State was required to collect those records was “without merit.” Independently, Campbell failed to establish prejudice—there was no reasonable probability of a different result even had counsel sought those records (¶¶ 10–13).

3) Investigator’s “Ultimate Issue” Opinion

The trial court excluded a defense investigator’s opinion on guilt/innocence. Although Rule 704 allows opinions on ultimate issues, the Court stressed trial courts’ wide discretion in evidentiary rulings and disposed of the claim on lack of prejudice: Campbell did not show that admitting the opinion would reasonably have changed the result, particularly given the investigator’s “disjointed” presentation (¶¶ 14–16).

4) Rule 404(b) Evidence and Limiting Instructions

After stipulating to a Facebook exchange and facing rebuttal about a prior theft and drug use, Campbell claimed improper character evidence. Counsel conceded in hindsight he would have objected rather than stipulate, but a limiting instruction was given and the Court deemed it generally sufficient to cure prejudice (Coppage). The Court also noted the evidence may have been admissible under a 404(b)(2) exception. Campbell did not prove a reasonable probability of a different outcome (¶¶ 17–20).

5) Visible Restraints

Deck prohibits routine visible shackling absent particularized justification, but Campbell produced no evidence any juror saw restraints, nor that counsel knew of such observations. Without proof of visibility or prejudice, the claim failed on Strickland’s first prong (¶¶ 21–22).

6) Public Trial and Alleged Courtroom Closure

Campbell referenced proceedings in another courtroom and sidebar‑type exchanges (e.g., regarding the Facebook stipulation). The record lacked any order or indication that the public was excluded. Because there was no “closure,” Waller did not apply and no structural error occurred. Counsel was not ineffective for failing to object to a non‑event (¶¶ 23–26).

7) Juror Misconduct

Allegations that jurors passed notes or a juror slept were unsupported by the record. Without proof and without a showing of prejudice, the claim failed (¶¶ 27–30).

8) Prosecutorial Misconduct in Closing Argument

The State’s remarks about methamphetamine‑related paranoia were framed as inferences tied to testimony. The Court reiterated that closing arguments must be grounded in evidence and fair inferences (Rivet) and that jurors are instructed to disregard counsel’s statements not supported by evidence (Patterson). Any potential impropriety was mitigated by instructions and counter‑argument opportunities; no prejudice was shown (¶¶ 31–34).

9) Independent Forensic Testing

Campbell argued counsel should have sought independent DNA testing of items that had mixed or unknown profiles. The claim was conclusory; Campbell did not identify expected exculpatory results or how they would have changed the verdict. Without a concrete proffer, he could not establish deficient performance or prejudice (¶¶ 35–37).

10) Lesser‑Included Offenses

Invoking Trieb, the Court held that intoxication alone does not warrant a reckless‑manslaughter instruction as a lesser‑included offense of murder. Campbell’s complete denial of involvement further undermined the request; it conflicted with a recklessness theory. Counsel was not deficient for declining to pursue such an instruction (¶¶ 38–40).

11) Conflicts of Interest and Privilege

The Court found no conflict under Rule 1.9: the prior matter involving a witness was not the same or substantially related, and Campbell’s interests were not materially adverse to the former client’s interests in that prior matter (¶¶ 41–43). As to privilege, experts’ observations and conclusions (even if informed by client communications) are discoverable facts; the privilege covers confidential communications, not the facts themselves (Knoff; N.D.R.Ev. 502). Admissions of a party opponent are not excluded by hearsay rules. No breach of Rule 1.6 was shown (¶¶ 44–46).

12) Newly Discovered Evidence

“Blood Item 12” was disclosed before and used at trial, was of unknown origin, and was not material or outcome‑probative. The district court did not abuse its discretion in rejecting the newly discovered evidence claim (¶¶ 47–48).

