Opinion
110,409.
04-10-2015
Mario MERRILLS, Appellant, v. STATE of Kansas, Appellee.
Michael P. Whalen, of The Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Michael P. Whalen, of The Law Office of Michael P. Whalen, of Wichita, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
In 2001, Mario Merrills was convicted of and sentenced for the attempted second-degree murder and aggravated robbery of Patrick Schaefer. After Merrills failed to obtain relief from his convictions on direct appeal to a panel of this court and State v. Merrills, No. 87,401, unpublished opinion filed March 5, 2004, rev. denied 278 Kan. 850 (2004) (Merrills I ), and later failed to obtain sentencing relief in State v. Merrills, 37 Kan.App.2d 81, 194 P.3d 869, rev. denied 284 Kan. 949 (2007) (Merrills II ), he then sought relief under K.S.A. 60–1507. In 2009, the district court, after a nonevidentiary hearing, denied Merrills' K.S.A. 60–1507 motion. On appeal, this court remanded the motion to the district court for an evidentiary hearing, stating:
“Such evidentiary hearing shall be limited to the isolated issue of whether trial counsel was ineffective in failing to support the motion for new trial with at least some evidence, affidavit or otherwise, to substantiate the claim that a toxicology expert would have testified that the effect and interaction of drugs in Schaefer's system and in his drug regimen influenced Schaefer's behavior at the time of the shooting.” Merrills v. State, No. 102,021, 2010 WL 5139879 at *10 (Kan.App.2010) (unpublished opinion), rev. denied 291 Kan. 913 (2011) (Merrills, III ).
At the hearing on the remand, Merrills called psychiatrist Michael Burke, M.D., Ph.D., who testified that he deduced Schaefer was impaired at the time of the incident and therefore Schaefer's testimony was unreliable. The State called Merrills' trial counsel, Cheryl Roberts, who explained why she did not pursue obtaining an expert opinion to support the motion for a new trial. The district court found that trial counsel was not ineffective in her representation of Merrills with respect to the motion for new trial. It also found that Dr. Burke's testimony was not compelling and was insufficient to support a conclusion that a different trial result would have occurred had an expert in toxicology testified. Thus, Merrills failed to show that counsel's performance was constitutionally deficient and, even if it had been, there was no showing of prejudice. This is Merrills' appeal from that decision. We affirm the district court's denial of relief.
Factual and Procedural Background
As noted, this K.S.A. 60–1507 action has been before this court before. See Merrills III, 2010 WL 5139879. To provide background for our decision on the issue before us, we adopt a part of the factual summary provided by our court in that opinion, which follows:
“Merrills' convictions stem from a jewelry store robbery. Around 11 a.m., Patrick Schaefer, the owner and operator of Gold and Diamond Traders, buzzed two customers into his store. Merrills and Aaron Douglas entered the store. Merrills immediately began looking at some jewelry, while Douglas began talking to Schaefer. Although they did not know it at the time, all three men—Merrills, Douglas, and Schaefer—each had a gun.
“According to Schaefer, he felt uncomfortable with Merrills' and Douglas' presence in the store and attempted to slowly retreat to the back of the store where he could draw his gun and demand that they leave. Schaefer testified that while he was backing up, Merrills shot Schaefer in his upper left chest, causing him to fall to the ground. While Schaefer was still on the ground, Merrills and Douglas forcefully demanded money and jewelry from the store's safe. Schaefer gave the men what he could, mainly cash and jewelry, before the two fled.
“Merrills took the stand at trial and told a different story about the altercation. According to Merrills, when Schaefer started backing up, Schaefer pulled out a gun from his back waistband. Fearing for his life, Merrills said he pulled out his gun and shot Schaefer in self-defense. The two men then grabbed Schaefer's gun, and it was Douglas, not Merrills, who demanded money. Merrills indicated he did not take any property and left the store.
“Just prior to the weekend before trial, the State provided Schaefer's medical records to Merrills' counsel. The medical records included a doctor's report from the hospital that stated Schaefer had opiates and cannabinoids in his system, Schaefer had a history of polysubstance abuse, and Schaefer had a medication regimen that at some point included the drugs Haldol, Paxil, and Seroquel, among others.
