Opinion
No. 111309.
03-20-2015
Daniel Scott BROWN, Appellant, v. STATE of Kansas, Appellee.
Carrie E. Parker and Christopher M. Joseph, of Joseph Hollander & Craft, LLC, of Topeka, for appellant. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Carrie E. Parker and Christopher M. Joseph, of Joseph Hollander & Craft, LLC, of Topeka, for appellant.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., PIERRON and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Daniel Scott Brown appeals the trial court's denial of his K.S.A. 60–1507 motion. Brown filed his K.S.A. 60–1507 motion alleging his trial counsel was ineffective on three grounds. The court held an evidentiary hearing at which Brown, his trial counsel, and Brown's father testified. After considering the evidence the trial court denied Brown's motion and found his trial counsel had provided effective assistance. On appeal, Brown again alleges ineffective counsel. Brown maintains one theory of ineffective counsel from below and offers two new theories. To the extent Brown raises new issues, those are not properly before us and we find they are without merit. To the extent Brown maintains the same grounds for ineffective counsel as he raised before the trial court, we affirm.
The State charged Brown with one count of electronic solicitation of a minor in violation of K.S.A.2014 Supp. 21–5509(a) & (b)(1). Brown was a registered user of Yahoo! Chat. His profile indicated his name was Dan Williams and he was 25 years old. Brown later admitted the information was false—the name was false and he was actually 30 years old. The charges stemmed from a series of online conversations through Yahoo! Chat in which Brown chatted with an individual using the screen name jococheergirl. Instead of being a teenage girl as the profile indicated, jococheergirl was actually Johnson County Detective Timothy James Shavers.
At the time of these chats, Shavers was a cyber crimes detective. As part of his work, he would go into Yahoo! messenger and present himself as a teenage boy or girl under 16 years of age. In this instance, Shavers registered an account using the handle jococheergirl. The profile did not include a photo. Shavers testified that if a person clicked on the jococheergirl handle, that person could get more information about jococheergirl, including that her name was Taylor Ackels and she was 15–years–old. Yahoo! Chat offered chat rooms under the heading “romance” or “adult.” The adult chat rooms were “sexually charged” so Shavers avoided those, opting to enter a chat room through the romance heading. Shavers testified that once under the romance heading, he then entered the Kansas subheading. Once in the chat room, Shavers did not reach out to other users; he waited for someone to initiate the contact.
On August 11, 2011, Shavers entered a chat room as jococheergirl. At 3:52 p.m., a person using the handle “guyinop25” messaged joco_cheer_girl. Shavers testified that once he added guyinop25 to his friends list, Brown's user name displayed as Dan Williams instead. Brown was later identified as the person using the handle guyinop25 and Dan Williams. The two chatted on a few different days over the course of almost 3 weeks. They discussed benign topics—movies, concerts, the weather, school, and the lake. Only the portions relevant to these charges are included below.
On Thursday, August 11, 2011, Brown messaged joco_cheer_girl, indicating he was a 25–year–old male from Overland Park.
“[Brown]: Hey, what's up, Joco girl? 25/m from Overland Park.
“[Shavers]: im 15 f ke
“[Brown]: I hope I'm not too old for you to talk to.
“[Shavers]: ur fine
“[Brown]: Are you single? Do you have a bf?
“[Brown]: We could talk about more intimate things.
“[Shavers]: like how
“[Brown]: like are you a virgin?
“[Shavers]: nope
“[Shavers]: r u
“[Brown]: hahaha, nope
“[Brown]: I lost mine when I was 19 though. So I think you got me beat.
“[Shavers]: yeah ... cuz im 15
“[Brown]: When was your first time?
“[Shavers]: about a year ago
“[Brown]: was it with a guy your age?
“[Shavers]: almost
“[Shavers]: about the same
“[Brown]: Did you like it? Or was it awkward?
“[Brown]: Did the guy go down on you before sex?
“[Shavers]: no he didnt
“[Brown]: bastard!
“[Brown]: I always go down on a girl first. It really gets you ready and excited for sex.
“[Shavers]: ahhhhh
“[Brown]: loosen up and wet. It would probably hurt less if he did that.
“[Brown]: And it's the gentleman thing to do. Women need head too.”
Brown again initiated a chat the following day on August 12, 2011:
“[Brown]: Did you like our conversation yesterday?
“[Shavers]: did u?
“[Brown]: Do you want to go there again?
“[Brown]: You definitely need a guy that will go down on you.
“[Brown]: have you ever gone down on a guy? “[Shavers]: no.
“[Brown]: Some women get off to oral more than anything.
“[Brown]: Have you ever had an orgasm?
“[Brown]: It usually take [sic ] a little for women to get that first one.
“[Shavers]: im not sure if i have b4
“[Brown]: Have you ever masturbated?
“[Brown]: Most guys your age do it regularly.”
The two did not chat again for over 2 weeks. On August 29, 2011, Brown again sent a message to jococheer girl. This time Brown showed up as Dan Williams.
“[Brown]: ... [S]ometimes it's good not to have a bf/gf. That let's [sic ] you just enjoy your life without the drama. “[Shavers]: yeah good piont [sic ]
“[Brown]: Sometimes, it's just fun to hook up with someone and just enjoy it without consequences
“[Shavers]: have u ever done that
“[Brown]: Yeah, I've done no strings attached before. It can be fun as long as both people understand what it is.
“[Shavers]: yeah understanding it is very importantnt [sic ]
“[Brown]: Are you interested in messing around, just for fun?
“[Shavers]: with who?
“[Brown]: with someone older. [smiley face emoticon]
“[Shavers]: maybe depends on if they r cool
“[Brown]: and if you're attracted to them, right? [winking smiley face emoticon]
“[Shavers]: yeah right
“[Brown]: Do you think 25 is too old?
“[Shavers]: no.
