Opinion
110,371.
09-26-2014
Manuel Monies SOTO, Appellant, v. STATE of Kansas, Appellee.
David W. West, of Liberal, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
David W. West, of Liberal, for appellant.
Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., McANANY, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Manuel Montes Soto was convicted of aggravated robbery arising out of an incident at the U Pump It store in Liberal. His conviction and sentence were affirmed by this court in State v. Soto, No. 99,221, 2009 WL 1140247 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1103 (2010). Soto then moved for relief pursuant to K.S.A. 60–1507 based on claims of ineffective assistance of trial counsel. The district court denied relief after an evidentiary hearing, and this appeal followed.
Facts of the Robbery
The following facts come from the opinion in Soto's direct appeal. Soto is referred to as Montes in the opinion.
“On October 23, 2006, at about 8:30 p.m., a man brandishing a large knife entered the U Pump It store in Liberal and demanded the cashier, Leona Keller, give him ‘all the money.’ After Keller complied, the robber locked her in the store's back room and left. The entire robbery, which lasted about 1 minute, was captured by the store's video surveillance camera.
“Keller described the robber as a Hispanic male, about 5'7?, and around 18 years old, and reported he carried a large, butcher-style knife. A knife was later found near the store.
“Liberal police detective Aaron Harvey compiled a photo lineup and interviewed Keller the day after the robbery. Keller was unable to identify the suspect from the photo lineup. However, based on still photos from the surveillance video, Detective Harvey recognized the suspect as Montes.
“The following day, Detective Harvey was contacted by Leona Keller's daughter, Angela Keller. Keller informed him that Susan Gonzales Sullivan had seen the still photo from the surveillance video and identified Montes as the robber.
“On October 26, 2006, police arrested Montes for the robbery and also arrested Jose ‘Keno’ Carrera for aiding a felon. Detective Harvey later interviewed Keno, who told him that Fernando Reyes, Jr., came by Keno's house and told him that the police had harassed him throughout the previous night looking for Montes. Keno also said that Reyes told him that Reyes gave Montes a ride the night following the robbery, and Montes would not let Reyes go to the U Pump It store because Montes had robbed the store using a knife the previous night.
“Harvey interviewed Reyes on October 31, 2006. Reyes said that he gave Montes a ride the night after the robbery and when Reyes attempted to stop for gas at the U Pump It store, Montes told Reyes not to stop there because he had robbed the store and given some of the money to his wife. Reyes also told Harvey that he talked to Keno about Monies' involvement in the robbery. Reyes positively identified Montes as the robber in a still photo from surveillance video.” Soto, 2009 WL 1140247, at *1.
Trial
In his opening statement at Soto's jury trial, the prosecutor, in describing the anticipated testimony, stated: “Then on 11–1 of 2006, Ms. [Jamie] Soto, the wife of the defendant, was interviewed by Officer Harvey, and again, made statements that the defendant had robbed the store in regard to the matter that is at hand. Those are the witnesses.”
Soto's wife was not called as a witness to testify at trial. The State called Reyes as a witness, and he was asked if Soto's wife talked to him about the robbery. Defense counsel objected based on the marital privilege. The objection was sustained.
The State introduced the audio recording of Reyes' police interview. Soto claims the interview contains statements made by Soto's wife, but this court noted in Soto's direct appeal that there were no statements by Soto's wife in Reyes' recorded interview:
“[W]e note that our own review of the videotaped interview with [Carrera] reveals that Detective Harvey inquired of [Carrera], ‘What do you know about the robbery?’ [Carrera] replied, ‘Well, his wife talked to me about it.’ [Carrera] later stated that Montes' wife was looking for Montes. However, at no point during the interview did [Carrera] reveal any specific statements made by Montes' wife regarding confidential communications between her and Montes.” Soto, 2009 WL 1140247, at *6.
In any event, there was no objection when the State offered the audio recording into evidence. The recording was admitted into evidence, but before it was played to the jury, defense counsel objected to any statements by Soto's wife being played to the jury. The judge stated the audio recording had already been admitted into evidence and therefore the objection was untimely.
