Opinion
No. 105,984.
2013-02-8
Tyron JAMES, Appellant, v. STATE of Kansas, Appellee.
Appeal from Wyandotte District Court; David W. Boal, Judge. Craig A. Lubow, of Kansas City, for appellant. Sheryl L. Lidtke, deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; David W. Boal, Judge.
Craig A. Lubow, of Kansas City, for appellant. Sheryl L. Lidtke, deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J., and DANIEL L. HEBERT, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Tyron James appeals the district court's denial of his K.S.A. 60–1507 motion asserting ineffective assistance of counsel. For the reasons stated below, we affirm.
Facts
James was convicted of two counts of first-degree premeditated murder for the murders of Henry Raimey, Jr., and Billy Holloway, Jr., after which he was sentenced to concurrent hard 50 life sentences. The Kansas Supreme Court summarized the facts from the underlying criminal case in State v. James, 279 Kan. 354, 109 P.3d 1171 (2005):
“On the night of the murders, Raimey's girlfriend, Kandra Poole, saw defendant James get into her white sports utility vehicle (SUV) with Raimey and Holloway. Defendant got into the back seat; Holloway got into the front passenger seat; and Raimey got into the driver's seat and drove away from Poole's home.
“A few minutes later, Donnie Hayes saw an accident outside her home, and her husband heard gunshots. Hayes looked outside and saw a white SUV hit a pole. She watched as a young man flew out of the passenger side of the SUV and landed in the middle of the street. The man was wearing only one shoe.
“Hayes called 911 and ran outside with her husband. By the time she reached the man with one shoe, he had moved out of the street. She could tell he was hurt badly; his leg appeared to be dangling. Hayes told him not to move, and he asked her not to call the police. She told him she already had. The man then requested help finding his gun and his shoe. Hayes, her husband, and other bystanders fled, and Hayes watched as the man hopped away from the accident scene.
“The first police officer to arrive saw Holloway lying on the ground beside the SUV's passenger side and Raimey lying inside the SUV near the driver's seat. Shortly thereafter, the fire department arrived and announced that both men were dead. One of the firefighters informed the police officer that the victims had been shot.
“Another investigator arrived on the scene and interviewed the Hayeses. They told the investigator which direction the man with one shoe had gone. The investigator then found the man hiding under a porch near the scene. The man was identified as defendant James.
“A gun and a tennis shoe matching the one defendant was wearing when he was apprehended were found in the area the man with one shoe had been searching before he hopped away.” 279 Kan. at 355–56.
Originally a capital case, the death penalty unit was first appointed to represent James but was allowed to withdraw after the State decided not to seek the death penalty. Attorney Albert Grauberger was then appointed to represent James.
A preliminary hearing was held on October 8, 2002. The district court inadvertently failed to record a portion of this hearing; thus, the preliminary hearing testimony of several witnesses is not available in the record.
At some point after the preliminary hearing, James filed a pro se motion for dismissal of his court-appointed counsel, Grauberger. On January 3, 2003, the court allowed Grauberger to withdraw and appointed A.J. Stecklein to represent James at the trial, which was scheduled for February 24, 2003.
At the jury trial on February 24–27, 2003, the State's theory was that James shot Raimey because Raimey was scheduled to testify that day on behalf of the State in an unrelated murder charge against Ronnell Ford, who is James' cousin. The theory of the defense was that after James, Holloway, and Raimey left Raimey's house, Raimey stopped to pick up another unknown passenger, who sat in the back seat. James maintained that while he rode in the front passenger seat, he heard a gunshot and felt a hot sensation on the back of his head. James said he struggled with the man in the back seat, but more shots were fired before Raimey slumped over and James was thrown from the car into the street. James claimed the next thing he remembered after that was waking up with a cast on his leg. James, 279 Kan. at 356.
After James' conviction, Stecklein filed a motion for a new trial on March 6, 2003, which the court denied after a hearing. On appeal, Stecklein withdrew and the court appointed a new attorney to represent James. On April 22, 2005, the Kansas Supreme Court affirmed the convictions and sentence.
On August 23, 2006, James filed a pro se motion for relief under K.S.A. 60–1507 alleging ineffective assistance of trial and appellate counsel. Asserting there was not sufficient detail in the motion to competently answer the allegations, the State filed a motion on June 28, 2007, to compel James to allege specific complaints. James' new retained attorney thereafter filed an amended petition with more specific allegations. The State responded on December 21, 2007.
The court later appointed a new attorney to represent James in the collateral proceeding and held an evidentiary hearing on March 10, 2010, at which James, his trial attorney, and his appellate attorney testified. On June 7, 2010, James submitted proposed findings of fact and conclusions of law, to which the State responded on June 18, 2010. On July 21, 2010, the court issued a memorandum opinion setting out its findings and conclusions of law denying the petition.
Analysis
On appeal, James argues that because Stecklein did not properly investigate the case—failing to interview witnesses, failing to hire a private investigator, failing to subpoena phone records, failing to consult or hire experts, and failing to review the preliminary hearing testimony—the district court erred in finding Stecklein's performance as James' trial counsel was not defective. Although he also contends Stecklein failed to make appropriate objections or move for a mistrial, he did not brief either of these issues. An issue not briefed by the appellant is deemed waived and abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011); see also Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 71, 274 P.3d 609 (2012) (holding that a point raised incidentally in a brief and not argued therein is deemed abandoned). As such, we address only the issues raised and discussed in James' brief.
