Opinion
No. 110,278.
2015-03-27
STATE of Kansas, Appellee, v. Pidy T. TIGER, Appellant.
Appeal from Sedgwick District Court; Jeffrey L. Syrios, Judge.Ryan J. Eddinger and Joanna Labastida, of Kansas Appellate Defender Office, for appellant.Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeffrey L. Syrios, Judge.
Ryan J. Eddinger and Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., BUSER and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Pidy T. Tiger appeals his convictions and sentences for rape (K.S . A.2011 Supp. 21–5503[a][3],[b][2] ) and aggravated indecent liberties with a child (K.S.A.2011 Supp. 21–5506[b][3][A],[c][2][C],[c][3] ). Tiger also appeals the denial of his ineffective assistance of trial counsel claim. Having carefully considered the parties' briefs, oral arguments, and the record on appeal, we affirm the convictions and sentences.
Factual Background
On November 6, 2011, Tiger was staying at his sister and brother-in-law's home. The couple resided at this home with five of their children. Three daughters shared a room, two sleeping on the lower bunk of a metal-framed bunk bed, while the youngest child, 10–year–old T.J., slept on the upper bunk. Two sons, one about 20 and the other a teenager, slept in another room, on a metal-framed bunk bed.
Also staying at the house were Crystal Johnson, a daughter of Tiger's brother-in-law from a prior relationship, and Crystal's three children. Crystal and her children slept in the living room on a mattress or couches. Crystal was eight and a half months pregnant with Tiger's child, their second together.
During the evening, Tiger was in the girls' room, lying with T.J. in the upper bunk. T.J. testified, “I was drawing pictures and he came in and taught me my multiplication facts.” T.J. said Tiger left without incident, and she eventually went to sleep.
Crystal testified that Tiger was “kind of in and out of consciousness” that evening “because he was drinking a lot.” When bedtime arrived, Tiger laid on the mattress with Crystal and the children. Tiger made sexual advances towards Crystal, but she testified, “I'm uncomfortable, he's intoxicated, so I kept pushing his hand away, pushing his hand, pushing his hand away.”
Tiger eventually got up from the mattress. Crystal then heard a “light screech, like as if somebody was getting in or getting out” of one of the bunk beds. Crystal assumed Tiger had gone into her half-brothers' room to use a computer or play video games, which they would sometimes do late at night.
Crystal thought Tiger would fall asleep wherever he was, “so I don't have to worry about him coming back, you know, messing with me .” After hearing nothing for 20 minutes, she arose to use the restroom and to check on Tiger, “just to make sure.” Crystal planned to “peek in” to her half-brothers' room “to see if [Tiger] was sleeping.” When she entered the hallway, however, Crystal heard a “light screech” and realized the noise was coming from her sisters' room. Crystal entered her half-sisters' room, which was partially illuminated by the bathroom lights, and saw Tiger “just sitting there at the foot of [T.J.'s] bed.” Crystal testified T.J. “kind of looked like she was just waking up out of her rest ... [l]ike maybe she didn't even realize that he was there or I was there.” According to Crystal, T.J.'s sisters were “knocked out asleep on the bottom bunk.”
Crystal began yelling at Tiger, demanding “what's going on, what are you doing in here.” She said Tiger did not respond, “like he was coming out of—you know, like he was sleeping too.” At trial, Crystal testified that Tiger was clothed while on T.J.'s bed, although his pants were “sagging” and she could see “the crack of his bottom ... like maybe.” Contrary to this trial testimony, Detective Kim Warehime, who interviewed Crystal after the incident, testified that she reported Tiger's pants were “almost pulled down to his knees,” and that he was wearing no underwear, the undergarment having been left behind in the living room.
Crystal's trial testimony and her pretrial interview responses differed in another important aspect. At trial, she testified that T.J. was clothed in shorts and a “spaghetti strap shirt,” which was somewhat pushed up, exposing the girl's stomach. When interviewed by Officer Vincent Reel, however, Crystal reported T.J. was “laying [sic] on her back with her shirt up above her breast area and her pants down to her knees because she described she could see the skin line of [T.J.] from her chest down to her knees of her actual skin [sic] and described that she could also see [T J.'s] nipples.”
Crystal told Tiger to leave the room. She testified, “He was just blurting out things. He was like saying something in the nature of you just mad and—something about the other girl he was seeing and you want to see me go back to jail or something.” This testimony related to Crystal's recent discovery that Tiger was seeing another woman, which significantly strained their relationship.
For her part, T.J. told police officers that at some point during the evening, Tiger “was giving her looks that intimidated or scared her.” According to Detective William Riddle, T.J. eventually related she was
“on the top bunk of the bunk beds. And that Mr. Tiger got up there with her, that he was on top of her. That he had moved her shirt and bra, had placed his mouth on her breasts. She is describing him shaking the bed as he's on top of her. That he's the one that is shaking it. She is describing him kissing her on the cheek, on the breast, kissing her on her private. She's also describing pressure on her private and that he's placing that pressure on her private with his own private.”
The detective testified that T.J. identified what she meant by “private” with the aid of anatomical drawings. T.J. also specified that her shorts were “at her ankles” during the sexual abuse.
