Opinion
No. 108,558.
2013-05-3
Roy Leonard DICK, Jr., Appellant, v. STATE of Kansas, Appellee.
Appeal from Reno District Court; Trish Rose Judge. Sam S. Kepfield, of Hutchinson, for appellant. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Trish Rose Judge.
Sam S. Kepfield, of Hutchinson, for appellant. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Roy Dick appeals the denial of his K.S.A. 60–1507 motion, claiming trial counsel was ineffective for failing to investigate or subpoena Seth Moore and codefendant, Jack Hughes. Because we find that Dick's counsel was not ineffective, we affirm the district court.
Factual and Procedural History
On January 7, 2006, Deputy Corey Garber checked the registration of a pickup truck with no tag light. The license tag was shown as belonging to a different vehicle. Deputy Garber stopped the vehicle and identified Hughes as the driver and Dick, movant herein, as the passenger. The deputy advised Dick and Hughes the reason for the stop. Dick admitted the license plate did not belong on the truck. Dick told the deputy that he just purchased the vehicle and was loaning it to Hughes because he needed transportation.
As Deputy Garber was talking to Dick and Hughes, he smelled ether coming from the truck and noticed “several tools, bags and junk in the back of the vehicle.” The deputy also saw a 5–gallon bucket holding a 1–gallon pitcher that had a toolbox on top of it. The deputy could see liquid and an unidentified floating object inside the pitcher.
Deputy Garber returned to his patrol car and confirmed Hughes was driving with a suspended license and had an outstanding arrest warrant. When back-up deputies Sergeant Smith and Deputy Orrison arrived, Deputy Garber arrested Hughes.
After placing Hughes in custody, Deputies Garber and Orrison went back to talk to Dick, at which point Deputy Orrison confirmed the smell of ether. Deputy Garber asked Dick to step out of the truck because the truck was going to be impounded. The deputy asked Dick if he had any weapons, and Dick admitted that he had a pocketknife. The deputy attempted to remove the pocketknife, but Dick guarded his right front pocket. The deputy became concerned about Dick's actions, so he asked Dick to place his hands on the truck as he removed the pocketknife. While retrieving the pocketknife, the deputy felt baggies in Dick's right front pocket. The deputy recovered three baggies: two contained residue, and the third contained white powder which the deputy believed and later confirmed as methamphetamine. The deputy arrested Dick.
The deputies went back to the truck and removed the toolbox that was on top of the bucket. As soon as they did, they smelled a strong odor of ether coming from the bucket. Deputy Garber then observed a coffee filter and wet powder inside the pitcher.
Deputy Garber questioned Hughes and Dick about the items in the back of the truck, but both denied knowledge of the bucket and pitcher. Dick said everything in the back belonged to Hughes. Hughes admitted owning the tools in the back of the truck.
The deputies obtained a search warrant and seized evidence from the truck consistent with the manufacture of methamphetamine. The State charged Dick with manufacture of methamphetamine, attempted manufacture of methamphetamine, possession of pseudoephedrine with the intent to manufacture a controlled substance, possession of drug paraphernalia with the intent to manufacture a controlled substance, and possession of methamphetamine.
Dick filed a motion to suppress alleging there was no reasonable suspicion to conduct a pat-down search and no probable cause to search the truck with or without a search warrant. The district court denied the motion. The jury convicted Dick of all counts, and the district court sentenced Dick to 176 months' imprisonment.
Dick appealed, alleging the district court erred in sentencing him and denying his motion to suppress; the prosecutor engaged in prosecutorial misconduct; and the State improperly admitted evidence of prior drug crimes. On May 15, 2009, the Court of Appeals affirmed Dick's convictions and sentence in State v. Dick, No. 98,120, 2009 WL 1393738 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1097 (2010).
On March 21, 2011, Dick filed a motion for writ of habeas corpus pursuant to K.S.A. 60–1507, alleging trial counsel was ineffective for failing to call Moore and Hughes as witnesses; trial counsel's failure to object to questioning by the prosecutor about statements Dick made to the deputies; and the appellate court's error in accepting the State's brief that was in excess of 50 pages.
