Opinion
No. 106,140.
2012-10-5
John F. FRANCIS, Appellant, v. STATE of Kansas, Appellee.
Appeal from Johnson District Court; James Franklin Davis, Judge. Stacey L. Schlimmer, of Olathe, for appellant, and John F. Francis, appellant pro se. Andrew J. Dufour, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; James Franklin Davis, Judge.
Stacey L. Schlimmer, of Olathe, for appellant, and John F. Francis, appellant pro se. Andrew J. Dufour, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McAnany, P.J., HILL, J. and Bukaty, S.J.
MEMORANDUM OPINION
PER CURIAM.
After several claims in his motion for habeas corpus relief were rejected by the district court, John F. Francis, serving a life sentence for first-degree murder of Clem Hollingsworth IV, asks us to overturn his conviction because his defense counsel was ineffective. In the most significant issue raised by Francis, he claims his defense counsel, Bob Thomas, had a conflict of interest because he represented one of the State's witnesses at the preliminary hearing of this case. Under Kansas law, to be reversible, a defendant must demonstrate that a conflict of interest for defense counsel affected the adequacy of counsel's representation. According to the record, Thomas met with the State's witness for about 20 minutes and advised him about exercising his Fifth Amendment privileges against self-incrimination. In addition, Francis, advised of the conflict, signed a waiver of the conflict when he sought out and hired Thomas to represent him. In addition, the witness waived the conflict with counsel representing Francis. Given these facts, we find no reversible conflict of interest. We summarily reject the remaining issues raised by Francis at the end of this opinion.
We give a brief synopsis of the crime.
Our Supreme Court affirmed Francis' conviction and sentence on direct appeal. State v. Francis, 282 Kan. 120, 145 P.3d 48 (2006). The facts will not be repeated here.
Francis seeks postconviction relief
Francis filed a pro se K.S.A. 60–1507 motion, arguing his trial counsel was ineffective for failing to: (1) call alibi witness Latosha Hickman; (2) call three eyewitnesses who could contradict the testimony of Sharon Hollingsworth; (3) adequately review discovery materials; (4) retain a ballistics expert; and (5) designate a full and accurate appellate record.
The district court summarily denied Francis' K.S.A. 60–1507 motion, finding that he failed to raise any substantial issues of fact or questions of law. On appeal, this court ruled that an evidentiary hearing was necessary to address whether trial counsel was ineffective in failing to present Hickman's testimony. The panel did not address Francis' remaining claims, reversed the district court's ruling, and remanded with directions to conduct an evidentiary hearing on each claim of ineffective assistance of counsel. Francis v. State, No. 99,596, 2009 WL 1312561, at *5 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1093 (2010).
After that, the district court held an evidentiary hearing on Francis K.S.A. 60–1507 motion and permitted Francis to amend his motion to include allegations that his trial counsel was ineffective for: (1) failing to address a conflict of interest; and (2) not reviewing discovery related to cell phone records. After taking the matter under advisement, the district court denied Francis' motion.
In this appeal, Francis identifies six instances of alleged ineffective assistance of counsel. Specifically, Francis argues that Thomas was deficient for failing to: (1) address a conflict of interest with his representation of Corey Shannon, a witness at the preliminary hearing; (2) call alibi witness Hickman; (3) investigate three eyewitnesses to impeach the State's witness Hollingsworth; (4) investigate Reggie Gant as a potential witness/suspect; (5) review and present telephone records used by the State to attempt to place Francis at the crime scene; and (6) review or independently test ballistics evidence and retain a ballistics expert. We will address those claims in that order after we review some fundamental points of law that guide our determinations in this case.
We list our rules of review.
When the district court denies a K.S.A. 60–1507 motion after an evidentiary hearing, this court on appeal must determine whether the district court's factual findings are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. Bledsoe v. State, 283 Kan. 81, 88, 150 P.3d 868 (2007). Substantial competent evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can be reasonably determined. Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 709, 216 P.3d 170 (2009). Judicial scrutiny of counsel's performance when considering a claim of ineffective assistance of counsel must be highly deferential. There is a presumption that counsel's conduct falls within the wide range of reasonable professional assistance. State v. Betts, 272 Kan. 369, 387–88, 33 P.3d 575 (2001), overruled on other grounds State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006).
