Opinion
No. 107,489.
2013-03-8
Merardo GARZA, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., PIERRON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Merardo Garza appeals the district court's denial of his petition for writ of habeas corpus challenging his convictions for rape of a child under 14 years of age and aggravated indecent liberties with a child. After a nonevidentiary hearing, the district court rejected Garza's multiple claims of ineffective assistance of counsel.
The facts of Garza's conviction are found at State v. Garza, 290 Kan. 1021, 236 P.3d 501 (2010) ( Garza I ). A jury convicted him of the lewd fondling and digital penetration of his 8–year–old daughter, M.G. In his direct appeal, Garza raised a plethora of issues, but only two that are relevant in this K.S.A. 60–1507 proceeding, namely, whether he was entitled to new counsel before trial and whether the district court excluded relevant evidence. Within this first issue, Garza argued: (1) Counsel failed to provide him with a copy of the preliminary hearing transcript; (2) counsel failed to contact witnesses; (3) counsel lied; and (4) Garza did not believe counsel was prepared for trial. 290 Kan. at 1024–27. Under the excluded evidence issue, Garza argued the district court erred by excluding evidence that he had become upset when he caught his children looking at inappropriate websites; his wife, Amy, had had an internet relationship with another man who had moved in with the family after Garza's arrest; and Amy had left the children alone with him. 290 Kan. at 1027–29. The Kansas Supreme Court rejected Garza's arguments on both fronts.
Garza's next course of action was to file the current K.S.A. 60–1507 motion. Here, he raises five issues of ineffective assistance of counsel: (1) failure to remove two jurors who were related to either the prosecutor or the judge; (2) insufficient meetings and conversations for trial counsel to be adequately prepared; (3) trial counsel shared information with the prosecutor that accelerated the proceedings when Garza wanted more time to prepare; (4) failure of trial counsel to call enough character witnesses; and (5) failure of trial counsel to bring up certain facts and information that would have helped Garza's defense.
After a preliminary hearing at which Garza was not present but was represented by counsel, the district court conducted a nonevidentiary hearing on Garza's 60–1507 motion. After a lengthy hearing, the district court denied Garza's motion and entered an extensive order detailing its ruling. The court found the familial relationships of the two jurors to the prosecutor and the judge were tenuous and distant, and the jurors testified they would be fair and impartial. The court found Garza's claim that trial counsel was unprepared for trial was unsupported and conclusory. Last, the court found it was not objectively unreasonable for trial counsel to have failed to call the character witnesses and there was no legal or factual basis for finding the testimony of these witnesses would have affected the outcome. Garza appeals.
When considering a claim that counsel was constitutionally ineffective, a district or appellate court must consider counsel's representation within the total circumstances of the trial. In order to establish a violation of the right to effective counsel, therefore, a criminal defendant bears the burden of establishing that (1) the representation was so deficient that it fell below the objective standard of reasonableness demanded by the Sixth Amendment to the United States Constitution and (2) that the deficiencies in representation prejudiced the defendant's right to a fair trial. State v. Gleason, 277 Kan. 624, 643, 88 P.3d 218 (2004). “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674,reh. denied467 U.S. 1267 (1984) (establishing constitutional test for ineffective assistance of counsel); Chamberlain v. State, 236 Kan. 650, 656–57, 694 P.2d 468 (1985) (adopting the Strickland test in Kansas for ineffective assistance of counsel claims).
In addressing the performance component of the Strickland test, the defendant must overcome the presumption that counsel's conduct falls within a wide range of reasonable professional assistance. A court reviewing counsel's representation must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances under which counsel's decisions were made, and to evaluate the representation from counsel's perspective at the time the challenged decisions were made. Bledsoe, 283 Kan. at 90. To establish prejudice, a defendant is required to demonstrate a reasonable probability that, except for counsel's deficient representation, the result of the trial would have been different. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 283 Kan. at 90.
An appellate court's standard of review depends upon which of three available options the district court employs in resolving a K.S.A. 60–1507 motion. First, the district court may conclude that the motion, files, and records of the case conclusively show that the movant is entitled to no relief and summarily deny the motion. Second, the district court may conclude from the motion, files, and record that a substantial issue or issues have been raised, requiring a full evidentiary hearing in the presence of the movant. Third, the district court may determine that the motion raises a potentially substantial issue or issues of fact, supported by the files and record, and hold a preliminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial. Bellamy v. State, 285 Kan. 346, 353, 172 P.3d 10 (2007).
At a preliminary hearing, as here, the district court may admit limited evidence and consider counsel's arguments. It must then issue findings of fact and conclusions of law as required by Supreme Court Rule 183(j) (2012 Kan. Ct. R. Annot. 274). Thus, an appellate court applies the findings of fact and conclusions of law standard of review. Under this standard, the appellate court must determine whether substantial competent evidence supports the district court's findings of fact and whether those findings are sufficient to support the district court's conclusions of law. The district court's ultimate conclusions of law are reviewed de novo. Bellamy, 285 Kan. at 354.