On January 23, 2012, the State filed a motion to dismiss Dick's K .S.A. 60–1507 motion, alleging the motion was filed outside the statute of limitations; the motion raised issues that were or should have been raised on direct appeal; the appellate court previously ruled on the prosecutor's questioning of the deputies; the district court had no jurisdiction to review the appellate court's decision to accept the State's appellate brief; trial counsel could not have subpoenaed Hughes because as a codefendant he had a Fifth Amendment right not to testify; and Moore's testimony would have been cumulative.
On March 1, 2012, after hearing testimony from Dick, arguments from counsel, and reviewing the record, the district court dismissed Dick's K.S.A. 60–1507 motion. The district court determined it had no authority to review the appellate court's decision to accept the State's appellate brief outside the page limit or the allegation of prosecutorial misconduct as that issue already had been decided by the Court of Appeals. The district court also found that trial counsel could not compel codefendant Hughes to testify because he had a constitutional right against self-incrimination. Additionally, the district court found Moore's “testimony wouldn't have differed from those four witnesses that were called.”
Dick appeals the dismissal of his K.S.A. 60–1507 motion, alleging that trial counsel was ineffective for failing to call Moore and codefendant Hughes as witnesses at trial.
Was Trial Counsel Ineffective for Failing To Interview and Subpoena Witnesses?
Standard of Review
“A claim of ineffective assistance of trial counsel presents mixed questions of law and fact requiring de novo review.” Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089 (2011). Consequently, this court “reviews the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo.” Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009).
Analysis
To establish ineffective assistance of counsel, it is not enough to merely surmise, with the benefit of hindsight, that another attorney may have tried the case differently. Rather, before the court can find counsel's assistance to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish 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. Second, the defendant must establish that counsel's deficient performance prejudiced the defense. This requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). Dick bears the burden to show that trial counsel's performance was so deficient that it fell below an objective standard of reasonableness. See Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007).
Judicial scrutiny of counsel's perfonnance in a claim of ineffective assistance of counsel is highly deferential and requires consideration of all the evidence before the judge or jury. The reviewing court must strongly presume that counsel's conduct fell within the broad range of reasonable professional assistance. To establish prejudice, the defendant must demonstrate a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. Harris, 288 Kan. at 416, 204 P.3d 557. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Bledsoe, 283 Kan. at 90, 150 P.3d 868.
The decision of whether to call a certain witness is a matter of trial strategy. Bledsoe, 283 Kan. at 92, 150 P.3d 868. Defense counsel has the duty to reasonably investigate or to conclude that particular investigations are unnecessary. State v. Hedges, 269 Kan. 895, 914, 8 P.3d 1259 (2000). Defense counsel is ineffective if he or she fails to call a witness who would present the only defense available. Lewis v. State, 33 Kan.App.2d 634, 653, 111 P.3d 636,rev. denied 277 Kan. 924 (2003). However, defense counsel is not ineffective for failing to call a witness “whose testimony would only have been cumulative in nature.” 33 Kan.App.2d at 653, 111 P.3d 636.
In Shaffer v. State, No. 96,138, 2007 WL 2080411, at *2 (Kan.App.2007) (unpublished opinion), rev. denied 285 Kan. 1174 (2007), defendant purportedly provided trial counsel with a list of potential witnesses, but “counsel failed to investigate these witnesses. The only factual allegations [the defendant] offer[ed] to support his claim that counsel failed to investigate is that counsel did not use any of the persons from his list as witnesses at trial. This does not show that counsel failed to investigate these witnesses.” The panel found defendant's claims were merely conclusory. 2007 WL 2080411, at *2. Defendant did provide information regarding the potential testimony of two witnesses and claimed that one of the witnesses would have corroborated his testimony. The panel found no prejudice in light of the strong evidence against the defendant at trial. 2007 WL 2080411, at *3.
In Clark v. State, No. 93,070, 2005 WL 3289396 (Kan.App.2005) (unpublished opinion), rev. denied 281 Kan. 1377 (2006), the defendant alleged in his 60–1507 motion that trial counsel was ineffective for failing to call his codefendant, Barnes, who allegedly would have testified that he alone was responsible for the robbery. The panel found the defendant's argument to be purely speculative and noted Barnes did not enter a plea at the time of the defendant's trial. 2005 WL 3289396, at *4. The panel found that “it was highly unlikely that Barnes would have testified in the manner [defendant] alleges he would have. Furthermore, in [defendant's] 60–1507 motion, he offers no evidence that Barnes was willing to maintain that he was the sole participant in the ... robbery.” 2005 WL 3289396, at *4. The panel found no error in denying defendant's K.S.A. 60–1507 motion. 2005 WL 3289396, at *4.