“On Monday morning, Merrills filed a motion to continue the trial in order to consult a toxicologist to review and interpret the medical records. In support of this motion, Merrills argued that the effect and interaction of the drugs in Schaefer's system and drug regimen may have influenced Schaefer's behavior; thus expert testimony about the effect and interaction of these drugs could very well support Merrills' version of the robbery—that Schaefer was the first to pull his gun, which prompted Merrills to fire in self-defense. The trial court denied the motion. Specifically, the court found drug use to be a matter of common knowledge and that expert testimony regarding the cumulative effect of the drugs in Schaefer's system would not assist the jury in any meaningful way.
“Schaefer's medical records ultimately were introduced into evidence at trial. Moreover, Schaefer testified that he smoked marijuana the Saturday before the Monday morning robbery and was taking a prescription painkiller, as well as a drug called Paxil, an antidepressant, at the time of the shooting.
“Merrills was convicted of aggravated robbery and attempted second-degree murder. After he was convicted, Merrills filed a motion for new trial in which he argued the trial court's decision to deny his motion to continue trial in order to consult a toxicologist to review and interpret the medical records precluded him from presenting an adequate defense. The court denied the motion for new trial.
“In his direct appeal, Merrills asserted the trial court erred in denying his request for continuance. A panel of this court rejected Merrills' claim on grounds that, even if the decision to deny the continuance was made in error, such an error was harmless because Merrills failed to allege any prejudice resulting from the decision. State v. Merrills, No. 87,401, unpublished opinion filed March 5, 2004, slip op. at 5–6.”Merrills III, 2010 WL 5139879, at *1–2.
On May 5, 2008, Merrills collaterally attacked his convictions by filing an action pursuant to K.S.A. 60–1507. He raised several issues in his K.S.A. 60–1507 motion. The district court held a preliminary hearing during which counsel presented their arguments. The court determined that an evidentiary hearing was not required and denied Merrills' claims. The district court's order was filed October 24, 2008. Merrills timely appealed.
As noted above, on appeal, a panel of this court addressed the same issues that Merrills raised in the district court. The panel affirmed the district court's denial of relief on all the issues that the district court had considered. See 2010 WL 5139879, at *2–5. In addition to the claims made and denied in the district court, Merrills asserted a new claim, i.e., that trial counsel was ineffective for failing to obtain an expert to provide toxicological evidentiary support for Merrills' motion for a new trial.
However, a majority of the panel chose to accept jurisdiction and evaluate the newly raised claim to determine whether it justified an evidentiary hearing in the district court. Merrills III, 2010 WL 5139879, at *6–10. The majority held that Merrills had made adequate factual contentions to support his new claim for relief, which required that an evidentiary hearing be conducted on that claim. The majority listed those contentions, many of which were not subject to dispute. Of particular relevance here, the court cited this factual contention by Merrills:
“Given the 9–day time window between the conviction and filing of the motion for new trial, even a nominally competent attorney would have supported the motion for new trial with at least some evidence, affidavit or otherwise, to substantiate the claim a toxicology expert would have testified that the effect and interaction of drugs in Schaefer's system and in his drug regimen influenced Schaefer's behavior at the time of the shooting. In the alternative, if more than 9 or 10 days were needed to obtain a toxicologist's affidavit, defense counsel could have sought to extend the deadline for filing the new trial motion under K.S.A. 22–3501.” 2010 WL 5139879, at *9.
The panel majority held that Merrills' factual contentions, including the one above, “if true, would demonstrate that trial counsel's performance in failing to consult and/or utilize a toxicology expert to support the motion for new trial was objectively unreasonable.” (Emphasis added.) 2010 WL 5139879, at *10. Thus, the majority remanded the case for a hearing on the new issue only, stating:
“Such evidentiary hearing shall be limited to the isolated issue of whether trial counsel was ineffective in failing to support the motion for new trial with at least some evidence, affidavit or otherwise, to substantiate the claim that a toxicology expert would have testified that the effect and interaction of drugs in Schaefer's system and in his drug regimen influenced Schaefer's behavior at the time of the shooting.” 2010 WL 5139879, at *10.
