Opinion
No. 109659.
2015-01-30
Adam M. BARTLING, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.Randall E. Fisher, of Wichita, for appellant.Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Randall E. Fisher, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., McANANY, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Adam Bartling was convicted of one count of aggravated indecent liberties with a child and was sentenced to 233 months' imprisonment. He now appeals the denial of his K.S.A. 60–1507 motion, alleging several instances of ineffective assistance of trial and appellate counsel. Bartling also raises trial errors and appellate errors. We affirm.
Factual and Procedural Background
The underlying facts of Bartling's criminal case were set out by this court in its opinion affirming his conviction for indecent liberties with a child. State v. Bartling, No. 92,106, 2005 WL 3455424, at *1 (Kan.App.2005) (unpublished opinion), rev. denied 281 Kan. 1379 (2006). At the time of the crime, Bartling was a 26–year–old man and had developed a relationship with R.N.A., a 15–year–old female. For a 1–month period, R.N.A. met with Bartling on several occasions without her parents' knowledge. Bartling asserted that the relationship was merely platonic, but R.N.A. indicated that the two were having sexual intercourse and oral sex.
The State charged Bartling with seven counts of aggravated indecent liberties with a child and two counts of criminal sodomy. The jury acquitted Bartling of all charges except for one count of aggravated indecent liberties that occurred on April 11–12, 2003. The incident he was convicted of occurred in Bartling's bedroom, while two other persons were in another room of Bartling's apartment. Bartling, 2005 WL 3455424, at *1. Bartling was sentenced to 233 months' imprisonment.
Bartling appealed his conviction. This court affirmed Bartling's conviction for aggravated indecent liberties with a child. See Bartling, 2005 WL 3455424.
On May 7, 2007, Bartling filed a pro se K.S.A. 60–1507 motion alleging several evidentiary and trial errors, as well as numerous instances of ineffective assistance of trial and appellate counsel. In August 2007, a nonevidentiary hearing was held, but the district court denied Bartling any relief on the issues pertinent to the current appeal. However, no actual journal entry of this decision was filed by the district court.
In November 2007, Bartling filed an amended K.S.A. 60–1507 motion, relying on numerous case citations to support his arguments. A year later, in November 2008, Bartling filed yet another amended K.S.A. 60–1507 motion that reiterated, with more specificity, the original claims.
In December 2008, the State responded that Bartling's amended motions were untimely and did not relate back to his original motion; thus, the amended motions should be dismissed. In addition, the State argued that the motions, files, and record conclusively show that Bartling is not entitled to relief.
In March and April 2009, the district court held two nonevidentiary hearings. At both hearings, it was determined that the district court, at the August 2007 hearing, summarily denied all issues pertinent to the current appeal.
In June 2009, the district court filed a journal entry summarily denying Bartling's K.S.A. 60–1507 motion based on the decision made in August 2007. In addition, the district court summarily denied all issues set forth in Bartling's amended K.S.A. 60–1507 motions, finding that it lacked jurisdiction to review a previous district court judge's decision and that the amendments were untimely and did not relate back to the original motion.
Bartling filed a timely notice of appeal.
This court disagreed with the district court, finding that because there was no official journal entry from the August 2007 decision, the district court did have jurisdiction to review Bartling's claims at a later hearing and that the amended motions did relate back to the original motion. This court ordered the district court to hold an evidentiary hearing on Bartling's ineffective assistance of counsel claims. Bartling v. State, No. 103,597, 2011 WL 2637430, at *6–8 (Kan.App.2011) (unpublished opinion).
The district court held an evidentiary hearing on Bartling's ineffective assistance of trial and appellate counsel claims. After the evidence was submitted and arguments were heard, the district court took the case under advisement.
The district court denied Bartling's K.S.A. 60–1507 motion orally and by journal entry.
Bartling filed a timely notice of appeal.
Appellate Claims
Bartling raises numerous issues in his appeal of the denial of his K.S.A. 60–1507 motion.
Psychological evaluation of victim
Firstly, Bartling claims his trial and appellate counsel were ineffective regarding the request to have the victim psychologically evaluated; trial counsel botched the attempt to obtain a psychological evaluation of the victim; trial counsel failed to ensure that there was an order from the district court denying Bartling's request the victim be evaluated; and appellate counsel failed to ensure the district court's order denying the request for the victim's psychological evaluation was properly designated in the record for appeal purposes.
Prior false accusation made by the victim and police report
Secondly, Bartling claims the district court erred when it denied his K.S.A. 60–1507 motion because evidence regarding victim's prior false accusation made by the victim should have been admissible at the trial; the trial and appellate courts mishandled the issue of the victim's false accusations by basing their decisions on speculation since the police report with the alleged false accusations was not in the record. Bartling wants this court to re-review the issue because the police report is now in the record.