In Reynolds v. State, No. 95,875, 2007 WL 2178060 (Kan.App.2007) (unpublished opinion), the defendant alleged in his K .S.A. 60–1507 motion that trial counsel (1) failed to interview and call two witnesses who could corroborate his version of events and (2) failed to interview his codefendant. Reynolds “attempted to show he did not participate in the crime even though he was present at the scene of the crime.” 2007 WL 2178060, at *4. At the K.S.A. 60–1507 evidentiary hearing, the two witnesses testified that they did not see Reynolds or the codefendant with a gun prior to the robbery. The district court found this testimony ineffectual because it was undisputed that the codefendant later used a shotgun in the crime charged. The panel found “no reasonable probability that the proposed witnesses' testimony could have changed the jury's verdict. They witnessed events prior to the crime and could not contradict the witnesses to the crime.” 2007 WL 2178060, at *4.
As for the codefendant in Reynolds, the panel noted that it was unclear whether the court severed their trials, but the panel established that Reynolds' trial occurred in January 2001 and the codefendant's plea hearing occurred in February 2001. 2007 WL 2178060, at *4. A codefendant “ ‘has no right not to be called as a witness and can only assert a witness's privilege against self-incrimination as grounds for refusing to answer specific questions.’ “ 2007 WL 2178060, at *4 (quoting State v. Nott, 234 Kan. 34, 37, 669 P.2d 660 [1983] ); see United States v. Arcuri, 405 F.2d 691 (2d Cir.1968), cert. denied395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969); Landy v. United Sates, 283 F.2d 303 (5th Cir.1960), cert. denied365 U.S. 845, 81 S.Ct. 805, 5 L.Ed.2d 810 (1961). The panel concluded that Reynolds failed “to produce evidence about what his codefendant would have testified if called.” Reynolds, 2007 WL 2178060, at *5. Moreover, the panel stated, assuming codefendant would have testified on Reynolds behalf, “we cannot speculate how his testimony would have affected the jury's verdict.” 2007 WL 2178060, at *5. The panel found other evidence that supported Reynolds' conviction. 2007 WL 2178060, at *5.
Failure to call Seth Moore
At trial, Dick testified and called four witnesses: Otis Almon, Allen Moore, Sharon Moore, and Robin Ford. Almon testified that when he gave the truck to Dick, Hughes was with him and there was nothing in the back of the truck except for some leaves. Allen and Sharon Moore testified that Dick and Hughes worked on the truck at their residence and did not observe Dick or Hughes mix anything.
In his brief, Dick alleges that Seth “Moore would have testified that he and Hughes were working on the truck prior to the stop ... and that there had been no meth lab in the truck when he and Hughes left. Dick believed that the testimony from Moore, although the facts had been placed before the jury, would have corroborated those claims.” At the K.S.A. 60–1507 hearing, Dick testified:
“I wanted Seth and Jack. All, all the witnesses because the—in a trial if I come up and I say, well, I seen this guy didn't do something, well, that's kind of my word against everybody else's. You got five people say that they didn't see it done, it's a little more believable.”
As Dick admits, Seth Moore's testimony would have been cumulative to Sharon and Allen Moore's and Dick's testimony that Dick and Hughes worked on the truck and no mixing or manufacturing of methamphetamine occurred at the Moore residence. Even if Seth Moore testified that he did not see a methamphetamine lab in the truck when Dick and Hughes left, it is undisputed that the deputies later found a methamphetamine lab in the truck. Moreover, the State's allegation was not that the manufacturing operation occurred while they were working on the truck, but Dick and Hughes stopped after they left the Moore residence and picked up the methamphetamine lab.
Dick has failed to meet his burden. Trial counsel was not so deficient that he fell below an objective standard of reasonableness by failing to call Seth Moore. Moore's testimony would have been cumulative to facts already before the jury and could not dispute the later discovery of the methamphetamine lab; thus, his testimony would not have changed the jury's verdict.
Failure to call codefendant Jack Hughes
Dick also alleges that Hughes would have corroborated the testimony before the jury that they were working on the truck at the Moore residence prior to the traffic stop and their arrest. Further, Dick contends Hughes would have testified that he owned everything in the back of the truck, including the drug paraphernalia. Hughes' testimony would likely have been futile to Dick's defense, however. At the motion to suppress hearing, Deputy Garber testified:
“A. I asked Mr. Hughes about the items in the back. He said he did not know what it was. I then asked Roy [Dick] what the pitcher contained and he said it belonged to Jack [Hughes].