On remand, the district court held an evidentiary hearing January 8, 2013. In support of his sole remaining claim, Merrills presented the testimony of Dr. Burke, an associate professor in psychiatry from the University of Kansas School of Medicine. Dr. Burke based his opinions and conclusions on certain pages from Schaefer's hospital records, some pages from Schaefer's trial testimony apparently provided by Merrills' counsel, the decisions of the Court of Appeals in Merrills' direct appeal and K.S.A. 60–1507 action, and his own expertise in psychopharmacology.
Dr. Burke prepared a report of his analysis, dated September 27, 2012. In the summary portion of the report he wrote:
“According to Mr. Schaefer's testimony, when the two men entered his store he put his hand on his gun and began moving to a vantage point to draw the gun so the men would leave. After this, he has no further recollection. According to Mr. Merrills, Mr. Schaefer pulled his gun and was subsequently shot in self-defense.” (Emphasis added.)
Dr. Burke wrote about Schaefer's capacity as a credible witness in the conclusion section of the report, as follows:
“Based on the data reviewed and the analysis outlined above, it is my opinion, within a reasonable degree of medical certainty, that on the day of the shooting incident in question Mr. Patrick Schaefer was under the direct (intoxication) and indirect (withdrawal) influence of multiple psychotropic drugs. As all of the drugs involved have established negative effects on cognition, executive functioning and perception, it is reasonable to conclude that Mr. Schaefer's behavior, reasoning, and perception were impaired, and his subsequent recall of events would be distorted.”
Dr. Burke also testified to his conclusion about Schaefer's impaired functioning, stating:
“From the information that I reviewed, it appears to me that Mr. Schaefer was, one, under the intox—under the direct influences of the opiates and cannabinoids at the time of the shooting and probably was under the early influence of a withdrawal, benzodiazepine withdrawal that was developing and went on to become full blown. And that would certainly explain his heightened anxiety, confusion about who shot who and first and what happened and his difficulty remembering those events. ” (Emphasis added.)
Dr. Burke also concluded that Schaefer's use of prescription Paxil contributed to Schaefer's cognition difficulties because it decreased the body's ability to metabolize the other drugs in Schaefer's system.
Asked on cross-examination to provide context for his opinions, Dr. Burke explained Schaefer had “fairly obscure ideas about sort of what happened next [i.e., after he was shot].” The prosecutor asked on what basis the doctor had concluded Schaefer's recall was obscure. Dr. Burke replied:
“Well, for instance, he recalled that he had a gun in his waistband and how he was feeling and why he was feeling anxious, I guess, but then he doesn't remember what happened next, did he fire or —I mean, that's kind of what I read him saying.” (Emphasis added.)
The prosecutor persisted in asking questions about why the doctor believed Schaefer's testimony about the incident was unclear. She asked if Dr. Burke's belief was based on what Merrills said happened that day and then asked if Dr. Burke was comparing Merrills' version and the victim's version. The doctor explained that he did compare Schaefer's testimony and Merrills' testimony from the rather detailed narratives in the appeals reports. However, when asked if the doctor reached his conclusion that the victim was experiencing some negative effects in cognition based on the appellate opinions, the doctor stated: “Actually, no, my conclusion is based on the fact that [Schaefer] was—had intoxicants in his system and the history—the medical history supports that he was likely in early stages of sedative withdrawal.”
The prosecutor asked Dr. Burke the following question: “If there was someone there on September 11, 2000, and they reported a sequence of events or a chronology that's similar or nearly identical to what the victim testifies to at trial, would that change your conclusion that the victim was suffering negative effects at the time of the shooting?” The doctor answered: “No.”
The prosecutor eventually asked: “So, doctor, it's your testimony today that you are, in effect, guessing at what his cognitive function was on September 11, 2000, when the victim was shot in the chest by Mr. Merrills?” Dr. Burke replied: “I'm inferring from the case facts and my knowledge of psychopharmacology .” The doctor then acknowledged that he was drawing his inferences about Schaefer's mental cognition from an incomplete record.
Dr. Burke admitted that he did not review all of Schaefer's trial testimony. The only medical reports in evidence he had from the day of the shooting, September 11, 2000, were the toxicology results of an intake urinalysis report (which showed the presence of cannabinoids and opiates) and a consultation report that was essentially the intake summary. The six pages of medical records and eight pages of Schaefer's testimony on which Dr. Burke relied are part of the record on appeal. Dr. Burke did not interview Schaefer.
