Opinion
No. 106,189.
2012-08-3
Donald FITZGERALD, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is Donald Fitzgerald's appeal from the district court's denial, after a preliminary hearing with appointed counsel but without the movant present, of his K.S.A. 60–1507 motion, claiming ineffective assistance of counsel.
The underlying criminal case resulted in Fitzgerald being found guilty of rape after a jury trial. Our court affirmed the rape conviction characterizing the evidence as “overwhelming.” See State v. Fitzgerald, No. 98,446, 2008 WL 5401322, at *5 (Kan.App .2008) (unpublished opinion), rev. denied 289 Kan. 1282 (2009) ( Fitzgerald I ).
The K.S.A. 60–1507 motion claimed that inadmissible hearsay had been admitted at trial, there were unconstitutional jury instructions and jury verdict form, and ineffective assistance of counsel. The first two contentions were deemed to be claimed trial errors required to be considered only on direct appeal. This ruling is not contested on appeal.
We will more fully set forth the detail of the ineffective assistance of counsel arguments in our full discussion of the rulings which Fitzgerald complains of on appeal.
We have examined the entire record which shows the following factual background and legal proceedings which are in part as set forth in Fitzgerald I.
In April 2006, the State removed 5–year–old C.F. from the Wichita, Kansas, apartment which she occupied with her father, her mother, and her brother. Shortly thereafter, C.F. made statements to her foster mother indicating Fitzgerald had sexually abused her.
Following an investigation by numerous Sedgwick County authorities, Fitzgerald was charged with rape or, in the alternative, aggravated indecent liberties with a child. Fitzgerald cooperated in the initial investigation proclaiming his innocence and pled not guilty to the charges.
A preliminary hearing was held and Fitzgerald was bound over on both counts. The record reflects that the court ordered that transcript of the civilian witnesses and the deposition testimony of Shawn D. Smith be prepared, but such is not in the record on appeal. At trial, counsel indicated to the court that a transcript of the preliminary hearing had not been prepared. This failure is one of the arguments Fitzgerald makes in his ineffective assistance of counsel contentions.
During Fitzgerald's trial, his then 6–year–old daughter, C.F., was called as a witness by the prosecution. But, when she was asked about the rape, she said she did not remember and began to cry. A juror called for a break and the trial court agreed.
During the break, the prosecutor announced “discussions between the parties.” Apparently, Fitzgerald did not wish C.F. subjected to more questioning. The prosecutor and Fitzgerald's counsel, in conjunction with the trial court and Fitzgerald himself, therefore worked out an arrangement.
Fitzgerald agreed to waive his constitutional right to confront C .F., and he also agreed to “allow the State to put on the balance of [her] statements through other witnesses.” The discussion then turned to C.F.'s exculpatory preliminary hearing testimony. Although a transcript of part of the testimony had been ordered, neither counsel had obtained a full transcript of the preliminary hearing. The prosecutor therefore agreed to put on C.F.'s preliminary hearing exculpatory testimony through the testimony of a detective who had been present. The prosecutor further agreed not to present inculpatory testimony from the preliminary hearing: “I'm not going to try to put in the good stuff [C.F.] said and somehow keep out the bad. I mean, if we're going to waive confrontation, the State will allow the defendant to put in the good, bad and ugly of what she said to everybody.”
The prosecutor called the detective in question, Deshonn Larkins. Detective Larkins said he was at the preliminary hearing and heard C .F. testify. According to Larkins, C.F. testified that Fitzgerald had touched her but when asked whether Fitzgerald's finger ever went inside her private area, C.F. said “no.”
As our court recognized in Fitzgerald I, the State produced other witnesses who recounted conversations with C.F. which did establish penetration. Our Fitzgerald I opinion stated:
“[T]he facts submitted to the jury included testimony from Plummer, C.F.'s foster mother, and Johnson, the social worker who interviewed C.F. According to Plummer, C.F. told her that Fitzgerald put his fingers inside C.F.'s vagina and that it hurt. Johnson testified that C.F. told her that Fitzgerald touched her vaginal area with a ‘toy penis.’ When Johnson asked C.F. how she was touched with the toy penis, C.F. reportedly described the penis as being inside her vagina part way. Johnson then provided C.F. with an anatomical doll and asked C.F. to show her how Fitzgerald had touched her. Using a white pen as the toy penis, C.F. inserted the pen inside the vaginal opening of the doll.” 2008 WL 5401322, at *5.