In addition, Bartling claims the district court erroneously relied on inapplicable legal reasoning to exclude the police report that contained the victim's alleged false accusations. The police report was ordered to be placed in the record, but that was never done due to either the State's, defense counsel's, or appellate counsel's fault.
Bartling claims that his appellate counsel was ineffective for failing to obtain the police report and to ensure it was in the record on appeal and because of that failure this court improperly decided the issue without a complete record on appeal.
Material witness
Thirdly, Bartling claims his trial counsel was ineffective for failing to call a material witness whose testimony would have called into question the victim's credibility.
Cumulative error
Lastly, Bartling claims the cumulative effect of all the errors denied him the right to a fair trial.
Analysis
Standard of Review
To be entitled to relief under K.S.A. 60–1507, the movant must establish by a preponderance of the evidence either: (1) “the judgment was rendered without jurisdiction”; (2) “the sentence imposed was not authorized by law or is otherwise open to collateral attack”; or (3) “there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” K.S.A. 60–1507(b) (grounds for relief); Supreme Court Rule 183(g) (2013 Kan. Ct. R. Annot. 285) (preponderance burden).
After a full evidentiary hearing on a K.S.A. 60–1507 motion, the district court must issue findings of fact and conclusions of law concerning all issues presented. Supreme Court Rule 183(j). An appellate court reviews the court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. Appellate review of the district court's ultimate conclusions of law is de novo. State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013).
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law. Consequently, appellate courts review the underlying factual findings for support by substantial competent evidence and the legal conclusions based on those facts de novo. State v. Bowen, 299 Kan. 339, 343, 323 P.3d 853 (2014).
To establish ineffective assistance of counsel, the defendant must establish (1) that counsel's performance was constitutionally deficient. This requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution, and that counsel's deficient performance prejudiced the defense. This requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. Miller v. State, 298 Kan. 921, 929, 318 P.3d 155 (2014).
Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel is highly deferential and requires consideration of all the evidence before the judge or jury. The reviewing court must strongly presume that counsel's conduct fell within the broad range of reasonable professional assistance. State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014). To establish prejudice, the defendant must show a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different, with reasonable probability meaning a probability sufficient to undermine confidence in the outcome. Miller, 298 Kan. at 934.
To establish ineffective assistance of counsel on appeal, defendant must show (1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) the defendant was prejudiced to the extent that there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful. 298 Kan. at 930–31.
Were Bartling's Trial and Appellate Counsel Ineffective Regarding the Request that the Victim Be Psychologically Evaluated?
Bartling filed a motion requesting that the victim undergo a psychological evaluation and that he should receive her psychological records through discovery. He argued that the nature of the evaluation might be crucial to his defense because it could show the victim's motivation in making the allegations against him and the evaluation could question the victim's credibility.
A hearing was held on Bartling's motion. The district court ordered the psychological records be made available to the court in order for the court to conduct an in camera inspection of the records. At the hearing, the district court tentatively ruled that it would not order a psychological evaluation of the victim or order the victim's psychological records be provided to Bartling unless something eye-opening was revealed during the district court's in camera review of the records. The district court never filed a journal entry specifically denying Bartling's motion to receive the victim's psychological records and that the victim undergo a psychological evaluation.
Trial counsel's botched attempt to obtain a psychological evaluation of the victim
Bartling asserts that his trial counsel's attempt to have the victim psychologically evaluated was half-heartedly made because, after the hearing on the motion, trial counsel essentially stopped pursuing the matter.
At the evidentiary hearing on Bartling's K.S.A. 60–1507 motion, his trial counsel admitted that they had stopped pursuing the victim's psychological evaluation and psychological records, but if the district court had granted the motion, Bartling's trial counsel would have used the evaluation as a tool.
According to the record, trial counsel filed a motion requesting that the victim be subjected to a psychological evaluation. In addition, at the hearing on the motion, trial counsel vigorously argued that the victim should undergo a psychological evaluation. There was no other remaining action left for trial counsel to do except perhaps file a motion asking the district court to file a journal entry of its decision either granting or denying the motion for a psychological evaluation of the victim. Such a motion, however, would not have swayed the district court to decide one way or another; it would have merely reminded the district court to file its written decision.
Based upon all of the evidence of trial counsel's efforts in filing the motion and vigorously arguing in support of the motion, it does not appear that Bartling's trial counsel's performance was deficient to the degree that it fell below an objective standard of reasonableness. Bartling's trial counsel was not ineffective during the pursuit of a psychological evaluation and psychological records of the victim.