“[Shavers]: do u think 15 is 2 young
“[Brown]: I don't think so. But it would have to be very secret. On the DL.”
Shavers testified that “DL” is “a phrase of speech saying that it's a secret or nobody else can know.” Brown also testified he meant “[d]own low” when he typed “DL.”
“[Shavers]: OF COURSE ...
“[Shavers]: i dont want to get in trouble
“[Brown]: I don't want to get in trouble, either
“[Shavers]: DUH
“[Brown]: lol
“[Shavers]: what r u thinking and ill tell u if im kewl with it
“[Brown]: Well, assuming you're into me or vice versa, we could just makeout first.
“[Shavers]: thats kelw [sic ]
“[Brown]: Or, if you decide you're not into me or vice versa, then nothing; we could just talk.
“[Shavers]: thats kewl
“[Brown]: Do you like making out?
“[Shavers]: it was kewl when i did it before with my ex
“[Brown]: We don't have to do anything else; I know you may not be ready for more
“[Shavers]: ok
“[Shavers]: ur nice
“[Brown]: Yeah, I'm a nice guy. I know how to treat a woman right.
“[Brown]: I can teach you things and have fun doing it.
“[Shavers]: like what
“[Brown]: Well, I can teach you the finer points of kissing.
“[Shavers]: ok
“[Brown]: I can teach you how a man likes to be touched.
“[Shavers]: ok
“[Brown]: If it gets to a certain level, you might learn how a real orgasm feels like
“[Shavers]: really?
“[Brown]: yes, if I go down on you.
“[Shavers]: kewl
“[Shavers]: r u serious?
“[Brown]: I'm serious “[Shavers]: awesome “[Shavers]: when?
“[Brown]: When can you?
“[Brown]: I can come get you.
“[Brown]: What's going on tomorrow morning?
“[Brown]: Is that a good time?
“[Brown]: or afternoon?
“[Shavers]: nothing .... im free both
“[Brown]: I could come get you at 9 am.
“[Shavers]: thats kewl
“[Shavers]: what kinda car u got so i know its u
“[Brown]: Blue Mazda”
The next morning, August 30, 2011, they finalized their plans to meet up.
“[Brown]: Good morning.
“[Shavers]: good morning [smiley face emoticon]
“[Brown]: Are you excited?
“[Shavers]: yeah ... u seem kewl
“[Shavers]: r u
“[Brown]: I couldn't sleep. [indistinguishable emoticon]
“[Shavers]: why not
“[Brown]: because I was excited.
“[Brown]: Well, see if youre still interested when you meet me.
“[Shavers]: u said u were tall and strong
“[Shavers]: why wouldn't i
“[Shavers]: r u ugly?
“[Brown]: And I'm sweet.
“[Brown]: Not ugly.
“[Shavers]: I just wanna be prepared ... what do u wanna do at ur house
“[Brown]: Whatever you wanna do.
“[Shavers]: well I dont like to lead
“[Brown]: Only what you're comfortable with
“[Shavers]: what would u wanna do and ill tell you yes or no
“[Brown]: Maybe we could just makeout, nothing too serious.
“[Shavers]: ok
“[Shavers]: i know I sound stupid
“[Shavers]: i just dont wanna make u mad
“[Brown]: Don't worry; you won't make me mad.
“[Brown]: It's a woman's choice to say no or stop at anytime.
“[Shavers]: yeah I know that....
“[Brown]: I respect that.
“[Brown]: I know that you'll be nervous so I'll be patient.
“[Shavers]: well what all would u want to do and ill tell u if im kewl with it
“[Shavers]: ive never gone on a date adn [sic ] not known what we would do
“[Brown]: Let's just have fun. And don't do anything that's uncomfortable or unfun.
“[Shavers]: well whats comfortable for me may not be for u and the otherway around
“[Shavers]: thats what im asking ... waht [sic ] r u wanting
“[Brown]: I have no expectations. We don't have to do anything at all. We can just hang out and watch a movie.
“[Shavers]: ok
“[Shavers]: u were talking about stuff yesterday adn [sic] I dont know if u were serious
“[Brown]: I was talking about possibilities, but your comfort is the most important thing.
“[Brown]: I won't pressure you.
“[Shavers]: I know that
“[Shavers]: but i want to know what ur thinking
“[Shavers]: communication is important
“[Shavers]: i want honesty
“[Brown]: Honestly, I have no expectations.
“[Shavers]: im not asking about expectations ... i got that
“[Brown]: How can I expect anything?
“[Shavers]: I dont think u can
“[Brown]: We haven't met
“[Shavers]: i know
“[Shavers]: what time will you bring me backhome [sic ]
“[Brown]: Around noon?
“[Brown]: ... See ya in a sec.”
The two decided to meet at a fast food restaurant in Olathe. Brown told joco_ cheer_girl he would be wearing a Sonic Youth t-shirt and shorts. He again reminded her he would be driving a dark blue Mazda 3. When Brown arrived at the restaurant in a dark blue Mazda 3 while wearing a Sonic Youth t-shirt, Shavers placed him under arrest.
The case against Brown proceeded to a jury trial. Paul Cramm represented Brown at trial. The defense Cramm presented at trial was that Brown believed he was role-playing with an adult pretending to be a teen cheerleader.
After a 2–day trial, the jury convicted Brown. He was later sentenced to a downward durational departure sentence of 44 months in prison. Brown filed a direct appeal—No. 109,053. He filed a motion to remand his case to the trial court for a Van Cleave hearing and to seek the vacation of his sentence, which this court denied. Brown then filed a motion for voluntary dismissal of his direct appeal. On June 13, 2013, this court granted Brown's voluntary dismissal.