Our court in Fitzgerald I upheld the rape conviction although it reversed the conviction for aggravated indecent liberties with a child as being multiplicitous.
Included in Fitzgerald's K.S.A. 60–1507 motion was the claim that trial counsel “failed to investigate ‘any’ of the preliminary hearing transcripts and obtain such transcripts when essential need presented itself at trial.” Fitzgerald alleged the “[p]reliminary hearing evidence still exist [ sic ] that ‘no’ touching occurred.” Fitzgerald maintained that without the transcript, the “other state's witnesses ... became insulated from impeachment ... where [n]one of the preliminary hearing transcripts had been investigated.” Fitzgerald further argued in his pro se motion that his trial counsel was ineffective because counsel advised Mr. Fitzgerald to waive his constitutional right of confrontation of the complaining witness in his case. He argued that no competent counsel would ever allow his client to make such a waiver.
The district court appointed counsel for Fitzgerald and held a preliminary hearing after the State had filed a 6–page response which attached pages 90–103 of the trial transcript which the State alleged shows that movant knowingly and intelligently waived his right to confront the victim. The State further contended that trial counsel was able to
“(1) highlight inconsistencies and contradictions in the victim's previous statements, (2) attack the interview techniques, (3) reveal ways in which the victim may have been contaminated (by law enforcement or her home environment), and (4) generally argue that the victim's allegations resulted from contact she had with her mother's vibrator and older sibling.”
Fitzgerald's court-appointed K.S.A. 60–1507 counsel informed the court he had talked to Fitzgerald, they had corresponded, and counsel further indicated he had reviewed the transcripts, the criminal file, and the record on appeal. Counsel covered Fitzgerald's four basic reasons for the 1507, “the first two are claims of ineffective assistance of counsel, the third is a hearsay argument and the fourth is an argument with regard to the jury instructions.” Fitzgerald's counsel proceeded to fully argue and present movant's arguments and contentions as to each contention.
The State summarized the answer which it had filed with the complete transcript of the waiver of confrontation proceedings involving the alleged victim, his daughter. The State pointed out that this was a strategic decision and that Fitzgerald attempted to obtain benefit of the decision both at trial and at the time of sentencing. The State further argued that Fitzgerald's trial counsel was fully aware of everything that had happened at the preliminary hearing as shown by trial counsel referring at trial to testimony from the preliminary hearing. The alleged trial errors, the State claimed, had to have been pursued as issues in the direct appeal.
The court agreed that trial errors had to be included in the direct appeal and could not be considered here and were ordered dismissed.
The trial court held that as to confronting the victim, the record was ample that it was a knowing and voluntary waiver, it had been explained in detail, and was “clearly a trial strategy issue.”
With regard to the lack of a preliminary hearing transcript, the trial court held the record showed trial counsel was aware of the substance of the witnesses' testimony and was able to seize on any inconsistencies and ultimately held, “I don't think any additional evidence is required on that point.”
The court concluded that the files and records conclusively show the movant is not entitled to the relief requested, and the court adopted as its opinion the response of the State.
The district court later filed a memorandum opinion which provided an additional basis for its ruling: “And [C.F.] did not testify at trial, thereby eliminating the potential to use the transcript to impeach her credibility at trial. Thus, to the extent movant is contending that the preliminary hearing transcript was necessary for trial counsel to pursue the penetration/touching issue, his contention is refuted by the record.”
From this ruling, Fitzgerald appeals.