T.J. gave essentially the same account of the incident to Ronda Eagleson, a sexual assault nurse examiner. As part of a clinical examination of T.J.'s genitalia, Nurse Eagleson used a magnifying camera which revealed “two tears ... in the posterior fourchette at 6 o'clock.” At trial, the nurse agreed this finding was made “within or inside the female sex organ.” According to Nurse Eagleson, the “cause ... would typically be a stretching beyond the point of elasticity ... typically from some kind of blunt force.” She also opined that her findings were “consistent with the history given by [T.J.].”
As part of the criminal investigation, the State conducted DNA testing and presented Dr. Steven Hoofer, a DNA expert, at trial. The State's testing was negative for the presence of semen, but swabs taken from T.J.'s breasts were presumptively positive for the possible presence of saliva. At least two individuals had contributed the possible saliva, the major contributor being consistent with Tiger's DNA profile, and the minor contributor being consistent with T.J.'s profile.
Of note, at trial, T.J. initially testified she could not recall anything because she had been sleeping. Eventually, however, T.J. related the same account she had provided to the police officers and Nurse Eagleson. On cross-examination, T.J. said she knew the events had happened although she was sleeping “[b]ecause I could feel him moving and stuff.” T.J. said her bra was pushed up, that her pants were pulled down to her feet, and that Tiger's pants were also down.
Procedural Background
On November 9, 2011, Tiger was charged with aggravated criminal sodomy and aggravated indecent liberties with a child. An amended information was later filed adding the additional charge of rape. On November 9, 2011, Tiger had his first appearance, and the trial court appointed Alice Osburn to represent him. Following a preliminary examination, Tiger was arraigned on December 28, 2011. Both the State and Osburn each continued several court appearances.
On August 28, 2012, Tiger filed a pro se speedy trial motion. He alleged that he had instructed Osburn “to assert my right to be tried on these charges within either 90 or 180 days pursuant to Kansas law.” Tiger also referred to a letter he sent to a district judge, which is not in the record, “asserting my wish to be tried on these charges without delay.” Tiger claimed “[a]ny delays requested by my attorney have been against my wishes and without good cause.” Tiger asked the judge either to call his case on the then-current trial date of October 1, 2012, or to dismiss the charges.
On October 22, 2012, the trial court held a hearing on Tiger's speedy trial motion. At the hearing, the State calculated that, subtracting for the continuances Osburn had requested, only “79 days of the allotted 90 days of statutory speedy trial” had passed. The trial court denied the speedy trial motion on that basis.
Trial began the next day. However, Osburn addressed the trial court before evidence was presented: “Judge, one other thing. Mr. Tiger yesterday asked me to include in the record regarding his motion for speedy trial that the defense continuances were not at his request but they were at my request. I wanted the record to be clear that he did not request those continuances.”
On October 26, 2012, following the presentation of evidence, a jury returned guilty verdicts on the charges of rape and aggravated indecent liberties with a child, but it acquitted Tiger of aggravated criminal sodomy.
On October 31, 2012, Osburn filed a motion for new trial on several grounds, including “the Court erred when it overruled the defendant's request for a dismissal because of speedy trial violation.” Osburn did not explicitly assert the ineffective assistance of his counsel in contributing to this speedy trial violation.
On January 4, 2013, the trial court heard the motion for new trial. Osburn told the trial court:
“Regarding the motion for new trial, I'm gonna stand on my written motion, but Mr. Tiger has asked me to again, regarding paragraph number 2 about his speedy trial violation, he did file a pro se request to dismiss his case because of that, and he wanted the record to be clear that he did not acquiesce to continuances made by me on his behalf and that those were done without his permission.”
Tiger personally addressed the trial court regarding the ineffective assistance of counsel issue:
“When I seen Miss Osburn for the first time concerning this case, I requested that she put in a motion for speedy trial, and she told me there was no need to because the State only had 90 days from the date of the preliminary [hearing] to take me to trial.
“Then, after the preliminary, she proceeded to ask for these various continuances. And I only seen [sic] her probably four times until my actual trial date.
“When I filed that motion, it was an attempt to get the ball rolling in my trial. After that, after I filed that motion, the first time I seen Miss Osburn was the day before I was set to start trial.
“I had no time to speak with her concerning the witnesses, concerning how I was gonna proceed at trial. They called me down here. I mean, I go from sitting in jail, not hearing anything from her or not even knowing when my court date was, to being called in this courtroom saying that I was gonna start trial tomorrow. And that's when I started trial. I had no time to confer with her about how I was gonna proceed at trial.
“And all those continuances weren't in the interest of her investigating my case. I mean, everything she did to prepare for my case pretty much was crammed within that 24–hour period, from that Monday to when my trial started Tuesday.
“Prior to that Monday, nothing was done. I mean, there was no witnesses interviewed. I'd asked her to take depositions. Nothing was done. And there's no way that I had adequate representation or adequate time to do that. And my motion for a speedy trial was to prompt her to take some time to address the various issues I had concerning my case, and those issues were never sufficiently addressed.
“I mean, even as I stand here today, there are numerous things that I know should have been brought fourth during the trial that any other lawyer would bring forth and would have addressed that weren't addressed. So I feel like because of that I didn't have adequate representation.
“And on top of that, all that time was wasted. From the preliminary [hearing] to the day of trial, all that time was wasted. She just asked for continuances and nothing was done concerning my case.
“And she'll tell you that every time she seen me, I wanted to go to trial and I wanted certain things done concerning my case, and those things were never done and it was just more continuances.”