On July 29, 2013, Brown filed a K.S.A. 60–1507 motion asking the trial court to vacate, set aside, or correct his sentence on the grounds of ineffective assistance of trial counsel. Brown alleged three grounds for ineffective counsel: (1) Cramm failed to investigate evidence in support of Brown's defense; (2) Cramm failed to investigate alleged impeachment evidence of the State's key witness and the Yahoo! Chat policy; and (3) Cramm failed to prepare Brown to testify in his own defense.
In his motion, Brown claimed Cramm failed to investigate the Yahoo! Chat policy and prior trial testimony by Shavers that allegedly contradicted his testimony in the case. Brown also alleged Cramm provided ineffective counsel for relying on Shavers' police report instead of independently investigating the veracity of Shavers' claims against Brown. Brown claimed Cramm could have “undercut [Shavers'] effectiveness as a witness for the prosecution” had he investigated Shavers. Brown argued this evidence would have eroded the State's case against him. Brown argued that due to Cramm's failure to investigate this evidence, the jury did not learn that Shavers had to register the joco_cheer_ girl as an adult based on the policy in effect at the time in order to chat. Finally, Brown argued he repeatedly offered to testify but Cramm failed to prepare him to testify. Brown contended the jury was deprived of potentially pivotal evidence in favor of the defense.
Brown argued it was not a strategy to fail to investigate this potential evidence. He contended that had the jury known that Yahoo! Chat users were required to indicate they were 18 years old to register an account and Shavers' testimony from previous trials differed from his testimony here, the outcome would have been different and so Cramm's deficiencies prejudiced him. Therefore, Brown argued, Cramm was constitutionally ineffective for failing to investigate Shavers' prior testimony and the chat policy.
The trial court held an evidentiary hearing on Brown's K.S.A. 60–1507 motion. Cramm, Brown, and Brown's father testified. Cramm testified first.
Cramm confirmed he did not investigate the chat policy or Shavers' previous testimony. The strategy he and Brown decided to present at trial was that Brown had been communicating with the ficticious persona of Taylor Ackels under the belief that he was communicating with an adult and engaged in role-play. Cramm generally testified that based on his experience with this type of charge, he did not believe the policy or an attack on Shavers would be effective with the jury. Therefore, as part of his strategy, he pursued other evidence.
Regarding Brown's decision not to testify, Cramm indicated the decision was made early in the process. Cramm felt he could not recommend Brown testify when Brown was unable to tell the jury he was positive he was chatting with an adult. Cramm felt Brown's uncertainty whether he was chatting with an adult or a child would result in a conviction. Cramm indicated Brown decided not to testify, so Cramm did not prepare him.
Brown also testified. His testimony contradicted Cramm's. He indicated Cramm merely neglected to prepare him to testify, not that this was part of a strategy decided early on. Brown testified he told Cramm he wanted to testify many times, but Cramm indicated that Brown would be “telling on [himself]” if he told the jury he was not certain he was talking to an adult. Brown also testified he did not realize “I had to be completely sure that it was a minor ... to be found guilty.”
Brown's father testified briefly. He said he was present at the trial and heard Cramm ask Brown at the close of the State's case if he was going to testify.
Brown also provided three stipulated documents to the court as evidence: (1) the Yahoo! Compliance Guide for Law Enforcement; (2) assorted court documents from State v. Mercer, case No. 08–CR–3625, in which counsel from the same firm as Brown's 60–1507 counsel defended another man against a charge of electronic solicitation; (3) the journal entry of judgment in State v. Mercer, case No. 08–CR–3625; and (4) the transcript of Volume 1 of 3 of the jury trial in State v. Croft, case No. 08–CR–1197. Shavers had testified in Croft.
The trial court held off ruling on Brown's motion so it had time to review the evidence in the case. On January 27, 2014, the court denied Brown's motion. The court found that Cramm had provided reasonable counsel. The court issued a brief written order encompassing its oral order.
Brown, represented by the same firm as at the evidentiary hearing, now appeals the denial of that motion.
When a defendant files a K.S.A. 60–1507 motion,
“[t]he district court has three options for resolving a K.S.A. 60–1507 motion. First, it may determine that the motion, files, and records of the case conclusively show that the movant is entitled to no relief, in which case it will summarily deny the movant's motion. Second, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and records, and hold a preliminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial. Third, the court may determine from the motion, files, and records that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the movant .” Bellamy v. State, 285 Kan. 346, Syl. ¶ 1,172 P.3d 10 (2007).
Therefore, in cases such as this one, when a trial court holds a full evidentiary hearing on a defendant's motion, it must issue findings of facts and conclusions of law concerning all issues presented. Supreme Court Rule 183(j) (2014 Kan. Ct. R. Annot. 285). Appellate courts review the court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the trial court's conclusions of law. Then, appellate courts review the trial court's ultimate conclusions of law de novo. State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013).
Brown urges us to reverse the denial of his motion pursuant to K.S.A. 60–1507.
To be entitled to relief under K.S.A. 60–1507, the movant must establish by a preponderance of 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 that (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) ; Supreme Court Rule 183(g).
Brown argues he is entitled to relief under K.S.A. 60–1507 because Cramm was constitutionally ineffective, and, but for that representation, there is a reasonable probability he would not have been convicted. As the movant, Brown had the burden to prove that he was entitled to relief. When a K.S.A. 60–1507 motion is based on a claim of ineffective assistance of counsel, appellate courts apply the two-prong test derived from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 (1984). To establish a claim of ineffective assistance of trial counsel, the defendant must prove that (1) counsel's performance was constitutionally deficient, which requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution; and (2) counsel's deficient performance prejudiced the defense, which requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. State v. Cheatham, 296 Kan. 417, 431, 292 P.3d 318 (2013).
The first prong of the test requires the defendant to show that counsel's representation fell below an objective standard of reasonableness, considering all the circumstances of the case. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009) ; Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007). Judicial scrutiny of counsel's performance must be highly deferential, with every effort made to eliminate the distorting effects of hindsight. Rowland v. State, 289 Kan. 1076, 1083, 219 P.3d 1212 (2009).
