Opinion
No. 111709.
06-05-2015
Lynwood BAKER, Appellant, v. STATE of Kansas, Appellee.
Michael P. Whalen and Krystle M.S. Dalke, of 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 and Krystle M.S. Dalke, of 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 GREEN, P.J., ARNOLD–BURGER, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Lynwood Baker appeals a judgment of the trial court dismissing his K.S.A. 60–1507 motion following a nonevidentiary hearing. He contends that his trial counsel was ineffective for failing to investigate the victim's deteriorating physical and mental conditions to further advance his defense: that because of the victim's deteriorating physical and mental conditions, the victim had ended his own life. We find no merit in this contention. Accordingly, we affirm.
On November 14, 2003, a jury convicted Baker of one count of first-degree murder for the shooting death of Gerard Fields, who was bedridden. Fields also suffered from paraplegia and cerebral palsy. The trial court sentenced Baker to a hard 50 life sentence, and Baker appealed. Our Supreme Court affirmed Baker's first-degree murder conviction, but it vacated his sentence and remanded the case for resentencing in State v. Baker, 281 Kan. 997, 1022, 135 P.3d 1098 (2006). On remand, the trial court sentenced Baker to lifetime imprisonment with eligibility for parole after 25 years (hard 25).
On August 8, 2007, Baker filed a K.S.A. 60–1507 motion alleging ineffective assistance of trial counsel and asserting that his trial counsel, Steve Osburn, had failed to investigate Fields' physical capabilities and mental state. Baker further alleged that Osburn's failure to investigate these matters prejudiced his defense. Baker's memorandum in support of his motion made the same allegations and relied heavily on an affidavit of a law student who worked on the motion and who spoke by phone to Osbum. The law student stated that Osbum said he did not believe Baker's story and thought it had been a mercy killing. The memorandum also alleged that Osbum did not consult with Fields' doctors or another expert concerning Fields' physical capabilities. As a result, the evidence about Field's lack of ability to use his arms and fingers went unchallenged. Moreover, due to Osbum's failure to investigate Fields' mental condition, Baker asserted that the State's evidence about Fields' mental state went unchallenged.
In support of his arguments, Baker noted that Osbum's case file contained a coroner's report indicating that Fields could use his right arm, but Osbum did not bring this up at trial. Baker also noted that Osbum failed to mention that the coroner's inspection of Fields' hand for gunshot residue was merely a visual inspection. Baker further contended that Osbum had police reports indicating that Fields' wife told law enforcement that Fields had been depressed just before his death. Baker acknowledged that Osbum had asked asked Fields' wife about Fields' alleged depression at trial but contended that Osbum did not investigate it before trial. Baker also asserted that Osbum did not produce any evidence at trial which supported his version of what had happened that day: that Fields had committed suicide. Moreover, Baker maintained that had Osburn investigated, he could have found at least one person to testify that Fields had been depressed and suicidal. Baker acknowledges that Osbum did find one witness to testify to that effect, but the trial court did not allow that person to testify because the suicidal episode was too remote in time from the date Fields had died.
The law student's affidavit noted that Osbum's case file contained an autopsy report indicating that Fields had some use of his right arm, an investigator's report indicating that only one witness was investigated, and two police reports wherein witnesses mentioned Fields had been depressed. She also noted that Osbum told her that he thought Baker had committed a mercy killing and the suicide was a made-up story, that he did not contact Fields' doctors because he did not think Fields had regular contact with them, and that the witness who was not allowed to testify had contacted Osbum rather than Osbum finding him.
On the other hand, the State argued that Baker's motion was untimely and noted that he did not assert a manifest injustice argument excusing its lateness. The trial court agreed with the State and dismissed the motion as untimely. Baker appealed, and our Supreme Court concluded that the motion was timely in light of Baker's resentencing date. As a result, it reversed and remanded the matter to the trial court. See Baker v. State, 297 Kan. 486, 492–93, 303 P.3d 675 (2013).