Garza first argues his trial counsel was ineffective when counsel failed to call character witnesses to testify on Garza's behalf and the district court should have granted an evidentiary hearing on the issue. Garza states his trial counsel failed to contact several character witnesses and, other than Garza's brother, counsel did not indicate that he even conducted any investigations as to the other witnesses.
Two competing principles are relevant in this case. Counsel has a duty to make reasonable investigations or make reasonable decisions that make particular investigations unnecessary. State v. Hedges, 269 Kan. 895, 914, 8 P.3d 1259 (2000). However, conclusory allegations in a 60–1507 motion are insufficient to require an evidentiary hearing. See State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994).
In Garza I, the court stated: “At trial, no witnesses were called for the defense, but the record is silent as to why. No additional argument was made on appeal about the failure to call any defense witnesses.” 290 Kan. at 1026. This is an incorrect statement. At Garza's trial, five witnesses testified for the defense: A.G. (Amy's daughter from a previous relationship); I.G. (Garza's daughter); Albert Barba, Jr. (Garza's brother); Eddie Hagler (Garza's brother); and Garza himself. Perhaps the Supreme Court meant to say no “character witnesses” were called by the defense.
In his 60–1507 motion, Garza argues his counsel was ineffective because he did not call enough witnesses to vouch for his character, including his sister and her husband, Amy's father, his brothers-in-law, friends, and other siblings. His motion claims these witnesses could have testified about the type of person he is and validated his character. In denying Garza's claim, the district court held:
“Here, [Garza] cannot show that it was objectively unreasonable for trial counsel not to call character witnesses. Legally and factually, there is no basis to conclude this was a possibility. Moreover, even assuming the inclusion of character witnesses, movant fails to show prejudice. Specifically, [Garza] cannot show that the addition of ‘character witnesses' would have likely resulted in a different outcome.”
The record does not disclose what the claimed witnesses would have said, so it is impossible to find that Garza's counsel erred by not calling them. See Kinnell v. State of Kansas, 509 F.Supp. 1248, 1252–53 (D.Kan.1981) (finding no error in failing to call character witnesses when defendant did not allege how they would have testified); see also State v. Black, No. 93,926, 2008 WL 2369789 (Kan.App.2008) (unpublished opinion) (specific content of character witnesses' proposed testimony known, i.e., all of the witnesses were female friends who had been intoxicated or asleep in the presence of Black and who would have testified to his general behavior towards women and his trustworthiness), rev. denied No. 4, 2008. Garza's conclusory allegations that his witnesses would prove his good character is insufficient for purposes of K.S.A. 60–1507. Counsel's failure to call these alleged witnesses did not render his performance deficient. Garza has failed to satisfy the first prong of the test for ineffective assistance of counsel.
In addition, in his motion Garza does not provide evidence to support his claim that if his counsel would have investigated or contacted the character witnesses, the outcome of the case would have been different. The movant must show a reasonable probability that had counsel's performance been effective the outcome would have been different. Chamberlain, 236 Kan. 650, Syl. ¶ 3.
Garza was able to present every point of his defense. He presented evidence that his children loved him, testimony that his wife stated that she would live to put him in jail, a witness claiming M.G. told him Garza never touched her, and his own testimony that he never touched M.G. Garza called five witnesses to testify as defense witnesses. A.G. testified that Amy had packed up all of Garza's belongings within 2 or 3 days of when Garza was arrested and that Amy told Garza's relatives to come pick up the items. I.G. testified to a fight between Garza and Amy when Amy ended up going to jail as a result of the fight. I.G. testified she heard Amy say that she would lie to put Garza in jail. I.G. also testified she saw M.G. inappropriately sitting or laying on a bedpost in her bedroom and that it had occurred once or twice. M.G. told I.G. she had seen someone in a movie rub herself on the bedpost.
Two additional witnesses supported Garza's defense. Barba testified that he took all of Garza's and Amy's children, except M.G ., for about 2 weeks during the time of the arrest. Hagler testified that he had seen Garza's children four or five times since Garza's arrest. Hagler described one specific time when he spoke to M.G. about the allegations in this case. Hagler testified that M.G. told him that Garza had never touched her in any way whatsoever. Hagler also testified that M.G. said Amy lied a lot and was making the whole story up. Hagler testified he told his family about M.G.'s statement that the incident had not happen.
Garza also took the stand in his own defense. He testified he had caught Amy having internet conversations with other men. Garza explained that he did all the cooking and cleaning for the family and he was the parent who was always there for the children, including teaching them self-defense. Garza testified that M.G. was upset that she did not get to go with her siblings on the trip with Albert. Garza testified he was very cautious regarding what M.G. could watch on television. As far as the allegations in this case, Garza explained that he fell asleep on the couch on the night in question and nothing out of the ordinary happened. Garza denied ever touching M.G.