The second prong of the test requires the defendant to establish prejudice by showing there was a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the case. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Bledsoe, 283 Kan. at 90–91.
On appeal, Brown alleges multiple deficiencies in Cramm's performance, including: (1) Cramm misunderstood the law of electronic solicitation; (2) Cramm failed to prepare Brown to testify on his own behalf due to the misunderstanding of the law; and (3) Cramm failed to investigate facts beneficial to Brown's case sufficiently. He contends the outcome of his trial would have been different absent Cramm's deficient performance.
In response, the State argues (1) Cramm understood the law; (2) based on a proper understanding of the law, Cramm believed it was strategically best not to place Brown on the stand; and (3) Cramm strategically determined certain evidence would not have been persuasive to the jury. The State further argues that even if Cramm did err, the outcome would not have been different because of the nature of the evidence against Brown, and therefore any error was harmless.
Brown filed a reply brief contending the State's response failed to justify Cramm's errors. Brown further argued (1) the record does not support the State's assertion Brown's decision not to testify was tactical; (2) the State misconstrued Brown's arguments regarding Cramm's failure to investigate allegedly helpful evidence; and (3) the State's liberal interpretation of its key witness' testimony does not absolve Cramm's investigatory failures.
The issues will be addressed in the order in which Brown presented them.
Brown's first ground of alleged ineffectiveness is that Cramm misunderstood the law of electronic solicitation. Brown contends Cramm thought the State only had to prove Brown did not affirmatively believe jococheergirl was an adult when it actually had to prove Brown believed he was chatting with a minor. See K.S.A.2014 Supp. 21–5509(a) & (b)(1) (“Electronic solicitation is, by means of communication conducted through the telephone, internet or by other electronic means, enticing or soliciting a person, whom the offender believes to be a child, to commit or submit to an unlawful sexual act.”) Brown contends Cramm's misunderstanding of the law is evidenced by his and Cramm's testimony. Brown refers to the following portion of Cramm's testimony, without offering any context, as evidence of this misunderstanding:
“And I asked [Brown], ‘Would you be able to testify under oath that you genuinely and truly believed that you were dealing with an adult engaged in role play?’ [Brown] told me ... eye to eye, ‘No, I would not be able to say that under oath.’
“At that point the decision was made we would not have [Brown] testify, because, for me, to put him on the stand to deny that would be improper on my part. And to put him on the stand to admit that would be an immediate conviction.”
However, because Brown raises this ground for ineffective assistance of counsel for the first time on appeal, this issue is not properly before us for review. As a general rule, an appellate court will not consider an allegation of ineffective assistance of counsel raised for the first time on appeal. State v. Fulton, 292 Kan. 642, 651, 256 P.3d 838 (2011). “[B]ecause appellate courts are not in the best position to decide such claims, the Kansas Supreme Court has held that new claims of ineffective assistance of counsel will not be considered under this exception for the first time on appeal. State v. Van Cleave, 239 Kan. 117, 119, 716 P.2d 580 (1986).” State v. Hein, No. 95,294, 2007 WL 656360 (Kan.App.2007) (unpublished opinion). The reason for this rule is sound—i.e., the trial court, which observed counsel's performance, is in a much better position to consider counsel's competence than we are and should be the first to address an ineffective assistance of counsel claim. Van Cleave, 239 Kan. at 119–21. Only in limited, exceptional circumstance, will appellate courts review an allegation of ineffective counsel for the first time on appeal. Trotter v. State, 288 Kan. 112, 127, 200 P.3d 1236 (2009) (a 60–1507 movant may overcome the failure to raise an issue below if he or she persuades the court the issue was not raised due to ineffective counsel, newly discovered evidence, or an unforeseeable change in circumstances or the law).
However, this court has determined an issue of ineffective assistance not raised in front of the district court during a K.S.A. 60–1507 hearing is “not appropriate for our review.” Rodriguez v.. State, No. 96,587, 2008 WL 3367543, at *4 (Kan.App.2008) (unpublished opinion) (citing State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 [2007], rev. denied 287 Kan. 766 [2009] ).Therefore, a “party cannot raise new ineffective assistance theories in an appeal of the denial of a K.S.A. 60–1507 motion.” Pascual v. State, No. 101,778, 2010 WL 3853145, at *2 (Kan.App.2010) (unpublished opinion) (appellate court refused to review argument on appeal because it differed from argument appellant made in his K.S.A. 60–1507 motion) (citing Trotter, 288 Kan. at 127 ; State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 [2008] ).
Put another way, when an appellant has had an opportunity to litigate the effectiveness of trial counsel, any particular claims of ineffective assistance of trial counsel not raised then are deemed waived. See Rowland v. State, 289 Kan. 1076, 1085–86, 219 P.3d 1212 (2009) (Where ineffective assistance of counsel claims are fully explored and disposed of either on remand from direct appeal or in a K.S.A. 60–1507 proceedings, the defendant is barred from raising any later argument to support a second ineffective assistance of counsel claim.); Rice v. State, 37 Kan.App.2d 456, 463–64, 154 P.3d 537 (appellate court refused to bar a collateral challenge to counsel's representation merely because some allegations of ineffective assistance of counsel had been raised or could have been raised on direct appeal, unless the movant possessed the opportunity to litigate fully the ineffective assistance of counsel claim with an evidentiary hearing and the appointment of counsel different than trial counsel), rev. denied 284 Kan. 946 (2007); Betts v. State, No. 101,119, 2010 WL 919795, at *3–4 (Kan.App.2010) (unpublished opinion) (the paramount question in deciding whether the defendant is barred from asserting ineffective assistance claims is whether the defendant was already afforded the opportunity to litigate his or her claims fully, meaning that he or she was represented by counsel, was given the opportunity to raise his or her claims about counsel's deficiencies, and was allowed to support his or her claims with evidence); Griffin v. State, No. 98,222, 2008 WL 4291516, at *6 (Kan.App.2008) (unpublished opinion), rev. denied 289 Kan. 1278 (2009).