Standard of Review
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089 (2011). Consequently, the appellate court “reviews the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo.” Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009). The standard of review on appeal of a K.S.A. 60–1507 motion after an evidentiary hearing in the district court is similar: to determine “whether the factual findings of the district court are supported by substantial competent evidence and whether those findings are sufficient to support the district court's conclusions of law.” Bledsoe v. State, 283 Kan. 81, 88, 150 P.3d 868 (2007). Substantial evidence is evidence that possesses both relevance and substance and that furnishes a substantial basis of fact from which the issues can reasonably be resolved. We must accept as true the evidence and all inferences drawn from the evidence that tend to support the findings of the district judge. 283 Kan. at 88. An appellate court does not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. In re Estate of Hjersted, 285 Kan. 559, 571, 175 P.3d 810 (2008).
Burden of Proof
The Sixth Amendment to the United States Constitution provides the right to effective assistance of counsel. Chamberlain v. State, 236 Kan. 650, 656, 694 P.2d 468 (1985) (adopting the standards of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674,reh. denied467 U.S. 1267 [1984] ). To establish a claim of ineffective assistance of counsel in a K.S.A. 60–1507 proceeding, the burden is on the movant to show by a preponderance of the evidence both (1) that counsel's performance was constitutionally deficient, which requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment, and (2) that counsel's deficient performance prejudiced the defense, which requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009); Swenson v. State, 284 Kan. 931, 938, 169 P.3d 298 (2007); Supreme Court Rule 183(g) (2012 Kan. Ct. R. Annot. 274).
The first prong requires that a defendant show counsel's representation fell below an objective standard of reasonableness, considering all the circumstances. Strickland, 466 U.S. at 688–89. To establish ineffective assistance of counsel, it is not enough to merely surmise, with the benefit of hindsight, that another attorney might have tried the case differently. Harris, 288 Kan. at 416. As the United States Supreme Court observed in Strickland:
“Judicial 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.... [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” 466 U.S. at 689.
See also Harris, 288 Kan. at 416 (noting that this judicial scrutiny also requires consideration of the totality of the evidence before the judge or jury).
Accordingly, a defendant “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ “ Strickland, 466 U.S. at 689. If counsel has made a strategic decision after making a thorough investigation of the law and the facts relevant to the realistically available options, then counsel's decision is virtually unchallengeable. However, strategic decisions made after less than comprehensive investigation are reasonable exactly to the extent reasonable professional judgment supports the limitations on investigation. Rowland v. State, 289 Kan. 1076, 1083–84, 219 P.3d 1212 (2009). “In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” Strickland, 466 U.S. at 691. The defendant bears the burden of demonstrating that trial counsel's alleged deficiencies were not the result of strategy. Rowland, 289 Kan. at 1084.
To establish prejudice under the second prong, the defendant must demonstrate a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Harris, 288 Kan. at 416. 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. Chamberlain, 236 Kan. at 656.
Having set forth the applicable law, we must now determine if there is substantial competent evidence to support the district court's findings of fact regarding James' claims of his trial counsel's ineffectiveness and whether counsel's performance prejudiced James' defense.
Ineffective Assistance of Counsel
James claims that Stecklein should have interviewed more witnesses, hired a private investigator, subpoenaed phone records, consulted or hired experts, and reviewed the preliminary hearing testimony. As the district court found, however, James failed to present any actual evidence of what Stecklein would have discovered had he interviewed more witnesses, hired a private investigator, subpoenaed the phone records, or hired experts. In Ludlow v. State, 37 Kan.App.2d 676, 687–88, 157 P.3d 631 (2007), the appellant claimed his trial counsel was ineffective because he did not conduct an independent pretrial investigation and thus did not make an informed decision about trial strategy. This court held the district court's conclusion that the appellant's counsel was not ineffective was correct, in part because there was no indication in the record as to what further investigations would have uncovered. 37 Kan.App.2d at 688, 690. Such is the case here. All of James' assertions were speculative. For example, in his proposed findings of fact and conclusions of law, James simply asserted that
“it is likely additional evidence presented by the defense would have resulted [in a] more favorable trial for James. Any evidence to corroborate James['] testimony would have bolstered his credibility as a witness. A defense witness to refute the State's evidence, provide an alternate explanation or merely point out the problems with the scientific testimony from the State's witnesses would have given the jury another perspective on the evidence.”
But at the evidentiary hearing, James did not submit any physical evidence or put on any expert witnesses to testify as to evidence or witnesses discovered after trial that would have assisted James' defense. Nor did he have an attorney testify as to how a reasonable attorney would have conducted the investigation differently from Stecklein. James was the only one to testify on his behalf at that hearing. In the absence of this evidence, James failed to satisfy his burden to show that counsel's performance was constitutionally deficient or that counsel's performance prejudiced the defense and deprived him of a fair trial.
Affirmed.