The trial judge asked the State for its “position regarding statements about what I would describe as ineffective assistance.” The trial court indicated that “procedurally” it was “inclined to continue this so that Mr. Tiger can communicate or instruct Miss Osburn to communicate to anybody that he wants to appear on his behalf that would be able to provide me with evidence.” The State responded:
“If he is persisting in his allegation that Miss Osburn was ineffective.... He's running the risk now of abandoning his [K.S .A. 60–]1507 rights later because he's now raising ineffective assistance at the trial level prior to sentencing.
“If that is his intended goal, then he needs to file such a motion and I believe the Court needs to appoint new counsel and set this over for a hearing on his allegations of ineffective assistance of counsel.”
The trial judge asked Osburn if she had a reply, and after consulting with Tiger, she said:
“I asked Mr. Tiger if he wants to claim ineffectiveness now or wait until his direct appeal is done and do it as a civil matter under a habeas corpus and a 1507.
“He wants to do it now before you enter a sentence. So based on that, I'm now in a conflict with my client on my representation with him. So I would suggest he get new counsel and we can set it for an evidentiary hearing and set it over.”
The trial court asked the State whether it would “waive the requirements for a written motion,” but the prosecutor declined, arguing “the defendant needs to set forth exactly with particularity what it is he's claiming.” The trial court set the sentencing date and required a written pro se motion.
On January 15, 2013, Tiger filed a pro se “Motion for Relief Based on Ineffective Assistance of Counsel.” Tiger began by stating: “Comes now, the defendant Pidy T. Tiger by Pro-se Motion and pursuant to K.S.A. 22–3501, Strickland v. Washington, [466 U .S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 (1984) ] and the [S]ixth [A]mendment to the United States [C]onstitution respectfully moves this court to vacate, set aside, or reverse jury verdict [ sic ].” Tiger's first issue was that “Osburn acting as an agent of the court denied the defendant['s] right to a speedy trial.” Tiger went on to allege other grounds for ineffective assistance of counsel, including a lack of preparation and communication.
The trial court appointed Timothy A. Frieden as substitute counsel. On June 13, 2013, Tiger appeared with Frieden for an evidentiary hearing on Tiger's pro se motion. Tiger testified that Osburn had essentially ignored him, did little investigation, and then surprised him on October 22, 2012, with the announcement he was going to trial the next day.
For her part, Osburn testified that the majority of her practice comes from appointments in Sedgwick, Reno, and Butler Counties. Thus “[s]cheduling is a big hassle,” and she “feel[s] like an air traffic controller” when trying to “figure out when I can do them ... how long they are going to be and make sure I still have enough time to prep it.... It's a struggle.” Her practice is to prioritize cases which have been pending longest, meaning her more recent appointments must wait:
“So while Mr. Tiger's case was pending, I had other clients that had old cases, too, and a lot of times when I would get a client, I would be their third or fourth attorney just because of where I fall in the conflicts, so their case had been continued. [Tiger] was tired of waiting. I mean, the courts are interested in getting it done, the defendant is interested in getting it done, so [I] had a lot of people to try to please.”
Of note, Osburn had been appointed to Tiger's case as 1 of 10 assigned to her when the “[p]ublic defender's office shut down taking off grids.”
Osburn testified that at the time she was appointed to Tiger's case she spoke with him regarding her need to request continuances of his case due to her anticipated unavailability on older cases scheduled for trial. In fact, each time she met with him, she advised Tiger about her scheduling conflicts. Osburn acknowledged that she did not consult beforehand with Tiger about every continuance and that Tiger never acquiesced in the continuances.
Frieden asked the trial court to find Osburn was ineffective. The bulk of Frieden's argument, however, focused on his request that the trial court discharge Tiger based on Tiger's pro se speedy trial motion. Frieden specifically asked the trial court to reconsider its earlier denial of the motion.
In denying the motion, the trial court began by doubting Tiger's pro se speedy trial motion was properly before it, but it did “in the alternative ... deny that speedy trial argument on the merits again.” Regarding ineffective assistance of counsel, the trial court found the case “was fairly quickly brought to trial.” The trial court thought Osburn's “practice is reasonable,” and that her need to prioritize cases “happens all of the time.” The trial court also believed Osburn's representation of Tiger was reasonable, and that Tiger was not prejudiced. The motion was denied.
On July 8, 2013, the trial court sentenced Tiger to a life sentence with a 25–year mandatory minimum sentence for each conviction, running the sentences concurrently. Tiger filed a timely appeal.
Ineffective Assistance of Trial Counsel
On appeal, Tiger contends Osburn “performed deficiently when 1) she denied his right to a speedy trial by taking continuances to which he did not acquiesce or authorize, 2) she failed to meet with Mr. Tiger and prepare him for trial, 3) she failed to properly investigate exculpatory evidence, and 4) she failed to properly investigate witnesses on Mr. Tiger's behalf.”
Preliminarily, it is important to recognize that, on appeal, Tiger does not brief the district court's denial of his pro se speedy trial motion which Frieden renewed in the district court. As a consequence, any claim that Tiger's convictions should be reversed and the case dismissed for violation of his statutory speedy trial rights is waived or abandoned on appeal. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).
For the sake of completeness, however, we note the State provided evidence, through an addition to the record on appeal, that Tiger had outstanding warrants in Johnson County, Kansas, (issued on March 12, 2010), and Vernon County, Missouri, (issued on July 13, 2010) while he was being held for trial on the present charges.