In this case, Brown had an opportunity to fully litigate his claims of ineffective assistance of counsel. Nonetheless, he shifted his grounds for ineffective assistance of counsel on appeal. In his K.S.A. 60–1507 motion Brown's three grounds for ineffective assistance were Cramm's failures (1) to investigate and present evidence in support of his defense; (2) to investigate and present evidence contradicting Detective Shavers; and (3) to prepare Brown to testify. However, on appeal he alleges that (1) Cramm misunderstood and misapplied the law of electronic solicitation; (2) because of this misunderstanding, Cramm advised Brown not to testify and failed to prepare him to testify; and (3) Cramm failed to investigate and develop facts beneficial to Brown's case.
Neither party addressed the fact that Brown raised new grounds of ineffectiveness on appeal. Brown also offers no exceptional circumstances warranting our review of these issues. However, a review of the record indicates no exceptional circumstances. The evidence Brown uses to support his claim that Cramm did not understand the law—his own testimony and Cramm's testimony that putting Brown on the stand to testify he was unsure whether he was talking to an adult or a minor would result in a conviction—was available to him prior to his evidentiary hearing. Brown undoubtedly knew prior to the evidentiary hearing that Cramm allegedly told him during trial preparations that he would be guilty under the law if he testified he was unsure whether he was chatting with an adult or a child. Additionally, the transcript of the evidentiary hearing indicates that prior to the hearing, Cramm emailed a partner at Joseph Hollander & Craft, LLC, Brown's 60–1507 counsel, and relayed his belief that putting Brown on the stand to testify he was unsure whether he was chatting with an adult or a child “would be an immediate conviction.” Therefore, Brown had access to the factual basis to raise this theory of ineffective assistance of counsel below.
Therefore, Brown's claim that Cramm did not understand the law is not properly before us. However, a review of the record indicates Cramm understood the law and this claim would therefore fail anyway.
As the movant, Brown carried the burden of establishing Cramm was ineffective. See Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089 (2011). Brown failed to carry this burden. As evidence of Cramm's “misunderstanding,” Brown cites his own testimony and a statement made by Cramm that Brown claims shows Cramm did not know the law.
“And I asked [Brown], ‘Would you be able to testify under oath that you genuinely and truly believed that you were dealing with an adult engaged in role play?’ [Brown] told me ... eye to eye, ‘No, I would not be able to say that under oath.’
“At that point the decision was made we would not have [Brown] testify, because, for me, to put him on the stand to deny that would be improper on my part. And to put him on the stand to admit that would be an immediate conviction.”
However, Brown quotes this testimony without providing any context of the statement. When he said this, Cramm was answering questions about his recommendation that Brown not testify. Viewed in context, Cramm was clearly referring to the impact Brown's testimony would have on a jury, and therefore he felt it was strategically the best decision not to put Brown on the stand. Additionally, the charging document, the jury instructions Cramm requested, and the jury instructions used—which Cramm undoubtedly was familiar with—all articulated the State's burden properly. Cramm has also been a practicing criminal defense attorney for 14 years and has defended at least three other electronic solicitation cases in which Shavers was the lead detective. The record indicates Cramm understood the law. Therefore, Brown's first claim of ineffective counsel would fail even if it were properly before us.
Brown next argues Cramm was ineffective for failing to prepare him to testify—arguing he “should have been the star witness for the defense”—and this failure was rooted in Cramm's misunderstanding of the law. Brown argued before the trial court that Cramm was ineffective for failing to prepare him to testify, contending Cramm never even asked Brown if he would like to testify until the trial in spite of Brown's repeated offers to testify. Brown never mentioned a reason why Cramm allegedly failed to prepare him to testify. When questioned at the hearing, Cramm testified that the decision not to have Brown testify was made early on because of Cramm's concern that Brown would not be able to testify under oath that he “genuinely and truly believed that [he was] dealing with an adult engaged in role play.” Cramm acknowledged that he asked Brown about testifying again at the trial as both Brown and his father testified. But instead of this being the first mention of it, he merely did it “because [he] knew that the judge would make a colloquy with him about his right to testify before bringing the jury back into the room.” Brown's 60–1507 counsel did not further question Cramm regarding why he recommended Brown not testify or on his understanding of the law. It is only on appeal that Brown alleges Cramm recommended Brown not testify due to Cramm's misunderstanding of the law.
Brown raises this ground of ineffective assistance of counsel for the first time on appeal without offering exceptional circumstances. Therefore, for the reasons discussed in the previous issue, this issue is also not properly before us.
Again, however, even if it was properly before us, this argument too would fail. The record indicates Cramm understood the law. Brown offers no other evidence on appeal for Cramm's alleged failure to prepare Brown to testify and therefore failed to meet his burden of establishing that Cramm was ineffective or that he was entitled to relief. See Thompson, 293 Kan. at 715. The State's argument on this issue is also persuasive.
The State argues Cramm's decision not to prepare Brown was a tactical decision based on the fact that his testimony would have hurt his defense. Cramm's decision to recommend Brown not testify was clearly a reasonable one. As the State points out, if Brown testified, he would have to admit he knew he could have been asking a child about whether she was a virgin, about masturbation, oral sex, and orgasm, and he would have had to admit he knew he could have been asking a child to come over to his house and engage in sexual behavior. Additionally, Brown's testimony at the evidentiary hearing was often evasive and unsupportive of his role-play defense. For example, the following is a sample of the exchange between the State and Brown at his hearing:
“[The State]: How often have you been involved in role playing?