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. To merely surmise, with the benefit of hindsight, that another attorney may have tried the case differently is insufficient. Rather, before counsel's assistance is determined to be so defective as to require reversal of a conviction, the defendant first must establish that counsel's performance was constitutionally deficient. This 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. Second, the defendant must then establish that counsel's deficient performance prejudiced the defense. To establish prejudice, there must be a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
The conflict of interest was not reversible.
Simply put, Francis claims that Thomas' conflict of interest due to his prior representation of Shannon, a witness under subpoena by the State to testify at the preliminary hearing, rendered his assistance ineffective. We are not persuaded that Thomas' conflict affected his representation of Francis, and Francis is bound by his waiver of this claim when he hired Thomas to represent him.
Our Supreme Court has established the rule we must follow when we make this type of decision. To demonstrate that a conflict of interest resulted in ineffective assistance of counsel, a defendant has the burden of proving a reversible conflict—that is, (1) a conflict of interest (2) that affected the adequacy of the attorney's representation. A defendant who can demonstrate that a conflict of interest affected the adequacy of his or her counsel's representation need not demonstrate prejudice in the traditional sense, which requires the defendant to prove that counsel's deficient performance affected the outcome of the trial, due to the difficulty of establishing such a claim in cases based on conflicting loyalties. Boldridge v. State, 289 Kan. 618, 622–23, 215 P.3d 585 (2009). We recount the facts that created the conflict.
At Francis' preliminary hearing on April 5, 2002, the district court appointed Thomas to represent Shannon as special counsel to determine whether Shannon could assert his Fifth Amendment right against self-incrimination. After an in-camera interview, the district court allowed Shannon to invoke his Fifth Amendment right. Thomas subsequently met with Francis on March 21, 2003. Three days later, Francis signed a waiver of any conflict of interest that could result from Thomas's prior representation of Shannon. On March 26, 2003, Thomas entered an appearance in Francis' case. Thomas filed a comparable waiver of conflict of interest signed by Shannon on September 26, 2003.
At the K.S.A. 60–1507 evidentiary hearing, Thomas testified that he represented Shannon for approximately 1 1/2 hours for the limited purpose of Shannon asserting his Fifth Amendment right. Thomas testified that he only spoke with Shannon for 15 to 20 minutes during this time. Thomas also testified at the scheduling conference that during his brief interaction with Shannon he did not learn anything he could use to cross-examine Shannon.
In this appeal, Francis argues the district court erroneously determined no conflict of interest existed. Francis claims that the district court only based its findings on the February 19, 1998, video entered into evidence and subsequently determined to be admissible by the Kansas Supreme Court. Francis asserts the district court failed to consider the hearsay statements admitted without objection on a February 21, 1998, video in which Sharon and Clem Hollingsworth told a detective statements Shannon had made to them during a phone call. Francis argues that Thomas' loyalty to Shannon created a conflict of interest that adversely affected Thomas' representation because it prevented him from objecting to the admitted hearsay statements in the February 21, 1998, video or attacking Shannon's credibility.
When the district court dealt with this issue, it ruled, “With no admission of a hearsay statement by Shannon, no conflict can be shown.” The record indicates that the jury only saw the conversation between the Hollingsworths at the beginning of the February 21, 1998, video, not the objectionable portion of the video with the detective. After playing the video to the jury, the State asked Sharon Hollingsworth, “Sharon, that is a fair and accurate depiction of the conversation you had with your husband?” The prosecutor did not follow up this question with a similar question regarding the conversation with the detective. This court “must accept as true the evidence and all inferences drawn from the evidence that tend to support the findings of the district judge.” [Citation omitted.] Bledsoe, 283 Kan. at 88.