The statutory right to a speedy trial, the only kind Tiger asserted in his pro se speedy trial motion, applies to persons “charged with a crime and held in jail solely by reason thereof.” (Emphasis added.) K.S.A.2013 Supp. 22–3402(a). “A present custodial claim on a defendant is required to effect the defendant's; speedy trial status as being held ‘solely by reason’ of pending charges in the jurisdiction Avhere the defendant is confined .” State v. Montes–Mata, 292 Kan. 367, Syl. ¶ 3, 253 P.3d 354 (2011). An “outstanding warrant” for “charges in another jurisdiction” is “a custodial claim on a defendant's presence to adjudicate existing charges or allegations.” 292 Kan. at 370. The State's evidence suggests that Tiger may not have had a valid claim to a statutory speedy trial rights violation while being held on these charges.
Jurisdiction
The State raises another preliminary matter that requires our review prior to analyzing the merits of Tiger's ineffective assistance of counsel claim. In particular, the State argues we lack subject matter jurisdiction because the trial court lacked jurisdiction to consider Tiger's ineffective assistance of counsel claim made in an untimely motion for new trial.
“Kansas appellate courts obtain jurisdiction to entertain an appeal only where the appeal is taken in the manner prescribed by our statutes.” State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008). An appellate court must dismiss an appeal “if the record indicates an absence of jurisdiction.” 287 Kan. at 294. The existence of jurisdiction is a question of law subject to unlimited review. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752(2012).
The State relies on State v. Holt, 298 Kan. 469, 313 P.3d 826 (2013), which considered a motion for new trial filed 16 years after the convictions, and following four K.S.A. 60–1507 motions, two motions to correct illegal sentence, and a motion for reconsideration. The district court “summarily dismissed Holt's motion as successive and untimely.” 298 Kan. at 472. The issue before our Supreme Court was whether “the district court abused its discretion in its summary dismissal.” 298 Kan. at 472.
Holt argued: “[T]he time-limiting language in K.S.A .... 22–3501(1) is merely directory, not mandatory.” 298 Kan. at 472. The relevant subsection limits a motion for new trial on grounds other than newly discovered evidence to “14 days after the verdict or finding of guilty or within such further time as the court may fix during the 14–day period.” K.S.A.2013 Supp. 22–3501(1). Our Supreme Court disagreed with Holt, stating “the language of K.S.A .... 22–3501(1) regarding motions for new trial based on grounds other than newly discovered evidence should be read as mandatory.” 298 Kan. at 479. The court therefore concluded “the district court did not abuse its discretion in summarily dismissing [the motion for new trial] as untimely.” 298 Kan. at 479.
Holt does not mean, as the State argues, that the trial court “lacked jurisdiction to consider [Tiger's] untimely motion for new trial.” Unlike Holt, Osburn raised the speedy trial issue-the main ground for Tiger's ineffective assistance of counsel claim-in paragraph two of a timely motion for new trial. Osburn then explicitly mentioned that paragraph while speaking “regarding the motion for new trial” at the hearing on the motion. Considering the remedy for a speedy trial violation is not a new trial, but dismissal of the charges, State v. Mitchell, 285 Kan. 1070, 1083, 179 P.3d 394 (2008), we conclude Osburn was tacitly raising Osburn's ineffective assistance of counsel.
During the hearing, Tiger directly argued ineffective assistance of counsel. The State insisted on a written explication of Tiger's claim, and the trial court's accommodation of the State's request obviously flowed from the timely motion and Tiger's argument on it. We conclude the ineffective assistance of counsel claim was timely under these circumstances.
Moreover, in Holt our Supreme Court recognized its “long history of converting mislabeled motions for postconviction relief into 60–1507 motions.” 298 Kan. at 480. This was impossible in Holt because the motion for new trial, filed 16 years after his convictions, was untimely under K.S.A. 60–1507(f) as well. Here, however, Tiger's pro se motion on ineffective assistance of counsel was filed within 1 year of the final action on his case, which has not yet occurred. See K.S.A. 60–1507(f)(1). While we do not convert Tiger's motion for new trial to a K.S.A. 60–1507 motion, we believe we would have jurisdiction to consider Tiger's claim in any event.
Finally, the State fails to consider State v. Van Cleave, 239 Kan. 117, Syl. ¶ 2, 716 P.2d 580 (1986), where our Supreme Court held: “When appellate counsel in a criminal case desires to raise the issue of ineffective assistance of counsel and that issue has never been ruled upon by the trial court, defendant may seek a remand of the case to the trial court for an initial determination of the issue.” (Emphasis added.) Contrary to the State's position, Van Cleave does not base appellate jurisdiction over an ineffective assistance of counsel claim on a trial court's prior jurisdiction over the claim. Indeed, our Supreme Court specifically stated the remand procedure would work well for “a claim of ineffective assistance of counsel which arises after the district court has lost jurisdiction of the case pending appeal.” 239 Kan. at 120.
Consistent with Van Cleave, our Supreme Court later clarified that remand is not required at all in an “extraordinary circumstance” where “there are no factual issues and the two-prong ineffective assistance of counsel test can be applied as a matter of law based upon the appellate record.” Trotter v. State, 288 Kan. 112, Syl. ¶ 11, 200 P.3d 1236 (2009). The court explained that its precedent did not hold “failure to raise the issue [of ineffective assistance] in the district court was an absolute procedural bar,” but rather that its precedent permitted a remand “for an evidentiary hearing after determining the ineffective assistance of counsel issue could not be considered as a matter of law.” 288 Kan. at 130.
