Opinion
No. 111,096.
2014-10-24
Dimitrius DAVIS, Appellant, v. STATE of Kansas, Appellee.
Appeal from Wyandotte District Court; David W. Boal, Judge.Michael G. Highland, of Bonner Springs, for appellant.Christopher L. Schneider, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; David W. Boal, Judge.
Michael G. Highland, of Bonner Springs, for appellant. Christopher L. Schneider, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STEGALL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Dimitrius Davis of premeditated first-degree murder, aggravated robbery, and conspiracy to commit aggravated robbery. The Supreme Court affirmed his convictions. Davis then filed a motion for relief under K.S.A. 60–1507. The district court dismissed the motion but, on appeal, a panel of this court reversed the dismissal. On remand, the district court conducted an evidentiary hearing. By written order the district court denied Davis relief Davis appeals. We affirm the district court's order denying Davis K.S.A. 60–1507 relief. We dismiss for lack of jurisdiction the briefed issues Davis raises for the first time on appeal.
Factual and Procedural Background
Davis' convictions for premeditated first-degree murder, aggravated robbery, and conspiracy to commit aggravated robbery were affirmed on direct appeal by our Supreme Court in State v. Davis, 284 Kan. 728, 163 P.3d 1224 (2007) ( Davis I ). Davis is serving a sentence of life in prison plus 91 months. On April 22, 2008, Davis timely filed a motion under K.S.A. 60–1507. His motion indicated that a memorandum of law was attached, but it was not. On July 16, 2008, the district court gave Davis written notice that he must file the referenced memorandum or his motion would be dismissed. However, the notice did not set a deadline for that filing. Finally, on April 15, 2009, Davis filed his memorandum. He did not provide a copy to the judge. On June 3, 2009, the district court, without advance notice to Davis, signed an order dismissing the motion. The district court was unaware that Davis had filed his memorandum.
Davis appealed. A panel of this court reversed the dismissal and remanded the matter to the district court. The panel disagreed with Davis' argument that the April 15, 2009, memorandum was an amendment that related back to the time of the original filing. Rather, it found that the district court's notice to Davis to file his memorandum was open-ended as to time, requiring further notice to Davis before dismissal could be appropriate. Once Davis finally filed the memorandum it then became part of the original, timely motion. The panel remanded the matter to the district court “for consideration of the now complete motion.” Davis v. State, No 104,767, 2011 WL 5833504 at *1 (Kan.App.2011) (unpublished opinion) ( Davis II ).
On remand, the district court held an evidentiary hearing on May 7, 2012. Davis testified on his own behalf. Gary Stone, Davis' appointed trial counsel, also testified. The court took the motion under advisement and allowed the parties to submit their suggestions in writing. On July 2, 2012, Davis' attorney filed a motion seeking leave of the court to amend the original motion. Counsel sought to add this additional claim:
“[T]rial counsel was ineffective for failing to object to the manner in which the alternate [jurors] were selected and that appellate counsel was ineffective for not raising the issue on direct appeal.” Counsel asserted that manifest injustice would result if the court declined to extend the time limitation so that Davis could amend his motion.
The State opposed the motion to amend, pointing out that it was made just less than 5 years after the mandate affirming the convictions had been issued by the Supreme Court. The State argued that the amendment could not relate back because it differed in time and type from the issues raised in the original motion.
The district court's decision
The district court issued its written decision on February 8, 2013. It addressed the issues in the motion and memorandum in the order Davis had submitted them. It initially considered the four claims of ineffective assistance of counsel listed in the first subpart of Davis' memorandum.
Davis' first allegation of ineffective assistance of counsel was that Stone failed to request a “missing witness instruction.” The district court found that Davis produced no evidence on what the missing witness would have said had the witness testified. It noted that Stone testified that he had read that witness' statement and recalled nothing significant in it. Further, it noted that Davis failed to suggest what jury instruction an effective counsel would have sought.
Next, the district court considered Davis' allegation that Stone “allowed” the reading of the unavailable codefendant's preliminary hearing testimony at trial. The district court pointed out that this was an issue that should have been raised on direct appeal. It noted that Stone had raised no trial objection to the admission of the codefendant's testimony. The court corrected Davis' claim that the testimony was an “out-of-court” statement when it was actually the witness' sworn testimony at a preliminary hearing where he was cross-examined.
Next, the district court considered Davis' complaint that Stone failed to secure live testimony of videotaped witnesses. It noted that no evidence was produced at the K.S.A. 60–1507 hearing concerning the “live testimony of witness vis a vis videotaped testimony,” nor was evidence offered to show that Stone failed to object to any objectionable evidence.