In addition, the transcripts reveal that Thomas did not appear to have reservations impeaching Shannon if necessary, as evidenced during the cross-examination of Sergeant Mike Daniels where Thomas elicited testimony that Shannon was one of three suspects in an unrelated 1995 murder. As the district court noted, even had Francis been represented by another counsel, that counsel would not have been able to elicit testimony from Shannon to attack Shannon's credibility because Shannon clearly asserted his Fifth Amendment right. When a witness validly invokes his or her Fifth Amendment right against self-incrimination, the witness is unavailable for cross-examination and any prior statements constitute inadmissible hearsay unless a statutory exception is applicable. See State v. Palmer, 8 Kan.App.2d 1, 2–3, 657 P.2d 1130 (1982).
Given the record before us, we cannot see that the conflict created by Thomas' brief representation of Shannon, who exercised his constitutional right against self-incrimination, affected Thomas' representation of Francis. Thus, we conclude that the conflict is not reversible. See Boldridge 289 Kan. at 622–23. We turn now to the signed waivers of the conflict.
We note the following written exhibit was filed with the district court:
:” WAIVER OF CONFLICT OF INTEREST
I, John Francis, acknowledge that Bob L. Thomas has informed me of the possibility of a conflict of interest being created by him representing me in Johnson County Case No. 01CR 0786. Mr. Thomas has provided me with a copy of Kansas Supreme Court Rule 7.1, which relates to Conflicts of Interest. Mr. Thomas has advised me that I can consult with another attorney regarding this matter if I so choose and Mr. Thomas has allowed me sufficient time to do so. By signing this document I waive any conflict of interest that could result from Mr. Thomas' prior representation of Corey Shannon. I understand that if a direct conflict of interest should arise at some point in the future Mr. Thomas would have to seek to withdraw as my attorney. I hereby by [ sic ] consent to Mr. Thomas' representation of myself with the knowledge of his prior representation of Corey Shannon in the same pending criminal matter.”
The record also discloses that Shannon signed a comparable waiver. We cannot ignore the significance of these waivers. These two exhibits show the informed consent given by Francis and the witness, Shannon. Our Supreme Court has recognized that the Code of Judicial Conduct (2011 Kan. Ct. R. Annot. 683) and the Kansas Rules of Professional Conduct (2011 Kan. Ct. R. Annot. 407) for attorneys provide for a waiver of a conflict of interest in circumstances where “all parties give informed consent to the conflicted representation and where this consent is memorialized in writing.” Boldridge, 289 Kan. at 626.
In our view, the district court did not err when it ruled that this conflict was not reversible.
The district court's finding of credibility binds our decision about calling a witness.
Francis claims Thomas was ineffective for failing to call Hickman, his ex-wife, as an alibi witness. Francis argues Thomas' failure to have Hickman testify to his alibi prejudiced him because a reasonable probability existed that the result of the trial would have been different had the jury heard that he was at home with Hickman the night of the murder. A factual context is important here.
At the end of the third day of trial, at approximately 3:35 p.m., Thomas reiterated to the district court that Hickman would be testifying as an alibi witness, but he needed a continuance because Hickman had failed to show up despite being served with a subpoena and his unsuccessful efforts to communicate with her. The district court granted a continuance until 9 a.m. the next day. The next day of trial, the defense rested without presenting Hickman as an alibi witness.
This is an important point in this case for it is one of the reasons this court remanded the matter. In ordering remand, this court ruled that an evidentiary hearing was necessary to determine whether Hickman's failure to testify resulted from (1) Hickman refusing to comply with her subpoena; (2) Thomas' trial strategy; (3) Thomas' failure to make a reasonable effort to locate Hickman or to seek a continuance; or (4) some other reason not clear from the record. Francis, 2009 WL 1312561, at *5.