After Merrills rested, the State called Merrills' trial attorney, Cheryl Roberts, as a witness. Roberts had been a practicing attorney for 15 years before she represented Merrills in his criminal trial. Roberts discussed investigating the case, going to the crime scene, the late delivery to her of Schaefer's medical records, and her unsuccessful attempts to obtain a continuance of the trial. She described the steps she took to prepare to cross-examine Schaefer about his drug use: over the weekend before trial she read medical dictionaries and the Physician's Desk Reference (PDR) regarding cannabinoids and opiates. She also described her approach to cross-examining Schaefer about his drug use and the admissions she obtained.
Roberts testified that after the trial, she timely filed a motion for a new trial. One of the issues she raised concerned the court's refusal to grant a continuance in spite of the late medical record disclosure. She believed that the late disclosure of the urinalysis report and denial of the trial continuance formed one of the motion's stronger arguments. She was not overly concerned at the time about the benzodiazepines because there was no indication in the lab report that the substance was present in Schaefer. In addition, she had researched Paxil, determined it was a relatively new antidepressant and found no studies addressing the interaction between Paxil and marijuana or other drugs. Roberts confirmed from the PDR that it was, in 2000, considered a relatively safe drug and she found no studies showing adverse effects. She also went to the Wichita State University library to look through medical articles and probably reviewed information on the Internet. She believed that without information about the levels of the various drugs in Schaefer's system at the time he was shot, she would not be able to find an expert who could be of assistance, so she did not consult an expert or doctor.
By the time of the hearing in 2013, Roberts was aware that pharmaceutical companies had been charged criminally for minimizing the side effects of Paxil.
During closing arguments at the K.S.A. 60–1507 hearing, Merrills argued Roberts was ineffective for failing to support the motion for new trial with an affidavit or some evidence to substantiate her motion claim that a toxicology expert would have made a difference in Merrills' trial. The district judge asked Merrills' counsel: “Well, can I ask you how long it took you to get an expert?” Counsel replied: “I sent out—when I sent out my letters, I sent out 12 letters to 12 psychiatrists. I had contact then within a couple of weeks, by the time I did that.” The court asked: “Longer than 10 days?” Counsel replied: “Probably, Your Honor.”
The court took the remanded K.S.A. 60–1507 issue under advisement.
On March 29, 2013, the court held another hearing to announce its ruling. The court found Merrills' trial attorney did everything she could before and during trial once the medical information became available and the continuance was denied. She did her own research to prepare for trial. She also filed a motion for new trial within the limited time permitted for such a motion, seeking the opportunity to get evidence from an expert to provide at a new trial, but that was also denied. The court found that counsel was at a disadvantage because of the rulings of the trial court.
The court found it significant that Merrills' counsel acknowledged it took him at least 2 weeks to get an expert. The court held that even if Dr. Burke had testified at the motion for new trial, it was not persuaded that the motion would have been granted or that the jury would have reached another verdict based upon such testimony. In fact, the court itself noted that that “Dr. Burke's testimony wasn't all that compelling.” Applying the Strickland standard to evaluate claims of the ineffective assistance of counsel, see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 252, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 (1984), the court concluded Merrills was not entitled to a new trial. The State was ordered to prepare a journal entry.
On July 26, 2013, the district court issued the journal entry in the case. The court cited the standards applicable to determining whether counsel has been constitutionally ineffective. The court summarized the evidence at the evidentiary hearing. The court found that trial counsel was denied the opportunity to obtain an expert when the trial court refused to continue the trial and that counsel reasonably responded by conducting her own investigation and research. The court briefly reviewed Dr. Burke's testimony but noted he did not interview the victim, did not review Schaefer's dosage, and did not review the complete medical records from the incident. The court determined that Dr. Burke's findings were based on inferences regarding Schaefer's mental state and probabilities of likely drug interactions. Finally, the court held that even if trial counsel could have found an expert such as Dr. Burke, Merrills had failed to show prejudice because Dr. Burke's testimony was not compelling. The district court denied Merrills' motion.
Merrills timely appeals from the district court's denial of K.S.A. 60–1507 relief. Our analysis of the issues follows.
The District Court Made Adequate Findings of Fact and Conclusions of Law
We have detailed both the oral and written pronouncements of the district court because Merrills first contends that the district court made inadequate findings of fact and conclusions of law.