“[Brown]: Not too often.
“[The State]: Can you give me a number?
“[Brown]: I don't think I can, sir.
“[The State]: How often have you been involved in role playing where the other person acts as though they're a 15–year–old child?
“[Brown]: I would say not that often.
“[The State]: I want to talk about this chat with the ‘joco_cheer_girl.’ When did you decide you were going to role play with her?
“[Brown]: ... [A]s soon as I initiated the chat.
“[The State]: Before the chat?
“[Brown]: I don't know....
“[The State]: If your intent was to role play, doesn't it seem more reasonable that you would have joined the Adult section?
“[Brown]: I'd say that might be correct. But, you know, these things kind of happen spontaneously, you know, organically....
“[The State]: You said you were a 25–year–old male from Overland Park?
“[The State]: That was a lie, right?
“[Brown]: Yes, sir.... [S]he told me a lie too.
“[The State]: How does that coincide with role playing ... that you lied to her about your age?
“[Brown]: It's a chat room, sir. There's ... a lot of legend, a lot of myth.... So the fact that I lied about my age, you know, and they lied about their age, isn't really a weird thing.”
The State also claims evidence that they were role—playing—that joco_cheer_ girl was supposed to be in school and that she claimed to attend an online school which Brown had never heard of-all came out well into their chat and could not have supported an initial belief that they were role-playing from the start. Cramm was aware of this when he determined that recommending Brown testify would not be beneficial to Brown's own defense. The record indicates Cramm's decision to recommend Brown not testify is supported by the record.
Brown's argument that Cramm's recommendation was rooted in a misunderstanding of the law fails. Cramm understood the law and also how a jury would respond to a 30–year–old man asking someone—who he admits might be a child—to engage in sexual conduct.
Additionally, an issue not briefed by the appellant is deemed waived and abandoned. State v. Boleyn, 297 Kan. 610, 633, 303 P .3d 680 (2013). In the process of changing the grounds for ineffective counsel, Brown failed to preserve his initial argument that Cramm simply failed to prepare him to testify in spite of Brown repeatedly indicating a desire to testify. Therefore, that issue has been waived and abandoned.
Finally, Brown argues Cramm was ineffective for failing to investigate and develop Yahoo! Chat's policies and Shavers' previous testimony. Brown contends both would have provided substantial support to his case. Brown maintains the same theory of ineffectiveness for failure to investigate on appeal as he raised below. Therefore, the trial court made factual findings and legal conclusions on this precise issue. Consequently, this court will review the trial court's factual findings to see if they are supported by substantial competent evidence and this court will review the legal conclusions de novo. Substantial competent evidence is evidence possessing both relevance and substance that a reasonable person could accept as being adequate to support a conclusion. State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009). In conducting its review, the appellate court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. See State v. Johnson, 289 Kan. 870, 888, 218 P.3d 46 (2009).
Before analyzing Cramm's performance under the first prong of the Strickland test to determine if Cramm was ineffective, it is helpful to note the duties of trial counsel. Our Supreme Court has articulated the duties of trial counsel. Trial counsel is responsible for certain decisions during trial preparations, including “strategical and tactical decisions like preparation, scheduling, and the type of defense.” Flynn v. State, 281 Kan. 1154, 1163, 136 P.3d 909 (2006). Included in this responsibility is the duty to investigate reasonably or to conclude reasonably that a particular investigation is unnecessary. Cisneros v. State, No. 108,535, 2013 WL 4565025 at *5 (Kan.App.2013) (unpublished opinion), rev. denied (April 15, 2014).
Generally upon review, even when “experienced attorneys might disagree on the best tactics or strategy, ... [s]trategic choices based on a thorough investigation of the law and facts are virtually unchallengeable.” Flynn, 281 Kan. 1154, Syl. ¶ 5. “The defendant bears the burden of demonstrating that trial counsel's alleged deficiencies were not the result of strategy.” State v. Gleason, 277 Kan. 624, 644, 88 P.3d 218 (2009). Counsel's strategic choices based on a thorough investigation of the law and facts are virtually unchallengeable. Strategic choices based on a less than complete investigation are reasonable to the extent that reasonable professional judgment supports the limitation on the investigation. Cheatham, 296 Kan. at 437 (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] ).
Brown contends he was deprived of his constitutional right to effective assistance of counsel because Cramm failed to investigate the Yahoo! Chat policy and Shavers' testimony from other cases. Therefore, it was Brown's burden to show that investigating the Yahoo! Chat policy and Shavers' prior testimony fell below an objective standard of reasonableness and Cramm's failure to do so was not a result of a reasonable trial strategy.
Brown complains that Cramm did not investigate the Yahoo! Chat policy in effect on the dates Brown chatted with jococheergirl. The following facts in the record relate to this claim.
During trial preparations, Brown emailed Cramm to inform him the Yahoo! Chat policy required users to be 18 years or older. Brown further indicated a person who reported being less than 18 years old would not be allowed into the chat rooms. In response, Cramm informed Brown his “wheels are turning.” In a second email to Cramm, Brown indicated to Cramm that the 18 and older policy became effective after his arrest date and suggested they look into previous policies. Cramm never looked into the chat policy in effect at the time Brown and jococheergirl chatted.
At Brown's 60–1507 evidentiary hearing, Cramm testified this was a deliberate choice. His strategy was to highlight aspects of the conversation that supported Brown's defense of role-play with an adult. Plus, Cramm testified, the policy was an unenforced one—Yahoo! does not independently verify the profiles, so the 18 and older policy would not be helpful in proving Brown did not know whether he was speaking to an adult or a child. Additionally, Brown himself provided inaccurate information about both his name and age, indicating that false information is not being precluded from the chat rooms. Cramm stated he felt law enforcement's deliberate decision to withhold decoy photos in this particular investigation was strategically a far more effective way to bolster the role play theory of Brown's defense rather than argue law enforcement officers had lied about the age of a fictitious person in violation of an unenforced policy. Cramm did not
“like the idea of coming into the jury and saying ... the policy says you have to be 18 .... so my client should be allowed to operate with carte blanche impunity operating on the belief that everyone clicked the box who said they're 18. So now I don't have to be responsible for anything I say....”