The evidence from the K.S.A. 60–1507 hearing on this point demonstrated a conflict. Thomas testified that he located Hickman during the continuance and had explained to her on the phone that she needed to testify the next day whether Francis was with her on the day Hollingsworth was killed. Thomas testified that Hickman replied, “I don't remember that,” meaning she did not “remember that day, period.” When Thomas told Hickman that she was subject to subpoena and would be brought in to testify as an alibi witness, Hickman replied, “If you put me on the stand, I'll say I don't remember.” At that point, Thomas testified that he made a reasoned decision to tell Hickman not to testify because he believed if Hickman actually testified she did not remember what happened that day it would “make us look foolish and it would hurt John Francis' case.” Thomas also clarified that the reason why he did not make a record of this conversation with Hickman or notify the prosecutor the next morning was that he did not make a habit of telling “bad things that were happening in my case.”
In turn, Thomas did notify Francis that Hickman would not be testifying. Hickman, however, testified at the evidentiary hearing that she never had any conversations with Thomas about this case and she never received a subpoena to testify. The State, however, presented evidence of a subpoena ordering Hickman to appear at Francis' trial on November 5, 2003, at 9 a.m. Kyle Jones, a private investigator, testified to having personally served Hickman with this subpoena on October 21, 2003.
At this point, the district court ruled that Thomas' testimony about why Hickman did not appear was more credible than Hickman's. To the extent that the district court based its ruling on the assessment of witness credibility, the decision is not reviewable by this court. See State v. Moore, 269 Kan. 27, 30, 4 P.3d 1141 (2000); State v. Scott, 39 Kan.App.2d 49, 54, 177 P.3d 972 (2008). We are bound by such determinations.
The record reveals that Thomas made efforts to investigate Hickman, as evidenced by listing Hickman as an alibi witness on the notice of alibi defense filed on August 26, 2003. Given Hickman's response to Thomas that she would not corroborate Francis' alleged alibi if forced to testify, substantial competent evidence supports the district court's finding that Thomas made a reasonable tactical decision not to use Hickman as a supporting witness because she could prove hostile and not help Francis' defense.
Our rule on this point is clear. “The decision of whether to call a particular witness is a matter of trial strategy. [Citation omitted.] ‘Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.’ [Citations omitted.]” Alderson v. State, 36 Kan.App.2d 29, 36, 138 P.3d 330,rev. denied 282 Kan. 788 (2006); see State v. Sanford, 24 Kan.App.2d 518, 522–23, 948 P.2d 1135,rev. denied 262 Kan. 968 (1997). Francis' ineffective assistance of counsel claim on this point is not persuasive.
We turn to the issue about three witnesses.
Francis claims Thomas was ineffective for failing to investigate and interview Al Reza Messchi and Robert and Theresa Gibson, eyewitnesses at the murder scene. Francis argues the police report available to Thomas indicated Messchi's testimony could have undercut the reliability of Sharon Hollingsworth's testimony that there were two suspect vehicles involved in the shooting because Messchi stated there were only two vehicles at the crime—the victim's vehicle and the perpetrators' vehicle. In addition, Messchi could have identified another possible murder weapon than the .38–caliber Taurus revolver recovered from Francis' residence. Similar to his argument for Messchi, Francis argues that the Gibsons would have corroborated Messchi's testimony that only two vehicles were involved in the shooting.
We think the ruling of the district court on this point is significant. The district court rejected Francis' allegation, finding that even assuming Messchi and the Gibsons had testified as Francis claimed, Francis presented no evidence that “these individuals' eyewitness accounts would have affected Hollingsworth's credibility, or that failure to investigate them deprived [Francis] of a fair trial.” The district court pointed out that the forensic evidence, which “showed that the victim car sustained countless bullet holes and broken windows and that multiple types of weapons were used,” contradicted both Messchi's and the Gibsons' statements. In addition, unlike Hollingsworth's proximity to the suspect vehicle and the fact that she witnessed the entire event, Messchi did not view the events from a vantage point where he could have identified any of the individuals in the suspect car. The district court concluded that Thomas' decision not to investigate these witnesses did not prejudice Francis because whatever questionable evidence Messchi and the Gibsons could have presented was of “very little relevance considering Sharon Hollingsworth's identification of [Francis].”
