Opinion
No. 105,836.
2012-06-22
Melvin D. BRYANT, Jr., Appellant, v. STATE of Kansas, Appellee.
Appeal from Johnson District Court; James F. Vano, Judge. Michael J. Barlee, of Michael J. Bartee, P.A., of Olathe, for appellant. Joshua A. Ney, special assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; James F. Vano, Judge.
Michael J. Barlee, of Michael J. Bartee, P.A., of Olathe, for appellant. Joshua A. Ney, special assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Melvin D. Bryant, Jr. appeals the district court's denial of his K.S.A. 60–1507 motion after an evidentiary hearing. Bryant argues that noncompliance with Kansas Supreme Court Rule 116 (Kan.Ct. R. Annot.206) constitutes structural error and that his trial counsel was ineffective for telling the jury he would testify, failing to introduce prior testimony, and failing to object to a box of bank records.
Bryant was convicted of securities fraud by a jury in August 2005 and sentenced to 24 months' imprisonment. He appealed his conviction and sentence, claiming (1) his right to a speedy trial was violated; (2) the district court abused its discretion in admitting expert testimony regarding investment fraud schemes; and (3) the court erroneously based an aggravated durational departure on the jury's finding of a fiduciary relationship. The appellate court affirmed Bryant's conviction but reversed his sentence. State v. Bryant, 40 Kan.App.2d 308, 317, 191 P.3d 350 (2008), rev. denied 288 Kan. 833 (2009). He was resentenced in July 2009 to 17 months' imprisonment. Bryant's second sentencing appeal was voluntarily dismissed.
Bryant filed a timely K.S.A. 60–1507 motion claiming ineffective assistance of trial and appellate counsel. Specifically, he claimed that James Fletcher, his retained trial counsel, was ineffective for 12 reasons, including:
“(2) Failing to object to the admission of the out-of-state bank records on the ground of authenticity ... as these records were the basis for spreadsheets prepared by ... the State's investigator, which were themselves admitted into evidence....
....
“(4) Failing to file a motion in limine ... to preclude the introduction of any evidence by the State with reference to other investors....
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“(6) [Failing] to read the preliminary hearing testimony of [Harold James] Hester into evidence at the trial....
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“(9) [Making] an opening statement in which he told the jury of the evidence they would hear from [Bryant] when he testified ... and then instructed [Bryant] at the close of the State's evidence that [he] was not to testify.
....
“(12) [Violating] his duty to comply with Rule 116 ... by at a minimum consenting to or otherwise acquiescing in [Keith E. Drill] not being present during trial. (Emphasis added.)
Bryant also claimed that Drill, his local counsel, was ineffective for five reasons, including “violat[ing] his duty to comply with Rule 116 in his capacity as local counsel ... by at a minimum absenting himself from the trial.” Finally, Bryant claimed Lydia Krebs, his appellate counsel, was ineffective for “fail[ing] to recognize the Rule 116 issue, ... fail[ing] to recognize the ineffective assistance of trial counsel issues ... and fail[ing] to advise [him] of those issues so that they could be raised ... in the original appeal.”
After holding an evidentiary hearing, the district court denied Bryant's motion. Bryant timely appealed.
The district court held a full evidentiary hearing and issued findings of fact and conclusions of law concerning all issues presented. Supreme Court Rule 183(j) (2011 Kan. Ct. R. Annot. 259). An appellate court reviews the district 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. Bellamy v. State, 285 Kan. 346, 354–55, 172 P.3d 10(2007).
Bryant first argues the district court's noncompliance with Kansas Supreme Court Rule 116 violated his right to counsel and constitutes structural error, which requires reversal of his conviction and a new trial. The State counters that Bryant cannot raise this issue for the first time in a 60–1507 motion or, in the alternative, local counsel's absence during trial did not constitute structural error because the court did not violate Rule 116, Bryant waived his right to local counsel's presence at trial, and he has not shown any effect on his constitutional right to counsel.
The district court held an evidentiary hearing at which Fletcher, Drill, and Bryant testified. Bryant retained Fletcher to defend him against securities fraud charges. At the time, Fletcher was of-counsel to the firm Wyrsch, Hobbs and Mirakian, P.C., in Kansas City, Missouri. He had extensive criminal trial experience in Missouri, having tried complex felony cases with the Jackson County, Missouri, Public Defenders Office and having worked in private practice for at least 30 years.