On remand, the State argued that Baker had failed to identify or suggest additional evidence Osbum could have obtained or witnesses Osbum could or should have called. The State contended that the record wholly refuted Baker's contention that Osbum had not presented evidence of Fields' physical and mental conditions, noting that Osbum had introduced evidence that Fields was taking antidepressants and numerous painkillers. The State also pointed out that trial counsel had tried to call a witness to testify that Baker had had a history of being suicidal, but the trial court had not allowed the testimony. The State asserted that even if additional evidence could have been obtained, Baker had failed to show that it would have made a difference in his case because of the overwhelming evidence of his guilt. It noted that our Supreme Court had agreed that the evidence in this case overwhelmingly showed Baker's guilt.
At the preliminary hearing on the motion, Baker made the same arguments to the trial court that he made in his written memorandum. The State again pointed out that Baker had not made any assertion about who Osburn should have contacted and the trial transcript showed that Osbum actively put forth evidence of Fields' mental and physical conditions. The trial court held that Baker had made only conclusory assertions in his motion and that arguing that there was “something out there to be found” was not enough to show ineffective assistance of counsel. It also held that Osbum had made an appropriate effort to present evidence on and argue about Fields' physical and mental conditions. As a result, the trial court adopted the State's second response as its order.
Trial Arguments and Testimony
In opening statements, Osbum set the stage for Baker's defense: He told the jury about Fields' long history of health problems and complete reliance on others for his care. He also painted Fields as a man who still had his mind and was able to sign his own name. He then told the jury about Baker's version of what had happened the day Fields died, explaining that Fields had been depressed and had killed himself in Baker's presence after Baker had placed a handgun in Fields' hand while trying to talk Fields out of killing himself.
The State's evidence at trial showed that Fields had only known Baker for a month or two before Fields' death. Fields' sister, Shelley, was dating Baker, and the couple had stayed briefly at Fields' house around the July 4th weekend. Shelley testified that Fields and Baker did not have a close friendship and that Baker had never taken care of Fields. Shelley broke up with Baker the Sunday before Fields died, and Baker did not want to end their relationship.
Fields' wife, Deirdre, spoke to Fields on the phone from her workplace at 11:15 a.m. on the day of his death—July 11, 2003—but he had quickly ended his phone conversation with her because he was on another phone call. She called back at 1:15 or 1:30 p.m., and Fields told her that her family had come by to visit him and that his home health nurse had also come by. Deirdre testified that Fields was very happy and overwhelmed by her family's visit because visitors made him feel special.
Shelley spoke by phone with Fields that day as well, and he told her that Baker had called looking for her. Shelley told her brother that she and Baker had broken up. Because Shelley did not want Baker to know where she was, she asked Fields to initiate a three-way phone call to Baker so that Fields' phone number would show up on Baker's caller ID. The conversation escalated into an argument when Shelley refused to tell Baker where she was, and Baker was described as being angry and irate. Shelley told Fields' to hang up on Baker. Shelley and Fields spoke with each other a bit longer, and this was the last conversation Shelley had with her brother before his death.
When Deirdre arrived home from work around 3 p.m., she found Fields in bed, bloody and with a hole in his head. She called 911 and tried to resuscitate him. Fields had been shot in the forehead and was pronounced dead at the scene. No gun or shell casing was found in the home. Law enforcement testimony acknowledged that officers investigated the shooting as a possible suicide or as a possible homicide.
Neighbors provided law enforcement with the description of a car that had been in front of Fields' home that day with its music turned up, as well as a description of the male and female who had been in the car. Neighbors had seen the car at Fields' house in the recent past.
Law enforcement located Baker and his car at his girlfriend's house later that night. Clothes matching the description given by the neighbors were found in the bedroom, .9 millimeter ammunition was found in a dresser drawer, and a .9 millimeter handgun was found wrapped in a towel in the bedroom closet.
Osburn elicited testimony showing that Shelley had told law enforcement that her argument with Baker had to do with the fact that Baker was supposed to be helping her find a house in the area. She also told them that Baker owed Fields $1,400. During a second interview, Shelley said Baker owed her money and did not mention that Baker owed money to Fields.
Detective Kelly Otis interviewed Baker's girlfriend, Paichus Williams, following the search of Williams' home. Williams initially denied that she and Baker had gone to Fields' home, but she changed her story when confronted with contradictory evidence. She stated that Baker had received an upsetting phone call and that he drove recklessly to a home she described as Fields' and parked out front. On the way, Williams overheard Baker tell someone on the phone that “people are going to learn not to mess with me.” Baker went into the house for about 10 minutes, then got back in the car and drove to a gas station. Williams denied hearing a gunshot, stating that the music in the car was loud.