Trial counsel's failure to ensure that there was an order from the district court denying Bartling's request that the victim be evaluated
Bartling contends that his trial counsel was ineffective because he failed to make sure that the district court filed its decision denying his motion requesting that the victim be psychologically evaluated and that he receive her psychological records. Because of this failure, the district court's reasoning for its decision was not in the record for appellate review.
The State suggests that Bartling failed to raise this particular issue below. The State is correct. In Bartling's second amended motion, the issue pertaining to the lack of the district court's order in the record is only argued for purposes of ineffective assistance of appellate counsel, not ineffective assistance of trial counsel.
At the hearing on the K.S.A. 60–1507 motion, Bartling was under the impression that the motion for the victim to undergo a psychological evaluation had been granted. Moreover, at the K.S.A. 60–1507 hearing, the line of questioning with Bartling's trial counsel focused on whether the district court granted the motion and what trial counsel would have done with such a ruling, i.e., whether he would, in fact, have obtained a psychological evaluation of the victim. There were no questions posed to trial counsel pertaining to his failure to obtain and file the district court's written order on the motion.
Bartling asserts that this issue was, in fact, raised below but fails to designate in the record where this issue was raised pertaining to the ineffectiveness of trial counsel. It was clearly raised in his ineffective assistance of appellate counsel claims but not his ineffective assistance of trial counsel claims. Issues not raised before the trial court cannot be raised on appeal. See Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011).
Assuming Battling had raised this issue to the district court, he fails to show whether the outcome of this court's decision would have been different with the inclusion of the district court's written order in the record. Given that the standard of review for denying a psychological evaluation was for abuse of discretion and that this court essentially called Bartling's attempt to gain such information a “fishing expedition,” it is unlikely that this court's decision would have been different if the written order would have been in the record. See Bartling, 2005 WL 3455424, at *l–2.
Appellate counsel's failure to ensure that the district courts order denying the request for the victim's psychological evaluation was properly designated in the record for appeal purposes
Bartling argues that his appellate counsel was ineffective for failing to designate, within the record, the district court's order denying his motion requesting that the witness undergo a psychological evaluation.
Again, Bartling fails to show whether the outcome of this court's decision would have been different with the inclusion of the district court's written order in the record. Bartling provides only a conclusory argument that his appellate counsel was ineffective for such a failure but fails to explain if and how this issue would have been successful on appeal if the written order had been included in the record. As stated above, given that the standard of review for denying a psychological evaluation was for abuse of discretion and that this court essentially called Bartling's attempt to gain such information a “fishing expedition,” it is unlikely that this court's decision would have been different if the written order would have been in the record. See Bartling, 2005 WL 3455424, at * 1–2.
Moreover, it is clear from the record that the district court's ruling was never officially written down and included in the record. It is unclear whether there is any authority for appellate counsel to have requested the district court put its ruling in writing well after the ruling was even made. Bartling fails to provide any authority to clarify this question.
Did the District Court Err When It Denied Bartling's K.S.A. 60–1507 Motion Because Evidence Regarding a Prior False Accusation sby the Victim Should Have Been Admitted at the Trial?
Bartling filed a motion asking that he be allowed to admit evidence of the victim's prior sexual conduct. The evidence at issue was a police report in which the victim allegedly made a false sexual assault accusation against an individual named Scott. The accusation included an allegation that the victim was abducted from the front of her home and sexually assaulted by Scott. This occurrence allegedly occurred about the same time as the victim's relationship with Bartling. Bartling asserted that the prior assault case was closed because a law enforcement officer found that the victim was not credible. The district court tentatively denied Bartling's motion.
Bartling filed a second, more specific motion, requesting that evidence of the victim's alleged prior false accusation be admitted at trial. After a hearing on the motion, in which trial counsel argued that such evidence goes to the victim's credibility, the district court denied this request.
Bartling's allegations of trial and appellate error pertaining to the exclusion of the police report
Bartling argues that the evidence of the victim's alleged prior false accusation of sexual assault should have been admissible at trial to call into question the credibility of the victim's testimony. In addition, Bartling asserts that the trial court and appellate court mishandled the issue of the victim's false accusations by basing their decisions on speculation since the police report with the alleged false accusations was not in the record. Furthermore, Bartling contends that the trial court erred when it relied on inapplicable caselaw. Essentially, Bartling wants this court to re-review the issue because the police report is now in the record, when before, it was not. In other words, Bartling is appealing this court's decision to this court via his K.S.A. 60–1507 motion.