Cramm also determined that using the age policy as a defense would be analogous to “asking the jury to let [Brown] off on a technicality. And I don't think jurors like technicalities, and I really don't think they like technicalities in sex offense cases involving minors.”
Based on the evidence presented, the trial court found Cramm's decision not to investigate the Yahoo! Chat policy as part of Brown's defense was strategic. The trial court relied on its experience with Cramm, its experience with other electronic solicitation cases, a review of the case file and evidence presented, and a review of relevant case law. While acknowledging the distorting effects of hindsight, the court found Cramm “testified ... he didn't think [the policy] would be helpful or thought it would be futile ... and that likely it would not have made a difference to the jury.” The court also relied on its experience with this type of case in finding that the Yahoo! Chat investigation would have been “futile” and would not have changed the outcome.
The trial court's factual findings are supported by substantial competent evidence. See Bernal v. State, No. 101,296, 2010 WL 2852543 at *3 (Kan.App.2010) (unpublished opinion) (this court should apply a substantial competent evidence standard to the trial court's factual findings but review the court's conclusions of law without deference to the trial court's decision).
Cramm testified that (1) the policy is unenforced and user information is unverified; (2) Brown himself lied about his age and name yet was not precluded from entering the chat room; (3) he felt the jury would not “ascribe pointed significance to law enforcement essentially fibbing about the age of a person who, in and of themself, is entirely fictitious”; (4) he did not like the idea of arguing to the jury that Brown “should be allowed to operate with carte blanche impunity” regarding the age of people chatting on Yahoo! because of the policy; and (5) he felt by using the age restriction, he would be arguing to the jury to acquit Brown on a technicality, and the jury would not like “technicalities in sex offense cases involving minors.” Ultimately, Cramm felt “it would be a little false to tell the jury they really need to give my guy a break because he's operating under the belief that everyone in this chat room is 18, regardless of what [jococheergirl] said in her chats.”
These factual findings are sufficient to support the trial court's conclusion that Cramm's performance was not deficient.
Brown provided documents from State v. Mercer, Sedgwick County case No. 08–CR–3625. Though he never cites to the documents in his brief, it seems he may be suggesting Mercer supports his argument that the policy could have affected the outcome of his trial. The Mercer documents (totaling nearly 100 pages) are completely irrelevant to this appeal. In Mercer, the defendant was charged with electronic solicitation. Defense counsel filed a motion to dismiss in which she argued Yahoo! Chat's policy required users to be 18 years of age, and therefore Mercer “had every right to believe that whomever he was talking to was at least 18 no matter who or what they pretended to be once inside the chat room.” Brown failed to provide the court's ruling on the Mercer motion to dismiss. He did provide the Mercer journal entry indicating Mercer was acquitted after a bench trial. It appears Brown wants us to infer some connection to the reference to the chat policy in his motion and the acquittal. That would be a logical fallacy as the Mercer transcripts indicate that Mercer did discuss disgusting and inappropriate topics with an officer posing as a child, but he never actually solicited her. Therefore, though Mercer's conduct was morally troubling, it was not in violation of K.S.A. 21–3532 and the acquittal was the right conclusion.
Brown also argues Cramm was ineffective for failing to interview Shavers in this case and failing to investigate Shavers' testimony from prior cases. Brown alleges this left Cramm unequipped to cross-examine Shavers effectively because Shavers' testimony in this case differed from his testimony in other trials.
Brown provides two portions of Shavers' testimony from a different case. This testimony comes from Volumes 1 and 2 of the transcript from State v. Croft, case Johnson No. 08–CR–1197. Croft Vol. 1 was in the stipulated documents included as evidence at Brown's evidentiary hearing. However the portion from Croft Vol. 2 is only included as an appendix to Brown's brief. A reference to it could not be found anywhere in the record. “[A]n appendix to a brief is limited to extracts from the record on appeal; it cannot serve as a substitute for the record itself.” State v. Valladarez, 288 Kan. 671, 686, 206 P.3d 879 (2009). We do not consider appended items which are not contained in the record. State v. Bryant, 285 Kan. 970, 982, 179 P.3d 1122 (2008) ; see Supreme Court Rule 6.02(b) (2014 Kan. Ct. R. Annot. 40). Therefore, we cannot consider Shavers' testimony from Croft Vol. 2.
Brown cites Croft Vol. 1 for the proposition that Shavers was aware that Yahoo! Chat restricted users to those who registered as being 18 years old or older. Brown contends this contradicts Shavers' testimony at his trial that jococheergirl's profile indicated somewhere that she was only 15 years old. Brown describes Shavers' testimony as misleading. Brown argues this evidence could have impeached Shavers' credibility on the stand and, without it, Cramm could not effectively cross-examine Shavers.
First, as the State noted, Shavers never testified he was unaware of Yahoo! Chat's age restriction, so Croft Vol. 1 does not contradict his testimony in that regard. Additionally, Brown characterizes Shavers' testimony about the mention of jococheergirl's age within the profile as misleading. A copy or a screenshot of the profile is not included in the record, so we cannot review it. And, from Shavers' testimony, it appears he indicated he included the age somewhere in the interests section, not as the registered age. Brown's claim that Shavers' testimony was misleading is not supported by the record.