Although Williams initially denied that she and Baker later returned to Fields' house, she told Detective Otis that they had gone back to Fields' house because Baker said he needed to get a shell. Williams thought he was referring to something having to do with Shelley, but he clarified that he needed to find the shell from his “strap,” meaning his gun. Williams stated that Baker said something she did not believe, so she went into the house with him and that was when she saw Fields' dead body. She asked Baker why he had done it, and he said, “[S]he owes me and everyone's been playing with me,” which confused her because it was clearly a man who had been killed. Williams stated that Baker wrapped a gun in a towel afterward.
At trial, Williams testified that she and Baker drove to Fields' house on the day Fields died and that she stayed in the car listening to music for the short period that Baker was in the house. She did not hear a gunshot. Williams stated that they went to a gas station after leaving Fields' house, but she did not recall Baker taking a phone call or making any statements during that time. Williams generally denied remembering anything that she told detectives during her interview. Williams stated that she and Baker went back to Fields' house because Baker told her Fields was dead and she did not believe him. She testified that Baker did say something about “shell,” but that was his nickname for Shelley. Williams then testified that she did not remember what happened when they went inside the house or what was said; she just remembered seeing the body and being in shock. She stated that she thought Baker had shot Fields.
Williams was excused from the stand so that she could watch her interview with detectives to refresh her memory. When she returned to the stand, she still maintained that she did not remember telling the police the statement she made on the tape, but she did remember Baker being on the phone and saying, “[P]eople are going to learn not to mess with me.” Williams contended, however, that she told detectives the things that she did so that she could go home to her kids but that Baker had never actually said any of those things.
The forensic pathologist testified that Fields had died of a single gunshot wound to the head. There were indications that it was a contact gunshot wound. There were no defensive wounds or any gunshot residue on Fields' hands. On cross-examination, it was clarified that the inspection for gunshot residue on Fields' hands was only conducted visually, and the pathologist noted that there was also no gunshot soot on the brace on Fields' right hand. Also on cross, Osburn attempted to get the pathologist to agree that the location of a towel—which had been on Fields' head before he died but was discovered off of his head with a bullet hole in it but no blood on it—was consistent with what would have happened to the towel if Fields had been shot while leaning forward but inconsistent with what would have happened to the towel if Fields had been lying back in bed when he was shot. The pathologist, however, felt any number of scenarios could have accounted for the location and condition of the towel.
A firearms examiner testified that he examined Baker's gun, its bullets, and the bullet taken from Fields' brain. He could not examine the shell casing from the bullet that shot Fields because it was never found; but he stated that, with this kind of gun, the spent shell casing would have been ejected from the side of the gun once fired. Testing revealed that the gun required 5.5 pounds of pressure on the trigger to fire a bullet when the hammer was cocked, and it required 12.5 pounds of pressure to fire when the hammer was not cocked. Comparison of a bullet fired from Baker's gun with the bullet taken from Fields' brain determined that the bullet in Fields' brain was fired from Baker's gun. Independent testing found no fingerprints on Baker's gun. Fields' DNA was not found on the gun, and DNA testing was inconclusive as to Baker.
Baker testified on his own behalf at trial, maintaining that he had met Fields through Shelley in April 2003. He said they became friends and he saw Fields two to three times a week and spoke to him on the phone daily. The two had spoken about Fields' problems with his wife; and Baker said that around the end of June, Fields wanted to leave his wife. Shelley decided she was going to move to the area and get a house for all three of them to live in, but Baker got back together with his ex-girlfriend, Williams, and Shelley was not happy about it.
Baker maintained that when he spoke with Shelley and Fields on the day of Fields' death, Shelley still wanted them to get a house together. Baker kept the call short and told Shelley he would talk to her when she got back in town. Baker later went to Fields' house to get his gun, which he had left there under a couch a week earlier. Baker said that he left Williams in the car, went into the house, announced himself, and retrieved his gun. He then went to see Fields.