If even a total failure to raise ineffective assistance of counsel before the trial court is not an absolute procedural bar to appellate jurisdiction, a claimed untimely motion for new trial is not a bar. And here, because Tiger raised the ineffective assistance claim before the trial court, we have a record to consider. It would be pointlessly formalistic to impose “the delay and expense of a separate action and a separate appeal” when the issue is ripe for decision. Van Cleave, 239 Kan. at 119–20. We conclude that we have subject matter jurisdiction over Tiger's ineffective assistance of counsel claim.
Standards of Review
In considering an ineffective assistance of counsel claim, several legal standards guide our appellate analysis. “Ineffective assistance of counsel claims involve mixed questions of law and fact,” and “[a]n appellate court reviews the district court's factual findings for substantial competent evidence and its legal conclusions de novo.” Miller v. State, 298 Kan. 921, 928, 318 P .3d 155 (2014). “To support a claim of ineffective assistance of counsel based upon deficient performance, a criminal defendant must prove: (a) Counsel's performance was deficient and (b) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial.” 298 Kan. 921, Syl. ¶ 2.
More particularly, the two-pronged test is described as”[t]he first prong of the test for ineffective assistance of counsel based upon allegations of deficient performance requires a defendant to show counsel's representation fell below an objective standard of reasonableness, considering all the circumstances.” 298 Kan. 921, Syl. ¶ 3. “Once a criminal defendant establishes counsel's deficient performance, the defendant must also establish prejudice by showing there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.” 298 Kan. 921, Syl. ¶ 4.
Speedy Trial
Tiger contends Osburn “denied [him] a speedy trial by taking numerous continuances without [his] permission.” Osburn testified regarding the necessity of the continuances in order to manage her caseload so she could adequately represent Tiger at trial. We are not persuaded, on this scant record, that Tiger has shown Osburn was ineffective by obtaining additional time to properly represent Tiger's legal interests. Moreover, Tiger does not argue the second prong of the ineffective assistance standard—prejudice—but merely repeats that he was “denied his right to a ... speedy trial.” An issue not briefed by the appellant is deemed waived and abandoned. Boleyn, 297 Kan. at 633. We are unwilling to speculate regarding what prejudice, if any, Tiger sustained due to the continuances sought by Osburn. Given this record, we readily conclude that Tiger has made “an insufficient showing” of prejudice under Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 (1984).
Client Communication
Tiger contends that Osburn “failed to properly prepare [him] with the evidence that would be brought forth at trial.” He identifies only one aspect of the evidence: the “sexual assault nurse had not found any injuries to T.J.'s genitals during the first examination, but rather during a later review of the exam photographs.” Tiger posits that his discovery of this fact during trial was “not enough time” to “reevaluate his defense and alter his decision [not] to testify on his own behalf.”
Nurse Eagleson testified on the first day that evidence was presented to the jury. The State did not rest its case in chief until the next day. After a lunch break, the trial court conducted an extended colloquy with Tiger regarding his right to testify. Tiger consulted with Osburn and announced he would not testify. The trial court asked Tiger if he needed more time “with your counsel to determine that,” and Tiger said he did not.
At the ineffective assistance of counsel hearing, Tiger admitted that he could have changed his mind about testifying after hearing Nurse Eagleson's testimony but he did not do so and that it was his decision to make. Moreover, on appeal, Tiger does not mention Osburn's alleged deficient performance in the prejudice section of his brief. Once again, we conclude Tiger has waived or abandoned this aspect of the issue by failing to brief it, Boleyn, 297 Kan. at 633, and he “makes an insufficient showing” of prejudice under Strickland, 466 U.S. at 697.
DNA Evidence
Tiger maintains Osburn “did not investigate the possibility that [his] infant son, whom T.J. often held, could have left the saliva on T.J.'s chest.”
To be clear, the testing showed only the “likely” presence of saliva. The State's DNA expert, Dr. Hoofer, testified he could not confirm the presence of saliva cells, and that the cells containing the DNA at issue could have come from, among other things, skin or sweat.
Dr. Hoofer testified “the probability of selecting an unrelated individual at random” with a DNA profile like Tiger's was “in the Caucasian population, 1 in 21.9 quintillion; in the Black population, 1 in 3.46 quintillion; and in the Hispanic population, 1 in 256 quintillion.” Osburn asked in cross-examination whether, if the DNA had come from Tiger's “infant son ... other brothers ... other children in the house that could be related as well,” the statistical correlation would apply. Dr. Hoofer replied that it would not.
This was the gist of the expert's testimony, but Tiger reads more into it. He asserts, “the [expert] testified that the possibility of Mr. Tiger's infant son's DNA on T.J. would change his analysis. The [expert] testified that he would have to conduct another test using the son's DNA in order to make a comparison to the sample taken from T.J.'s chest.” (Emphasis added.) We disagree with Tiger's contention for several reasons.
First, Dr. Hoofer did not say another test would change the analysis. At most, the expert mentioned in passing “a different calculation that could be calculated that takes into account the fact that they [the defendant and other possible sources of DNA] are closely related.” Dr. Hoofer did not describe this different calculation, however, and when Osburn directly asked the expert whether he would need to test Tiger's infant son, the expert did not respond but simply repeated that his stated statistical correlation would not apply:
“Q. If the—well, yeah, the question was if there's a possibility that the saliva on the child's chest, if it indeed was saliva, came from my client's infant son, would you then need to get a sample from the infant son and then run a different statistical analysis in that situation?
