Opinion
No. 106,074.
2012-08-3
Reginald McKINNEY, Appellant, v. STATE of Kansas, Appellee.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher and Jan W. Leuenberger, Judges. Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher and Jan W. Leuenberger, Judges.
Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Reginald McKinney appeals the trial court's summary dismissal of his K.S.A. 60–1507 motion based on ineffective assistance of counsel. McKinney argues that his trial counsel was ineffective for the following reasons: (1) for failing to object to statements about McKinney's prior bad acts; and (2) for failing to request jury instructions on the lesser included offenses of aggravated battery. McKinney also maintains that his appellate counsel was ineffective for failing to raise the issue of the lesser included instructions on his direct appeal. Finding that McKinney's trial counsel and appellate counsel were not ineffective, we affirm the trial court's judgment.
In 2005, a jury found McKinney guilty of two counts of vehicular homicide, one count of aggravated battery, and one count of endangering a child. The trial court sentenced McKinney to 120 months in prison, with 24 months of postrelease supervision. McKinney filed a direct appeal, and our court affirmed his convictions in State v. McKinney, No. 96,829, 2007 WL 2915581 (Kan.App.2007) (unpublished opinion), rev. denied 286 Kan. 1183 (2008). Our court detailed the pertinent facts as follows:
“In 2001, McKinney and Keo'Na Emanuel had a son together named Qua Dream McKinney. McKinney and Keo'Na never married. In August 2004, McKinney, Keo'Na, and Qua Dream were living together in Topeka with Pam Emanuel, Keo'Na's grandmother. On August 12, 2004, McKinney's brother, Cleon McKinney, came to Pam's house for a visit. Later that evening, Keo'Na arrived at the house to get some clothes. When Keo'Na arrived, McKinney, Cleon, and Pam were sitting on the porch. According to Pam, McKinney went inside the house and ‘called Keo'Na all kinds of names.’ Keo'Na and McKinney argued inside the house for 5 to 10 minutes. Pam then asked Cleon to go inside the house to tell McKinney to leave. Pam testified that Cleon and Keo'Na briefly argued outside the house, but she could not hear what they were saying.
“McKinney and Keo'Na continued to argue outside Pam's house. The argument spilled over to the home of Sonya Newton, Pam's neighbor. Qua Dream was with Newton inside her house. Keo'Na came into Newton's house to get Qua Dream and McKinney followed her into the house. While inside Newton's house, McKinney told Keo'Na that he did not want her to leave with Qua Dream.
“About 10:30 p.m., Keo'Na telephoned her friend, Byron Birch, to come to Newton's house to pick her up. Birch drove his Mitsubishi over to Newton's house, and he was accompanied by his friend, Walter Divers. When Birch entered Newton's living room, McKinney confronted Birch and the two men began fighting. During the encounter, McKinney yelled at Birch and threatened to kill him. Ultimately, Newton broke up the fight and asked Birch to leave.
“Birch, Divers, Keo'Na, and Qua Dream left Newton's house in Birch's Mitsubishi. However, Birch had to return because he left his cell phone at Newton's house. As Birch was leaving Newton's house for the second time, McKinney confronted Birch again, telling him that he did not want Qua Dream to leave with Birch. Birch ignored this request and drove away in his Mitsubishi.
“At this point, McKinney and Cleon began to follow the Mitsubishi in Cleon's Cadillac. Cleon was driving the Cadillac and McKinney was in the front passenger seat. In the Mitsubishi, Birch was driving, Keo'Na was in the front passenger seat holding Qua Dream, and Divers was in the back seat. As the Cadillac followed the Mitsubishi, both cars began to drive faster. After awhile, Divers became concerned about Qua Dream, so he reached into the front seat and pulled the child into the back seat.
“According to Divers, both vehicles increased speed on 17th Street, with the Cadillac less than one-half car length behind the Mitsubishi. Divers testified that he felt a bump, turned around, and saw the Cadillac trying to push the Mitsubishi off the road. He further testified that he saw the right side of the Cadillac's front bumper up against the left side of the Mitsubishi's rear bumper. Birch lost control of the Mitsubishi and crashed into a house on 17th Street.