Baker said that Fields was not himself that day and Fields started talking about how he was tired of it all. Baker stated that he was trying to cheer him up, but Fields indicated he did not want to live anymore. The gun was mentioned, and Fields said that he wanted to see it. The two argued about Fields wanting to kill himself, and Baker spoke to Fields about his wife, his family, and all he would leave behind. Baker then placed the gun in Fields' hand and put Fields' finger on the trigger, telling him if he wanted to do it, then do it. Baker asserted that he did this because he was trying to bluff Fields. Fields then leaned forward and put the gun against his forehead, said thanks, and pulled the trigger. Baker then left with the gun and drove to a gas station. He told Williams that Fields was dead but she did not believe him, so they drove back to Fields' house and he showed her. He stated that he told Williams he needed to find shell, meaning Shelley, because he needed to tell Shelley what had happened. Baker initially maintained he did not pick up the spent shell casing, but then he said that he could not remember if he did.
Baker testified that he did not intend for Fields to kill himself and did not think there was a bullet in the chamber of the gun. He claimed that that he never has the safety in place on his gun. Baker acknowledged on cross-examination that it would have taken 12 .5 pounds of pressure to pull the trigger on the gun because the hammer was not cocked when it fired. He acknowledged that Fields has “no use” of his fingers but stated that he was able to do it. Baker stated that he did not tell police this story when questioned because he does not like the police. A detective said that during his interview Baker indicated that he was trying to find Shelley and maintained that he had only heard of Fields because he used to “mess” with Fields' sister.
During closing arguments, Osburn argued that Fields was physically capable of shooting himself. He also reiterated that Fields was in a depressive state when he died.
Evidence of Fields' Physical Capabilities
The State presented evidence showing that Fields had been paralyzed from the waist or chest down after being shot in the neck 11 years earlier. He also had been bom with cerebral palsy. Fields was 37 years old when he died, and he weighed just 99 pounds.
Fields could move his right arm a little and could move his left arm only if he used his right arm to help. Items that he needed had to be placed quite close to him in his bed because he could not reach out to get things easily. Fields could not grasp things because he had very little strength in his hands and could not move his fingers due to nerve damage from a previous shooting, but he could coach his fingers through a cup handle and then use his arm to lift the cup to his mouth. The forensic pathologist noted that Fields had less muscle in his right hand than his left. Fields used his tongue to press the buttons on his television remote control and to dial the telephone.
Fields' health had deteriorated in the last year and, although he had been able to get around in a wheelchair in years past, he had been bedridden for some time. He had a long history of suffering from bed sores and had a persistent one on his posterior. He had begun to smoke marijuana to help with his pain, but someone had to hold the pipe and light it for him.
Fields sometimes wore a brace on his right arm that kept his fingers from balling into a fist. Testimony indicated that he could not move his fingers. Fields was wearing the brace on the day he died. Shelly testified that Fields could not have committed suicide with a gun.
Osburn elicited testimony indicating that Fields had only become bedridden in the last couple of years and had previously been able to get out and about by using a wheelchair. He also brought out that Fields had some use of his right arm, but testimony also showed that Fields did not have any real use of his hands. Osbum tried to show that Fields was able to use his computer mouse, but testimony indicated the mouse worked by Fields moving his hand over it because he could not click buttons.
Osburn also tried to demonstrate that Fields was capable of signing his name with a pen through home health records that Osburn had subpoenaed before trial, but it was explained that Fields could only sign his name if someone placed a pen in his hand and then held the pen in place while directing his hand.
Evidence of Fields' Mental State
Deirdre described Fields as very pleasant, loving, and caring. She also noted that he remained optimistic through the years despite his long history of serious health problems. She testified that he had been optimistic that a surgery a few months before his death would help his condition, but when the outcome had been poor, he had been scared. Despite this, Fields never told Deirdre that he wanted to give up on life or wanted to kill himself; he remained positive and still had personal goals. Osbum elicited testimony from Deirdre indicating that Fields had been depressed to a point about his failed surgery, but she said he got better. He also brought out that Deirdre had told a law enforcement officer that Fields had been depressed recently, and she indicated that he had not been taking antidepressants.