Supreme Court Rule 183(j) (2014 Kan. Ct. R. Annot. 287) requires that, after an evidentiary hearing in a K.S.A. 60–1507 action, “[t]he court must make findings of fact and conclusions of law on all issues presented.” Whether the district court's findings of fact and conclusions of law comply with Rule 183(j) is a question of law that is reviewed de novo. Robertson v. State, 288 Kan. 217, 232, 201 P.3d 691 (2009).
The Supreme Court has explained that a lack of findings of fact and conclusions of law addressing the issues in a K.S.A. 60–1507 motion requires remand only if that lack “impedes appellate review.” Haddock v. State, 282 Kan. 475, 506, 146 P.3d 187 (2006). When the record is sufficient to allow appellate review, however, remand is unnecessary. 282 Kan. at 506 (finding that although the district court provided minimal analysis, the record allowed for appellate review). In reviewing the adequacy of the findings, this court may look at not only the court's journal entry but also to its oral expression at the time of the hearing. If the record contains a transcript of the district judge's oral findings and conclusions and they meet the requirements of Rule 183(j), remand is not required. Harris v. State, 31 Kan.App.2d 237, 239, 62 P.3d 672 (2003).
We have summarized the district court's oral and written findings and conclusions above. We conclude that the district court's written findings, combined with the court's statements during its oral ruling on the motion and those made when denying reconsideration, all provide an adequate record for our review. We decline to remand the case for further findings and conclusions, as the district court here adequately complied with Rule 183(j).
Merrills' Ineffective Assistance of Counsel Claim
Our Standards of Review
Merrills challenges the district court's decision that he failed to demonstrate trial counsel's actions, under all the circumstances, were constitutionally deficient. He also takes issue with the district court's decision that he failed to establish prejudice. Merrills attacks the credibility of trial counsel and criticizes the district court for discounting the “uncontroverted” expert testimony of Dr. Burke.
An ineffective assistance of counsel claim presents mixed questions of law and fact. State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013). In the district court, the “movant has the burden” of proof “by a preponderance of the evidence.” Supreme Court Rule 183(g) (2014 Kan. Ct. R. Annot. 287). When a claim is brought under K.S.A. 60–1507 and the district court conducts a full evidentiary hearing on the claim, we review the district court's factual findings for substantial competent evidence and determine whether the court's factual findings support its conclusions of law. We conduct an unlimited review of the district court's conclusions of law. Adams, 297 Kan. at 669. Substantial competent evidence is evidence possessing both relevance and substance that a reasonable person could accept as being adequate to support a conclusion. State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009). We must give deference to the district court's findings of fact, accepting as true the evidence and any inferences that support or tend to support the district court's findings. Hunt v. State, 48 Kan.App.2d 1023, 1029, 301 P.3d 755 (2013), rev. denied 298 Kan. ____ (December 27, 2013).
When the K.S.A. 60–1507 motion is based on a claim of ineffective assistance of counsel, we apply the two-prong test derived from Strickland, 466 U.S. at 687. The Kansas Supreme Court has summarized the movant's burden under that test: The movant must prove that counsel's performance was constitutionally deficient and that the deficient performance was sufficiently serious to prejudice the defense and deprive the accused of a fair trial. State v. Cheatham, 296 Kan. 417, 431, 292 P.3d 318 (2013). To establish prejudice, the movant must show there is a reasonable probability that, but for counsel's error, the result of the proceeding at issue would have been different. 296 Kan. at 431. “ “ “[A] reasonable probability is a probability sufficient to undermine confidence in the outcome.” “ [Citations omitted.]” 296 Kan. at 431.
Our scrutiny of counsel's performance must be highly deferential. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. This court indulges a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. In re Care & Treatment of Lowry, 48 Kan.App.2d 773, 789, 304 P.3d 696, rev. denied 296 Kan. 1130 (2013).
Our Review of the Denial of Relief to Merrills
Again, the sole issue before the district court on remand was this:
“Such evidentiary hearing shall be limited to the isolated issue of whether trial counsel was ineffective in failing to support the motion for new trial with at least some evidence, affidavit or otherwise, to substantiate the claim that a toxicology expert would have testified that the effect and interaction of drugs in Schaefer's system and in his drug regimen influenced Schaefer's behavior at the time of the shooting.” Merrills v. State, No. 102,021, 2010 WL 5139879, at *10. (Kan.App.2010) (unpublished opinion), rev. denied 291 Kan. 913 (2011) (Merrills III ).