Fletcher told Bryant that he would obtain local counsel because he was not licensed to practice law in Kansas. Fletcher asked Drill, a Kansas-licensed attorney with Wyrsch, Hobbs and Mirakian, P .C., to help him defend Bryant, and gained admission to practice in Kansas pro hac vice.
Bryant considered Drill to be one of his attorneys, but Drill had no fee arrangement with Bryant and was not paid by him directly. Drill was to keep track of his hours and be paid by Fletcher. The only substantive work Drill did on the case was inventory some bank records. Drill was not contacted before trial by Fletcher or Bryant concerning any procedural questions or issues of Kansas law.
Drill worried about spending time at trial and needed $5,000 to do so. After discussing the matter with Bryant, Drill asked the court to be excused from continuous presence at trial as local counsel. Bryant did not object to Drill's absence because it was going to save him money. Drill was not present for the trial, nor was he contacted during trial by Fletcher or Bryant. Drill stated he was aware of Rule 116's requirement that local counsel be actively engaged in the conduct of the case, but said he relied upon the district court to interpret and apply the rule in practice.
Testimony indicated, and the record confirmed, that the district court agreed to conduct Bryant's trial with Drill being available by telephone but not physically present. At a pretrial hearing, the court notified the parties that it routinely allowed local counsel to appear at the beginning of trial and be available by phone for the duration of trial. Then, the court explained the situation to Bryant and ensured that he did not object to the case being tried without Drill.
On the morning of trial, the State objected to permitting Drill's availability by phone, citing Rule 116. Drill explained why he sought to be absent from the trial and asked the district court to permit him to be available by phone. Before excusing Drill's attendance, the court verified that Bryant had no objection to Fletcher representing him during trial and Drill being available by phone.
Bryant did not argue structural error in his 60–1507 motion. Instead, he argued that Fletcher, Drill, and Krebs were ineffective based on the Rule 116 violation. “Generally, issues not raised before the trial court cannot be raised on appeal.” State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008); see Hensley v. State, 199 Kan. 728, 731, 433 P.2d 344 (1967) (noting grounds for relief not presented to trial court in 60–1507 motion are not reviewable on appeal), But an appellate court can consider a newly asserted claim if “necessary to serve the ends of justice or to prevent a denial of fundamental rights.” Warledo, 286 Kan. at 938. Here, we should consider Bryant's structural error argument because (1) it is substantially similar to the ineffective assistance of counsel claims he raised below, and (2) it alleges a denial of his fundamental right to counsel.
Bryant did not argue structural error in his direct appeal. Instead, he raised the issue in his subsequent 60–1507 motion. When an appeal is taken from a conviction or sentence, the judgment of the appellate court is res judicata as to all issues actually raised, and issues that could have been raised are deemed waived. Drach v. Bruce, 281 Kan. 1058, 1079, 136 P.3d 390 (2006), cert. denied549 U.S. 1278 (2007). Ordinarily, a 60–1507 proceeding cannot be used either as a substitute for a direct appeal involving mere trial errors or as a substitute for a second appeal. Supreme Court Rule 183(c)(3); Pabst v. State, 287 Kan. 1, 6, 192 P.3d 630 (2008). Here, the alleged violation of Rule 116 is obviously a trial error.
A 60–1507 movant can raise a trial error “affecting constitutional rights ... even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal.” Supreme Court Rule 183(c)(3) (2011 Kan. Ct. R. Annot. 260); Trotter v. State, 288 Kan. 112, 125, 200 P.3d 1236 (2009). If the attorney handling the direct appeal provided ineffective assistance in failing to raise the issue, a defendant has shown an exceptional circumstance permitting collateral review. Bledsoe v. State, 283 Kan. 81, 88–89, 150 P.3d 868 (2007). Here, Bryant argued Krebs' ineffectiveness in his 60–1507 motion. But he did not brief the issue on appeal, so the issue is deemed waived and abandoned. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011); cf. Miller v. State, No. 103,915, 2012 WL 401601 (Kan.App.2012) (unpublished opinion) (petition and cross-petition for review filed) (finding exceptional circumstances where defendant's 60–1507 alleged structural error and counsel's ineffectiveness for failing to raise such error on direct appeal).
The Rule 116 issue is not properly before this court because Bryant failed to raise it in his direct appeal and did not allege exceptional circumstances before the district court justifying his failure to do so. Therefore, the court correctly found that “this issue is a trial issue, a ruling by the trial court that could have been and should have been raised on direct appeal.”