“Regina Hill and her boyfriend, Jose Moreno, were walking to a friend's house when they witnessed the accident. Hill and Moreno were getting ready to cross 17th Street when they heard cars approaching from the east on 17th Street. Seventeenth Street has three lanes, one of which is a turning lane. The speed limit is 30 m.p.h., and Hill believed that both cars were driving faster than the speed limit. Hill saw the Mitsubishi driving in the westbound lane and the Cadillac straddling the westbound lane and the turning lane. According to Hill, it appeared that the Cadillac hit the Mitsubishi, causing the Mitsubishi to swerve off the street and hit a house.
“After the Mitsubishi crashed, the Cadillac stopped and McKinney got out of the Cadillac and told Cleon to drive away. After Cleon left, McKinney went over to the Mitsubishi and checked on Qua Dream and the driver. As a result of the accident, both Birch and Keo'Na died. Divers suffered collapsed lungs, several fractures to his pelvis, a compression fracture to one of his vertebrae, a ruptured stomach, and multiple bruises. Qua Dream was not seriously injured.” 2007 WL 2915581, at *1–2.
The State charged McKinney with two counts of reckless second-degree murder, one count of reckless aggravated battery, and one count of endangering a child. At McKinney's trial, the jury heard evidence about the confrontation between the parties on August 12, 2004, the crash on 17th Street, and the opinions of the accident reconstructionists. The jury also heard testimony that on July 4, 2004, McKinney had threatened Birch to stay away from Qua Dream. As stated earlier, the jury convicted McKinney of two counts of vehicular homicide, one count of reckless aggravated battery, and one count of endangering a child, and McKinney filed a direct appeal which was unsuccessful. See McKinney, 2007 WL 2915581.
On October 27, 2008, McKinney filed a pro se K.S.A. 60–1507 motion, arguing ineffective assistance of both trial counsel and appellate counsel. McKinney argued that his trial counsel was ineffective for the following reasons: (1) for failing to object to statements about McKinney's prior bad acts; (2) for improper handling of evidence pertaining to Birch's blood-alcohol concentration (BAC); (3) for failing to make a foundation objection to Dr. Crider's testimony; (4) for failing to investigate Birch's BAC; and (5) for failing to request jury instructions on the lesser included offenses of aggravated battery. McKinney also maintained that his appellate counsel was ineffective for failing to request or review transcripts of voir dire and opening and closing statements of counsel, for failing to raise the issue of the lesser included instructions on his direct appeal, and for failing to argue sufficiency of the evidence.
On March 23, 2011, the trial court held a preliminary hearing on the motion. At the hearing, McKinney's appointed counsel submitted each issue raised in McKinney's pro se K.S.A. 60–1507 motion; however, McKinney's appointed counsel only presented argument on the failure to object to prior bad acts evidence in violation of K.S.A. 60–455. On April 12, 2011, the trial court filed a memorandum decision denying McKinney's K.S.A. 60–1507 motion.
Standard of Review
An appellate court's standard of review depends upon which of three available options the trial court employs in resolving a K.S.A. 60–1507 motion. First, the trial 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 trial court may conclude from the motion, files, and records that a substantial issue or issues have been raised, requiring a full evidentiary hearing in the presence of the movant. Third, the trial court may determine that the motion raises a potentially substantial issue or issues of fact, supported by the files and records, 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 the trial 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) (2011 Kan. Ct. R. Annot. 259), 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 trial court's findings of fact and whether those findings are sufficient to support the trial court's conclusions of law. The trial court's ultimate conclusions of law are reviewed de novo. Bellamy, 285 Kan. at 354. But when the trial court denies relief under K.S.A. 60–1507 based solely upon counsel's legal argument at a nonevidentiary hearing and the trial court's review of the files and records of the case, an appellate court is in as good a position as the trial court to consider the merits. In this instance, appellate review is de novo. See Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).
McKinney's Trial Counsel Was Not Ineffective
On appeal, McKinney does not raise every argument for ineffective assistance of trial counsel that he raised before the trial court. Now, McKinney argues that his trial counsel was ineffective for two reasons: (1) for failing to object to statements about McKinney's prior bad acts and (2) for failing to request jury instructions on the lesser included offenses of aggravated battery.