Bartling has already raised this issue on direct appeal, and this court already determined under State v. Barber, 13 Kan.App.2d 224, 226, 766 P.2d 1288, rev. denied 244 Kan. 739 (1989), that Bartling failed to carry his burden of showing that there was a reasonable probability that the prior accusation was false. In addition, this court stated that even if the police report should have been admitted, it amounted to harmless error on the part of the district court. Bartling, 2005 WL 3455424, at *2–4. This court made the following determination:
“The only purpose of [the police report] was to impeach [the victim]'s credibility, i.e., to convince the jury that she was falsely accusing Bartling of having sex with her. The jury demonstrated an apparent skepticism for R.N.A.'s veracity by acquitting Bartling of all charges involving alleged sex acts for which there was not a corroborating witness. The lone conviction was supported by the testimony of R.N.A.'s friend, who was present in the apartment when the couple had sex in the bedroom. Further, there was strong evidence that Bartling and R.N.A. had engaged in sexual intercourse at least once. Therefore, we are firmly convinced that further attacks on R.N.A.'s credibility would not have swayed the jury from convicting Bartling of the one charge of having sexual intercourse with R.N.A.” 2005 WL 345524, at * 4.
Where an appeal is taken from a conviction or sentence imposed, the judgment of the appellate court is res judicata as to all issues actually raised. State v. Kingsley, 299 Kan. 896, 901, 326 P.3d 1083 (2014). Because this court has already determined the admissibility of the police report on direct appeal and the review of that decision was denied by our Supreme Court, Bartling cannot now raise the issue again in his K.S.A. 60–1507 motion.
As to Bartling's argument that this court improperly decided the issue without a complete record, this court did have two transcripts in the record in which trial counsel extensively discussed the contents of the police report and provided a substantial argument as to why the police report should be admitted in order to question the victim's credibility. Thus, at the time of the direct appeal, this court was made aware of the contents of the police report through trial counsel's extensive description of the contents of the report at the time of the hearing.
There was a differing perspective between two of the officers mentioned in the report. This court addressed that issue when it stated that the gist of the district court's decision was a determination of which police officer in the police report was more credible. This court does not normally address issues of credibility of witnesses. Bartling, 2005 WL 3455424, at *3.
Ineffective assistance of trial and appellate counsel for failing to ensure that the police report was in the record and for failing to rely on correct caselaw
Bartling also contends that his trial counsel and appellate counsel were ineffective for failing to make sure that the police report was in the record and for failing to rely on Barber to support the position that the police report should have been admitted at trial.
Even if trial counsel and appellate counsel should have ensured that the police report was in the record for appellate review and that both should have relied on Barber to argue that the police report should have been admitted at trial, Bartling fails to show that he was prejudiced in anyway by these failures.
Moreover, based on this court's decision in Bartling's direct appeal, it is clear that Bartling was not prejudiced by the lack of the police reports in the record and counsels' failures to rely on Barber. Bartling, 2005 WL 3455414, at * 3–4. Despite both trial and appellate counsel's failure to rely on Barber, this court did in fact rely on Barber in its determination. Regardless of whether trial or appellate counsel should have raised Barber, it would have made no difference in the outcome of the appeal.
Furthermore, trial and appellate counsels' failures to ensure that the police report was in the record also would not have changed the outcome of the appeal because this court had the two transcripts from the hearings on the admissibility of the police report, and at those hearings, the contents of the police report were thoroughly discussed by trial counsel. As this court found Bartling's only purpose in utilizing the police report was to attack the victim's credibility and that any such attacks would not have changed the outcome of the trial.
In all events, it is remote to say that Bartling's utilization of the police report to attack the victim's credibility would have had any effect in the outcome of the case. Bartling claims the police report stated that the case in question was dismissed because the victim gave a statement that was not credible. It clearly states that the victim and her family were not interested in pursuing the matter and did not wish to discuss the case with the police. The detective stated: “I closed this case as a uncooperative victim.” While the report does raise a question as to why the family did not wish to pursue the case, it would be highly speculative to say that but for the failure to have the contested police report before the jury, the outcome of the trial would have been different.
Because Bartling fails to argue how he was prejudiced by trial and appellate counsels' omissions and based on this court's prior decision in Bartling's direct appeal, his claim of ineffective assistance of trial and appellate counsel fails.
Was Bartling's Trial Counsel Ineffective for Failing to Call a Material Witness During the Trial?
Bartling contends that the district court lacked substantial competent evidence to support its factual findings on this issue, which, in turn, resulted in the district court's inaccurate legal conclusion. Bartling asserts that his trial counsel was ineffective for failing to call Nick McDow, whom he believed was a material witness that would have corroborated Bartling's testimony and would have convinced the jury to acquit Bartling of the one charge upon which he was convicted.