Fitzgerald's primary argument on appeal is that an evidentiary hearing should be held because the prosecutor did not perform his end of the agreement concerning presenting to the jury C.F.'s preliminary hearing testimony concerning the absence of penetration by her father. In his brief, Fitzgerald argues: “[A]s far as counsel can tell from his review of the transcript, neither party ever presented the evidence to the jury that [C.F.] had previously testified under oath that there had been no digital penetration.” Fitzgerald suggests this alone should justify requiring an evidentiary hearing. Fitzgerald also maintains the district court “wrongfully found that the preliminary hearing transcripts could not have been used as impeachment because the witness did not testify.” The State responds that “the record directly refutes” Fitzgerald's arguments.
This court reviews the district court's decision under the findings of fact and conclusions of law standard. It must determine whether substantial competent evidence supports the district court's findings of fact and whether those findings support the district court's conclusions of law. The district court's ultimate conclusions of law, including an ineffective assistance of counsel, are reviewed de novo. See Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009); Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007).
Our review of the record confirms that Fitzgerald misreads the record. As we have previously set forth, Detective Larkins was called by the State and clearly recalled for the jury C.F.'s preliminary hearing testimony that while she said Fitzgerald had touched her, when asked whether his finger ever went inside her private area, C.F. said, “no.” This enabled Fitzgerald to argue that the alleged victim's direct testimony was that penetration never occurred.
This testimony may have been refuted by other statements, but it placed Fitzgerald's relationship with and affection for his daughter in the best possible light with the jury and was a realistic trial strategy for the best possible result in a difficult case.
The one specific claim made by Fitzgerald on appeal that trial counsel was ineffective for failing to ensure that the jury heard evidence that the victim testified at preliminary hearing that “there had been no penetration” is directly refuted by the record.
There is no basis shown on appeal for Fitzgerald's single statement in his brief on appeal that the trial court “wrongfully found that the preliminary hearing transcripts could not have been used as impeachment because the victim did not testify.” C.F. did, in fact, testify, if only briefly, before the agreement between the parties concerning confrontation was reached. Fitzgerald, on appeal, does not argue that it was ineffective assistance of counsel for such an agreement to have been reached and under our rules and decisions, he has waived such an argument. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011) (issue not briefed is deemed waived or abandoned).
Fitzgerald does not directly on appeal raise the question of whether the absence of a preliminary hearing transcript prevented trial counsel from effectively cross-examining witnesses other than C.F. As such, under McCaslin, his issue may well be deemed abandoned. However, because the absence of a transcript of the preliminary hearing was questioned by Fitzgerald as one of the bases for his ineffective assistance of counsel argument, we will briefly consider this question.
The record clearly reflects that the same counsel that represented Fitzgerald at trial also represented him at the preliminary hearing. As such, this fact provides a substantial basis for the trial court's finding and ruling that the necessity of a preliminary hearing transcript in every matter is “problematic at best.” The trial court continued:
“I think what's important is is counsel aware of the substance of the witnesses' testimony at the preliminary hearing and is counsel able to seize upon any important inconsistencies at trial versus testimony from the preliminary hearing. I believe the record shows that trial counsel, in fact, was sufficiently aware and I don't think any additional evidence is required on that point.”
We agree with the trial court. The record shows effective cross-examination of all the prosecution witnesses. The absence of a transcript from the preliminary hearing was not ineffective assistance of counsel. It in no manner restricted trial counsel's ability to effectively cross-examine the prosecution witnesses.
Finally, with respect to the ultimate question of ineffective assistance of counsel, Fitzgerald bore the burden to show his counsel performed “below an objective standard of reasonableness, considering all the circumstances,” and that “but for counsel's deficient performance, there is a reasonable probability that the outcome of the proceeding would have been more favorable to the defendant.” Rowland v. State, 289 Kan. 1076, Syl. ¶ 2, 219 P .3d 1212 (2009). There is absolutely no basis for an evidentiary hearing on this question.
We conclude the trial court correctly concluded that the “files and records of the case conclusively show” Fitzgerald was “entitled to no relief.” Supreme Court Rule 183(f) (2011 Kan. Ct. R. Annot. 260).
Affirmed.