However, even if this issue were properly before this court, the facts of this case clearly show that the district court's violation of Rule 116 was invited. Fletcher's ability to practice law in Kansas was governed by Kansas Supreme Court Rule 116. Interpretation of the Supreme Court Rules is a question of law over which an appellate court has unlimited review. Kansas Judicial Review v. Stout, 287 Kan. 450, 459–60, 196 P.3d 1162 (2008). Kansas Supreme Court Rule 116 provides in relevant part:
“Any attorney not admitted to the practice of law in Kansas but who is regularly engaged in the practice of law in another state ... may on motion be admitted to practice law in the courts ... of this state for the purposes of a particular case only, upon showing that he or she has associated an attorney of record in the case who is regularly engaged in the practice of law in Kansas and who is in good standing under all of the applicable rules of the Kansas Supreme Court. The Kansas attorney of record shall be actively engaged in the conduct of the case; shall sign all pleadings, documents, and briefs; and shall be present throughout all court or administrative appearances.” (Emphasis added.)
Our Supreme Court recently interpreted Rule 116 in In re Roswold, 292 Kan. 136, 147–48, 249 P.3d 1199(2011):
“That said, we emphasize our rule does not require local counsel to actively present the case in person each time there is a proceeding. Oswald v. State, 214 Kan. 162, 166, 519 P.2d 624 (1974). But it does require local counsel's substantive attention by being actively engaged in the conduct of the case, signing all court filings, and being present at all court or administrative appearances. What constitutes ‘court or administrative appearances' is universally understood to include appearances before the court or tribunal, but it does not necessarily extend to attendance at discovery depositions or mediations unless so ordered by the court or required by local rule. [Citations omitted.]
“ District courts, of course, may require local counsel's attendance—or excuse it—at any pretrial proceeding except court and administrative appearances as specified by Rule 116.” (Emphasis added).
Here, it is clear that the district court violated Rule 116 by allowing Drill to be present by phone instead of in person. But, after an extensive colloquy, Bryant assured the court that he was comfortable proceeding to trial with Fletcher and had no objection to Drill's physical absence. A defendant may not invite error and then complain of the error on appeal. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011).
Bryant told the district court he had no objection to Drill being present by phone. Therefore, the court correctly found that “if the [Rule 116] ruling was error, reviewable on direct appeal, then the petitioner invited the error by not giving the trial judge the answer that he would now like this court to hear.”
Moreover, the district court's violation of Rule 116 was harmless not structural. Our Supreme Court has set forth the following test for determining whether an error is harmless:
“[B]efore a Kansas court can declare an error harmless it must determine that the error did not affect a party's substantial rights, meaning it will not or did not affect the trial's outcome. The degree of certainty by which the court must be persuaded that the error did not affect the outcome of the trial will vary depending on whether the error implicates a right guaranteed by the United States Constitution. If it does, a Kansas court must be persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e., there is no reasonable possibility that the error contributed to the verdict. If a right guaranteed by the United States Constitution is not implicated, a Kansas court must be persuaded that there is no reasonable probability that the error will or did affect the outcome of the trial.” State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
Not all errors are subject to this harmless error analysis. Structural error occurs in very limited circumstances where the error “ ‘affect[s] the framework within which the trial proceeds' “ and thus defies analysis by harmless error standards. State v. Jones, 290 Kan. 373, 382–83, 228 P.3d 394 (2010) (quoting Arizona v. Fulminante, 499 U.S. 279, 309–10, 111, Ct. 1246,113 L.Ed.2d 302 [1991] ).
The denial of the right to counsel of choice has been found to be structural error because its “ ‘ “consequences ... are necessarily unquantifiable and indeterminate ... [so][h]armless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe.” ‘ [Citation omitted.]” Jones, 290 Kan. at 382–83 (quoting United States v. Gonzalez–Lopez, 548 U.S. 140, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 [2006] ). But other errors of constitutional magnitude are simply errors in the trial process itself and are thus subject to harmless error analysis. Fulminante, 499 U.S. at 310.
In Gonzalez–Lopez, after appearing with a licensed attorney and an out-of-state attorney, the defendant sought to proceed with only the out-of-state attorney, but the district court refused to admit the attorney pro hac vice. In Jones, the district court refused to grant the defendant's request to represent himself at the preliminary hearing. This case is distinguishable from both Gonzalez–Lopez and Jones. Here, the district court permitted Bryant to proceed with his counsel of choice, Fletcher, and to forgo Drill's physical presence at trial. The framework of Bryant's entire trial would have been affected had the court compelled Bryant to proceed without Drill's presence. But that did not occur here.