This holding was based on Merrills' factual contention that:
“Given the 9–day time window between the conviction and filing of the motion for new trial, even a nominally competent attorney would have supported the motion for new trial with at least some evidence, affidavit or otherwise, to substantiate the claim a toxicology expert would have testified that the effect and interaction of drugs in Schaefer's system and in his drug regimen influenced Schaefer's behavior at the time of the shooting. In the alternative, if more than 9 or 10 days were needed to obtain a toxicologist's affidavit, defense counsel could have sought to extend the deadline for filing the new trial motion under K.S.A. 22–3501.” Merrills III, 2010 WL 5139879, at *9.
This court, in remanding the case, found that Merrills' alleged facts “if true, would demonstrate that trial counsel's performance in failing to consult and/or utilize a toxicology expert to support the motion for new trial was objectively unreasonable.” 2010 WL 5139879, at *10.
Kansas courts have held that a principal purpose of a motion for new trial filed on grounds other than newly discovered evidence is to call alleged trial errors to the attention of the trial court. See State v. Holt, 298 Kan. 469, 477, 313 P.3d 826 (2013). Under the statute in effect at the time of Merrills' trial, motions for new trial, other than those based upon newly discovered evidence, were required to be filed “within 10 days after the verdict ... or within such further time as the court may fix during the 10–day period.” K.S.A. 22–3501(1) (2010 amendment to 14–day period inapplicable to this case). The time limit established by this statute is mandatory, not directory. Holt, 298 Kan. at 474–79.
The parties spent a considerable amount of time at the remand hearing reviewing all of the services Roberts rendered to defend Merrills. As the remand order made clear, though, the only real issue concerned the propriety of her decision to file the motion for new trial without an expert affidavit or other evidence to support Merrills' claim that drugs may have impaired Schaefer's reliability as a witness. Again, Roberts testified that when the request to continue trial was denied, she consulted many sources to educate herself about the cannabinoid and opiate drugs initially detected in Schaefer's system. Roberts then explained why she filed the motion for new trial without expert support: she concluded that without information about the levels of the various drugs in Schaefer's system at the time he was shot, 10 days simply would not have been enough time to find an expert who could be of assistance.
Merrills did not respond to Roberts' testimony but simply challenged her credibility and then highlighted the testimony of the expert eventually obtained in this postconviction proceeding, Dr. Burke, to show prejudice. But Merrills provided no testimony on how long it would have taken Roberts to obtain an expert affidavit or other evidence to support the motion for new trial. And as the district court pointed out, the 2 weeks it took for Merrills to even get a response from one of the dozen psychiatrists he solicited to serve as an expert in this postconviction proceeding contradicts Merrills' ineffectiveness claim. To that end, the Merrills III opinion was issued December 10, 2010, and the mandate was issued March 7, 2011, but Dr. Burke's report was not dated until September 27, 2012. From these dates, the district court clearly could have inferred that obtaining the expert evidence Merrills says should have been obtained would have taken far longer than the trial court would have granted for filing the motion for a new trial.
Moreover, Merrills offered no legal expert testimony that Roberts' failure to seek an extension of time to find an expert for purposes of the posttrial motion fell below the standard of effective representation. Merrills did not ask Dr. Burke how long it would have taken any doctor or other expert to reasonably review the necessary information, form an opinion, and prepare the report or affidavit he claims Roberts should have obtained. It was incumbent on Merrills, who had the burden of proof, to demonstrate the truth of his contention that even a “nominally competent” attorney would have obtained expert toxicological evidence within the time frame for filing a motion for new trial or at least obtained an extension and then done so.
Simply put, Merrills did not provide evidence that Roberts, had she chosen to try to obtain expert support, could have done so within 10 days or even within a reasonably extended period if the trial court, which had denied every request Roberts had made for continuances, granted an extension on filing the motion for new trial. The district court found that Roberts had done all she could reasonably do within the time allowed, in light of the trial court's rulings. That conclusion is supported by Roberts' testimony and the record, and it is challenged only by Merrills' unsupported contentions but no evidence.