To support a claim of ineffective assistance of counsel, based on deficient performance of counsel, it is incumbent upon a criminal defendant to prove that (1) counsel's performance was deficient, and (2) counsel's deficient performance was sufficiently serious to prejudice the defendant and deprive the defendant of a fair trial. Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel is highly deferential and requires consideration of the totality of the evidence before the judge or jury. The reviewing court must presume that counsel's conduct fell within the broad range of reasonable professional assistance. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
Failure to Object to K.S.A. 60–455 Evidence
McKinney argues that his trial counsel was ineffective for failing to object under K.S.A. 60–455 to testimony regarding a threat McKinney allegedly made to one of the victims that had died in the car accident. In particular, McKinney objected to testimony that Lori Williams heard McKinney tell Birch on July 4, 2004, “that he was Qua Dream's father and he didn't want [Birch] to interfere [with Qua Dream].” Williams also heard McKinney tell Birch that “if he couldn't have [Keo'Na] no one could.” McKinney maintains that this testimony was admitted in violation of his motion in limine. McKinney concedes that his trial counsel objected to the testimony based on relevance, but maintains that his counsel should have objected to the testimony as violating K.S.A. 60–455.
The State argues that the testimony does not constitute prior bad acts evidence under K.S.A. 60–455. The State further argues that even if it does constitute prior bad acts evidence, it would have been admitted to show motive, intent, or plan, which are exceptions to K.S.A. 60–455.
The trial court found that trial counsel was not ineffective for failing to object because the evidence did not qualify as K.S.A. 60–455 evidence. Additionally, the trial court stated that McKinney had failed to show that his objection would have been successful if properly made. And finally, the trial court found that McKinney failed to show how he was prejudiced by his trial counsel's failure to object.
McKinney previously raised the issue of the trial court's error in admitting this testimony in the direct appeal of his convictions. Upon review, our court held that the evidence was relevant to show motive so there was no error in admitting the evidence. McKinney, 2007 WL 2915581, at *10. Also on direct appeal, McKinney argued that the evidence violated K.S.A. 60–455 and that the trial court should have given a limiting instruction. Our court held that McKinney failed to preserve this issue for appeal by failing to object during trial. McKinney, 2007 WL 2915581, at *10.
Although our court did not specifically address McKinney's argument that the testimony violated K.S.A. 60–455, it did find that the evidence was relevant to show McKinney's motive which is one of the exceptions to K.S.A. 60–455. Therefore, because the testimony was properly admitted to show motive, McKinney's argument that the testimony violated K.S.A. 60–455 fails.
Thus, we agree with the trial court that McKinney cannot show there is a reasonable probability that this testimony would not have been admitted even if counsel had objected to it. The failure to do useless acts does not constitute ineffective assistance of counsel. See Chamberlain v. State, 236 Kan. 650, Syl. ¶ 5, 694 P.2d 468 (1985). Based on this issue, there is no basis for McKinney to be allowed an evidentiary hearing to pursue this argument. See K.S.A. 60–1507(b); Bellamy, 285 Kan. at 353.
Failure To Request the Lesser Included Offense Instruction For Aggravated Battery
Next, McKinney contends that his trial attorney was ineffective for failing to request instructions on the lesser included offenses for aggravated battery. McKinney argues that because the jury convicted him of the lesser included offense for second degree murder, that the jury also could have convicted him of the lesser included offense of aggravated battery if the jury was properly instructed.
A criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence at trial so long as the evidence, when viewed in the light most favorable to the defendant's theory, would justify a verdict in accord with the defendant's theory and the evidence at trial did not exclude a theory of guilt on the lesser offense. State v. Boorigie, 273 Kan. 18, 40, 41 P .3d 764 (2002). An instruction on a lesser included offense is not proper if, from the evidence, the jury could not reasonably convict the defendant of the lesser offense. State v. Robinson, 261 Kan. 865, 883, 934 P.2d 38 (1997).
McKinney was convicted of severity level 5 aggravated battery in violation of K.S.A. 21–3414(a)(2)(A), which defines aggravated battery as “recklessly causing great bodily harm to another person or disfigurement of another person.” McKinney contends that an instruction on K.S.A. 21–3414(a)(1)(C), a severity level 7 person felony, and K.S.A. 21–3414(a)(2)(B), a severity level 8 person felony should have been given. Severity level 7 aggravated battery is defined as “intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” K.S.A. 21–3414(a)(1)(C). Severity level 8 reckless aggravated battery is defined as “recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” K.S.A. 21–3414(a)(2)(B).