“A. If that is—if those are the facts, if that's what the argument is, that there's another individual that is a sibling, son, whatever, very close relative, then this statistic wouldn't apply in that situation.”
Second, it is not clear whether another test was even possible. Osburn testified at the ineffectiveness hearing: “I wish there would have been DNA to test, but you know, we could have done that but it was consumed.” Neither party addresses Osburn's assertion that another test was impossible because there was no more genetic material available for testing.
Third, even if another DNA test was possible, the results are unknown. Tiger did not produce a DNA expert at the trial or at the ineffective assistance of counsel hearing. On appeal, Tiger suggests a defense DNA expert could have stated the “infant son left the DNA on T.J.,” but without expert testimony, that claim is pure speculation. Moreover, it is possible such testing, if it had been conducted, may have ruled out the infant and pointed to Tiger. If so, a defense expert would not have made “Mr. Tiger's theory of defense more credible” as Tiger argues on appeal. Tiger has failed to present expert proof in support of his DNA argument.
Focusing on the trial testimony, it shows Dr. Hoofer had two swabs taken from each of T.J.'s breasts. All four swabs tested presumptively positive for the possible presence of saliva, but since the swabs from the right breast were “a little more positive than the other,” the expert performed the DNA tests on those, leaving the swabs from the left breast available for future testing. Dr. Hoofer testified with respect to the swabs from the right breast that, although he would not typically “consume” both, thus leaving “a fair half for future testing by other laboratories or for whatever reason,” in this instance he did consume both swabs from the right breast, “with permission from ... the Court.”
Osburn did not question Dr. Hoofer at trial about the apparent availability of both swabs from the left breast or the consumption of material from both swabs from the right breast, and the issue was unaddressed at the ineffective assistance of counsel hearing. It is also unclear whether the swabs from the left breast could have provided a sufficient sample given that the saliva test was less positive on the left breast.
In sum, we are left with more questions than answers about the DNA testing. On this record, Tiger has failed to show counsel's representation fell below an objective standard of reasonableness, considering all the circumstances. Miller, 298 Kan. 921, Syl. ¶ 3. Moreover, we are also convinced Tiger does not show prejudice. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693. Tiger's failure to provide some basis to conclude further testing would have benefited his case is fatal to his claim.
The strength of the remaining evidence confirms our conclusion. An innocent explanation for the presence of the DNA on T.J.'s right breast would account for only a small part of the State's proof. The forensic evidence also included the tears found by Nurse Eagleson. It was also uncontroverted that Tiger was intoxicated and was in T.J.'s bed both before and after Crystal rejected his sexual advances. The sexual abuse was described by T.J. during the investigation and at trial, and Crystal's pretrial statements and, to a lesser extent, her testimony, provided important corroboration. Tiger has not shown a reasonable probability that the result of the proceeding would have been different with further DNA testing. See Miller, 298 Kan. 921, Syl. ¶ 4.
Exculpatory Witnesses
For his next claim of attorney ineffectiveness, Tiger asserts Osburn “did not interview T.J.'s two sisters ... that slept in the bunk bed with T.J.,” and that Osburn “did not call them as witnesses.” Osburn testified at the ineffective assistance of counsel hearing that she did not interview the sisters because “[t]hey gave recorded statements to the police that they didn't see or hear anything.” Osburn was not asked why she did not call them as witnesses at trial.
Starting with the performance prong of the Strickland test, Osburn had reviewed the sisters' statements to the police which did not reveal any apparent exculpatory information. Because Osburn was not asked why she did not call the sisters as trial witnesses, the record is silent as to any possible strategic considerations. “The burden is on a defendant to demonstrate that the alleged deficiencies were not the result of strategy.” State v. Adams, 292 Kan. 151, 167, 254 P.3d 515 (2011). In other words, “[c]ourts must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.” Miller, 298 Kan. 921, Syl. ¶ 3. Under our standard of review, Tiger has not shown Osburn fell below the wide range of reasonable professional assistance in this regard.
Tiger has also not shown prejudice. He asserts the sisters would have heard something because “Crystal testified that the bunk bed ... was squeaky and that she could hear when someone turned over in their sleep.” But Crystal was awake when she heard the “light screech,” and she testified that T.J.'s sisters were sound asleep when she entered the room. Given this evidence, we conclude Tiger's assertion of prejudice is speculative and insufficient to show a reasonable probability the result of the proceeding would have been different had the two sisters testified at trial. See 298 Kan. 921, Syl. ¶ 4.
Jury Verdict Forms
Tiger contends that certain verdict forms were clearly erroneous. The State concedes the forms were in error, but it argues they were not clearly erroneous. Given the lack of an objection in the district court, we apply the “clearly erroneous standard of review,” which permits reversal only if we are “firmly convinced that the jury would have reached a different verdict had the error not occurred.” State v. Brown, 298 Kan. 1040, 1044, 318 P.3d 1005 (2014).
With regard to this issue, the State charged Tiger with rape in violation of K.S.A.2011 Supp. 21–5503(a)(3),(b)(2) and with aggravated indecent liberties with a child in violation of K.S.A.2011 Supp. 21–5506(b)(3)(A),(c)(2)(C),[c](3), both off-grid felonies when the offender is 18 years of age or older. Following the Notes on Use for PIK Crim. 4th 55.030, the trial court inserted questions on the verdict forms after the options of “Guilty” and “Not guilty,” separately asking for each crime whether the jury did “unanimously find beyond a reasonable doubt that Pidy Tiger was 18 or more years old at the time the offense was committed.” In each instance the jury marked: “Yes.”