The district court did not view Roberts' performance through the lens of hindsight. Rather, it clearly reconstructed the circumstances of Roberts' challenged conduct and properly evaluated the challenged conduct from Roberts' perspective at the time. The district court's finding that Roberts did all she could reasonably do in the circumstances but was denied the opportunity to do more by the trial court is supported by substantial competent evidence. Since no meaningful evidence was presented to establish that Roberts' actions, based upon all the circumstances, were constitutionally deficient, Merrills has failed to establish any deficiency under the first prong of the Strickland test and his ineffective assistance of counsel claim fails.
And even if Merrills had shown deficient performance, he has failed to demonstrate prejudice. The second prong of the Strickland analysis requires the moving party to establish that, but for counsel's deficient performance, the party's right to a fair trial was prejudiced. State v. Uwadia, 47 Kan.App.2d 829, 839, 279 P.3d 731 (2012). Merrills claims that Dr. Burke's “uncontroverted” testimony establishes such prejudice.
The question before the district court was whether counsel's performance, assuming it had been deficient, negated an otherwise reasonable probability that the motion for new trial would have been granted. “The court on a motion of a defendant may grant a new trial to [the defendant] if required in the interest of justice.” K .S.A. 22–3501(1). An appellate court reviews the district court's decision on a motion for new trial for an abuse of discretion. State v. Rodriguez, 295 Kan. 1146, 1158, 289 P.3d 85 (2012).
Accordingly, Merrills was required to show that Roberts' failure to obtain an expert, if that had been possible in the time frame allowed, likely impacted the trial court's discretionary decision on the motion for new trial. The K.S.A. 60–1507 court found no prejudice because it found that Merrills' toxicology expert's testimony was not compelling. During the hearing, the court pointed out that Dr. Burke's “whole report [is] kind of speculative” based upon the delay between the events at issue and his opinion. Although Merrills repeatedly focuses on the “uncontroverted” nature of Dr. Burke's opinions, the State did controvert those opinions by exposing weaknesses in those opinions in its cross-examination. Dr. Burke admitted he did not know the details of Schaefer's hospitalization other than what was in the few pages of medical records that he reviewed. He never interviewed or examined Schaefer. He agreed that the impact of the drugs Schaefer was taking would vary based upon the individual, any tolerances to or interactions between the drugs, and other variables. Dr. Burke also admitted that his conclusions were based on incomplete medical reports, and he was not certain that Paxil's interactive effects with other drugs were well-known in 2001 (at the time of the trial).
We also note that Dr. Burke based his conclusions on an inaccurate and incomplete understanding of Schaefer's trial testimony. As illustrated by the prosecutor's cross-examination, Dr. Burke based his diagnosis on supposed obscurities in Schaefer's recollection of events that are not actually confirmed in the trial transcript. Dr. Burke testified to his opinion on Schaefer's drug-altered state and concluded: “And that would certainly explain his heightened anxiety, confusion about who shot who and first and what happened and his difficulty remembering those events.” Schaefer did say he was anxious because he thought something was going to happen. However, Schaefer did not indicate any confusion about who shot who or who shot first. He denied that he pulled his gun from his waistband. He consistently said, and Merrills corroborated, that Merrills fired the only shot. Moreover, he testified in detail about the robbery that occurred after he was shot, many of which details Merrills corroborated by attributing them only to Douglas. Dr. Burke's contentions that Schaefer lacked recollection of what happened after the shooting are not supported in the record. But those same contentions formed one of the bases on which the doctor grounded his deductions. The district court's finding that Dr. Burke's conclusions were not compelling is supported by substantial competent evidence.
In his brief, Merrills is essentially asking this court to reweigh the district court's findings on the weight of and credibility of the witnesses' testimony. An appellate court, however, cannot weigh conflicting evidence, evaluate the credibility of witnesses, or redetermine questions of fact. Shumway v. State, 48 Kan.App.2d 490, 496, 293 P.3d 772, rev. denied 298 Kan. ____ (October 1, 2013).
Merrills has failed in his burden of proof under each prong of the Strickland test for determining constitutionally ineffective assistance of counsel. As a result, we affirm the district court's decision denying Merrills any relief under his K.S.A. 60–1507 action.
Affirmed.