In response to these allegations, Thomas testified that his trial strategy was to impeach Hollingsworth's testimony. This strategy coincides with the Kansas Supreme Court's finding that the jury would have considered Hollingsworth's credibility as being critical to the State's burden. See Francis, 282 Kan. at 137. As the district court noted, Thomas was aware of the strength of Hollingsworth's testimony and the potential accounts from the three eyewitnesses. Thomas also testified that he reviewed the eyewitness reports by comparing the eyewitness testimony with Hollingsworth's testimony and ultimately concluded, “they simply didn't add anything to our defense.” When asked why he did not consider calling Messchi and the Gibsons as witnesses to contradict Hollingsworth's testimony about the number of suspect cars, Thomas responded:
“Well, Sharon said in one or two interviews that she wasn't sure if it was one or two cars. The issue in the case was if it [was] one or two? Was it a white or gray car, whether it was a Lumina or an Oldsmobile. Those things were all floating around there. The issue was, was John Francis in that car and those witnesses would have done very little to impeach Ms. Hollingsworth's testimony, that I saw John Francis, I saw his face. That's what the case was about; that is, Sharon Hollingsworth saw John Francis' face, not that I saw his face in a Lumina.”
Prior cases have stated our rule on such points. Trial counsel's strategic choices made after less than a complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. Alderson, 36 Kan.App.2d at 36.
Here, even if we believe that Thomas' investigation of the potentially exculpatory eyewitness testimony was deficient, Thomas simply made a strategic decision not to call Messchi and the Gibsons to testify. Thomas had a reasonable belief that Messchi and the Gibsons had nothing material to offer his defense in furtherance of his trial strategy. The police reports do not indicate these eyewitnesses could refute Hollingsworth's claim that she saw Francis in the suspect vehicle. The fact that the victim's car had shattered windows and many bullet holes in it and the forensic evidence indicated the numerous recovered shell casings came from five different weapons clearly impeached the eyewitnesses' credibility. Given these facts, there was no reasonable probability that eyewitness testimony from a limited vantage point at approximately 3 a.m. about the number of vehicles involved and the make and models of those vehicles would have ultimately affected the outcome of the case. See Harris, 288 Kan. at 416. Simply put, we cannot hold that Thomas was ineffective in his representation of Francis by not calling these witnesses.
There is no evidence of a tape recording of Reggie Gant in the record.
Francis claims Thomas failed to properly investigate and subpoena Reggie Gant. Francis asserts that Thomas was aware that Detective Mike Daniels met Sharon HoUingsworth to record a phone conversation with Gant, and during this conversation HoUingsworth told Gant to turn himself in for the murder of Clem HoUingsworth. Francis argues that had Thomas investigated this conversation he could have found evidence to impeach Hollingsworth's testimony that she saw Francis the night of the murder. The trouble with this argument is that there is no such tape recording in the record.
Francis' cite to Sergeant Daniels' investigation report to support his claim of what was allegedly said between Hollingsworth and Gant only notes that on May 1, 1998, “Sharon Hollingsworth taped phone call with Gant.” The record, however, does indicate that Thomas sufficiently investigated the existence of this alleged recording. At the evidentiary hearing, Francis testified that he told Thomas there was “a copy of a tape that Ms. Hollingsworth is saying that she seen [Gant] do the killing and turn himself in.” Thomas testified that when Francis told him there was a recording of Gant talking to Hollingsworth that had exculpatory information, he first determined that his discovery files did not include this audio recording and then demanded by letter and pleading that the State produce it. The State subsequently informed Thomas that it did not have such a recording. Finally, in support of a posttrial motion for new trial based on newly discovered evidence, Thomas claimed the existence of the alleged recording between Hollingsworth and Gant.