In the last ineffective assistance claim, Davis asserted that Stone failed to present “a coherent argument regarding police fabrication.” However, the court noted that Davis had not presented any evidence at the hearing that any fabricated evidence existed. It also noted that Stone testified that there was no such evidence.
The district court found that none of Davis' ineffective assistance of counsel claims had been “supported by evidence.”
Then the district court considered Davis' posthearing motion to amend his K.S.A. 60–1507 motion to allege Stone's deficient failure to challenge the manner in which alternate jurors were selected. It ruled that the motion was “vastly out of time.” It further noted that the issue was something that should have been raised on direct appeal. The district court noted that the alleged flaw in the selection of alternate jurors was tangentially addressed by the Supreme Court in the original appeal, when the Supreme Court affirmed the trial court's actions in replacing a juror with an alternate juror.
Davis' claimed in issue 2 of his memorandum that his sentence was imposed in violation of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He complained that at sentencing facts not found by a jury were used to enhance his sentence. The district court held that Davis presented nothing to support any such conclusion.
In Davis' issue 3 he claimed that the State failed to reveal exculpatory evidence. The court found that no testimony was “elicited which revealed the existence of exculpatory evidence.”
Finally, in issue 4 of Davis' memorandum, Davis claimed that the original trial court committed error by permitting the introduction of the preliminary hearing testimony of an unavailable witness. The district court noted that this claim was specifically addressed by the Supreme Court on direct appeal. The court held that this claim did not involve a proper subject for review in this subsequent K.S.A. 60–1507 proceeding.
The district court ultimately stated: “The Court, having addressed each point raised by the [movant] finds that he has failed to meet his burden of proof and his [motion] is denied.”
Davis' K.S.A. 60–1507 motion counsel filed Davis' notice of appeal. In it Davis indicated that “he appeals the denial of his K.S.A. 60–1507 [motion [, Motion for Leave to Amend Original K.S.A. 60–1507 [motion], and all other adverse rulings and judgments in the above-captioned matter.”
Analysis
We begin our analysis with an observation. In spite of the contents of the notice of appeal, Davis' brief does not address any of the district court's rulings on the issues raised in his K.S.A. 60–1507 motion and memorandum. Ordinarily, we would find that any issue not briefed by the appellant has been waived and abandoned. See Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011). However, even though the brief does not provide us with any assistance, we do have the testimony from the evidentiary hearing and the remainder of the entire record on appeal to aid us in our consideration. These are adequate to allow us to conduct our review of the district court's mainly fact-driven decision. So, in this unique circumstance, we will address the issues Davis raised in his notice of appeal.
The issues Davis raised in his notice of appeal
When, as here, the district court holds a full evidentiary hearing on a K.S.A. 60–1507 motion, we review the district court's factual findings to determine whether they are supported by substantial competent evidence and whether they are sufficient to support the court's conclusions of law. We then review those legal conclusions de novo. Thompson v. State, 293 Kan. 704, 715–16, 270 P.3d 1089 (2011). We apply those same standards of review to claims of ineffective assistance of counsel. See Miller v. State, 298 Kan. 921, 928, 318 P.3d 155 (2014). In a K.S.A. 60–1507 motion, the burden of proof in general and, specifically in establishing ineffective assistance of counsel, is on the movant. State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994).
To advance his claims of ineffective assistance of counsel Davis must first demonstrate that Stone's performance was deficient. If he makes such a showing, we would then consider whether the deficient performance prejudiced Davis' defense to the extent that he was deprived of a fair trial. See Edgar v. State, 294 Kan. 828, 837, 283 P.3d 152 (2012).
We have closely reviewed the transcript of the K.S.A. 60–1507 evidentiary hearing and the entire record on appeal. We have verified that all of the findings of fact contained in the district court's order denying Davis relief on the ineffective assistance claims are supported by substantial competent evidence. Davis cannot prevail on any claim of ineffective assistance of counsel without first showing that counsel's performance was deficient. Davis failed to demonstrate any such deficiency in Stone's performance.
Next, we agree with the district court that Davis' Apprendi violation claim is without merit. Our Supreme Court rejected a similar argument in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). The district court and we are duty bound to follow that precedent.
We also agree with the district court that Davis failed to support his exculpatory evidence claim by introducing any actual evidence that the State failed to reveal exculpatory material. Stone said he knew of none, and Davis could only speculate that there must have been some.