“Q. Okay. So neither party was taking responsibility for what was in the vehicle?
“A. Correct.”
At trial, on cross-examination, Deputy Garber testified:
“Q. Okay. Did you question Jack Hughes concerning what was in the back of the truck?
“A. Yes, I did.
“Q. And what did you ask him?
“A. I asked about the items in the back and the pitcher. He stated he did not know what was in the pitcher. He stated that the tools belonged to him.
...
“Q. Okay. Now, did you talk to Mr. Dick about the stuff in the back of the truck?
“A. Yes, I did.
“Q. And what did he tell you?
“A. He also denied knowing anything about the pitcher that was in the middle of the truck, but he also stated that the tools belonged to Mr. Hughes.
“Q. Didn't he say everything in the back of the truck belonged to Mr. Hughes?
“A. He said the tools belonged to Mr. Hughes because they were the tools they were using to fix the truck. Both of them denied knowing anything about the bucket and the pitcher.
...
“Q. All right. So Jack Hughes is not admitting to ownership or even knowledge of that pitcher that is in there, but all the tools are his?
“A. Correct.
“Q. All right. So based on this you have Roy Dick, the defendant here saying none of it is mine, I have no knowledge, and then you have one gentleman admitting to owning everything but this pitcher; is that correct?
“A. Correct.”
Additionally, at trial, Dick testified:
“Q. Okay. Now, did you make any statement to the officers at the time you were stopped concerning the items in the back of the truck?
“A. No. I told him I, I told him that everything in the back of the truck itself is Jack's. I didn't have nothing in the truck.... [E]verything in there was Jack's. I was just helping him get it running again.”
On cross-examination, Dick testified:
“Q. So Mr. Dick, basically what you're saying is that the meth. lab in the truck was Mr. Hughes'?
“A. I'm saying everything in the whole truck was Jack's. I didn't, I didn't know there was a meth. lab in there.”
If Hughes was called to testify, some of his testimony would have been cumulative to the testimony of Allen and Sharon Moore and Dick.
For example, on direct, Allen Moore testified:
“Q. Okay. During the time that you were there did you see any drugs?
“A. No.
“Q. Did you see them working in the back of the truck?
“A. The only thing they, I seen Jack do is go back and get tools out of the back of it.”
On cross-examination, Allen Moore testified:
“Q. I mean, as far as you never saw them doing anything, mixing anything together or anything like that?
“A. No.”
On direct, Sharon Moore testified:
“Q. Okay, and during that time do you recall them mixing any substances or anything in the back of the truck?
“A. No.
“Q. Did they use any of your outbuildings to mix anything and put it in the back of the truck?
“A. No.”
“Q. Did you notice anything in the back of the truck?
“A. Tools.”
On cross-examination, Sharon Moore testified:
“Q. All right. And it's your testimony today that you didn't see anybody, either Jack or Roy, mixing any chemicals or doing anything, putting anything like any buckets or anything in the back?
“A. No.”
The district court found “Hughes had a constitutional right to not incriminate himself, and therefore could not have been called by trial counsel as a witness for the defendant.” The case against Hughes was pending at the time of the jury trial in the underlying criminal offense in this matter, and he was not subject to being called as a witness as he was unavailable to cross-examination. Accordingly, the district court concluded that trial counsel was not ineffective for not calling codefendant Hughes.
As indicated above, Dick testified that everything in the back of the truck belonged to Hughes, but Hughes denied knowledge of the bucket or pitcher. At the time of Dick's trial, Hughes' case was still pending. Thus, it is unlikely that Hughes would have waived his Fifth Amendment right against self-incrimination to testify on Dick's behalf. Further, it is even more unlikely that Hughes would suddenly admit to owning the bucket and the pitcher that contained the drug paraphernalia being used to manufacture methamphetamine.
Dick has failed to meet his burden that trial counsel's performance was so deficient that his performance fell below an objective standard of reasonableness. Even if Hughes admitted owning the methamphetamine lab, there was other evidence that supported Dick's conviction. Thus, trial counsel did not prejudice Dick's defense.
Affirmed.