Cramm addressed his decision not to pursue possible impeaching evidence against Shavers. Cramm indicated he did not consider Shavers' credibility as being the issue in this case. Instead, Cramm worked to bolster a reasonable doubt as to Brown's belief regarding the age of the person with whom he was dealing. When asked whether he reviewed Shavers' testimony from previous electronic solicitation cases, Cramm indicated that he had not, but instead he had used his knowledge from personally defending other cases in which Shavers was the lead detective to guide his strategy, and he researched appellate case law related to the statute Brown was charged with violating as he formulated Brown's defense.
The trial court again determined the decision not to investigate Shavers was a strategic one. The judge noted Cramm “testified he didn't think the jury would appreciate an aggressive stance toward the law enforcement officer and that it would not have made a difference, and I agree with that and have always found that to be true.” The trial court found that, at trial, “the bottom line is that this defendant received a very fair trial.” The court noted Cramm had been “very zealous.”
This finding is also supported by substantial competent evidence. Cramm testified regarding the decision not to pursue an attack on Shavers' credibility as part of his strategy. Cramm testified: (1) he has had contact with Shavers on other cases; (2) he never viewed Shavers' credibility as an issue in this case; and (3) he never considered that law enforcement would have falsified the chats, and Brown verified the accuracy of the chat transcript he received through discovery. Therefore, his strategy never involved attempting to impeach the credibility of Shavers.
Additionally, the record indicates impeaching Shavers would not have mattered. Regardless of whether Shavers had to register the account as an adult, in no uncertain terms, joco_cheer_girl told Brown she was 15 years old on three occasions. Brown also readily admitted that someone lying about his or her age online “isn't really a weird thing.” Though Brown said this to support his contention that he believed it was an adult role-playing as a teenager, the statement also cuts against him. Even if Shavers registered joco_cheer_girl as an adult, it really would not be a weird thing for that to be a lie.
After reviewing the legal conclusions without deference to the trial court, we affirm the conclusion that Cramm made a reasonable strategic trial strategy in deciding not to attack the credibility of law enforcement.
Though not helpful in deciding this issue, the sources Brown cites should be acknowledged because they take up a large part of his brief. Brown cited cases from other jurisdictions for the proposition that Cramm was ineffective for failing to investigate the policy and testimony because the evidence was in front of him, but he did not act on it. The cases are nonbinding on this court and factually distinguishable. Both Stankewitz v. Woodford, 365 F.3d 706 (9th Cir.2004) (Stankewitz I ) and Stankewitz v. Wong, 698 F.3d 1163 (9th Cir.2012) (Stankewitz II ), involved an attorney's failure to present mitigating evidence during the penalty phases. Stankewitz's attorney claimed he did not present mitigating evidence because Stankewitz opposed it-that was his strategy. However, the record belied this strategy and therefore did not explain the attorney's tactics. Stankewitz I, 365 F.3d at 721. Additionally, as the 9th Circuit Court of Appeals noted in Stankewitz I, the United States Supreme Court had made clear that “the presentation of mitigating evidence is vital even where ... the aggravating evidence is powerful.” Stankewitz I, 365 F.3d at 714 (citing Wiggins v. Smith, 539 U.S. 510, 535–36, 123 S.Ct. 2527, 156 L.Ed.2d 471 [2003] ; Williams v. Taylor, 529 U.S. 362, 395–96, 120 S.Ct. 1495, 146 L.Ed.2d 389 [2000] ). Therefore, in the Stankewitz cases, the attorney was ineffective for failing to present any mitigating evidence because doing so is “vital” and the attorney's alleged reason for failing to present the evidence was unsupported by the facts. Stankewitz II, 698 F.3d at 1196; Stankewitz I, 365 F.3d at 714. Here, for the reasons discussed below, Cramm's decision not to investigate the policy or testimony as part of his strategy is supported by the facts.
Brown also cites Stanley v. Bartley, 465 F.3d 810 (7th Cir.2006). Stanley too is distinguishable on the facts. In Stanley, defense counsel failed to interview any witnesses or prospective witnesses during a first-degree murder prosecution. Defense counsel testified his strategy was to listen to the witnesses direct testimony and cross-examine them regarding any discrepancies between that testimony and their pretrial statements. Here, Cramm determined Shavers' credibility was not an issue and that taking an aggressive stance towards him would not be beneficial to his case.
Brown argues the evidence against him was far from compelling. In support of this contention, he notes he never received a picture from jococheergirl, he had no other child pornography on his computer, and he never confessed.
The trial court properly determined Brown had failed to sustain his burden to prove Cramm's performance was deficient for deciding not to investigate the Yahoo! Chat policy or Shavers' previous testimony. Therefore, we need not address whether Brown suffered any prejudice from Cramm's actions.
However, Brown asserts that all of his claims of error affected the outcome against him because of the nature of the evidence against him. See State v. Birth, 37 Kan.App.2d 753, 769, 158 P.3d 345, rev. denied 284 Kan. 947 (2007) (“Finally, the prosecutor's comments would likely have had little weight in the minds of jurors due to the direct and overwhelming nature of the evidence in this case.”). Though Brown characterizes the evidence against him as far from overwhelming, the record indicates otherwise. The chat transcript of his conversation with jococheergirl is clear. On three occasions, jococheergirl told Brown she was 15. Brown also discussed inviting her over to engage in sexual conduct, offering to teach her the finer points of kissing and how a man likes to be touched. He told her she “might learn how a real orgasm feels like ... if [he] go[es] down on [her].” Brown told her he was excited about their meet-up and could not sleep because of the excitement. He asked jococheergirl if she thought 25 was too old (even though he was actually 30 at the time). He warned her if they messed around, it would have to be very secret—“on the DL.” This transcript was admitted into evidence at trial. This is direct and compelling evidence of Brown's guilt.
The trial court properly determined Cramm had provided effective assistance at Brown's trial. We affirm the denial of Brown's K.S.A. 60–1507 motion.
Affirmed.