Shelley testified that she had seen her brother a few days before his death and spoke with him by phone every day. He seemed his happy normal self at the time. Pain was not new to Fields, and he had long suffered from migraines, back pain, and bed sores that could sometimes get out of control. Nonetheless, Shelley testified that Fields never said that he wanted to die and never talked about committing suicide. She said that when she spoke to her brother on the day he died, he did not seem like he was saying goodbye. Osburn elicited testimony indicating that Shelley had told law enforcement that Fields wanted to leave his wife and that she was trying to move to the area so that Fields could live with her. Shelley indicated that the marital problems were typical ones, and Fields had wanted to leave Deirdre before, but he also knew Deirdre was good for him.
The home healthcare worker who came to see Fields on the day he died testified that he seemed normal that day and was in a fairly good mood because his in-laws had come to visit. She testified that he had never told her that he wanted to commit suicide.
Osbum elicited testimony that Fields was taking 18 different medications each day, including several painkillers and muscle relaxers. He also elicited testimony showing that Fields' medications were not managing his pain and that Fields had begun to smoke marijuana to help with pain, which was causing some disagreements with his wife.
Osbum attempted to elicit testimony from a security guard who had worked at Fields' assisted living facility 3 years ago, and his proffer indicated that the guard would have testified to the fact that Fields had been suicidal at that point. The State objected as to relevance, and the trial court determined after arguments that the guard's testimony concerned events that were too remote in time and were thus irrelevant to the case. The trial court sustained the State's objection.
Did the Trial Court Err When It Dismissed Baker's K.S.A. 60–1507 Motion After Finding That Baker's Allegations of Ineffective Assistance of Counsel Were Baseless and Conclusory?
Baker alleges that the trial court erred when it dismissed his K.S.A. 60–1507 motion after finding that his allegations of ineffective assistance of counsel were conclusory. He contends that his motion showed that Osburn knew Fields had some use of his right arm and had police reports indicating that Fields had been depressed. Nevertheless, he asserts in his motion that Osbum failed to investigate Fields' physical capabilities and mental state because Osbum believed Baker had committed a mercy killing. Baker also asserts that Osbum failed to use this information at trial. Baker asserts that Osburn could not have made a strategic decision not to investigate these matters because he conducted no inquiry into the matters. As support for this, he points to the facts that Osbum admitted he did not contact Fields' doctors and Osbum's investigator only interviewed Williams. Baker contends that this evidence supports his contentions with sufficient specificity that the trial court erred in determining that his contentions were conclusory.
Baker asserts that Osbum should have spoken to potential witnesses such as medical staff and doctors who were familiar with Fields' mental state and physical condition because such witnesses would have supported his defense. Baker asserts that the record does not contain any information as to the investigation conducted by Osbum before trial, thus an evidentiary hearing was required here because he had alleged facts which, if true, would have entitled him to relief.
When considering a K.S.A. 60–1507 motion, a trial court has three options:
“(1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2) the court may determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held. If the court then determines there is no substantial issue, the court may deny the motion; or (3) the court may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full hearing.” Fischer v. State, 296 Kan. 808, 822–23, 295 P.3d 560 (2013).
When, as here, a trial court denies a K.S.A. 60–1507 motion based only on the motion, files, and records after a preliminary hearing, this court is in as good a position as a trial court to consider the merits, thus review is de novo. Sola–Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014). “ ‘A movant has the burden to prove his or her K.S.A. 60–1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.’ “ 300 Kan. at 881, 335 P.3d 1162 (quoting State v. Holmes, 292 Kan. 271, 274, 252 P.3d 573 [2011] ). In stating the evidentiary basis, the K.S.A. 60–1507 motion must merely “set forth a factual background, names of witnesses or other sources of evidence to demonstrate that petitioner is entitled to relief.” Sullivan v. State, 222 Kan. 222, 223–24, 564 P.2d 455 (1977). Once a movant satisfies that burden, we are “required to grant a hearing, unless the motion is ‘second’ or ‘successive’ [motion] and seeks similar relief.” Holmes, 292 Kan. at 274, 252 P.3d 573 (quoting Holt v. State, 290 Kan. 491, 495, 232 P.3d 848 [2010] ).
Claims of ineffective assistance of counsel for deficient performance—such as the one Baker contends here—require a criminal defendant to establish (1) the performance of defense counsel was deficient under the totality of the circumstances, and (2) prejudice, i.e., that there is a reasonable probability the jury would have reached a different result absent the deficient performance. Sola–Morales, 300 Kan. at 882, 335 P.3d 1162.