We conclude that any error in following the requirements of Kansas Supreme Court Rule 116 in Bryant's case was harmless under these facts. There is no reasonable possibility that the trial's outcome was affected by the district court's failure to require Drill's physical presence at trial. The court noted its confidence in Fletcher's ability “to understand, apply and follow Kansas law” and handle the matters relevant to Bryant's case. Drill testified that neither Fletcher nor Bryant contacted him during trial to ask questions about Kansas law. Most importantly, Bryant has not shown how Drill's absence affected any part of his trial, let alone its outcome. Cf. State v. Rice, 261 Kan. 567, 595–609, 932 P.2d 981 (1997) (finding out-of-state counsel deficient for failing to consult local counsel about admissibility of prior convictions in Kansas before advising defendant not to testify).
Bryant has not shown how his substantial rights were affected by Drill's absence from trial. Therefore, the district court correctly found that “the petitioner presented no evidence in the instant case concerning changes to the outcome of the trial which may have occurred if Drill had been present during the trial.”
Next, Bryant argues the district court erred in finding that Fletcher was not ineffective. Specifically, Bryant claims Fletcher was ineffective for (1) telling the jury that Bryant would testify; (2) failing to introduce prior testimony; and (3) failing to object to the box of bank records.
Cynthia Hester is the victim of Bryant's securities fraud. Her ex-husband, Harold, testified at the preliminary hearing that he had been a “sideline player” or “silent partner” in his wife's investment with Bryant. Another man the couple knew from church introduced them to the investment opportunity, and Cynthia wired money to Bryant. The Hesters had not meet Bryant in person until the investment began to fail.
At pretrial, Fletcher informed the district court that Harold might move out of the country before trial. The court granted Fletcher permission to depose Harold. Fletcher also stated that Bryant would not be stipulating to the authenticity of any documents. The court told the State to proceed under K.S.A. 60–245a, which allows a custodian to authenticate business records by affidavit. The State filed the required notice of intent to issue a business records subpoena, and Fletcher did not file an objection. On the eve of trial, the State dismissed all counts involving other investors, which left only one count of securities fraud, that one involving Cynthia.
At trial, in his opening statement, Fletcher told the jury it would hear from Bryant. Randy Mullikin, an auditor with the Kansas Securities Commissioner's Office, testified at trial. He had subpoenaed Bryant's bank records. Upon receiving the records, he transposed the information from Bryant's monthly statements into two spreadsheets, one for Bryant's personal account and one for his business account. When the State moved to admit the box of bank records, the district court prompted Fletcher about a motion but Fletcher did not object. The court may have been alluding to Fletcher's prior sustained objection, lodged when the State mentioned other investors in its opening statement. Immediately after the bank records were admitted, the State moved to admit the spreadsheets. That is when Fletcher objected:
“[FLETCHER]: [H]is spreadsheets are all-encompassing ... of the other investment, part of the individuals who were part of the venture capital program that [Bryant] had or was involved in.... I am afraid that ... [the State] is presenting a substantial amount of evidence implicating him in the commission of other crimes for which he has not been charged....
“[THE COURT]: ... I want to preface by saying Exhibit 8 has already been admitted without objection, the box that has all of the data is summarized on these records ... [The State] certainly [has] a right to try to present evidence that [Bryant] didn't invest [Cynthia's] money as he said he did or would, but I don't see how you're allowed on this claim to present evidence that he defrauded everyone else in America.
“With respect to Exhibits 9 and 10, those appear to me to be summaries of the banking records that are already admitted and do not on their face unduly familiarize or explain all of the other transactions ... 1 am going to admit Exhibits 9 and 10 because they do not appear to be, outside of the testimony, unduly prejudicial and they simply summarize exhibits that have already been admitted without objection.”
When Fletcher refuted the notion that he agreed to admission of the box's contents, the district judge said: “You are welcome to appeal. I don't think you had a misunderstanding of what occurred in open court this morning.”
When the time came for the defense to present its case, Bryant told the district court that he had decided not to testify, it was his decision, and he did not need any more information from Fletcher to be able to make an informed decision. Before the close of evidence, the court asked Fletcher if he wanted to read Harold's preliminary hearing testimony into evidence; Fletcher declined to do so.