At the hearing on Bartling's K.S.A. 60–1507 motion, Bartling indicated that he did testify at trial as to his location in the bedroom, i.e., exclusively in the bedroom doorway; however, there is no such testimony located in the trial transcripts. In fact, at trial, when asked three separate times whether he was in the bedroom with the victim, his answer was that he was in the bedroom; Bartling never qualified his testimony that he was just in the doorway of the bedroom. In addition, the victim's friend, Tori, testified specifically that Bartling and victim were in the bedroom together for a period of time.
At Bartling's K.S.A. 60–1507 hearing, Bartling's friend, Mr. McDow, who was at Bartling's apartment during the time the incident occurred, indicated that if he had testified at trial, he would have testified that the victim went into the bedroom. Further, he stated he would have testified he only saw Bartling standing in the doorway of the bedroom and that he never saw Bartling engage in anything inappropriate with the victim.
McDow testified that before Bartling's trial began, McDow arrived at the courthouse and a person he believed to be Bartling's trial counsel approached him, discussed his possible testimony, and dismissed him as a potential useful witness. However, Bartling's trial counsel did not remember this particular encounter, and suggested that the investigator he hired may have spoken to McDow. McDow testified that no one had spoken to him about the case until the morning of trial.
In its oral ruling, the district court stated, “[McDow] indicated that the defendant, Mr. Bartling, never went into the bedroom with [the victim], never saw Mr. Bartling do anything with [the victim].” Later in its oral ruling, the district judge made the following statement:
“The alleged testimony of Mr. [McDow], from what the Court heard, would have contradicted the testimony of Mr. Bartling. Mr. [McDow] indicated that he never, when I say he, Mr. [McDow] never observed Mr. Bartling and the victim go into the bedroom. They were never in the bedroom, and he would have been available to ascertain these kinds of things.
“That contradicted what the defendant had said, and what the witness, Toni, had said, and what the victim had said during the course of the trial.
“In that regard, I do not believe that the testimony of Mr. [McDow] in this matter would have reached the level required by the law. I do not believe there was a reasonable probability of a different outcome based upon that testimony.”
While the district court was incorrect when it stated that McDow testified that the victim never went into the bedroom, the premise in its decision is correct. McDow's testimony would have contradicted that of Bartling's testimony. Bartling testified at trial that he had been in the bedroom with the victim, whereas McDow testified that Bartling merely stood in the doorway of the bedroom and he never saw Bartling go into the bedroom.
If counsel makes 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. Strategic decisions made after a less than comprehensive investigation are reasonable exactly to the extent a reasonable professional judgment supports the limitations on the investigation. State v. Cheatham, 296 Kan. 417, 437, 292 P.3d 318 (2013) (citing Strickland v. Washington, 466 U.S. 668, 690–91, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 [1984] ).
If, in fact, trial counsel did speak with McDow before the trial began, as McDow indicated, or trial counsel's investigator for that matter, and McDow provided the same information he testified to at the K.S.A. 60–1507 hearing, trial counsel may have made a strategic decision to exclude McDow as a material witness.
Regardless, Bartling must still show that he was prejudiced by the lack of McDow's testimony. Based on Bartling's own testimony at trial that he did go into the bedroom with the victim, it seems unlikely that McDow's testimony that Bartling stayed in the doorway would have swayed the jury. Bartling himself admitted to being in the bedroom and that testimony was corroborated by two other witneses.
Did Cumulative Error Prevent Bartling From Receiving a Fair Trial?
Bartling asserts that the alleged combined errors that he presents in this appeal amount to the denial of his right to a fair trial.
The test is whether the totality of the circumstances establishes that the defendant was substantially prejudiced by cumulative errors and was denied a fair trial. But no prejudicial error may be found from this cumulative effect rule if the evidence is overwhelming against the defendant. State v. Lewis, 299 Kan. 828, 858, 326 P .3d 387 (2014). The appellate court will find no cumulative error when the record fails to support the errors defendant raises on appeal. State v. Betancourt, 299 Kan. 131, 147, 322 P.3d 353 (2014).
For an ineffective assistance of counsel claim to be successful, prejudice must be shown. Bartling has failed to establish prejudice. The failure to establish prejudice as to any of the individual claims of ineffective assistance of counsel cannot be corrected by the concept of cumulative error. Because no errors are found and no prejudice has been shown, Bartling's argument fails. Cumulative errors did not prevent Bartling from receiving a fair trial.
Affirmed.