Impact and Forward‑Looking Considerations

Digital evidence and discovery strategy: Campbell cements, in the context of modern digital data, that the State generally has no duty to collect defense‑favored evidence (here, third‑party cell‑phone records). Defense teams should pursue their own compulsory process (e.g., subpoenas to carriers or witnesses) and cannot predicate postconviction relief on the State’s failure to gather such materials.
Strickland’s prejudice primacy: The opinion exemplifies a prejudice‑first approach to ineffective‑assistance claims. Petitioners must present concrete, non‑speculative showings that alleged errors would likely have altered the verdict, preferably with affidavits, proffers, or expert reports rather than conjecture.
Record preservation: Claims about visible shackles, courtroom closure, and juror misconduct require a record. Defense counsel should contemporaneously object and build a factual basis (e.g., voir dire of jurors, on‑the‑record orders) to preserve issues for review.
Rule 404(b) and stipulations: Stipulating to potentially prejudicial evidence can open the door to damaging rebuttal. If such evidence comes in, timely limiting instructions are critical and, as Campbell underscores, can defeat prejudice claims on appeal or postconviction.
Expert/Investigator testimony: Even if Rule 704 permits opinions on ultimate issues, courts have wide discretion to exclude opinions that risk invading the jury’s role or lack helpfulness. Defense teams should focus investigators on factual reconstruction, methodology, and impeaching contradictions rather than opining on guilt or innocence.
Lesser‑included instructions must align with the defense theory: Where a defendant denies any involvement, requesting a culpable mental state lesser‑included (e.g., reckless manslaughter) is strategically and doctrinally difficult, especially when the only predicate is intoxication (Trieb).
Conflicts and privilege: Successive representations trigger Rule 1.9 only if the matters are the same or substantially related and materially adverse. On privilege, practitioners should distinguish between protected confidential communications and discoverable facts or expert conclusions; be mindful that client statements can become party admissions if disclosed through an expert’s report or testimony.
New evidence threshold: “Newly discovered” means truly new, material, and reasonably likely to produce acquittal. Evidence known, disclosed, and used at trial cannot meet the standard simply because postconviction counsel views it more favorably.

Complex Concepts Simplified

Strickland two‑prong test: To prove ineffective assistance, a defendant must show (1) counsel performed deficiently (below reasonable professional norms), and (2) prejudice (a reasonable probability of a different result). Courts can deny relief if either prong is not met, and often resolve on prejudice alone.
Rule 16 vs. Brady vs. failure to collect:
- Rule 16 allows discovery of materials the State possesses or controls; it does not force the State to gather evidence for the defense.
- Brady concerns suppression of favorable evidence the State has; it does not require the State to obtain evidence it never possessed.
- Failure to collect third‑party evidence is generally not a State obligation; defense must use its own tools to obtain it.
Rule 404(b): Bars using other “bad acts” to prove a person’s propensity; allows admission for other purposes (motive, intent, identity, etc.). A limiting instruction tells jurors how they may (and may not) use such evidence, often curing prejudice.
Rule 704 and “ultimate issue” opinions: Opinions are not excluded merely because they address an ultimate issue, but courts may exclude them if they do not help the jury or risk usurping the jury’s role.
Visible shackles (Deck): A defendant cannot be visibly shackled at trial unless necessary for a specific, essential reason. But if the record shows jurors never saw restraints, no harm is shown.
Public trial (Waller): A constitutional analysis begins only if the courtroom was actually closed to the public; sidebars or proceedings outside the jury’s presence are not per se closures.
Conflicts of interest (Rule 1.9): A lawyer may not switch sides in the same or a substantially related matter in a way that is materially adverse to a former client, unless there is written consent. Absent those elements, there is no conflict.
Privilege and experts: Attorney‑client privilege protects confidential communications for legal advice, not underlying facts or expert conclusions. A client’s statements can be used as admissions if disclosed through an expert’s report/testimony.
Lesser‑included offenses and intoxication: Intoxication alone does not justify a reckless‑manslaughter instruction when charged with murder. If the defense is “I did not do it,” a lesser culpability instruction typically does not fit.
Newly discovered evidence: Must be newly found after trial, not cumulative, material, and likely to produce an acquittal; known and used evidence (even if imperfectly) will not qualify.
Standards of review:
- Clearly erroneous: Appellate courts defer to factual findings unless left with a firm conviction a mistake occurred.
- De novo: Legal questions are reviewed anew, without deference.
- Abuse of discretion: Reversal only if the decision is arbitrary, unreasonable, unconscionable, or not the product of a rational process.

Conclusion

Campbell v. State reinforces bedrock principles of postconviction review while providing timely clarity for the digital‑evidence era: the State is not obliged to collect third‑party data for the defense, and Brady does not reach evidence never in the State’s possession. Across a host of ineffective‑assistance claims, the Court underscores Strickland’s demanding prejudice requirement and the deference afforded to strategic decisions and trial‑level evidentiary discretion.

The opinion also reaffirms established doctrines on visible restraints, public‑trial closures, prosecutorial argument, Rule 404(b) safeguards, privilege boundaries in the expert context, conflicts of interest, and the narrow gateway of “newly discovered” evidence. For practitioners, the case is a pragmatic roadmap: build a record, pursue your own discovery where the State bears no duty, align jury‑instruction strategy with the defense theory, and support postconviction claims with concrete, outcome‑oriented proffers—not speculation. For courts, Campbell offers a cohesive template for addressing multifaceted postconviction petitions with consistent application of Strickland and North Dakota’s well‑settled standards.