Generally “ ‘[i]t is within the province of a lawyer to decide what witnesses to call, whether and how to conduct cross-examination, and other strategic and tactical decisions.’ “ 300 Kan. at 887, 335 P.3d 1162 (quoting Thompson v. State, 293 Kan. 704, 716, 270 P.3d 1089 [2011] ). But “ ‘ “[m]ere invocation of the word ‘strategy’ does not insulate the performance of a criminal defendant's lawyer from constitutional criticism,” especially “when counsel lacks the information to make an informed decision due to inadequacies of his or her investigation.' “ “ Sola–Morales, 300 Kan. at 887, 335 P.3d 1162 (quoting State v. Gonzales, 289 Kan. 351, 358, 212 P.3d 215 [2009] ). So where counsel lacks the information to make an appropriate decision on these matters due to lack of investigation, “ ‘ “any argument of ‘trial strategy’ is inappropriate.” ‘ “ Sola–Morales, 300 Kan. at 887, 335 P.3d 1162 (quoting Thompson, 293 Kan. at 716, 270 P.3d 1089 ). The defendant bears the burden of demonstrating that trial counsel's alleged deficiencies were not the result of strategy. Sola–Morales, 300 Kan. at 888, 335 P.3d 1162.
Here, Baker, in his K.S.A. 60–1507 motion, argued that while Osburn had argued that Fields was depressed and suicidal and that Fields had pulled the trigger, Baker asserted that Osbum did not present any testimony or evidence to support his argument or to negate the State's theory of the crime. Baker alleged that this was because Osbum had failed to investigate the contested facts of the case. He further asserted that Osbum should have spoken to Fields' doctors or other medical experts in order to establish that Fields could have pulled the trigger on the gun and to negate the State's evidence of Fields' mental state. Baker asserted that, but for Osbum's failure to investigate, the jury would have heard compelling evidence that would have seriously undermined the State's theory of the case.
All of these allegations are highly conclusory and most are simply not supported by the record of the trial. First off, Baker did not name which doctors or medical experts Osbum should have spoken to, nor does he offer any reason to think that those unnamed witnesses would have supported his theory of defense. This falls short of the requirement that Baker must state an evidentiary basis in support of his claims.
Second, Baker offered no evidence to support his assertions other than the affidavit of Stephanie Sowers, the law student who helped prepare the memorandum in support of Baker's motion. Nevertheless, the fact that Osbum told Sowers that he did not believe Baker's story and thought it was made up to keep Baker from getting in trouble for a mercy killing does nothing to support the contention that Osbum inadequately investigated the facts here, neither does a portion of the trial transcript quoted by Baker in his memorandum. Baker contends that Osbum showed the jury that he did not believe Baker's version of events when Osburn asked Deirdre, “[I]f he had wanted to kill himself, he really couldn't do it, could he?” This argument, however, takes Osbum's question out of context. The State had been asking Deirdre about Fields' inability to sign his name without assistance, and she testified that he could only do it if the pen was placed in his fingers and his hand was guided. Osbum's question was setting the stage for his client's version of events, which contended that he placed the gun in Fields' hand and put Fields' finger on the trigger, thus putting Fields in the position where he, theoretically, could have committed suicide. Osbum's personal feelings about what happened between Baker and Fields is of no consequence here, where the record supports a finding that Osbum presented Baker's version of the story and did not interject a “mercy killing” theory into the trial. Osbum' personal feelings also do not support a finding that Osbum failed to adequately investigate the facts of the case.
Finally, as shown by the facts of the case as set out above, Osbum did present testimony and evidence in an attempt to present Baker's defense. He elicited or at least attempted to elicit testimony (1) that Deirdre had told law enforcement that Fields had been depressed before his death; (2) that Fields could sign his name based on home healthcare records; (3) that the pathologist's inspection for gunshot residue on Fields' hands was merely a visual inspection; (4) that the location of a white towel that had been on Fields' head before the shooting indicated that Fields had been leaning forward when shot; (5) that Fields' took his own life based on Baker's version of what had happened; (6) that Fields had more recently become bedridden after a long history of being able to get around in a wheelchair; (7) that Fields had some use of his right arm and could use a computer mouse; (8) that Fields had been depressed about the poor outcome of a recent surgery; (9) that Fields was not taking antidepressants for his depression; (10) that Fields and Deirdre were having marital problems and Fields told his sister that he wanted to leave Deirdre; and (11) that Fields' pain was not being managed despite numerous pain medications. This evidence and testimony clearly contradicts Baker's assertion that Osbum did not present evidence or testimony to support his theory of defense, and it does not lead to the conclusion that Osburn failed to investigate Fields' physical and mental conditions.