Davis' claim that the original trial court committed error by permitting the introduction of the preliminary hearing testimony of an unavailable witness is without merit. The district court noted that this claim was specifically addressed by the Supreme Court on direct appeal. In fact, the Supreme Court considered and rejected Davis' claim of error in the admission of that testimony. The district court's ruling that this claim did not involve a proper subject for review in this subsequent K.S.A. 60–1507 proceeding was correct: the issue was and is res judicata.
Finally, we agree with the district court in its denial of Davis' motion to amend his K.S.A. 60–1507 action in order to allege Stone's deficient performance regarding the jury trial court's selection of alternate jurors. The motion was nearly 4 years out of time. The panel in Davis II, 2011 WL 5833504, at *3–8, analyzed in detail the requisites for the relation back of an amendment to a K.S.A. 60–1507 motion. The requested amendment here would not relate back to the time of the original motion filing. See Pabst v. State, 287 Kan. 1, Syl. ¶ 7, 192 P.3d 630 (2008).
Motion counsel's invocation of manifest injustice would be more relevant in attempting to file a new action under K.S.A. 60–1507 than in attempting to amend a nearly 4–year–old motion. Our Supreme Court has interpreted the phrase “manifest injustice” in the context of K.S.A. 60–1507(f)(2) to indicate a result that is either obviously unfair or shocking to the conscience. See State v. Holt, 298 Kan. 469, 480, 313 P.3d 826 (2013).
Here Davis just gave the district court speculation on a remedy that was based on speculation on a fact, i.e., Stone's failure to object. In Davis' direct appeal the Supreme Court was confronted with a nearly identical issue in virtually the same posture and stated: “With respect to Davis' passing reference to being denied a peremptory challenge for the alternates, he fails to present us with either a sufficient record or supporting argument to permit us to resolve the question.” Davis I, 284 Kan. at 733. Five years later Davis put the district court in the same position. As it is, without a documented, researched argument that the method of alternate juror selection would vitiate Davis' conviction, Davis has failed in his burden to show that the injustice claimed was manifest. See K.S.A. 60–1507(c) and (f)(2); Supreme Court Rule 183(c)(3), (d)(3), and (g) (2013 Kan. Ct. R. Annot. 278).
The facts found by the district court here are all supported by substantial competent evidence. We have also conducted our de novo review of the legal conclusions reached by the district court based on those facts. Those legal conclusions all appropriately apply the applicable law to those facts. Davis has failed to demonstrate that he received ineffective assistance of counsel at his trial or that he is entitled to relief on any of the other grounds he asserted in his original motion and memorandum or in his posthearing motion. We affirm the district court.
However, that is not the end of the matter. Davis' appellate counsel briefed four separate new arguments on appeal.
The new issues Davis briefed on appeal
Davis alleges in his brief that Stone was ineffective for three new reasons: (1) Stone failed to request a continuance of the trial upon learning that Townsend, the codefendant whose testimony was read at trial, would not be testifying; (2) Stone failed to request DNA testing of blood found on the interior of the door of the car leaving the scene of the murder; and (3) Stone failed to object to the selection of an alternate juror without the opportunity for a preemptory challenge. Davis then alleges that his appellate counsel on direct appeal was ineffective for “not ordering transcripts of the voir dire and arguing the matter of selection of the alternate jurors as described above.” Although Davis' motion counsel examined Stone on some of these points at the evidentiary hearing, none of the points were included as issues in Davis' original motion and memorandum.
When the record discloses a lack of jurisdiction, we have a duty to dismiss the appeal. Generally, issues not raised before the district court cannot be raised for the first time on appeal. See State v. Cheffen, 297 Kan. 689, 696, 698, 303 P.3d 1261 (2013). While there are exceptions to this general rule, Davis invokes none of them to justify our consideration of these new issues in his appellate brief. See State v. Anderson, 294 Kan. 450, 464–65, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012).
Perhaps more importantly, none of these briefed issues would have been within the district court's jurisdiction even if Davis had raised them there. They are clearly out of time, as they are being advanced in a brief filed well beyond the 1–year limitation in K.S.A. 60–1507(f)(1). Under the remand order in Davis II, the panel directed the district court to consider only the issues Davis had raised in his motion and memorandum. Just the fact that a party has appealed does not give us the jurisdiction to entertain any issue a party wants to raise. As our Supreme Court has held: “Moreover, if the district court lacks jurisdiction to make a ruling, an appellate court does not acquire jurisdiction over the subject matter on appeal.” Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 752, 199 P.3d 781 (2009) (citing State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 [ (2004] ).
We have no jurisdiction over these briefed issues, and we dismiss them.
Affirmed in part and dismissed in part.