Once again we enter into the territory of trial strategy. Obviously, Thomas' strategy was to paint Gant as one of several possible suspects. To accomplish this, Thomas filed a pretrial motion to predetermine the admissibility of evidence, in which Thomas sought and ultimately received the district court's permission to argue that Richard Johnson, Jason Smith, Alex Adams, and Gant all had motives to kill Clem Hollingsworth. Thomas carried this theme over to trial. By questioning whether Thomas should have subpoenaed Gant, Francis is inappropriately challenging trial strategy. See State v. Barahona, 35 Kan.App.2d 605, 611, 132 P.3d 959,rev. denied 282 Kan. 791 (2006). In addition, the record shows Thomas sufficiently impeached the credibility of Sharon Hollingsworth's eyewitness testimony by calling into question inconsistencies in her statements regarding the level of certainty of her identification of Francis as the passenger in the suspect vehicle and whether she actually witnessed firearms being used outside the suspect's car window.
This court is in no position to question Thomas' strategic decisions. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
We find no significant problem with counsel's treatment of the phone records.
Francis claims Thomas was ineffective for not properly reviewing and investigating cell phone records. At trial, Sergeant Daniels testified that cell phone records indicated Michael Williams and Richard Johnson called Francis on the evening of the murder at 7:57 p.m. and 8:27 p.m. respectively. Sergeant Daniels traced the cell phone records of both Williams and Johnson after 1:27 a.m. to the murder scene. Sergeant Daniels testified that Francis did not receive any cell phone calls after 8:41 p.m. No phone calls made or received between 8:41 p.m. and 1:27 a.m. from Williams', Johnson's, or Francis' cell phones were admitted into evidence. The cell phone records did not show any phone calls were made or received by Francis' cell phone after 1:27 a.m.
Sergeant Daniels theorized that the two phone calls made to Francis at 7:57 p.m. and 8:27 p.m. were to arrange to pick up Francis and Francis was with Williams and Johnson after 1:27 a.m. Thomas challenged the cell phone record evidence during closing arguments when he argued:
“They don't place [Francis] at Harrah's, which is where the State contends [the victim] was followed from and don't place him at the crime scene. Those cellphones don't tell you anything other than [Johnson] should be sitting over here or Michael Williams should be sitting over here. That's all those cellphone records tell you.”
Francis argues that the admission of records showing that he received a phone call at 10:04 p.m. the night of the murder would have impeached Sergeant Daniels' testimony that Francis did not have any phone calls after 8:27 p.m. Francis notes that Williams' additional cell phone records not admitted into evidence also showed Williams made a phone call at 10:07 p.m. Francis claims that a comparison of the 10:04 p.m. and 10:07 p.m. phone calls would have shown that Francis was not with Williams at that time. Francis argues that Thomas' failure to fill in the gaps of the cell phone timeline and refute the cell phone evidence affected the jury's decision to convict him.
Our Supreme Court determined the significance of this evidence previously, when it held that “the critical issue for the jury would have been the credibility of Sharon Hollingsworth, who identified Francis as being at the murder scene.” Francis, 282 Kan. at 137. The fact that Francis received a phone call at 10:04 p.m., or where Francis was at the time of this phone call in relation to where Williams was at 10:07 p.m., is not relevant to where Francis was at approximately 3 a.m. when Hollingsworth identified Francis at the murder scene. Nor would it have precluded the jury from reasonably concluding Francis was picked up sometime after 10:07 p.m. The district court correctly ruled that Francis suffered no prejudice in this regard.
Francis fails to show that additional ballistics evidence would have been helpful.
Francis claims Thomas was ineffective in his handling of the ballistics evidence. Specifically, Francis argues Thomas should have produced a ballistics expert to rebut the State's ballistics expert, Michael Kelty, and tested all the ballistic evidence at the murder scene to rule out the Taurus revolver as the murder weapon.