To refute Osburn's creditable trial performance, Baker points this court to Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), to argue that a defense attorney's creditable performance at trial does not cure a failure to investigate before trial where there is no plausible explanation for the failure. In that case, however, the defense attorney failed to request discovery from the State, and he therefore failed to timely request suppression of highly prejudicial evidence that was obtained without a warrant because he was not aware of the evidence until trial. The United States Supreme Court concluded that the defense attorney's failure to conduct any pretrial discovery was entirely unreasonable and was a pervasive failure to investigate despite his creditable performance during the trial. 477 U.S. at 385–86.
Kimmelman is distinguishable from this case because here there is no allegation that Osbum failed to conduct discovery. In fact, the record shows that Osbum took the initiative to subpoena Fields' phone records and the records of home healthcare workers. The trial transcript also shows that Osbum used police reports to cross-examine witnesses and used the home healthcare records to try to establish that Fields could sign his own name, thus inferring that Fields had some use of his fingers.
Baker's K.S.A. 60–1507 motion pointed to evidence that Osbum had in his possession and acknowledged that this evidence was discussed at trial, but Baker tends to suggest that Osbum should have done more pretrial investigation of that evidence or should have asked additional questions of witnesses at trial. This is the kind of second guessing that simply does not support a K.S.A. 60–1507 motion. Baker's motion points to no evidence or witnesses that Osbum should have known about but failed to uncover due to his lack of investigation, and the trial court correctly noted that an assertion that there is “something out there to be found” is not enough to show ineffective assistance of counsel.
Viewing this matter in its totality, we conclude that Baker failed to prove that his motion warrants an evidentiary hearing or that his counsel was deficient here. His contentions were conclusory and he did not point this court to any extraneous evidence, witnesses, or evidence in the record to support his contentions. Further, Baker has entirely failed to show that there is a reasonable probability that the jury would have reached a different result had Osburn conducted a more thorough investigation, as suggested by Baker.
For example, Baker has not shown that there is a single piece of evidence or a single person in existence who would have shown that Fields was capable of pulling a trigger that required 12.5 pounds of pressure to fire the handgun used in his death. To the contrary, significant evidence, including from Baker himself, indicated that Fields had no use of his fingers on his right hand and only some use of his arm. Moreover, the firearms expert testified that the handgun used in Fields' death would have ejected the spent shell casing from the gun after it was fired. Although the police were unable to find the spent shell casing, there was evidence that Baker had returned to Fields' home after the shooting and retrieved the spent shell casing. Baker initially denied that he had retrieved the spent shell casing, but he later stated that he could not remember if he had retrieved the spent shell casing. Because the police never found the spent shell casing, this is a clear indication that Baker probably retrieved and disposed of the spent shell casing.
Clearly, Baker's action in returning to Fields' house to retrieve the spent shell casing would have been inconsistent with his contention that Fields had committed suicide.
Generally, when an individual uses a firearm to commit suicide, the firearm will usually be found in an area near the deceased's body. Moreover, depending on the kind of firearm used to commit suicide, the spent shell casing will be found either in the firearm or in the area surrounding the deceased's body. Neither a firearm nor a spent shell casing was found at the scene of Field's death. Thus, one must ask this question: If Fields had committed suicide as Baker contended, why would Baker return to Fields' home for the purpose of retrieving the spent shell casing? The jury would have had to struggle with an answer to this question in determining if Fields had committed suicide or if Fields had been murdered.
Finally, Baker has not shown that there is a single piece of evidence or a single witness in existence who would have shown that Fields was suicidal when he died. Based entirely on the allegations as set out in his motion, Baker cannot show prejudice such that there was a reasonable probability that the jury would have reached a different verdict. Accordingly, the trial court properly dismissed Baker's motion without conducting an evidentiary hearing.
Affirmed.