Our Supreme Court in Brown held such a “special question on the verdict form” was erroneous because “the defendant's age is an essential element” of the crime. 298 Kan. 1040, Syl. ¶ 1. However,
“[w]here a jury answers a special question finding that the defendant was age 18 or older when committing the charged crime, and the evidence is sufficient to support that finding, the trial court's failure to include the defendant's age in the jury instruction on the elements of the crime is harmless error.” 298 Kan. 1040, Syl. ¶ 2.
In the present case, Tiger's brother-in-law testified that Tiger was over 18 years of age, “probably about 30 years old.” Kim Warehime, a detective for the Wichita Police Department, testified that Tiger gave his birthday as November 25, 1980, making him 30 years of age at the time the offenses were committed. This was sufficient evidence for the jury to find beyond a reasonable doubt that Tiger was 18 years old or older as required by the charged statutes, and we are firmly convinced the jury would not have reached a different verdict had the error on the verdict forms not occurred. See Brown, 298 Kan. at 1044.
Jury Instruction on Voluntary Intoxication
Tiger also challenges the jury instruction on voluntary intoxication. He asserts that he asked the trial court to “modify the voluntary intoxication instruction, or in the alternative, not give the instruction.” He claims, “[b]y giving the instruction over Mr. Tiger's objection, the [trial] court misled the jury because voluntary intoxication was not his defense.”
Our standard of review regarding jury instructions is multi-faceted:
“For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011) cert. denied 132 S.Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
The trial court actually gave three instructions relating to voluntary intoxication. The first, Instruction No. 6, was based on PIK Crim. 4th 51.050, the “Defenses–Burden of Proof instruction, which reads:
“The defendant raises describe the defense claimed as a defense. Evidence in support of this defense should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State's burden of proof does not shift to the defendant.”
This is “the introductory language to the affirmative defenses,” as the trial court noted at the instructions conference. The next two instructions at trial, Nos. 7–8, followed PIK Crim. 4th 52.050 and 52.060. These jury instructions defined the voluntary intoxication defense and specified the crimes to which it could apply in Tiger's case.
Tiger did not object to Instruction Nos. 7–8 below. He also does not brief the instructions on appeal. As a result, we will not consider them since issues not briefed are deemed waived or abandoned. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).
At trial, the only instruction Tiger objected to was Instruction No. 6, which provided:
“Pidy Tiger raises voluntary intoxication as a defense. Evidence in support of this defense should be considered by you in determining whether the State has met its burden of proving that Pidy Tiger is guilty. The State's burden of proof does not shift to Pidy Tiger.”
When this jury instruction was discussed at the instruction conference, Osburn told the trial court, “in no way does [Tiger] want the jury to have ... any impression that he's agreeing that he committed the crime[s].” According to Osburn, she had “suggested removing [Instruction No. 6] completely,” but she said ‘the cases ... suggest it's error to not advise the jury that the State's burden of proof does not shift.” Osburn, therefore, asked the trial court to remove only the first sentence of Instruction No. 6, i.e., “Pidy Tiger raises voluntary intoxication as a defense.” The State responded that the challenged language was necessary.
The trial court advised Osburn it wanted “to make the record clear on this.” The trial court emphasized it would not “vary the language of PIK.” The trial court then asked, “[D]oes the defense still want to raise voluntary intoxication and instruct as such?” Osburn responded, “Preserving our objection to how it's worded, yes, we still want to be able to discuss the effects of alcohol and specific intent.”
With this in mind, Tiger's sole complaint which he preserved before the trial court relates to the propriety of the first sentence of Instruction No. 6. However, although he objected below, Tiger does not argue on appeal this challenged language. Tiger's failure to brief the first sentence of Instruction No. 6 is again a waiver or abandonment on appeal. See Boleyn, 297 Kan. at 633.
Even if we were to consider the issue, our Supreme Court strongly recommends use of PIK instructions. See State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009). In this instance, the trial court did not err in following PIK. The remaining voluntary intoxication Instructions Nos. 7–8 referred to “[v]oluntary intoxication” and “defense.” Indeed, the jury could have been confused if it were not informed in Instruction No. 6 that Tiger was raising such a defense. And, as the exchange between Osburn and the trial court clearly shows, Tiger was raising the defense.
Moreover, assuming the sentence in question was erroneous, Tiger does not show prejudice. The trial court instructed the jury to determine regarding the aggravated indecent liberties with a child charge, whether Tiger had acted “with intent to arouse or satisfy the sexual desires of Pidy Tiger.” In Instruction No. 8, the trial court instructed the jury it could consider voluntary intoxication “to the extent that [Tiger] was incapable of forming the necessary intent to arouse or satisfy the sexual desires of Pidy Tiger.”
Osburn then argued to the jury:
“What role does alcohol have to play in this[?] I want to talk about that for a minute. In no way is Mr. Tiger saying that he did these matters but he gets an out because he was drunk. But what the law tells you is that there is alcohol, you have the evidence of alcohol, consumption to excess. It's there. So you as a juror get to decide how do we put this into this intent that he had to have to commit these crimes.”