The jury had all the evidence it needed to believe either the story of M.G. or Garza.
Garza also contends the district court erred in failing to hold a hearing on his claims his trial counsel was unprepared for trial, failed to order and review a copy of the preliminary hearing, failed to challenge two inappropriate jurors, disliked defending child sexual abuse defendants, and should have communicated with him more.
There is no evidence trial counsel was unprepared for trial or that inadequate communications or meetings between Garza and his trial counsel denied him a fair trial. This point was raised and denied in Garza's direct appeal. The Garza I court held: “As to Garza's final point raised at trial—that he did not feel counsel was prepared to proceed—Garza's counsel said he was prepared. The district court found counsel had not done anything that prevented him from being prepared for trial. We agree.” 290 Kan. at 1026. Without any additional support for the claim his counsel was unprepared or how insufficient communication denied him a fair trial, we hold these points have already been addressed and we cannot permit a second appeal on the issue.
Garza's claim concerning the failure to order a copy of the preliminary hearing transcript was addressed on direct appeal in the context of failure to appoint new counsel. The Garza I court found that Garza did not have a right to a copy of the preliminary hearing transcript for use at trial: “Defendants are not automatically entitled to preliminary hearing transcripts.” 290 Kan. at 1025. Additionally, the court found no prejudice to Garza based on the following:
“Garza's wife and M.G. both testified at the preliminary hearing. A review of the record demonstrates they were thoroughly cross-examined during trial. Garza's counsel was present at the preliminary hearing, so he was personally aware of these witnesses' prior testimony at the preliminary hearing. As such, the district court correctly found the failure to request a transcript did not demonstrate an irreconcilable conflict.” 290 Kan. at 1025–26.
Counsel's failure to obtain a copy of the preliminary hearing transcript was not below a reasonable level of adequate representation. Garza heard the testimony at the preliminary hearing and trial, and does not present any evidence to counter the Garza I court's finding that Amy and M.G. were “thoroughly cross-examined” at trial or that any contradictions in the witnesses' testimony was not brought out in cross-examination. 290 Kan. at 1025–26.
Garza also argues his trial counsel was ineffective for not removing two jurors from the panel based on familial connections. One juror was married to the prosecutor's cousin. The other juror's mother was the judge's wife's cousin. Both jurors testified they would be able to keep an open mind and make a decision based on the evidence.
The purpose of the voir dire examination is to enable the parties to select jurors who are competent and without bias, prejudice, or partiality. The nature and scope of the voir dire examination is within the sound discretion of the trial court. State v. Aikins, 261 Kan. 346, 365, 932 P.2d 408 (1997). A juror may be challenged for cause when the juror's state of mind with reference to the case or any of the parties is such that the court determines there is doubt that the juror can act impartially and without prejudice to the substantial rights of any party. K.S.A. 22–3410(2)(i).
There is substantial evidence to support the district court's finding that the familial relationships of the jurors to participants in the trial were tenuous and distant. Based on the testimony of the jurors that they would be fair and impartial, we do not find trial counsel's failure to remove the jurors was below a reasonable level of adequate representation.
Garza further argues that trial counsel stated that he was reluctant to represent Garza because he had been accused of a sex crime against a child. Garza claimed his trial counsel said the case would lower counsel “in the esteem of the community.”
This claim raised by Garza does not necessitate an evidentiary hearing. To meet the burden of proving his or her K.S.A. 60–1507 motion warrants an evidentiary hearing, however, a movant “ ‘must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.’ “ Trotter v. State, 288 Kan. 112, 131–32, 200 P.3d 1236 (2009). Garza has failed to meet this burden.
The fact of the matter is, Garza's trial counsel took Garza's case. Garza's claim must be supported by some evidence of bias or some evidence of inadequate representation to even permit an evidentiary hearing on the issue. That evidence is not present here and we find no error in the district court's decision not to grant an evidentiary hearing on the issue.
Garza objects to the lack of findings by the district court. It is clear the district court considered Garza's claim that his attorney was biased but failed to issue a specific decision on that claim. The district court made a specific ruling on all of the other K.S.A. 60–1507 issues raised by Garza and then concluded Garza was not entitled to any relief.
Finally, the lack of findings does not prevent meaningful review. Supreme Court Rule 183(j) requires a district court reviewing a 60–1507 motion to make explicit findings of fact and conclusions of law regarding each of the movant's specific issues, either orally on the record or in a written journal entry. Harris v. State, 31 Kan.App.2d 237, Syl., 62 P.3d 672 (2003). Generally, a litigant must object to inadequate findings of fact or conclusions of law to preserve the issue for appeal. Without an objection, this court will generally presume that the district court found all of the facts needed to support its judgment. See Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006). We do not find the lack of findings by the district court on Garza's claim of attorney bias prevents our review of the issue. We find the issue is conclusory at best with no evidence to support any claim that the representation by Garza's trial counsel was compromised by bias.
Affirmed.