The record indicates that Thomas sent Francis a letter prior to trial outlining his strategy to hire an expert with the goal to “exclude the .38 Caliber Taurus revolver that the State is trying to admit into evidence.” Thomas subsequently retained Richard Ernest to test the Taurus revolver and the bullet jacket recovered from Hollingsworth. Ernest concluded the bullet jacket “can neither be identified nor eliminated as being fired from the revolver.” Ernest's report also pointed out that there are “literally millions” of firearms with the same rifling structure as the Taurus revolver. Thomas elected not to have Ernest testify.
Whether further ballistic testing would have specifically excluded the Taurus revolver as the murder weapon and affected the outcome of trial is clearly a challenge to trial strategy. See Barahona, 35 Kan.App.2d at 611. Even had we found that Francis met the first step of the analysis that Thomas' performance was deficient for failing to do further ballistic testing and have an expert testify, Francis suffered no prejudice. See Harris, 288 Kan. at 416.
We turn to the pro se arguments of Francis.
Francis' pro se claim is that Thomas failed to designate a full and accurate appellate record. Thomas represented Francis at trial and on direct appeal. Specifically, Francis argues that Thomas failed to include the medical records of Tony Gillihan, the bail bondsman, and to emphasize the inconsistencies in Gillihan's testimony.
The issue of Gillihan's credibility was originally addressed by the district court adjudicating Francis' posttrial motion to dismiss, which alleged the State failed to provide exculpatory evidence of Gillihan's contradictory statements and posttraumatic stress disorder (PTSD). The district judge denied Francis' motion to dismiss:
“I recall the testimony of Mr. Gillihan at the preliminary hearing. It was strikingly consistent and similar to what he offered at trial. This case that he had some difficulty right before he came in the courtroom sounds to the Court like a case of stage fright in a case where there is violence such as occurred in this case.
“There was undoubtedly some stress. There was stress probably on most witnesses' part coming in the courtroom. I don't believe this is—rises to the issue that we need to dismiss this action.
“As far as I'm concerned, the jury heard the testimony of Mr. Gillihan. This Court heard it twice. It was consistent. And according to other trial testimony was consistent with what he had told the police even years before the preliminary hearing.”
Francis advanced this same argument when he appealed his conviction, sentence, and all other adverse rulings to the Kansas Supreme Court. After finding that the district court erred in sustaining the State's objection to the testimony regarding Gillihan's alleged PTSD, the court similarly rejected this argument. See Francis, 282 Kan. at 148–49, 152.
Thomas' failure to include Gillihan's statements and medical records in the appellate record was not ineffective assistance of counsel because the outcome of Francis' appeal would have been the same. Francis, however, ignores the Kansas Supreme Court's finding on this issue and clings to its statement that trial counsel failed to designate a record of Gillihan's alleged inconsistencies during the direct appeal. Francis then uses this statement to justify his ineffective assistance of counsel claim and corresponding argument that “the outcome of the trial would have been different” had Thomas made a complete record of Gillihan's medical records and the inconsistencies in Gillihan's testimony. In other words, Francis is essentially rearguing this issue from his posttrial motion to dismiss and trying to circumvent the Kansas Supreme Court's concurrence with the consistency of Gillihan's testimony.
Claims we will not address.
Francis claims that his K.S.A. 60–1507 counsel, Stacy Schlimmer, was ineffective at the evidentiary hearing for not challenging the consistency of Gillihan's prior testimony and for abandoning the same issue on appeal here. Despite claiming to have made “repeated” requests prior to the evidentiary hearing that Schlimmer should include the “Tony Gillihan issue” in the amended K.S.A. 60–1507 motion, Francis did not notify the district court of his dissatisfaction with Schlimmer's failure to do so. Francis is precluded from raising this issue here. See State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006).
Similarly, for the first time, Francis argues that he was denied a fair trial based on cumulative error. On appeal, this court will not hear issues that an appellant failed to bring before the lower court. Because Francis failed to give the district court the opportunity to evaluate this claim, Francis cannot raise it now. See Rojas, 280 Kan. at 932.
We affirm the district court's denial of habeas corpus relief to Francis.