The State called Detective Aaron Harvey of the Liberal Police Department to testify. On cross-examination, Harvey was asked if the police found fingerprints on the knife found at the crime scene. Harvey answered in the affirmative. When he was asked if the prints belonged to Soto, the State objected on the grounds that Harvey was not qualified as a fingerprint expert. The court sustained the objection. Defense counsel asked Harvey who in the police department would know about the prints. Harvey said that Patsy Gwen would know.
Gwen, who worked for the police at the crime scene, was called as a witness for the defense. She testified that fingerprints were found on the knife at the robbery scene. Defense counsel asked Gwen if she had any conclusion about whose prints were on the knife. The State objected on the grounds of hearsay because Gwen was not a fingerprint expert, and the court sustained the objection.
K.S.A. 60–1507 Motion
Following his robbery conviction, and this court affirming Soto's conviction and sentence, Soto brought this K.S.A. 60–1507 motion in which he claimed his trial lawyer was ineffective for:
(1) failing to timely assert the marital privilege before such evidence was presented to the jury;
(2) failing to properly object to or prevent the admission of K.S.A. 60–455 evidence that was introduced through the video of police interrogation; and
(3) failing to subpoena exculpatory witnesses at trial to introduce the results of the fingerprint examination of the alleged knife used in the robbery.
The district court held an evidentiary hearing on Soto's claims. Soto's trial counsel was the only witness. The district court took the matter under advisement and ultimately concluded that Soto failed to establish that his trial counsel had been ineffective. Soto appeals.
The standards for evaluating counsel's conduct are well known to the parties and can be found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 (1984), and in State v. Cheatham, 296 Kan. 417, 431, 292 P .3d 318 (2013). In our review we are highly deferential to counsel's strategic decisions made after a thorough investigation, and we strongly 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). It is insufficient for a criminal defendant to merely surmise, with the benefit of hindsight, that another attorney may have tried the case differently. Crowther v. State, 45 Kan.App.2d 559, 564, 249 P.3d 1214 (2011). The benchmark for judging an ineffective assistance of counsel claim is “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).
Marital Privilege
Soto argues that his defense counsel failed to timely invoke his marital privilege. As a result, when the jurors listened to the audio recording of Carrera's police interview which was received into evidence, they heard statements made by Soto's wife that violated the marital privilege. Of course, in Soto's direct appeal this court found no such statements from Soto's wife in the audio recording. Nor do we. Soto does not identify any specific statements by his wife that would be protected by the marital privilege. Accordingly, we are not persuaded by this argument.
Soto also argues his counsel should have moved in limine in advance of trial to keep from the jury any references to statements Soto's wife made about his involvement in the crime.
Apparently the police had interviewed Soto's wife and she “made statements that the defendant had robbed the store.” At least that is what the prosecutor stated in his opening statement at trial. The existence of any such statement from Soto's wife would have been available to defense counsel through routine pretrial discovery and by questioning Soto's wife.
As noted earlier, Soto's wife did not testify at trial. But when Reyes was asked if Soto's wife talked to him about the robbery, defense counsel objected based on the marital privilege, and the objection was sustained. The objection was made in the presence of the jury, not at a bench conference outside the hearing of the jurors.
One might speculate that jurors could have concluded that Soto admitted the crime to his wife, as the prosecutor stated in his opening statement, but she was not called as a witness because of Soto's claim of privilege. Further, any such speculation would not have arisen if the issue had been foreclosed by a pretrial motion in limine (or by defense counsel raising the issue in a bench conference outside the hearing of the jurors).
But several factors mitigate against any such speculation. “Opening statements in a criminal prosecution are merely to advise the jury as to what it may expect by way of evidence and the questions which will be presented to the jury, and they are not evidence but are merely for the assistance of the jury. [Citation omitted.]” State v. Campbell, 210 Kan. 265, 278–79, 500 P.2d 21 (1972). At the beginning of the trial, the court instructed the jurors they “are to consider, of course, only that evidence that has been admitted.” In its final instructions, the court instructed the jurors that they must not concern themselves with the reasons for the court's rulings during the trial. Further, jurors must “draw no inferences from these rulings and you must consider only the evidence which is admitted by the Court.” The jurors were cautioned that “[s]tatements, arguments, and remarks of counsel are intended to help you in understanding the evidence and in applying the law, but they are not evidence. You should disregard any such utterance that has no basis in the evidence.” We presume the jurors followed the court's instructions and have the ability to assess guilt or innocence based solely on the evidence. State v. Fielden, 42 Kan.App.2d 710, 715, 217 P.3d 986 (2007).