Our Supreme Court has held that the aggravated battery offenses described in the subsections of K.S.A. 21–3414 are the same crime, varying only in type and degree. Consequently, any offense described in K.S.A. 21–3414 bearing a lower severity level than another offense described in that section constitutes a lesser included offense of the higher severity level offense. See K.S.A. 21–3107(2)(a); State v. McCarley, 287 Kan. 167, 177–78, 195 P.3d 230 (2008).
A primary distinction between the severity level 5 aggravated battery under K.S.A. 21–3414(a)(2)(A) that was charged and the two lesser included offenses that McKinney argues should have been instructed on is the infliction of great bodily harm.
“In defining great bodily harm, the word great distinguishes the bodily harm necessary for aggravated battery from slight, trivial, minor, or moderate harm, and as such it does not include mere bruises, which are likely to be sustained in simple battery. Whether the injury or harm is great or not is generally a question of fact for the jury.” State v. Kelly, 262 Kan. 755, Syl. ¶ 2, 942 P.2d 579 (1997).
The trial court held that it was not error for McKinney's counsel to not request a lesser included instruction based on the facts of this case. The trial court found that a reasonable jury would examine the facts and find that great bodily harm occurred and would never find that mere bodily harm occurred.
In this case, the conviction for aggravated battery was based on injuries sustained by Divers. Divers suffered a head injury, collapsed lungs, two broken ribs, a cracked pelvis, a ruptured stomach, and a dislocated spine. As a result of these injuries, Divers had to undergo surgery and remained in the hospital for 9 days. Divers also testified that he now has to use a cane because of the injuries he sustained in the accident. Applying the definition of great bodily harm set forth above, we find that the harm caused by the car accident goes far beyond mere bruising and cannot be described as slight, trivial, minor, or even moderate. Thus, the evidence presented fully supports a finding of great bodily harm under K.S.A. 21–3414(a)(2)(A).
Just the fact that the greater offense was supported by the evidence does not answer the question of whether the lesser offense should have been given. Generally, whether a victim's injury constitutes great bodily harm is a question of fact for the jury to decide. State v. Moore, 271 Kan. 416, 419, 23 P.3d 815 (2001). But, if the evidence shows without question that the victim suffered great bodily harm and nothing less, then there was no error in taking this determination away from the jury. See Moore, 271 Kan. at 420–21.
Based on the extensive injuries Divers suffered in the accident, we find that Divers suffered great bodily harm and nothing less. Therefore, it was not error for McKinney's trial attorney not to request a lesser included instruction because the evidence did not support such an instruction. Moreover, even if the lesser included instruction should have been requested, McKinney has failed to show how he was prejudiced by the lack of instruction. McKinney offers no support to show that had the request for the lesser included instruction been made that the request would have been granted. Therefore, because McKinney has failed to show how he was prejudiced by his trial counsel's failure to request the instructions, his argument fails.
McKinney's Appellate Counsel Was Not Ineffective
McKinney mainly argues that his appellate counsel was ineffective for failing to raise the issue of the lesser included instructions in his direct appeal. The State contends that this issue should be deemed waived because McKinney failed to brief this issue.
Indeed, we note that McKinney incidentally raises this issue in his brief, and he fails to cite any authority or present any argument on this issue. An issue not briefed by the appellant is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). Thus, McKinney's argument fails.
Even if we were to consider McKinney's argument, we would reject it. As stated earlier, the evidence presented on the aggravated battery charge was that Divers suffered a head injury, collapsed lungs, two broken ribs, a cracked pelvis, a ruptured stomach, and a dislocated spine as a result of the accident. Based on this evidence, it is apparent that Divers suffered great bodily harm and not just mere or minor bodily harm. An instruction on a lesser included offense is not proper if, from the evidence, the jury could not reasonably convict the defendant of the lesser offense. See Moore, 271 Kan. at 421;Robinson, 261 Kan. at 883. Thus, because no reasonable jury would have convicted McKinney of mere bodily harm after hearing the extent of Divers' injuries, appellate counsel was not ineffective for failing to raise this argument on appeal.
Was There Cumulative Error?
Finally, McKinney argues that the cumulative effect of trial and appellate errors entitle him to an evidentiary hearing on his K.SA. 60–1507 motion. McKinney fails to cite any authority or present any argument on this issue; thus, we find that McKinney abandoned this issue. An issue not briefed by the appellant is deemed waived and abandoned. McCaslin, 291 Kan. at 709.
Affirmed.