The jury was thus fully informed that Tiger was not admitting to the sexual acts but wished the jury to consider his ability to form the specific intent to commit aggravated indecent liberties with a child. Given the strength of the evidence showing Tiger's intent to sexually arouse, including Crystal's testimony regarding Tiger's sexual advances to her, we conclude beyond a reasonable doubt that the removal of the first sentence in Instruction No. 6 would not have changed the verdict.
Finally, to the extent Tiger generally objects to the trial court's decision to instruct on voluntary intoxication, it is apparent that he requested the trial court to provide the instruction. Tiger therefore invited any error, which precludes a challenge to the trial court's decision on appeal. See State v. Jones, 295 Kan. 804, 811–12, 286 P.3d 562 (2012). We find no reversible error regarding the voluntary intoxication instructions.
Amendment of the Complaint/Information
Next, Tiger contends he was prejudiced by the trial court's decision to amend the complaint/information to add the word “knowingly” to the charged crimes. The State defends the amendment. Our standard of review provides: “Whether to allow the amendment of a complaint before trial is subject to the district court's discretion.” State v. Bischoff, 281 Kan. 195, Syl. ¶ 8, 131 P.3d 531 (2006).
The State charged Tiger with rape and aggravated indecent liberties with a child according to the language of the statutes defining these crimes. See K.S.A.2011 Supp. 21–5503(a)(3),(b)(2) (rape); K.S.A.2011 Supp. 21–5506(b)(3)(A),(c)(2)(C),[c](3) (aggravated indecent liberties). Thus, the State pled Tiger had unlawfully engaged “in the act of sexual intercourse with a child under fourteen (14) years of age,” and that he had unlawfully engaged “in lewd fondling or touching ... done or submitted to with the intent to arouse or satisfy the sexual desires of the child, the defendant or both.”
We will not reprise the arguments made in the district court on this point, which ended with the trial court adding the word “knowingly” to the statutory definitions. The record does not contain an amended information, the district court appearance docket does not show one was filed, and the trial court's journal entry does not record the amendment. As a consequence, we are uncertain of the language after the amendment.
Failure to memorialize an oral amendment is not reversible error unless the defendant is prejudiced. See State v. Switzer, 244 Kan. 449, 456–57, 769 P.2d 645 (1989). Tiger does not claim he was prejudiced by the failure to memorialize the oral amendment. As a result, we find no error on that basis.
Instead, Tiger argues he was “prejudiced” in his “ability to present a defense.” See K.S.A. 22–3201(e). We think the argument is conclusory. Tiger's defense was that the charged acts did not occur and that, if they did, he could not have formed a specific intent to sexually arouse due to voluntary intoxication. Tiger does not explain how the presence or absence of the word “knowingly” in the complaint/information had any effect on his multi-faceted defense. We conclude Tiger has not shown reversible error. See K.S .A. 60–261; K.S.A. 60–2105; State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011) (a point raised incidentally but not briefed is deemed waived or abandoned).
Reimbursement of BIDS Attorney Fees
For his final issue, Tiger contends the trial court “did not inquire into [his] ability to pay” when ordering reimbursement of the Board of Indigents' Defense Services (BIDS) for attorney fees. The State alleges the trial court “gave thoughtful consideration” to the matter. We review the amount of the fee imposed for abuse of discretion, State v. Hernandez, 292 Kan. 598, 609, 257 P.3d 767 (2011), but we exercise unlimited review over the trial court's compliance with the statute. See State v. Robinson, 281 Kan. 538, 539, 132 P.3d 934 (2006).
The trial court was required to “take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose.” K.S.A. 22–4513(b). The trial court stated at sentencing:
“Based on State v. Robinson, I have considered the financial resources available versus the burden of repayment. I have considered the affidavit of indigency that Mr. Tiger filed when he requested a court appointed [counsel]. It does show employment, self-employment, with a computer repair [service] so he has some skills in that area.”
The financial affidavit is in the record on appeal. It shows Tiger was 30 years old and self-employed in “computer repair” at the time of his arrest. He reported $500 in monthly income and indicated he was not receiving unemployment benefits. He showed no assets, with no cash or other accounts, vehicles, or real property reported. He listed his monthly expenses as $600.
The trial court next stated that considering the “full litigated matter” requiring two attorneys, the suggested BIDS reimbursement of $3,825 was “more than fair.” The trial court found Tiger would “be able to earn some wages in prison.” The trial judge also thought that given Tiger's “age, he appears to be in good health, the ability to earn wages, I believe, that [the suggested reimbursement] is justified.”
On appeal, Tiger argues the trial court “did not inquire about ... the wage he would earn in prison,” but Tiger does not deny the trial court's finding he could earn “some wages” in prison. Tiger received a minimum 25–year sentence, and since he was in his early 30's when sentenced, the trial court could reasonably conclude he might earn a significant portion of the $3,825 by the time he is eligible for release. See Hernandez, 292 Kan. at 609. When Tiger is eligible for release, he will still be of an age when many people are still employed, further justifying the order.
Tiger contends the trial court “did not ... determine the amount of [his] other financial obligations or burdens,” but the trial court did consider Tiger's financial affidavit. Tiger listed one dependent, but he did not list alimony or maintenance, child support, installment payments, or any other monthly payment beyond rent, food, and utilities. Tiger's assertion that the trial court “had no possible way to determine if the fees would be a hardship because it did not know ... Mr. Tiger's income versus financial obligations” is incorrect. The trial court properly considered the financial information Tiger had submitted under oath.
Affirmed.