Finally, to prevail on this issue Soto must establish that the outcome of the case would have been more favorable to him if his counsel had moved in limine to prevent the mention at trial of any statements by his wife. Harris, 288 Kan. at 416. Soto presented no evidence at the hearing on his K.S.A. 60–1507 motion on the element of prejudice. Further, the fact of the matter is that a security camera captured the events of the robbery. Harvey, Sullivan, and Reyes identified Soto as the robber shown in the video recording. Soto told Reyes he did not want to stop at the U Pump It store because Soto had robbed the store using a knife the previous night. This was consistent with the statement Carrera made to the police. We are satisfied the outcome of the trial would not have been different if defense counsel had sought an order in limine before trial.
K.S.A. 60–455 Evidence
Soto argues that defense counsel should have objected to the admission of K.S.A. 60–455 evidence. K.S.A. 60–455 states:
“[E]vidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion.”
Soto fails to disclose this objectionable K.S.A. 60–455 evidence. He simply claims there was improper K.S.A. 60–455 evidence in the recording of the Reyes police interview without telling us what it is. At the hearing on Soto's motion, his trial counsel testified that he did not recall there being any objectionable K.S.A. 60–455 evidence introduced at trial. We are not obliged to comb the record to find the evidence Soto now claims was improperly admitted. A party claiming error has the burden of designating a record that affirmatively shows prejudicial error. State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012). Soto has effectively abandoned this claim.
Fingerprint Expert
As noted earlier, the fingerprint issue was addressed at trial by witnesses Harvey and Gwen. Neither testified the fingerprints found on the knife did not belong to Soto. Soto claims his counsel was ineffective in failing to call a fingerprint expert at trial to establish that the prints on the knife were not from Soto.
Of course, to establish prejudicial error by his defense counsel, Soto had to show that had a fingerprint expert been called to testify at trial, the expert would have testified that the prints did not belong to Soto. We find nothing to that effect in the record. In his appellate brief, Soto claims the fingerprints would not be matched to him. But the supporting testimony he cites is that of Harvey and Gwen. Neither testified the fingerprints did not belong to Soto. Without any evidence of prejudice, this claim necessarily fails.
District Court's Findings and Conclusions
Finally, Soto claims that in denying Soto's motion, the district court, contrary to Supreme Court Rule 183(j) (2013 Kan. Ct. R. Annot. 280), failed to make adequate findings of fact and conclusions of law with respect to the claims asserted in paragraphs 7(b) and 7(c) of his pretrial questionnaire.
Paragraph 7(b) sets forth Soto's claim that his counsel was ineffective in failing to object to playing the video interviews of several witnesses, in particular, the video of the Carrera interview.
In paragraphs 18 and 20 of its decision, the district court noted the fact that in Carrera's interview he did not disclose any confidential communications between Soto and his wife. The district court concluded that Soto failed to meet his burden of proof. The district court's findings and conclusions on this point were sufficient to comply with Supreme Court Rule 183(j).
Paragraph 7(c) sets forth Soto's claim that his counsel was ineffective in failing to call a fingerprint expert.
In paragraph 25 of the court's decision, which dealt with 7(a) in Soto's pretrial questionnaire—failure to file a motion in limine based on the marital privilege—the court found no ineffective lawyering. Thus, the court determined that it need not consider the issue of prejudice, the second element of a Strickland analysis. Then, turning to the 7(c) issue, the court found in paragraphs 26 and 27 of its decision that counsel's performance was adequate and, besides, there was no prejudice to Soto because of the overwhelming evidence of his guilt. This finding applied to issue 7(c) of Soto's pretrial questionnaire. We conclude that the district court's findings and conclusions on this point were sufficient to comply with Supreme Court Rule 183(j).
Further, we find substantial evidence to support the district court's findings of fact, and we conclude that the district court's conclusions of law are supported by the facts. The district court did not err in denying relief on Soto's motion.
Affirmed.