At the evidentiary hearing on Bryant's 60–1507 motion, Fletcher did not recall much about Harold. Fletcher's memory was refreshed after reviewing relevant portions of the transcripts. He did not depose Mr. Hester because he could not locate him and Bryant had not provided sufficient funds. Fletcher could not remember the district court asking if he wanted to read Harold's prior testimony into evidence. Fletcher testified he did not know whether he would have done so because “all [Harold] was saying is a different timing as to when the contact came about,” and he did not know if it would have made a difference.
Fletcher recalled that Bryant decided not to testify because he knew he would be attacked on the stand. It was not uncommon for Fletcher's clients to change their minds about testifying. Fletcher, in his 30 years of practice, had never reserved an opening statement until after the State presented its case. In all his meetings with Fletcher, Bryant indicated that he was going to testify. So, at the time of his opening statement, Fletcher “fully expected” Bryant to testify.
Fletcher recalled that the box of bank records, from which the spreadsheets were compiled, contained information relating to other investors. He did not object to the box itself being admitted but did object to the spreadsheets being admitted. The district court overruled his objection to the admission of the box's contents because he failed to object to the admission of the box, which was marked Exhibit 8. Fletcher admitted, “[M]aybe I should have objected to Exhibit 8, but to me, the other things that were in the box when it was offered were records that were not Exhibit 8.”
For a defendant to show that his trial counsel was ineffective, he must establish two essential elements: (1) counsel's performance was constitutionally deficient, and (2) but for counsel's deficiency, there is a reasonable probability that the movant would have obtained a more favorable outcome. Rowland v. State, 289 Kan. 1076, 1083, 219 P.3d 1212 (2009) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674,reh. denied 461 U.S. 1267 [1984]; quoting Moncla v. State, 285 Kan. 826, 831–32, 176 P.3d 954 [2008] ). Bryant has the burden to show by a preponderance of the evidence that Fletcher's representation was deficient and prejudiced him. See State v. Barahona, 35 Kan.App.2d 605, 611, 132 P.3d 959,rev. denied 282 Kan. 791 (2006).
Trial counsel is responsible for tactical and strategic decisions, like which witnesses will testify at trial. Flynn v. State, 281 Kan. 1154, 1165, 136 P.3d 909 (2006). Under the first prong, the appellate court must strongly presume that counsel's performance fell within the broad range of reasonable professional assistance. A strategic choice made after a thorough investigation of law and facts relevant to realistic options is virtually unchallengeable. One made after a less than comprehensive investigation is reasonable exactly to the extent reasonable professional judgment support the limitations on the investigation. Rowland, 289 Kan. at 1083–84. Under the second prong, the defendant must show a probability “sufficient to undermine confidence in the outcome.” Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
We cannot conclude that Fletcher's performance was deficient for telling the jury that Bryant would testify. Guided by Bryant's statement that he wanted to testify, Fletcher simply told the jury what it could expect to hear, Bryant made the decision not to testify. Considering the evidence and being highly deferential to counsel as required, Fletcher's handling of the matter did not fall below an objective standard of reasonableness. See Canaan v. State, No. 97,073, 2008 WL 1847408 (Kan.App.2008) (unpublished opinion) (holding counsel was not ineffective for telling jury that defendant would testify and then failing to call defendant to testify).
We also cannot conclude that Fletcher's performance was deficient for failing to introduce Mr. Harold's preliminary hearing testimony. Fletcher did not think the testimony would help Bryant's defense, so he made the strategic decision not to use it at trial. Fletcher's handling of this matter did not fall below an objective standard of reasonableness.
Finally, we could conclude that Fletcher's performance was deficient for failing to lodge a timely objection to the bank records. Not because the bank records themselves hurt Bryant's defense but because the spreadsheets were admitted on the bank records' coattails and may have alerted the jury to the possibility of other defrauded investors. Fletcher did, however, minimize the damage through his spreadsheet objection, which caused the district court to limit the State's questioning of Mullikin to Bryant's transactions involving Cynthia's money.
We cannot conclude that but for the bank records, the jury would have, with reasonable probability, acquitted Bryant. While a timely objection by Fletcher would have led to redaction of the bank records and spreadsheets, such exclusion would not have rendered the evidence insufficient to support Bryant's conviction. Bryant was charged with securities fraud against Cynthia. Specific bank records and the portions of the spreadsheets that showed transactions involving Cynthia's money would still have been admitted. The jury probably would have convicted Bryant without having viewed the entire box of bank records and complete spreadsheets.
For the above reasons, the district court correctly found that Bryant had failed to meet the requirements of a successful ineffective assistance of counsel claim.
Affirmed.